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[ "FIRST SECTION CASE OF TAMER v. TURKEY (Application no. 28002/95) JUDGMENT (Friendly settlement) STRASBOURG 9 January 2003 In the case of Tamer v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrG. Bonello,MrR. Türmen,MrP.", "Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrV. Zagrebelsky, judges,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 12 December 2002 Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28002/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Turkish national, Tuna Tamer (“the applicant”), on 30 March 1995. 2. The applicant did not appoint a lawyer for his representation before the Court and the Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings brought against him contravened the reasonable time requirement and that his right to a fair trial has not been respected.", "Furthermore he complained under Article 4 of Protocol No. 7 to the Convention that he was tried twice for the same offence. 4. The case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.", "5. On 22 June 1999 the Court communicated the complaint regarding the length of the criminal proceedings to the Government and rejected the remainder of the application. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1) . This case was assigned to the newly composed First Section.", "7. On 13 June 2002, having obtained the parties' observations, the Court declared the application admissible in so far as it had been communicated to the Government. 8. On 1 July 2002, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 5 July 2002 and on 8 October 2002 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case.", "THE FACTS 9. The applicant was born in 1945 and lives in Istanbul. 10. In an indictment dated 22 December 1980, the Kırklareli Public Prosecutor charged the applicant, under Article 240 of the Criminal Code, with abuse of office by assisting and protecting smugglers. 11.", "On 23 February 1982 the Tekirdağ Assize Court convicted the applicant for abuse of office and sentenced him to one year and eight months' imprisonment and to a heavy fine. The applicant appealed. On 30 June 1982 the Court of Cassation quashed the judgment. 12. The Tekirdağ Assize Court subsequently joined the applicant's case with another case of collective smuggling initiated against 13 co-accused.", "13. On 12 December 1990 the Tekirdağ Assize Court convicted the applicant and the other co-accused for collective smuggling and sentenced the applicant to one year and eight months' imprisonment. On 15 April 1992 the Court of Cassation upheld the judgment of the Tekirdağ Assize Court. 14. On 23 September 1992 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation's judgment dated 15 April 1992.", "15. On 5 November 1992 the Tekirdağ Assize Court admitted the applicant's request that his case be re-opened and initiated new proceedings. On 16 September 1993 the Tekirdağ Assize Court convicted the applicant confirming its former judgment of 12 December 1990. 16. The applicant appealed.", "On 5 October 1994 the Court of Cassation upheld the Tekirdağ Assize Court's judgment of 16 September 1993. 17. On 7 December 1994 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of its decision. 18. On 15 February 1995 the Tekirdağ Assize Court rejected the applicant's second petition that his case be re-opened.", "THE LAW 19. On 8 October 2002 the Court received the following declaration from the Government: “I declare that the Government of Turkey offer to pay 10,000 (ten thousand) euros to Mr Tuna Tamer with a view to securing a friendly settlement of the application registered under no. 28002/95. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the decision by the Court pursuant to the Article 39 of the European Convention on Human Rights. This sum shall be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable.", "The payment will constitute the final resolution of the case. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after the Court's decision has been delivered.” 20. The Court received the following declaration signed by the applicant: “I note that the Government of Turkey are prepared to pay the sum of 10,000 (ten thousand) euros covering pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of application no. 28002/95 pending before the Court. I accept the proposal and waive any further claims against Turkey in respect of the facts of this application.", "I declare that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and the applicants have reached. I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after the Court's decision has been delivered.” 21. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).", "22. Accordingly, the case should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2. Takes note of the parties' undertaking not to request a rehearing of the case before the Grand Chamber.", "Done in English, and notified in writing on 9 January 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF R.H. v. FINLAND (Application no. 34165/05) JUDGMENT STRASBOURG 2 June 2009 FINAL 02/09/2009 This judgment may be subject to editorial revision. In the case of R.H. v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 May 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34165/05) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr R.H. (“the applicant”), on 22 September 2005.", "The President of the Chamber decided of his own motion that the applicant’s identity should not be disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mr Hannu Koski, a lawyer practising in Kurikka. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3.", "The applicant alleged, in particular, that his right to a fair trial had been violated as the Appeal Court had not made a full examination of his case and had not organised an oral hearing but had used instead the so-called filtering procedure. 4. On 5 May 2008 the President of the Fourth Section decided to communicate the complaint concerning the lack of an oral hearing and of full examination of the case to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953. 6. In January 2002 the applicant went to a bar for a few drinks. He met his female acquaintance who was in the company of two 17-year-old girls whom he had not met before.", "Afterwards, they all decided to leave the bar in a taxi. They dropped off the applicant’s acquaintance at her home and continued to the applicant’s apartment. The applicant, and apparently also the girls, continued drinking and talking. According to the statement given by the applicant in the District Court (käräjäoikeus, tingsrätten), after a while he called a taxi for the girls and gave them money for the fare. He claims that the next time he heard of the girls was about four months later when the police contacted him and suspected him of a sexual offence.", "7. The girls’ version of the early evening’s events was roughly the same as the applicant’s but differed considerably as concerned the events at his apartment. The girls claimed that while they were in the applicant’s apartment, he had sexual intercourse with one of the girls after she had fallen asleep, and that he attempted to rape the other one. Immediately after this had happened, the girls decided to leave. One of the girls called a taxi and the applicant gave them money for the fare.", "When they got home, the mother of one of the girls called the police. A police patrol came and the police interviewed the girls. The girl who alleged that she had been raped refused to see a doctor. 8. The applicant was questioned for the first time on 21 May 2002.", "The public prosecutor brought charges against him on 20 November 2003. The District Court held an oral hearing on 31 March 2004 at which only the applicant and the girls were heard. 9. On 5 May 2004 the District Court gave its judgment. It acknowledged that the parties’ accounts of the facts diverged greatly.", "The majority of the District Court judges found that the girls’ account was more reliable than the applicant’s. Their stories were coherent and consistent. It was not credible that the girls could have invented the allegations. The fact that the girl who had been raped did not see a doctor immediately after the incident was of no relevance. The applicant was convicted of sexual abuse and attempted coercion into sexual intercourse (sukupuoliyhteyteen pakottamisen yritys, försök till tvingande till samlag), sentenced to a conditional prison sentence of 8 months and 15 days and fined.", "One judge found the applicant’s account of the facts to be more reliable and gave a dissenting opinion. 10. By a letter dated 4 June 2004 the applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that an oral hearing be held as he had been convicted on the basis of conflicting evidence. The girls’ testimonies before the District Court had differed from their accounts given during the pre-trial investigation and were inconsistent. The girl who claimed to have been raped had not seen a doctor after the alleged offence.", "Moreover, the police had started to investigate the crime as rape. However, since rape was such a serious offence the police should have arrested the applicant immediately and conducted a crime-scene investigation in his apartment. Instead, the applicant had been questioned for the first time only about four months later. 11. On 6 September 2004 the Appeal Court decided to apply the filtering procedure (seulontamenettely, sållningsförfarandet) and rejected the request for an oral hearing.", "It upheld the District Court’s judgment without examining the case any further. 12. By a letter dated 11 November 2004 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), complaining about the use of the filtering procedure and reiterating the grounds of appeal relied on before the Appeal Court. He referred, inter alia, to Article 6 of the Convention. 13.", "On 23 March 2005 the Supreme Court refused leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. The filtering procedure used by the Appeal Courts is based on Chapter 26, sections 2 and 2a, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), which has been in force since 1 October 2003. 15.", "The Appeal Courts may filter a case, that is, uphold the District Court’s judgment without a full examination, when three judges agree, at any stage of the proceedings, that 1) an oral hearing is not necessary according to section 15; 2) the finding of the District Court or the procedure applied therein is not defective; and 3) the legal protection of the parties concerned or other circumstances of the case do not require the continuation of the proceedings. 16. Section 15 of the Code of Judicial Procedure (Act no. 165/1998) provides: “(1) The Appeal Court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court or the findings of the District Court in an inspection, or on new testimony to be admitted in the Appeal Court. In this event, the evidence admitted in the District Court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to this.", "(2) If the evidence referred to in paragraph (1) cannot be readmitted at the main hearing, the decision of the District Court shall not be changed for that part, unless the evidence for any special reason is to be assessed differently. However, a decision on a charge may be altered in favour of the defendant in a criminal case.” 17. In the filtering procedure the material to be taken into account comprises the appeal documents, the finding of the District Court as well as any possible reply. 18. The Constitutional Law Committee (perustuslakivaliokunta, grundlagsutskottet) stated in its opinion 35/2002 concerning the filtering procedure (see government bill HE 91/2002) the following: “A fair trial requires in some situations the holding of an oral hearing at the appellate level.", "The consideration of a matter cannot, according to subsection 2 of the proposed section, be discontinued in the filtering procedure if a full-scale procedure is necessary for the purposes of the legal security of the parties. The appeal courts are therefore required to apply the provisions on the filtering procedure in a way that meets the requirements of basic and human rights, for example so that the decisions made when using the filtering procedure do not, in an individual case, violate the right to an oral hearing.\" 19. Since the introduction of the filtering procedure the Supreme Court has given numerous judgments on the applicability of the procedure. According to its case-law, a full examination and an oral hearing are necessary when the Appeal Court’s finding depended on the credibility of oral evidence.", "The credibility of oral statements and the evaluation of testimonies both require an oral hearing to be held. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated as the Appeal Court had not made a full examination of his case and had not organised an oral hearing but had used instead the so-called filtering procedure. According to the case-law of the Finnish Supreme Court, the filtering procedure could not be used if the adjudication of the case depended on the credibility of oral evidence.", "He claimed that this had been the situation in his case as the District Court had not been unanimous as far as the evaluation of the evidence was concerned. 21. Article 6 § 1 of the Convention reads in its relevant parts as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 22. The Government contested these arguments. 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 1.", "The parties’ submissions 24. The applicant maintained that he had challenged in particular the District Court’s evaluation of the testimonies and had requested that the Appeal Court reassess them. It was clear that the outcome of the case could only be based on the credibility of oral evidence. The applicant claimed that the girls’ testimonies had not been credible. Also the fact that one of the judges had found the applicant’s account of the facts to be more reliable and had given a dissenting opinion showed that the court had not been unanimous in evaluating the evidence.", "An oral hearing in the Appeal Court could have revealed more facts of the case. Also the pre-trial investigation had been conducted in a very light manner as the applicant had not been questioned immediately after the events and the taxi driver had not been questioned at all. 25. The Government pointed out that all district court judgments could be appealed against to the appeal courts but the latter could decide, under Chapter 26, section 2, of the Code of Judicial Procedure, that the consideration of an appeal was not to be continued on the grounds expressly laid down in the said provision. The appeal courts were required to apply the provisions concerning the filtering procedure in a way that met the requirements of basic and human rights (see the Constitutional Law Committee’s opinion 35/2002 concerning the government bill HE 91/2002).", "The Supreme Court had also, in some difficult cases, decided not to apply the filtering procedure as it had not been clear that the district court judgment had been free from errors. The domestic legislation thus guaranteed the right to an oral hearing as well as the legal protection of an individual, by taking into account at the same time the right to a trial within a reasonable time. 26. As to the present case, the Government pointed out that the evidence admitted in the District Court consisted of the hearing of the applicant and the two girls. According to the District Court, the statements made by the girls on the one hand and by the applicant on the other hand differed considerably.", "Both the girls and the applicant had, however, described the events similarly during the pre-trial investigation and in the court. The District Court had found that the girls’ statements had been more reliable than the applicant’s. The Government emphasised that the evidence that the applicant had requested to be heard by the Appeal Court had been the same evidence that had already been heard in the District Court. The applicant could have appointed witnesses to be heard. The applicant had not had an absolute right to an oral hearing by virtue of the mere request thereof.", "In the circumstances of the present case, it had not been necessary to hold an oral hearing in the applicant’s case. 2. The Court’s assessment 27. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, was fair (see Schenk v. Switzerland, 12 July 1988, § 46, Series A no.", "140). The Court has held on many occasions that Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a particular witness (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158; Laukkanen and Manninen v. Finland, no. 50230/99, § 35, 3 February 2004).", "It is accordingly not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V). 28. The Court also points out that the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006‑...).", "The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see, among many other authorities, Hermi, cited above, § 60; Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134; and Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115). 29. Moreover, even where an appeal court has jurisdiction to review the case both as to facts and law, the Court cannot find that Article 6 always requires a right to a public hearing irrespective of the nature of the issues to be decided.", "The publicity requirement is certainly one of the means whereby confidence in the courts is maintained. However, there are other considerations, including the right to trial within a reasonable time and the related need for expeditious handling of the domestic courts’ case-load, which must be taken into account in determining the necessity of a public hearing at stages in the proceedings subsequent to the trial at first instance (see Fejde v. Sweden, 29 October 1991, § 31, Series A no. 212‑C). Provided a public hearing has been held at first instance, the absence of such a hearing before a second or third instance may accordingly be justified by the special features of the proceedings at issue. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see Ekbatani, cited above, § 31).", "30. Turning to the present case, the Court notes that, according to Chapter 26, sections 2 and 2a, of the Code of Judicial Procedure, the filtering procedure can only be applied if an oral hearing is not necessary in the case. The acceptability of this procedure is thus directly dependent on the necessity of an oral hearing. The Court must therefore first examine whether the Appeal Court could, in the circumstances of the case, dispense with holding an oral hearing. 31.", "The Court observes at the outset that a public hearing was held at first instance, in which the applicant and the girls were heard. The applicant’s conviction was based on the testimony of the girls, which the applicant contested. 32. The Court notes that the applicant specifically requested an oral hearing before the Appeal Court in order to hear the girls’ testimonies as well as his own. Thus, no question arises as to whether or not the applicant waived his right thereto.", "33. It remains to be examined whether a departure from the principle that there should be such a hearing could, in the circumstances of the case, be justified at the appeal stage by the special features of the domestic proceedings viewed as a whole. In order to decide on this question, regard must be had to the nature of the Finnish appeal system, to the scope of the Appeal Court’s powers and to the manner in which the applicant’s interests were actually presented and protected before the Appeal Court particularly in the light of the nature of the issues to be decided by it (see, mutatis mutandis, Ekbatani, cited above, § 28). 34. The Court observes that the Finnish appellate courts’ jurisdiction is not limited to matters of law but also extends to factual issues.", "Under Chapter 26, section 15, of the Code on Judicial Procedure, the Appeal Court shall hold an oral hearing if the credibility of the testimony admitted in the District Court is an issue. In the instant case the Appeal Court was called upon to examine the case as to both the facts and the law. The applicant denied the facts upon which the charge against him was founded, requesting an oral hearing in order to elucidate the relevant events. The Appeal Court had to make a full assessment of the applicant’s guilt or innocence as the applicant throughout the proceedings had denied being guilty of the acts with which he had been charged. For the Appeal Court the crucial question was the credibility of the statements of the persons involved.", "Nevertheless, the Appeal Court decided, without a public hearing, to uphold the District Court’s conviction without examining the case any further. The Court finds that, in the circumstances of the instant case, the question of the credibility of the statements of the persons involved could not, as a matter of fair trial, have been properly determined without a direct assessment of the evidence given in person by the applicant as well as the girls. 35. Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the refusal to hold an oral hearing at the appellate stage. II.", "REMAINDER OF THE APPLICATION 36. The applicant also complained under Article 6 that his right to a fair trial had been violated as he had been questioned for the first time about the crime only four months after it had allegedly been committed. The crime scene could thus no longer be inspected. 37. The Court reiterates that it is for the States to organise their judicial systems in such a way as to enable their courts to comply with the requirements of the Convention (see for example Pélissier and Sassi v. France [GC], no.", "25444/94, § 74, ECHR 1999‑II). The authorities conducting a pre-trial investigation have a certain margin of appreciation as to how to conduct the investigation (see, mutatis mutandis, Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007). 38. To the extent that Article 6 guarantees apply to the pre-trial investigation phase (see Salduz v. Turkey [GC], no.", "36391/02, 27 November 2008, and case law referred to therein), the Court considers that the applicant has not substantiated how any perceived defects in the investigation had adverse repercussions on his right to a fair trial. There is therefore no indication of any violation in this respect. 39. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 7,313.50 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 42.", "The Government contested the causal link between the alleged violation of Article 6 § 1 of the Convention and any pecuniary damage suffered. Consequently, no award should be made under this heading. As to the non-pecuniary damage, the Government considered that the reasonable compensation for non-pecuniary damage should not exceed EUR 2,000. 43. The Court cannot speculate as to what the outcome of the proceedings before the Appeal Court would have been if the latter had held an oral hearing.", "Accordingly, no pecuniary damage can be awarded (see Bakker v. Austria, no. 43454/98, § 36, 10 April 2003). However, the Court is satisfied that the applicant has suffered distress and frustration resulting from the above breach which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 under this head. B.", "Costs and expenses 44. The applicant also claimed EUR 3,050 (inclusive of value-added tax) for costs and expenses incurred before the domestic courts as well as the Court. 45. The Government maintained that no specification related to costs and expenses, as required by Rule 60 of the Rules of Court, had been submitted but left it to the Court’s discretion whether any award should be made in this respect. In any event, the total amount of compensation for costs and expenses should not exceed EUR 2,000 (inclusive of value-added tax).", "46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the 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 2,000 covering costs and expenses under all heads. C. Default interest 47. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the lack of an oral hearing and of full examination of the case admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 2 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF HRISTOZOV AND OTHERS v. BULGARIA (Applications nos. 47039/11 and 358/12) JUDGMENT STRASBOURG 13 November 2012 FINAL 29/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hristozov and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,David Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 9 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in two applications (nos. 47039/11 and 359/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by ten Bulgarian nationals, Mr Zapryan Hristozov, Ms Anna Staykova‑Petermann, Ms Boyanka Tsvetkova Misheva, Mr Petar Dimitrov Petrov, Ms Krastinka Marinova Pencheva, Ms Tana Tankova Gavadinova, Ms Blagovesta Veselinova Stoyanova, Mr Shefka Syuleymanov Gyuzelev, Mr Yordan Borisov Tenekev and Mr David Sabbatai Behar (“the applicants”), on 15 July and 5 December 2011 respectively. 2. The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice.", "3. The applicants alleged, in particular, that the authorities’ refusal to give them authorisation to use an experimental medicinal product that they wished to have administered by way of “compassionate use” was in breach of their right to life, amounted to inhuman and degrading treatment, and breached their right to respect for their private and family life. They also alleged that they did not have an effective remedy in that respect. 4. On 31 August 2011 Mr Hristozov died.", "His mother and father, who are also his legal heirs - Ms Staykova‑Petermann (the second applicant in application no. 358/12) and Mr Hristoz Zapryanov Hristozov - expressed the wish to pursue proceedings in his stead. On 20 December 2011 Mr Petrov also died. His widow and daughter, who are also his legal heirs - Ms Zhivka Stankova Ivanova‑Petrova and Ms Veneta Petrova Dimitrova‑Paunova - expressed the wish to pursue proceedings in his stead. On 16 December 2011 Mr Behar also died.", "His widow and two sons, who are also his legal heirs - Ms Vera Petrova Behar, Mr Leonid David Behar and Mr Samson David Behar -, expressed the wish to pursue proceedings in his stead. On 6 March 2012 Ms Pencheva also died. Her widower and daughter, who are also her legal heirs - Mr Yordan Penev Penchev and Ms Vera Yordanova Peykova -, expressed the wish to pursue proceedings in her stead. 5. On 9 February 2012 the President of the Fourth Section, to which the cases had been allocated, decided to give priority to the applications under Rule 41 of the Rules of Court.", "6. On 21 February 2012 the Court (Fourth Section) decided to join the applications. It declared them partly inadmissible and gave the Government notice of the complaints concerning the authorities’ refusal to allow the applicants to use the above‑mentioned experimental medicinal product and of the complaint of a lack of effective remedies in that respect. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1977, 1954, 1948, 1947, 1948, 1973, 1948, 1966, 1935 and 1947 respectively, and live(d) in Plovdiv, Godech, Dobrich, Kazanlak, Plovdiv, Ruse, Samokov and Sofia respectively. 8. The first applicant in application no. 47039/11 and all eight applicants in application no.", "358/12 have or had various types of terminal cancer. The second applicant in application no. 47039/11 is the first applicant’s mother. Four of them succumbed to the illness shortly after lodging their applications (see paragraph 4 above). 9.", "Having either tried a host of conventional treatments (including surgery, chemotherapy, radiotherapy and hormone therapy), or obtained a medical opinion that such forms of treatment would not work in their respective cases or were not available in Bulgaria, all of them approached a private clinic in Sofia, the Medical Centre for Integrative Medicine OOD (Медицински център Интегративна Медицина ООД), where they were told about an experimental anti-cancer product (MBVax Coley Fluid) which was being developed by a Canadian company, MBVax Bioscience Inc. According to information from that company, their product has not been authorised in any country, but has been allowed for “compassionate use” (for a definition of that term and comparable terms, see paragraphs 50, 56 and 57 below) in a number of countries (the Bahamas, China, Germany, Ireland, Israel, Mexico, Paraguay, South Africa, Switzerland, the United Kingdom, and the United States of America). In a letter of 9 January 2011 to the Bulgarian Ministry of Health, the company said that as part of its pre‑clinical development of the product it would be willing to provide the product free of charge to the Medical Centre for Integrative Medicine OOD, for use on cancer patients who could no longer benefit from conventional treatments, in return for data on the treatment’s adverse and beneficial effects on each patient. It appears that the Medical Centre for Integrative Medicine OOD has on a number of occasions in the past few years applied for permission to import and use the product, but to no avail. 10.", "The parties were in dispute as to whether MBVax Coley Fluid had recently started undergoing clinical trials. The applicants said that, according to data extracted on 18 April 2012 from the website of the United States National Cancer Institute and a website maintained by the United States National Library of Medicine, Mixed Bacteria Vaccine (MBV) was undergoing a phase one clinical trial in Germany. On that basis, they argued that it complied with the requirements of Article 83 § 2 of Regulation (EC) no. 726/2004 (see paragraph 50 below). The Government disputed that assertion, and submitted that it was not acceptable to establish the existence of clinical trials in Germany through information from websites in the United States of America.", "11. The Government further submitted that MBVax Coley Fluid could not be described as a medicinal product within the meaning of the applicable European Union and domestic provisions. The applicants replied that the fact that it had not been authorised did not mean that it was not a medicinal product within the meaning of those provisions. 12. According to the applicants, MBVax Coley Fluid has been used with some success on patients in clinics in Germany, Ireland, the United Kingdom, and the United States of America.", "In support of that assertion the applicants submitted a number of letters and electronic mail messages from medical practitioners. 13. It appears that on 23 July 2011 one of the applicants, Mr Petrov, travelled to Germany, where he obtained the product from MBVax Bioscience Inc. free of charge and it was administered to him seven times. However, shortly afterwards he returned to Bulgaria because he could no longer afford to pay his living expenses in Germany or the fees of the health-care institution which administered the treatment. 14.", "Each of the applicants, including Ms Staykova‑Petermann, who was acting on behalf of her sick son – applied to the authorities for permission to use MBVax Coley Fluid. In letters of 20 June, 15 July and 1 and 31 August 2011 the Director of the Medicines Executive Agency (Изпълнителна агенция по лекарствата), the authority in charge of supervising the quality, safety and efficacy of medicinal products, pointed out that MBVax Coley Fluid was an experimental product not yet authorised or undergoing clinical trials in any country, which meant that it could not be authorised for use in Bulgaria under Regulations no. 2 of 2001 (see paragraphs 25 and 26 below). He went on to say that Bulgarian law made no provision for the use of unauthorised medicines outside clinical trials, and that, unlike the situation obtaining in other European countries, in Bulgaria compassionate use of unauthorised products was not possible. Under the law of the European Union there was no obligation to have a harmonised approach in this area.", "In some of the letters the Director added, without going into detail, that the information the applicants had about MBVax Coley Fluid was incorrect. 15. Some of the applicants appealed to the Minister of Health, who in a letter of 13 July 2011 fully agreed with the position expressed by the Medicines Executive Agency. 16. Three of the applicants in application no.", "358/12 applied to the Ombudsman of the Republic. By letters of 22 July and 4 and 14 September 2011 the Ombudsman also informed them that MBVax Coley Fluid had not been authorised in any country, which meant that the only way in which they could obtain access to it in Bulgaria was as part of a clinical trial. 17. The applicants did not seek judicial review. 18.", "On 27 October 2011 the Sofia Regional Health Directorate decided to strike the Medical Centre for Integrative Medicine OOD out of the register of health institutions, on the ground that it was engaging in activities in breach of established medical standards. The clinic sought judicial review of the decision in the Sofia Administrative Court. A hearing was held on 8 December 2011. A second hearing was listed for 24 February 2012, but was adjourned to 14 June, then to 5 October, and then to 12 October 2012. The case is still pending before the Sofia Administrative Court.", "II. RELEVANT DOMESTIC LAW A. The Constitution 19. Article 52 of the Constitution of 1991 provides, in so far as relevant: “1. Citizens shall be entitled to medical insurance guaranteeing them affordable health care, and to free health care under the conditions and in the manner provided for by law ... 3.", "The State shall protect the health of all citizens ... 4. No one may be subjected to forcible medical treatment or sanitary measures, except in cases provided for by law. 5. The State shall exercise control over all health care establishments and over the production of and trade in medicines, biologically active substances and medical equipment.” 20. In a decision of 22 February 2007 (реш.", "№ 2 от 22 февруари 2007 г. по к. д. № 12 от 2006 г., обн., ДВ, бр. 20 от 6 март 2007 г.) the Constitutional Court said that unlike classic fundamental rights, such as the rights to life, freedom and security, private life, freedom of thought and of religion, the rights under Article 52 § 1 of the Constitution were social rights. They could not be directly enforced by the courts, and required State action to put them into effect.", "For that reason, the Constitution specified that health care was to be carried out in a manner provided for by law. B. The Medicinal Products in Human Medicine Act 2007 and related regulations 21. Medicinal products in human (as opposed to veterinary) medicine are regulated by the Medicinal Products in Human Medicine Act 2007 (Закон за лекарствените продукти в хуманната медицина). Section 3(1) of that Act, which echoes Article 1 § 2 of Directive 2001/83/EC (see paragraph 44 below), defines a “medicinal product in human medicine” as (a) any substance or combination of substances presented as having properties for treating or preventing disease in human beings, or (b) any substance or combination of substances which may be used in or administered to human beings, with a view either to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.", "Section 3(2), which echoes Article 1 § 3 of the Directive, in turn defines “substance” as any matter whose origin may be human (human blood, human blood products, and so on), animal (microorganisms, animal organs, extracts, secretions, toxins, blood products, and so on), vegetable (microorganisms, plants, parts of plants, vegetable extracts, secretions, and so on), chemical (elements, naturally occurring chemical materials and chemical products obtained by chemical change or synthesis, and so on). 22. Section 7(1) of the Act lays down the general rule that only medicinal products which have been authorised, either in Bulgaria or under the European Union centralised authorisation procedure under Regulation (EC) no. 726/2004 (see paragraph 48 below), may be produced, imported, traded in, advertised, or used for medical treatment, prophylaxis or diagnostics. 23.", "The following sections set out certain exceptions to that rule. Section 8 provides that no authorisation is required in respect of, in particular, (a) medicinal products prepared in a pharmacy in accordance with a medical prescription for an individual patient (the magistral formula); (b) medicinal products prepared in a pharmacy in accordance with the prescriptions of a pharmacopoeia (the officinal formula); and (c) medicinal products for “high‑technology therapy” prepared for an individual patient in accordance with the individualised specifications of a medical doctor and for use in a health-care institution under the doctor’s direct personal responsibility. Section 10(1) empowers the Minister of Health to allow, under certain conditions, treatment with an unauthorised medicinal product in the event of an epidemic or of a chemical or nuclear contamination, if there is no suitable authorised medicinal product. Section 11(1) empowers the Minister to allow, under certain conditions, the use of a product which has not been authorised in Bulgaria but has been authorised in another Member State of the European Union. 24.", "Section 9(1) provides that a patient may be treated with a medicinal product which has not been authorised if a hospital makes a request to that effect. The method and criteria for doing so are to be laid down in regulations by the Minister of Health. 25. The regulations governing that issue at the time when the applicants made their requests to be allowed to use MBVax Coley Fluid were Regulations no. 2 of 10 January 2001 (Наредба № 2 от 10 януари 2001 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти).", "They superseded Regulations no. 18 of 28 June 1995 (Наредба № 18 от 28 юни 1995 г. за условията и реда за лечение с нерегистрирани лекарствени средства). Both of those regulations had been issued under section 35(3) of the Medicines and Pharmacies in Human Medicine Act 1995 (Закон за лекарствата и аптеките в хуманната медицина), superseded by the 2007 Act, which provided that medicinal products needed for the treatment of diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless, were to be exempted from authorisation under criteria and by methods laid down by the Minister of Health. 26. Regulation 2 of Regulations no.", "2 provided that medicinal products which had not been authorised in the country could be prescribed if they had been authorised in other countries and were intended for the treatment of rare diseases or diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless. 27. Similar requirements had been laid down in Regulation 1 of Regulations no. 18. Under that provision, medicinal products not registered in Bulgaria could be used only if registered in other countries and if the disease that they were intended to treat could either not be treated with products registered in Bulgaria or such treatment had proved fruitless.", "28. The procedure under Regulations no. 2 was as follows. A panel of three medical doctors appointed by the head of a hospital (one of the doctors being a specialist in the treatment of the disease in issue) was to prescribe the unauthorised product (Regulation 3(1) and 3(2)). The prescription could not cover a period of more than three months (Regulation 3(4)).", "After that the prescription was to be approved by the head of the hospital (Regulation 3(3)) and sent to the Medicines Executive Agency, along with a declaration by the patient (or his or her parent or guardian, as the case might be) that he or she agreed to be treated with the unauthorised product (Regulation 4(2)). The Medicines Executive Agency had ten working days to decide whether to grant permission. If the relevant requirements had not been met, the Agency would issue a negative decision, which could be appealed against within seven days to the Minister of Health, who had seven days to decide the appeal (regulation 5(1)). 29. If the need for an unauthorised life‑saving product arose in a health-care institution other than a hospital, the head of that institution could draw up a document specifying the product and the required quantity and, having obtained the assent of the Medicines Executive Agency, apply for permission to the Minister of Health.", "The Minister could then make a decision specifying the product, the quantity and its recipients (Regulation 8(1)). 30. On 6 December 2011 Regulations no. 2 were superseded by Regulations no. 10 of 17 November 2011 (Наредба № 10 от 17 ноември 2011 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти, както и за условията и реда за включване, промени, изключване и доставка на лекарствени продукти от списъка по чл.", "266а, ал. 2 от Закона за лекарствените продукти в хуманната медицина). 31. Regulation 1(2) provides that only medicinal products which can be prescribed by a doctor in another country can be authorised for use under the Regulations. Regulation 2(1) provides that medicinal products intended for use by an individual patient may be prescribed if they are authorised in other countries and treatment with medicinal products authorised in Bulgaria is impossible or has failed.", "Regulation 3(1) provides that hospitals may also obtain unauthorised medicinal products if those have been made available under “international and national programmes” or by an international organisation which is the only entity in a position to procure those products. 32. The procedure under Regulations no. 10 is as follows. A panel of three medical doctors appointed by the head of the hospital (one of the doctors being a specialist in the treatment of the disease in issue) must prescribe the unauthorised product (regulations 4, 5(1) and 6(1)).", "The prescription must be accompanied by the written informed consent of the patient (or his or her parent or guardian, as the case may be) (Regulations 5(2) and 6(4)), and cannot cover a period of more than three months (Regulations 5(3) and 6(2)). The prescription must then be approved by the head of the hospital (Regulation 7(1)). After that the Medicines Executive Agency must either grant permission or issue a reasoned refusal (Regulation 8(1)). It must issue a refusal if the form of the prescription or the medicinal products at issue do not meet the requirements of the Regulations (Regulation 8(2)). Refusal by the Agency is subject to appeal and judicial review (Regulation 8(3)).", "33. On 21 July 2011 Parliament added a new section, 266a, to the 2007 Act. It came into force on 5 August 2011 and provides, in subsection 1, that where it is not possible to treat a disease with medicinal products available in the country, an individual patient may be treated with a product which has been authorised in another member State of the European Union and under the Act, but is not on the market in Bulgaria. The Minister of Health must keep a list of such products and update it annually (subsection 2). The explanatory notes to the amending Bill referred to the need to allow Bulgarian patients access to authorised medicines which are not available on the Bulgarian market but which are available in other member States of the European Union.", "34. There is no reported case‑law under any of the three successive regulations (Regulations no. 18, Regulations no. 2 and Regulations no. 10).", "C. The Code of Administrative Procedure 2006 35. Under the Code of Administrative Procedure 2006, individual administrative decisions may be challenged before a court by those affected by them, on grounds of unlawfulness (Articles 145 § 1 and 147 § 1). There is no general requirement to first exhaust administrative remedies (Article 148). 36. Statutory instruments, such as regulations, may also be challenged before the Supreme Administrative Court (Articles 185 § 1 and 191 § 1).", "Any individual or organisation whose rights, freedoms or legal interests have been or could be affected by such an instrument may do so (Article 186 § 1). The court’s decision has erga omnes effect (Article 193 § 2). If a court strikes down a statutory instrument, it is deemed repealed from the date on which the court’s decision becomes final (Article 195 § 1). D. Case‑law provided by the Government 37. In a decision of 11 December 2008 (реш.", "№ 13627 от 11 декември 2008 г. по адм. д. № 11799/2008 г., ВАС, петчл. с.) the Supreme Administrative Court struck down regulations which required telephony and internet service providers to give the Ministry of Internal Affairs “passive” technical access to the communications data they were storing.", "The court held that, in not laying down any conditions or procedures for the grant of such access, the regulations enabled disproportionate interference with the rights protected under Article 32 (private life) and Article 34 (correspondence and communications) of the 1991 Constitution and under Article 8 of the Convention, whereas it was obligatory for any such interference to be made subject to appropriate safeguards against abuse. The court went on to say that the regulations ran counter to various provisions of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, and amending Directive 2002/58/EC. 38. In decisions of 25 March and 21 April 2011 (реш. № 384 от 25 март 2011 г. по адм.", "д. № 1739/2009 г., БАС; реш. № 701 от 21 април 2011 г. по адм. д. № 660/2011 г., ПАС) the Burgas and Plovdiv administrative courts set aside international travel bans imposed on account of unpaid judicially established debts.", "In doing so the courts held that the provisions of Bulgarian law under which those bans had been ordered ran counter to Article 27 of Directive 2004/38/EC on the right of citizens of the European Union and their family members to move and reside freely within the territories of the member States. Just before that, on 22 March 2011, the Supreme Administrative Court had held, in a binding interpretive decision (тълк. р. № 2 от 22 март 2011 г. по т. д. № 6/2010 г., ВАС, ОСК), that such bans should be set aside if in breach of the Directive.", "39. In a decision of 17 May 2010 (реш. от 17 май 2010 г. по адм. д. № 206/2010 г., МАС, І с.)", "the Montana Administrative Court set aside an order for the removal of an alien who had come to Bulgaria at a very young age and had lived in the country with his family for a number of years. The court held that the order, which had not taken into account the alien’s family situation and level of integration in the country, and corresponding lack of ties with the country to which he was to be removed, had been disproportionate. To reach that conclusion the court had relied not only on the relevant provisions of Bulgarian law, but also on Article 8 of the Convention and on Article 78 § 1 of the Treaty on the Functioning of the European Union and Articles 16, 20 and 21 of Directive 2003/109/EC, concerning the status of third‑country nationals who are long‑term residents. 40. In decisions of 29 June 2010 and 9 March 2012 (опр.", "№ 14 от 29 юни 2010 г. по ч. к. а н. д. № 162/2010 г., ХАС, ІІ к. с.; опр. № 10 от 9 март 2012 г. по к. н. а. х. д. № 117/2012 г., КАС) the Haskovo and Kyustendil administrative courts quashed the lower courts’ decisions to discontinue proceedings for judicial review of fines imposed by the authorities in respect of administrative offences (which had been excluded from judicial review by statute). The courts relied on Article 6 § 1 of the Convention and the Court’s judgments in the cases of Öztürk v. Germany (21 February 1984, Series A no.", "73), and Lauko v. Slovakia (2 September 1998, Reports of Judgments and Decisions 1998‑VI). E. The rights of patients 41. A patient – defined as any person who has asked for or who is being given medical treatment (section 84(1) of the Health Act 2004) – has the right to, inter alia, (a) respect for his or her civil, political, economic, social, cultural and religious rights; (b) clear and accessible information on his or her state of health and methods of treatment, if any; (c) security and safety of the diagnostic and treatment procedures used for his or her treatment; and (d) access to modern methods of treatment (section 86(1)(1), (1)(8), (1)(10) and (1)(11) of the same Act). Section 87(1) of the Act lays down the general rule that medical procedures may be carried out only with the patient’s informed consent. In order to obtain such consent, the medical doctor responsible for the patient’s treatment has to inform the patient of (a) the diagnosis and character of the disease; (b) the aims and the nature of the proposed treatment, reasonable alternatives which may be available, the expected results and the prognosis; (c) the potential risks of the diagnostic and proposed treatment methods , including side effects and adverse reactions, pain or other difficulties; and (d) the likelihood of positive effects, as well as the risks to health of other methods of treatment or a refusal to submit to treatment (section 88(1)).", "All this information must be given in an appropriate volume and form, so as to ensure freedom of choice of treatment (section 88(2)). In the event of surgical intervention, general anaesthesia or other diagnostic or treatment methods which entail a heightened level of risk to life or health, this information, as well as the patient’s informed consent, must be in writing (section 89(1)). F. Regulation of the medical profession 42. The Medical Institutions Act 1999 governs, inter alia, the registration and licensing of medical institutions. Under section 39(1), institutions for non‑hospital care and hospices are subject to registration, which has to be carried out by the health inspectorate with territorial jurisdiction (section 40(1)).", "Under section 46(1), hospitals, complex oncological centres, and some other institutions which are not relevant to the present case, are subject to licensing. These licences are issued by the Minister of Health (section 46(2)). Medical institutions can carry out their activities only if they have been registered or licensed, as the case may be (section 3(3)). Their medical activities are subject to monitoring by the authorities (section 4(3)). 43.", "Practising medical professionals must have an appropriate degree (section 183(1) and (2) of the Health Act 2004), and must be registered members of a professional association (section 183(3)). III. RELEVANT EUROPEAN UNION LAW 44. In the European Union, a medicinal product may as a rule be placed on the market only when authorised, either via the “centralised authorisation procedure” or under national procedures (there are detailed rules as to which products must or may go through the centralised procedure). The relevant provision, Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended, provides as follows: “No medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued by the competent authorities of that Member State in accordance with this Directive or an authorisation has been granted in accordance with Regulation (EC) No 726/2004, read in conjunction with Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and Regulation (EC) No 1394/2007.” 45.", "There are, however, exceptions to this rule, such as the possibility of obtaining an unauthorised medicinal product via “individual patient use”, “compassionate use” or “off‑label use”. Article 5(1) of the above‑mentioned Directive, which reproduced wording first introduced in 1989 by the now-repealed Directive 89/341/EEC, governs “individual patient use”. It reads as follows: “A Member State may, in accordance with legislation in force and to fulfil special needs, exclude from the provisions of this Directive medicinal products supplied in response to a bona fide unsolicited order, formulated in accordance with the specifications of an authorised health‑care professional and for use by an individual patient under his direct personal responsibility.” 46. The case of European Commission v. the Republic of Poland (Court of Justice of the European Union, C‑185/10) concerned the interpretation of those provisions. Poland argued that its domestic law complied with the derogation envisaged by Article 5(1) of Directive 2001/83/EC.", "In a judgment of 29 March 2012, the Court of Justice held that by allowing the importation and placing on the market of unauthorised medicinal products which were cheaper than, and similar to, products already authorised in Poland, the State had failed to fulfil its obligations under Article 6 of the Directive. In relation to the construction to be put on the derogation provided for under Article 5(1) of the Directive, it held as follows: “30 As is apparent from the wording of that provision, implementation of the derogation for which it provides is conditional on fulfilment of a set of cumulative conditions. 31 In order to interpret that provision, it must be taken into account that, generally, provisions which are in the nature of exceptions to a principle must, according to settled case‑law, be interpreted strictly (see in particular, to this effect, Case C‑3/09 Erotic Center [2010] ECR I‑2361, paragraph 15 and the case‑law cited). 32 More specifically, as regards the derogation referred to in Article 5(1) of Directive 2001/83, the Court has already pointed out that the possibility of importing non‑approved medicinal products, provided for under national legislation implementing the power laid down in that provision, must remain exceptional in order to preserve the practical effect of the marketing authorisation procedure (see, to this effect, Case C‑143/06 Ludwigs‑Apotheke [2007] ECR I‑9623, paragraphs 33 and 35). 33 As the Advocate General stated in point 34 of his Opinion, the power, which arises from Article 5(1) of Directive 2001/83, to exclude the application of the directive’s provisions can be exercised only if that is necessary, taking account of the specific needs of patients.", "A contrary interpretation would conflict with the aim of protecting public health, which is achieved through the harmonisation of provisions relating to medicinal products, particularly those relating to the marketing authorisation. 34. The concept of ‘special needs’, referred to in Article 5(1) of that directive, applies only to individual situations justified by medical considerations and presupposes that the medicinal product is necessary to meet the needs of the patient. 35 Also, the requirement that medicinal products are supplied in response to a ‘bona fide unsolicited order’ means that the medicinal product must have been prescribed by the doctor as a result of an actual examination of his patients and on the basis of purely therapeutic considerations. 36.", "It is apparent from the conditions as a whole set out in Article 5(1) of Directive 2001/83, read in the light of the fundamental objectives of that directive, and in particular the objective seeking to safeguard public health, that the derogation provided for in that provision can only concern situations in which the doctor considers that the state of health of his individual patients requires that a medicinal product be administered for which there is no authorised equivalent on the national market or which is unavailable on that market.” 47. Separately, Article 126a of the Directive permits a member State to allow a medicinal product authorised in another member State to be placed on its market, under certain conditions. Paragraph 1 of that Article reads: “In the absence of a marketing authorisation or of a pending application for a medicinal product authorised in another Member State in accordance with this Directive, a Member State may for justified public health reasons authorise the placing on the market of the said medicinal product.” Further conditions are laid down in paragraphs 2 and 3. 48. A further exception to the general prohibition laid down in Article 6(1) of Directive 2001/83/EC is contained in Article 83 of Regulation (EC) no.", "726/2004 of the European Parliament and of the Council of 31 March 2004, laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency. 49. Recital 33 of the Regulation says, in so far as relevant: “In order to meet, in particular, the legitimate expectations of patients and to take account of the increasingly rapid progress of science and therapies ... [i]n the field of medicinal products for human use, a common approach should also be followed, whenever possible, regarding the criteria and conditions for the compassionate use of new medicinal products under Member States’ legislation.” 50. Article 83 of the Regulation provides: “1. By way of exemption from Article 6 of Directive 2001/83/EC Member States may make a medicinal product for human use belonging to the categories referred to in Article 3(1) and (2) of this Regulation [medicinal products to be authorised either mandatorily or optionally via the centralised authorisation procedure, listed in an annex to the Regulation] available for compassionate use.", "2. For the purposes of this Article, ‘compassionate use’ shall mean making a medicinal product belonging to the categories referred to in Article 3(1) and (2) available for compassionate reasons to a group of patients with a chronically or seriously debilitating disease or whose disease is considered to be life‑threatening, and who can not be treated satisfactorily by an authorised medicinal product. The medicinal product concerned must either be the subject of an application for a marketing authorisation in accordance with Article 6 of this Regulation or must be undergoing clinical trials. 3. When a Member State makes use of the possibility provided for in paragraph 1 it shall notify the Agency.", "4. When compassionate use is envisaged, the Committee for Medicinal Products for Human Use, after consulting the manufacturer or the applicant, may adopt opinions on the conditions for use, the conditions for distribution and the patients targeted. The opinions shall be updated on a regular basis. 5. Member States shall take account of any available opinions.", "6. The Agency shall keep an up‑to‑date list of the opinions adopted in accordance with paragraph 4, which shall be published on its website. Article 24(1) and Article 25 shall apply mutatis mutandis. 7. The opinions referred to in paragraph 4 shall not affect the civil or criminal liability of the manufacturer or of the applicant for marketing authorisation.", "8. Where a compassionate use programme has been set up, the applicant shall ensure that patients taking part also have access to the new medicinal product during the period between authorisation and placing on the market. 9. This Article shall be without prejudice to Directive 2001/20/EC [the Clinical Trials Directive] and to Article 5 of Directive 2001/83/EC.” 51. In July 2007 the European Medicines Agency adopted a Guideline on compassionate use of medicinal products pursuant to the said Article 83 (EMEA/27170/2006).", "It states that the implementation of compassionate use programmes remains within the competence of a member State, that Article 83 is complementary to national legislations, and that the existence of Community authorisation for a medicinal product is without prejudice to any national legislation relating to compassionate use. The guideline goes on to specify that the objectives of Article 83 are threefold: (a) to facilitate and improve access for patients in the European Union to compassionate-use programmes; (b) to favour a common approach regarding the conditions of use, the conditions for distribution and the patients at whom the compassionate use of unauthorised new medicinal products is directed; and (c) to increase transparency between member States in terms of availability of treatments. It also makes it clear that Article 83 is not applicable to products which are not eligible for the centralised authorisation procedure, nor to compassionate use on a named‑patient basis, as envisaged in Article 5 of Directive 2001/83/EC (see paragraph 45 above). 52. The European Medicines Agency has so far given two opinions under Article 83 paragraph 4 of the Regulation.", "The first, given on 20 January 2010 in respect of Finland, concerned the product IV Tamiflu. The second, given on 18 February 2010 in respect of Sweden, concerned the product IV Zanamivir. 53. A guideline drawn up by the European Commission pursuant to Article 106 of Directive 2001/83/EC and Article 24 of Regulation (EEC) no. 2309/93, and entitled ‘Volume 9A – Guidelines on Pharmacovigilance for Medicinal Products for Human Use’, states the following: “5.7.", "Reporting from Compassionate/Named‑patient use Compassionate or named‑patient use of a medicine should be strictly controlled by the company responsible for providing the medicine and should ideally be the subject of a protocol. Such a protocol should ensure that the Patient is registered and adequately informed about the nature of the medicine and that both the prescriber and the Patient are provided with the available information on the properties of the medicine with the aim of maximising the likelihood of safe use. The protocol should encourage the prescriber to report any adverse reactions to the company, and to the Competent Authority, where required nationally. Companies should continuously monitor the risk‑benefit balance of medicines used on compassionate or named‑patient basis (subject to protocol or not) and follow the requirements for reporting to the appropriate Competent Authorities. As a minimum, the requirements laid down in Chapter I.4, Section 1 [Requirements for Expedited Reporting of Individual Case Safety Reports] apply.", "For inclusion of experience from compassionate or named‑patient use in Periodic Safety Update Reports, see Chapter I.6 [Requirements for Periodic Safety Update Reports].” III. RELEVANT COMPARATIVE MATERIAL A. Rules governing access to unauthorised medicinal products 1. In some Contracting States 54. In November 2010 the European Clinical Research Infrastructures Network published a survey of “compassionate use” programmes in ten European countries: Austria, Denmark, France, Germany, Ireland, Italy, Spain, Sweden, Switzerland and the United Kingdom (‘Whitfield et al: Compassionate use of interventions: results of a European Clinical Research Infrastructures Network (ECRIN) survey of ten European countries.", "Trials 2010 11:104.’). It found that with one exception (Hungary) the laws of all the countries surveyed made provision for compassionate use/expanded access programmes. However, it also showed that those programmes had more differences than similarities. Some countries were without formal regulatory systems, and, for those who had adopted rules, they varied in content and comprehensiveness. For instance, some countries allowed “compassionate use” solely on a “named/individual patient” basis.", "The contents and requirements of the application for permission also varied. The survey called for European Union legislation to be more explicit with regard to regulatory requirements, restrictions and responsibilities in that area. 55. On the basis of more recent material available to the Court in respect of twenty‑nine Contracting States, it appears that twenty‑two States (Austria, the Czech Republic, Croatia, Estonia, France, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Turkey and the United Kingdom) have in place rules, often adopted quite recently, allowing access to unauthorised medicinal products outside clinical trials for certain patients, notably for those who are terminally ill. The matter appears to be regulated in both primary and delegated legislation.", "In addition, in two States (Sweden and Russia) access to such products appears to be possible despite the absence of specific rules. Five States (Albania, Cyprus, Moldova, Montenegro and Ukraine) appear not to have in place rules allowing access to unauthorised medicinal products outside clinical trials. However, in two of those (Albania and Ukraine) domestic law appears to contain somewhat unclear provisions, which could be interpreted as allowing access. At the same time, there is a variety of practices among States as regards the type of access provided and the procedure to be followed. For instance, it appears that in four States (Croatia, Lithuania, Poland and Romania), access to unauthorised medicinal products is possible only if those products have been authorised in another jurisdiction.", "Seven States appear to allow access only for individual patients, and fifteen States allow access for both individual patients and groups (or cohorts). The procedures for individuals and groups tend to vary, with the conditions attaching to group access being more stringent. 2. In other States 56. In the United States of America, regulations were issued in May 1987 laying down conditions under which promising new drugs that had not yet been licensed could be made available to persons with serious and life-threatening illnesses for whom no comparable or satisfactory alternative drug or treatment was available.", "Those regulations were revised and expanded in 2009. They are currently contained in the Code of Federal Regulations, Title 21, Part 312, Subpart I (Expanded Access to Investigational Drugs for Treatment Use), §§ 312.300‑320, and make provision for an “expanded access” programme, under which the Food and Drug Administration (“the FDA”) may, under certain conditions, authorise the use of an “investigational new drug” in respect of patients suffering from “a serious or immediately life‑threatening disease or condition, [when] there is no comparable or satisfactory alternative therapy to diagnose, monitor, or treat the disease or condition” (21 CFR 312.305(a)(1)). The general criteria governing the FDA’s decision are whether “[t]he potential patient benefit justifies the potential risks of the treatment use and those potential risks are not unreasonable in the context of the disease or condition to be treated” and whether “[p]roviding the investigational drug for the requested use will not interfere with the initiation, conduct, or completion of clinical investigations that could support marketing approval of the expanded access use or otherwise compromise the potential development of the expanded access use” (21 CFR 312.305(a)(2) and (3)). The regulations contain separate provisions for individual patients, including for emergency use (21 CFR 312.310), intermediate‑size patient populations (21 CFR 312.315), and widespread treatment use (21 CFR 312.320). 57.", "In Canada, sections C.08.010 and C.08.011 of the Food and Drug Regulations make provision for a “special access programme” allowing medical practitioners to request access to drugs that are unavailable for sale in Canada for the treatment of patients with serious or life‑threatening conditions on a compassionate or emergency basis when conventional treatments have failed, are unsuitable, or are unavailable. 58. In Australia, the Therapeutic Goods Administration of the Department of Health and Ageing runs a “special access scheme”, which allows, under certain conditions, the importation or supply of an unlicensed medicine for a single patient, on a case by case basis (section 18 of the Therapeutic Goods Act 1989 and Regulation 12A of the Therapeutic Goods Regulations 1990). B. Relevant case‑law 1.", "In the United States of America 59. In the case of United States v. Rutherford, 442 U.S. 544 (1979), the United States Supreme Court unanimously dismissed a request by terminally ill cancer patients to enjoin the authorities from interfering with the distribution of an unlicensed drug. The court held that the statutory scheme governing drug licensing did not contain an implicit exemption for drugs intended for use by the terminally ill. In its view, the safety and effectiveness standards laid down in the legislation applied equally to such drugs, because the legislature could be regarded as intending to protect terminal patients from ineffectual or unsafe drugs. For such patients, as for anyone else, a drug was unsafe if its potential to cause death or physical injury was not offset by the possibility of therapeutic benefit.", "In relation to terminally ill people, unlicensed drugs carried a further risk, namely that the individuals concerned might eschew conventional therapy in favour of a drug with no demonstrable curative properties, with potentially irreversible consequences. In that connection the court noted, on the basis of expert evidence presented to it, that with diseases such as cancer it was often impossible to identify a patient as terminally ill other than in retrospect. It went on to say that acceptance of the proposition that statutory safety and efficacy standards have no relevance for terminal patients would be tantamount to denying the authorities’ power to regulate any drugs, however toxic or ineffective, for such individuals, which would allow abusive marketing of many purportedly simple and painless cures. Lastly, the court observed that its ruling did not exclude all resort to experimental cancer drugs by patients for whom conventional therapy was inefficacious, because the statutory scheme exempted from pre-marketing approval drugs intended solely for investigative use if they satisfied certain pre-clinical testing and other criteria. 60.", "In the more recent case of Raich v. Gonzales, in a decision of 14 March 2007 (500 F.3d 850) the United States Court of Appeals for the Ninth Circuit held, inter alia, that, as things stood, there was no right under the due process clause of the United States Constitution to use medical marijuana on a physician’s advice, to preserve bodily integrity, avoid intolerable pain, and preserve life, even when all other prescribed medications and remedies had failed. 61. In the case of Abigail Alliance for Better Access to Developmental Drugs et al. v. von Eschenbach et al., in a decision of 2 May 2006 (445 F.3d 470) a three‑member panel of the United States Court of Appeals for the District of Columbia Circuit held, by two votes to one, that under the due process clause of the United States Constitution terminally ill patients had the right to decide whether to take un unlicensed drug that was in Phase 2 or Phase 3 clinical trials and that the producer was willing to make available. The court found that that right was deeply rooted in the traditional doctrines of self‑defence and interference with rescue, and that federal regulation of the effectiveness of drugs was too recent and haphazard “to establish that the government has acquired title to [that] right by adverse possession”.", "The panel went on to say that that right was “implicit in the concept of ordered liberty”. 62. On an application by the FDA, the same court reheard the case en banc, and in a decision of 7 August 2007 (495 F.3d 695) held, by eight votes to two, that federal regulation of drugs was “consistent with [the] historical tradition of prohibiting the sale of unsafe drugs”. The “arguably limited” history of efficacy regulation prior to 1962, when such regulation in the United States took its current shape, did not establish a fundamental right, because the legislature and the executive had “continually responded to new risks presented by an evolving technology” and because the legislature had a “well‑established power to regulate in response to scientific, mathematical, and medical advances”. The court went on to say that self‑defence, the tort of interference with rescue, and the United States Supreme Court’s “life or health of the mother” abortion cases provided no support for a right to seek investigational drugs, because those doctrines protected only “necessary” life‑saving measures, whereas the claimants sought “access to drugs that [were] experimental and [had] not been shown to be safe, let alone effective at (or ‘necessary’ for) prolonging life”.", "63. On 14 January 2008 the United States Supreme Court denied a petition for a writ of certiorari (552 U.S. 1159). 64. In the case of Abney et al. v. Amgen, Inc., 443 F.3d 540, on 29 March 2006 the United States Court of Appeals for the Sixth Circuit upheld a lower court’s decision not to issue an injunction sought by the claimants, who were individuals involved in a clinical drug trial sponsored by the defendant, a drug manufacturer, to require the defendant to continue providing them with the drug, even though the clinical trial had come to an end.", "2. In Canada 65. In the case of Delisle v. Canada (Attorney General), 2006 FC 933, the Federal Court of Canada had to deal with applications for judicial review of decisions taken by the Canadian federal health authorities under the above‑mentioned special access programme (see paragraph 57 above). The court held that in deciding to restrict access to a drug previously available under the programme the authorities had failed to strike a proper balance, because they had not taken due account of humanitarian or compassionate concerns. It referred the matter back to the authorities with instructions to weigh the “valid objectives of public policy against the humanitarian factor”.", "The judgment was not appealed against, and in 2008 the case was settled, with the authorities agreeing to follow the court’s recommendations. 3. In the United Kingdom 66. In the case of B (a minor), R. (on the application of) v. Cambridge Health Authority [1995] EWCA Civ 43 (10 March 1995), the Court of Appeal held that the courts could not disturb a properly reasoned decision by the competent health authorities not to fund a round of experimental treatment for a terminally ill child. The Master of the Rolls, as he then was, Sir Thomas Bingham, made two general comments.", "He firstly pointed out that the case involved the life of a young patient, which was a fact which had to dominate all consideration of all aspects of the case, because British society was one in which a very high value was put on human life and no decision affecting human life could be regarded with other than the greatest seriousness. He secondly observed that the courts were not arbiters as to the merits of cases of that kind, because if they expressed opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, they would be straying far from their domain. He went on to say that difficult and agonising judgments had to be made as to how a limited budget was best allocated to the maximum advantage of the maximum number of patients. That was not a judgment which a court could make. 67.", "In the case of Simms v Simms and an NHS Trust [2002] EWHC 2734 (Fam) (11 December 2002), the parents of two teenagers suffering from variant Creutzfeldt‑Jakob disease sought judicial declarations that their children could receive an experimental treatment which research on mice had shown could possibly inhibit the advance of their terminal condition. The High Court of Justice (Family Division) allowed the applications, holding, among other things, that the lack of an alternative treatment for the incurable disease meant that it was reasonable to use an experimental treatment that presented no significant risk to the patient. The President of the Family Division, Dame Elizabeth Butler‑Sloss, observed that the treatment was an untried one, and that until then there had been no validation of experimental work done abroad. However, she went on to say that if one waited for full certainty in experimental treatments, no innovative work such as the use of penicillin or heart transplant surgery would ever have been attempted. Referring to, inter alia, Articles 2 and 8 of the Convention and “a very strong presumption in favour of a course of action which will prolong life”, and having regard to the patients’ prospects with and without treatment and the fact that no alternative treatment was available, she concluded that it was in their best interest that the treatment should be carried out.", "In reaching that conclusion, she also considered the wishes and feelings of the families, finding that their advocacy of treatment “should carry considerable weight”. THE LAW I. PRELIMINARY ISSUE 68. The Government requested that the applications be partly struck out of the list of cases in accordance with Article 37 § 1 (c) of the Convention, challenging the right of the heirs of the four applicants who had died in the course of the proceedings (Mr Hristozov, Mr Petrov, Ms Pencheva and Mr Behar, see paragraph 4 above) to pursue the applications in their stead. In their view, those heirs could not claim to be indirect victims, and did not have a valid interest in obtaining a ruling by the Court, because the alleged breaches of Articles 2, 3 and 8 of the Convention did not affect them, for two reasons.", "First, the authorities’ refusal to allow the applicants access to the unauthorised medicinal product that they wished to have administered did not affect other individuals, such as their heirs. Secondly, the rights invoked by the applicants were deeply personal in nature. Moreover, it was not the Court’s task to determine in the abstract whether the relevant domestic law provisions were in line with the Convention. 69. The applicants did not comment on that point.", "70. Article 37 § 1 of the Convention provides, in so far as relevant: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 71. In a number of cases in which applicants have died in the course of the proceedings the Court has taken into account statements by their heirs or close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by another person wishing to pursue the application (see, for example, X v. France, 31 March 1992, § 26, Series A no. 234‑C; Lukanov v. Bulgaria, 20 March 1997, § 35, Reports of Judgments and Decisions 1997‑II; and Malhous v. the Czech Republic (dec.) [GC], no.", "33071/96, ECHR 2000‑XII, with further references). Conversely, the Court and the former Commission have struck applications out of their lists in situations where the applicants have died in the course of the proceedings and either no one has come forward with a wish to pursue the application (see, for example, Öhlinger v. Austria, no. 21444/93, Commission’s report of 14 January 1997, unreported, § 15; Ibish v. Bulgaria (dec.), no. 29893/06, 31 January 2011; and Korzhenevich v. Russia (dec.), no. 36799/05, 28 June 2011), or the persons who have expressed such a wish are not heirs or sufficiently close relatives of the applicants, and cannot demonstrate that they have any other legitimate interest in pursuing the application (see Scherer v. Switzerland, 25 March 1994, §§ 31‑32, Series A no.", "287; S.G. v. France (striking out), no. 40669/98, §§ 6 and 16, 18 September 2001; Thévenon v. France (dec.), no. 2476/02, ECHR 2006‑III; Léger v. France (striking out) [GC], no. 19324/02, §§ 47‑51, 30 March 2009; Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010; and Yanchev v. Bulgaria (dec.) [Committee], no.", "16403/07, 20 March 2012). 72. In the present case, the requests to pursue the proceedings were submitted by persons who had provided evidence of their status as both direct heirs and very close relatives of the deceased applicants (see paragraph 4 above). 73. It is true that under Article 34 the existence of a victim of a violation is indispensable for the Convention’s protection mechanism to be put in motion.", "However, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the proceedings (see, as a recent authority, OAO Neftyanaya kompaniya YUKOS v. Russia (dec.), no. 14902/04, § 441, 29 January 2009). The Court’s approach to cases introduced by applicants themselves and only continued by their relatives after their deaths differs from its approach to cases in which the application has been lodged after the death of the direct victim (see Fairfield and Others v. the United Kingdom (dec.), 24790/04, 8 March 2005; Biç and Others v. Turkey, no. 55955/00, § 20, 2 February 2006; Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006; Grădinar v. Moldova, no.", "7170/02, § 91, 8 April 2008; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 39, 28 July 2009; and Kaburov v. Bulgaria (dec.), no. 9035/06, § 52, 19 June 2012). Moreover, the transferability or otherwise of the applicant’s claim is not always decisive, for it is not only material interests which the successors of deceased applicants may pursue by their wish to maintain the application (see Capital Bank AD v. Bulgaria, no. 49429/99, § 78, ECHR 2005‑XII (extracts)).", "Cases before the Court generally also have a moral or principled dimension, and persons close to an applicant may thus have a legitimate interest in obtaining a ruling even after that applicant’s death (see Malhous, cited above). This is particularly true in the present case, for two reasons. First, it concerns the application of the most fundamental provisions in the Convention system. Secondly, its subject matter is closely connected with the four applicants’ deaths. In these circumstances, it would be contrary to the Court’s mission to refrain from ruling on the complaints raised by the deceased applicants just because they did not, owing to their serious diseases, have the strength or the time to await the outcome of the proceedings before it.", "74. It cannot therefore be said that it is no longer justified to continue the examination of the applications in so far as they concern the four deceased applicants. 75. In view of this conclusion, the Court does not consider it necessary to address the question whether respect for human rights requires the continued examination of the applications in so far as they concern the four deceased applicants (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX, and Hirsi Jamaa and Others v. Italy [GC], no.", "27765/09, § 58, 23 February 2012). II. ADMISSIBILITY OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION A. Victim status 76. The Government submitted that the applicants could not claim to be victims of a violation, for three reasons.", "First, they had received adequate medical treatment, had not been denied such treatment, and there was no indication that their state of health had worsened. Secondly, Bulgarian law allowed “compassionate use” of unauthorised medicinal products. Thirdly, the applicants had not enrolled in a clinical trial that would have allowed them access to such products. Under European Union law there was no obligation, but simply a recommendation, to have a harmonised approach to the “compassionate use” of unauthorised medicinal products. MBVax Coley Fluid had not been authorised in any country and did not meet the criteria for “compassionate use” under European Union law.", "77. The Government further argued that Ms Staykova‑Petermann could not claim to be a victim of a violation in her own right. 78. The applicants did not comment on those points. 79.", "The Court observes that the issues raised by the first limb of the Government’s objection are closely bound up with the merits of the complaints (see, mutatis mutandis, Doğan and Others v. Turkey, nos. 8803‑8811/02, 8813/02 and 8815‑8819/02, § 93, ECHR 2004‑VI (extracts); Al‑Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 106‑07, ECHR 2011‑...; and Hirsi Jamaa and Others, cited above, § 111). The Court will therefore deal with those points when examining the substance of the complaints. 80.", "As regards the second limb of the objection, the Court finds that, sadly, at this juncture the question whether Ms Staykova‑Petermann may personally claim to be a victim is of no practical importance, because her late son was also an applicant and because, following his death, she expressed the wish to pursue the proceedings in his stead, and the Court accepted that she was entitled to do so (see paragraphs 4, 73 and 74 above, and Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, §§ 41‑43, 26 July 2011). 81. The Government’s objection must therefore be rejected. B. Exhaustion of domestic remedies 1.", "The parties’ submissions 82. The Government submitted that the applicants had failed to exhaust domestic remedies in respect of their complaints under Articles 2, 3 and 8 of the Convention, because they had not sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid. They said that they were not aware of cases in which the Bulgarian courts had dealt with the “compassionate use” of unauthorised medicinal products, and pointed out that those courts were not competent to declare what type of medical treatment should be applied in a particular case. It was nevertheless possible to refer the question raised by the case to a domestic court, and rely on arguments based on the Convention or on European Union law, inasmuch as the Convention had been incorporated in Bulgarian law and the relevant rules of European Union law were directly applicable. The Government went on to draw attention to the conditions under which patients could seek access to unauthorised medicinal products, and expressed the view that in the applicants’ cases those conditions had not been met.", "83. In their additional observations on this point, the Government again argued that the applicants could have sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid, or of the regulations on which those decisions had been based. In such proceedings the applicants could have relied on the Convention: the Bulgarian courts had on a number of occasions set aside administrative decisions or struck down regulations as inconsistent with the Convention or European Union law. The Government conceded that they could not speculate as to the outcome of such proceedings, but emphasised that in their view neither the decisions nor the regulations in issue were in breach of the Medicinal Products in Human Medicine Act 2007 or of European Union law. The Act itself was fully consistent with the relevant European Union law, and therefore not in breach of the Convention.", "Regulations no. 2 and Regulations no. 10 both required that the medicinal product in issue be authorised in another country, which was not the applicants’ case. However, this was fully in line with Article 83 of Regulation (EC) no. 726/2004, which required that the product concerned either be the subject of an application for marketing authorisation or be undergoing clinical trials, which was again not the applicants’ case.", "84. The applicants replied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency was not an effective remedy, for three reasons. First, in view of the wording of the applicable regulations, it would not have had any reasonable prospects of success. Secondly, its examination would have taken too long. Thirdly, the national courts would not have been in a position to obtain impartial expert opinions.", "An application for judicial review of the regulations themselves was not an effective remedy either, because such proceedings could have resulted only in the regulations being struck down, not their modification. 85. In their additional observations on this point, the applicants again argued that an application for judicial review of the decisions of the Medicines Executive Agency would not have had a reasonable prospect of success, for several reasons. First, the requirements laid down in the applicable regulations were vague. Secondly, because of the absence from Regulations no.", "2 of provisions dealing with the possibility of judicial review, and of any case‑law under that regulation or under the regulations that preceded it, it was unclear which would be the competent court, and even whether the courts would consider the Agency’s pronouncements to be administrative decisions subject to judicial review. Thirdly, there was no guarantee that the applicants would be able to obtain unbiased expert opinions. The impossibility of securing objective opinions by medical experts was a systemic problem in Bulgaria, as illustrated by a number of cases concerning medical negligence and reports in the press. Fourthly, all those procedural uncertainties made it very likely that any legal challenges brought by the applicants would not have been determined before their deaths. In support of that assertion the applicants pointed to several cases in which proceedings brought by patients in connection with the State’s failure to provide them with medicines had been marred by delays and had dragged on for years; in some of those cases the claimants had died long before the courts had dealt with their claims.", "As regards proceedings concerning challenges to statutory instruments, their average duration was two years. Fifthly, the regulations in issue were not contrary to Bulgarian law, and thus could be challenged only on Convention grounds. However, as was evident from their case‑law, the Bulgarian courts were likely to take into account Convention‑related arguments only if they were based on clear and consistent case‑law of this Court in relation to Bulgaria, which was not the case. There was an abundance of Bulgarian judicial decisions which had given short shrift to Convention‑based arguments. In sum, the prospect of a national court providing redress to the applicants before their deaths was illusory.", "Nor could they realistically hope to obtain from the authorities a different decision under newly issued Regulations no. 10, which likewise required that the medicinal product in issue be authorised in another country. 2. The Court’s assessment 86. Concerning the possibility of seeking judicial review of the decisions of the Director of the Medicines Executive Agency, the Court observes that at the relevant time the impossibility for the applicants to obtain access to the unauthorised medicinal product that they wished to have administered flowed directly from the wording of Regulation 2 of Regulations no.", "2 of 10 January 2001, preceded and superseded by similar texts (see paragraphs 25 and 30 above). Under the express terms of that Regulation, and of the Regulations that preceded and superseded it, medicinal products which had not been authorised in another country – which was the case here – could not exceptionally be permitted for use in Bulgaria (see paragraphs 26, 27 and 31 above). It has not been disputed that in his decisions in respect of each of the applicants the Agency’s Director applied that provision correctly; this is confirmed by the opinion expressed by the Ombudsman of the Republic (see paragraph 16 above) and by the Government’s submissions (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42 in limine, ECHR 1999‑V; Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 86, 27 November 2007; Ognyan Asenov v. Bulgaria, no.", "38157/04, § 32, 17 February 2011; and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 72, 25 October 2011). As regards the possibility of relying on the direct application of European Union law, the Court takes note of the examples cited by the Government in which the Bulgarian courts relied on that law to set aside administrative decisions (see paragraphs 38 and 39 above). However, the Court observes that, as evident from the terms of its relevant provisions, European Union law enables, but does not require, the Union’s member States to allow “compassionate use” of unauthorised medicinal products (see paragraphs 45‑51 above). There is therefore no basis on which to argue that the Director’s decisions were in breach of that law.", "Lastly, the Court is not persuaded that the applicants could have successfully challenged those decisions on the strength of Convention‑based arguments. It takes note of the examples cited by the Government in which the Bulgarian courts relied on the Convention and the Court’s case‑law to set aside administrative decisions, or to hold that they had jurisdiction to review such decisions (see paragraphs 39 and 40 above). However, it cannot be overlooked that in all those examples the Bulgarian courts based their decisions on established case‑law of this Court, whereas there is to date no firm basis in the Court’s case‑law on which to hold that impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention. The issue is novel and not free from doubt. The Court is mindful that its role is intended to be subsidiary to that of national systems safeguarding human rights, and that the national courts should normally have the initial opportunity to determine whether domestic law is compatible with the Convention (see Burden v. the United Kingdom [GC], no.", "13378/05, § 42, ECHR 2008‑...). However, it considers that the examples cited by the Government cannot lead to the conclusion that in the specific circumstances of this case a domestic legal challenge based on Convention‑related arguments would have had a reasonable prospect of success (see, mutatis mutandis, Slavgorodski v. Estonia (dec.), no. 37043/97, 9 March 1999, and Odièvre v. France [GC], no. 42326/98, §§ 21 and 23, ECHR 2003‑III). The Court also notes that, by the Government’s own admission, the Bulgarian courts have never dealt with the use of unauthorised medicinal products; it appears that since 1995, when the Minister of Health laid down regulations on this matter for the first time, no cases have been reported under those regulations (see paragraph 34 above).", "87. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that the remedy to which they refer offered a reasonable prospect of success (see, as a recent authority, Nada v. Switzerland [GC], no. 10593/08, § 141, 12 September 2012). In view of the above reasons, the Court is not satisfied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency can be regarded as offering such a prospect. 88.", "Nor is the Court persuaded that the applicants would have been able successfully to seek judicial review of the regulations on which those decisions were based. Those regulations do not appear to run counter to a higher‑ranking statutory or constitutional rule, or to a rule of European Union law. There is thus no basis in domestic law or European Union law for a challenge to them. The Court is not persuaded that the applicants could have successfully challenged the regulations on the strength of Convention‑based arguments either. It is true that the Supreme Administrative Court has previously struck down statutory instruments on the ground that they were contrary to the Convention, when the discrepancy between the two was clear (see the decisions cited in paragraph 37 above, and in Bochev v. Bulgaria, no.", "73481/01, § 45, 13 November 2008). However, in cases where the incompatibility was not immediately apparent, it has refused to do so (see the decisions cited in Ponomaryovi v. Bulgaria, no. 5335/05, §§ 23‑24, ECHR 2011‑...). As already noted, in the present case it is far from clear that the impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention. 89.", "In view of these conclusions, the Court does not find it necessary to enquire whether the effectiveness of the remedy proposed by the Government would have been hindered by uncertainties as to whether a legal challenge to the Director’s decisions or the underlying regulations would have been heard on the merits, or by the alleged impossibility of obtaining impartial expert opinions, or by the allegedly limited powers of the Supreme Administrative Court in proceedings for review of statutory instruments. Nor is it necessary to speculate as to whether such judicial review proceedings would have lasted so long as to render a ruling in the applicants’ favour devoid of practical purpose. 90. The Government’s objection must therefore be rejected. C. Compatibility ratione materiae 91.", "The Government submitted that the complaint under Article 2 was incompatible ratione materiae with the provisions of the Convention, because that Article could not be construed as requiring the State to allow access to unauthorised medicinal products. The same was true for the complaint under Article 3 of the Convention. The refusal to allow the applicants access to the experimental product MBVax Coley Fluid, whose safety and efficacy had not been established, could not be regarded as inhuman treatment. 92. The applicants did not comment on this submission.", "93. The Court notes that the Government’s arguments concern the interpretation and application of Articles 2 and 3 of the Convention, and in particular the extent of the State’s positive obligations under those Articles in relation to the provision of unauthorised medicinal products to terminally ill patients. Considered in those terms, the objection that the complaints are incompatible ratione materiae with the provisions of the Convention is closely linked to the substance of the complaints, and is more appropriately addressed at the merits stage (see, mutatis mutandis, Bozano v. France, 18 December 1986, § 42, Series A no. 111; Vo v. France [GC], no. 53924/00, § 44, ECHR 2004‑VIII; Rantsev v. Cyprus and Russia, no.", "25965/04, § 211, 7 January 2010; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 50, 15 March 2012). D. The Court’s conclusion as to the admissibility of the complaints 94. The Court further considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established.", "They must therefore be declared admissible. III. MERITS OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION 95. The applicants complained under Article 2 § 1 of the Convention that under Bulgarian law individuals who were terminally ill and who had unsuccessfully exhausted all conventional methods of treatment could not exceptionally be allowed to use unauthorised medicinal products. They further complained that the authorities’ response to their requests to obtain such permission had been both incoherent and slow, arguing that this had been due to the lack of clear rules in that domain.", "96. The applicants also complained under Article 3 of the Convention that by denying them access to the experimental medicinal product that they wished to use the authorities had subjected them to inhuman and degrading treatment. 97. Lastly, they complained under Article 8 of the Convention that the authorities’ refusal to allow them to use the product had been an unjustified interference with their right to respect for their private and family life. 98.", "Articles 2, 3 and 8 of the Convention provide, in so far as relevant: Article 2 (right to life) “1. Everyone’s right to life shall be protected by law ...” Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 (right to respect for private and family life) “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1.", "Concerning Article 2 of the Convention 99. The Government pointed out that Bulgarian law made provision for “compassionate use” of unauthorised medicinal products. However, they emphasised that such products carried serious risks, which required them to be carefully regulated. The State was entitled to refuse permission for the use of an unauthorised medicinal product, and this did not breach the right to life, but safeguarded it. The positive obligations under Article 2 of the Convention had limits, and could not exceed what was reasonable.", "The applicants had been given conventional medical treatment. There was no further duty to allow them to use a product which was not authorised in any member State of the European Union or had not been subjected to a clinical trial. A State could not be obliged to make available all possible drugs, let alone products whose contents and origins were not clearly known, and which had not been authorised in developed countries with strong health care systems. The product at issue did not comply with the requirements for “compassionate use” under Article 83 of Regulation (EC) no. 726/2004.", "If its producer met the applicable requirements, the authorities could envisage allowing its use in the future. In that sense, the applicants were not left with no hope at all. 100. The applicants submitted that the refusal to allow them to use the product had been in breach of their right to life. They highlighted the similarities and differences between their case and previous cases in which the Court had dealt with complaints under Article 2 of the Convention in relation to health care.", "They argued that, properly framed, the issue in their case was whether the State had taken appropriate steps to safeguard the lives of those under its jurisdiction. In their view it had not, because the rules governing “compassionate use” were not adequate, in that they did not allow the authorities to have regard to specific circumstances. All individuals in Bulgaria who, like the applicants, had cancer which was terminal and which was no longer responding to conventional treatment, were being denied access to experimental medicinal products. In the applicants’ case, this was not justified by lack of budgetary resources, because the company which had developed the product was willing to provide it free of charge. There were indications that the condition of some cancer patients had improved as a result of its use.", "This had given the applicants hope that it might help them as well. 2. Concerning Article 3 of the Convention 101. The Government drew attention to the minimum threshold bringing Article 3 of the Convention into play, which in their view had not been reached, and to the limited extent of the State’s positive obligations under that Article. They pointed out that there had been no intention to deny the applicants access to safe medicinal products.", "The experimental product that they wished to use had not been authorised in any country, and had not undergone clinical trials. Its safety and efficacy had not been established. Not being given the opportunity to use it could not therefore be regarded as inhuman treatment. On the contrary, its use, which would have amounted to a medical experiment, might have resulted in a breach of Article 3. 102.", "The applicants submitted that they had been forced to await their deaths in spite of being aware of the existence of an experimental product which might improve their health and prolong their lives. Those of them who had died had had to endure pain and suffering before their death, in the knowledge that the use of the product in other countries had in some cases even led to complete remission from the disease. 3. Concerning Article 8 of the Convention 103. The Government submitted that any interference with the applicants’ rights under Article 8 of the Convention had been lawful and necessary.", "The refusals to allow them to use the experimental product had been reasoned, made by an independent authority, and based on legal provisions which were fully in line with European Union law. It could therefore be presumed that they were compliant with the Convention. Those provisions, which took into account the need to strike a balance between the public interest and personal autonomy, sought to protect the health and life of those concerned by preventing abuses and the risks accompanying the use of untested products. For that purpose they had laid down certain conditions, which in the applicants’ cases had not been met. That regulatory arrangement could not be described as a blanket prohibition on the “compassionate use” of unauthorised medicinal products.", "104. The applicants highlighted the similarities and differences between their case and previous cases in which the Court had dealt with similar issues under Article 8 of the Convention. They pointed out that they were not trying to derive from that provision a right to die, but on the contrary a right to try to prolong life and avert death. The refusals to allow them access to an experimental medicinal product which might help them do so amounted to interference with their rights under that Article. The manner in which a person chose to live, even if that choice could entail harmful consequences, was part of that person’s private life.", "The refusals had been of a blanket nature, not taking into account the specifics of each case. They had been based on inadequate legal provisions which did not permit an individualised assessment, and did not correspond to a pressing social need. They had not been intended to protect the applicants’ lives, because all of them were terminally ill and, without recourse to some new medicinal product, had only a short span of life left. In that connection, it had to be borne in mind that the exception sought would simply have given the applicants a chance to prolong their lives, and would not have shielded anyone else from criminal liability. It might have helped them avert suffering and death, as had happened with some patients in other countries.", "B. The Court’s assessment 1. The scope of the case 105. The Court’s task in cases arising from individual applications is not to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324; Pham Hoang v. France, 25 September 1992, § 33, Series A no.", "243; Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003‑VIII; and S.H. and Others v. Austria [GC], no. 57813/00, § 92, ECHR 2011‑...). The Court must also confine its attention, as far as possible, to the particular circumstances of the case before it (see, among other authorities, Wettstein v. Switzerland, no.", "33958/96, § 41, ECHR 2000‑XII, and Sommerfeld, cited above, § 86). It is therefore not called upon in the present case to pass judgment on the system of rules governing access to unauthorised medicinal products in Bulgaria, or to decide whether refusal of access to medicinal products is in principle compatible with the Convention. Moreover, the Court is not competent to express an opinion as to the suitability of a particular medical treatment. Lastly, the Court does not have to establish whether the product that the applicants wished to use met the requirements of European Union law, and in particular the requirement of Article 83 § 2 of Regulation (EC) no. 726/2004 to be undergoing clinical trials (see paragraphs 10, 45 and 50 above); the Court is competent only to apply the Convention, and it is not its task to review compliance with other international instruments (see Di Giovine v. Portugal (dec.), no.", "39912/98, 31 August 1999; Hermida Paz v. Spain (dec.), no. 4160/02, 28 January 2003; Somogyi v. Italy, no. 67972/01, § 62, ECHR 2004‑IV; Calheiros Lopes and Others v. Portugal (dec.), no. 69338/01, 3 June 2004; and Böheim v. Italy (dec.), no. 35666/05, 22 May 2007).", "In the present case, the Court must determine only whether the refusals to allow the applicants access to the product at issue were compatible with their Convention rights. 2. Alleged violation of Article 2 of the Convention 106. The first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I, and Wiater v. Poland (dec.), no.", "42290/08, § 33, 15 May 2012). The Court has previously held that it cannot be excluded that acts and omissions of the authorities in the field of health care policy may in some circumstances engage the State’s responsibility under Article 2 (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Trzepałko v. Poland (dec.), no. 25124/09, § 23, 13 September 2011; and Wiater, cited above, § 34).", "It has also held that, with respect to the scope of the State’s positive obligations in the provision of health care, an issue may arise under Article 2 where it is shown that the authorities have put an individual’s life at risk through the refusal of health care which they have undertaken to make available to the general population (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001‑IV; Nitecki, cited above; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005‑I; Gheorghe v. Romania (dec.), no. 19215/04, 22 September 2005; and Wiater, cited above, § 35). 107.", "In the present case, it is not being argued that the applicants have been refused health care which is otherwise generally available in Bulgaria. Nor are the applicants suggesting that the State should pay for a particular form of conventional treatment because they are unable to meet its costs (contrast Nitecki; Pentiacova and Others; Gheorghe; and Wiater, all cited above). The applicants’ claim is rather that, because conventional treatments did not work in their cases, domestic law should be framed in such a way as to entitle them, exceptionally, to have access to an experimental and yet untested product that would be provided free of charge by the company which is developing it. 108. It is true that the positive obligations under Article 2 may include the duty to put in place an appropriate legal framework, for instance regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives (see Calvelli and Ciglio, cited above, § 49), or regulations governing dangerous industrial activities (see Öneryıldız v. Turkey [GC], no.", "48939/99, § 90, ECHR 2004‑XII). Nevertheless, it cannot be said that Bulgaria does not have in place regulations governing access to unauthorised medicinal products in cases where conventional forms of medical treatment appear insufficient. Such regulations exist and have recently been updated (see paragraphs 23‑32 above). The applicants rather take issue with the terms of those regulations, arguing that they are overly restrictive. However, in the Court’s view Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way.", "It should be noted in this connection that in the European Union this matter remains within the competence of the member States (see paragraphs 45‑51 above), and that the Contracting States deal differently with the conditions and manner in which access to unauthorised medicinal products is provided (see paragraphs 54‑55 above). 109. There has therefore been no violation of Article 2 of the Convention. 3. Alleged violation of Article 3 of the Convention 110.", "Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment. However, to fall under that provision a given form of treatment must attain a minimum level of severity. The assessment of this minimum level 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, as a recent authority, A, B and C v. Ireland [GC], no.", "25579/05, § 164, ECHR 2010‑...). In considering whether a treatment is “degrading”, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other auhtorities, Wainwright v. the United Kingdom, no. 12350/04, § 41, ECHR 2006‑X). 111. An examination of the Court’s case‑law shows that Article 3 has been most commonly applied in contexts in which the risk of being subjected to a proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities.", "It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in view of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address its application in other situations (see Pretty v. the United Kingdom, no. 2346/02, § 50, ECHR 2002‑III). For instance, suffering which flows from a naturally occurring illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment stemming from measures for which the authorities can be held responsible (see N. v. the United Kingdom [GC], no. 26565/05, § 29, ECHR 2008‑...).", "However, the threshold in such situations is high, because the alleged harm emanates not from acts or omissions of the authorities but from the illness itself (ibid., § 43). 112. In the present case, there is no complaint that the applicants have not received adequate medical treatment. It appears that all of them have benefited from such treatment, which has sadly proved insufficient to treat their medical conditions. Their situation is therefore not comparable to those of persons in custody who complain of a lack of medical treatment (see, for example, Keenan v. the United Kingdom, no.", "27229/95, §§ 109‑16, ECHR 2001‑III; McGlinchey and Others v. the United Kingdom, no. 50390/99, §§ 47‑58, ECHR 2003‑V; and Sławomir Musiał v. Poland, no. 28300/06, §§ 85‑98, 20 January 2009), seriously ill persons who would be unable to obtain treatment if removed to a country which lacks adequate medical facilities (see N. v. the United Kingdom, cited above, §§ 32‑51, and the cases cited therein), or persons in a vulnerable situation who have, as a result of rank indifference on the part of health care professionals, been denied access to otherwise available diagnostic services to which they were entitled as a matter of law (see R.R. v. Poland, no. 27617/04, §§ 148‑62, 26 May 2011).", "113. The applicants rather claim that the refusal by the authorities to allow them access to an experimental product which, according to them, was potentially life‑saving, amounted to inhuman and degrading treatment for which the State was responsible, as it thereby failed to protect them from the suffering resulting from the final stages of their illness. However, as in Pretty (cited above, § 54), the Court considers that this claim puts an extended construction on the concept of inhuman or degrading treatment that it cannot accept. It cannot be said that by refusing the applicants access to a product – even if potentially life‑saving – whose safety and efficacy are still in doubt, the authorities directly added to the applicants’ physical suffering. It is true that the refusals, inasmuch as they prevented the applicants from resorting to a product which they believed might improve their chances of healing and survival, caused them mental suffering, especially in view of the fact that the product appears to be available on an exceptional basis in other countries.", "However, the Court does not consider that the authorities’ refusal reached a sufficient level of severity to be characterised as inhuman treatment (see, mutatis mutandis, A, B and C v. Ireland, cited above, §§ 163‑64). It notes in this connection that Article 3 does not place an obligation on the Contracting States to alleviate the disparities between the levels of health care available in various countries (see, mutatis mutandis, N. v. the United Kingdom, cited above, § 44). Lastly, the Court does not consider that the refusals can be regarded as humiliating or debasing the applicants. 114. Whether the refusals unduly interfered with the applicants’ right to respect for their physical integrity is a point which the Court will examine below by reference to Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, no.", "5410/03, § 66, ECHR 2007‑I, and L. v. Lithuania, no. 27527/03, § 47, ECHR 2007‑IV). 115. There has therefore been no violation of Article 3 of the Convention. 4.", "Alleged violation of Article 8 of the Convention (a) Applicability of Article 8 116. The essence of the applicants’ grievance is that there is a regulatory limitation on their capacity to choose, in consultation with their doctors, the way in which they should be medically treated with a view to possibly prolonging their lives. This complaint clearly falls to be examined under Article 8, whose interpretation, so far as the notion of “private life” is concerned, is underpinned by the notions of personal autonomy and quality of life (see Pretty, cited above, §§ 61 in fine and 65, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002‑VI). It is by reference to that provision that the Court and the former Commission have most often examined the extent to which States can use compulsory powers to protect people from the consequences of their own conduct, including when that conduct poses a danger to health or is of a life‑threatening nature (see, for example, concerning involvement in consensual sado-masochistic activities, Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, §§ 35‑36, Reports 1997‑I, and K.A.", "and A.D. v. Belgium, no. 42758/98 and 45558/99, §§ 78 and 83, 17 February 2005; concerning imposition of medical treatment without consent, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, DR 40, p. 251; Glass v. the United Kingdom, no. 61827/00, §§ 82‑83, ECHR 2004‑II; Storck v. Germany, no. 61603/00, §§ 143‑44, ECHR 2005‑V; Jehovah’s Witnesses of Moscow v. Russia, no.", "302/02, § 135, ECHR 2010‑...; and Shopov v. Bulgaria, no. 11373/04, § 41, 2 September 2010; and, concerning assisted suicide, Pretty, cited above, §§ 62‑67, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011‑...). (b) Positive obligation or interference with a right? 117.", "The parties argued the case in terms of interference with the applicants’ rights under Article 8. In the Court’s view, however, the point is not so clear-cut. The central issue in the case may be seen as either a curtailment of the applicants’ choice of medical treatment, to be analysed as an interference with their right to respect for their private life (compare, mutatis mutandis, Pretty, cited above, § 67; A, B and C v. Ireland, cited above § 216; and S.H. and Others v. Austria, cited above, §§ 85‑88), or as an allegation of a failure on the part of the State to provide an appropriate regulatory framework securing the rights of persons in the applicants’ situation, to be analysed in terms of the State’s positive duty to ensure respect for their private life (compare, mutatis mutandis, Christine Goodwin, § 71; Tysiąc, §§ 107‑08; Haas, §§ 52‑53; A, B and C v. Ireland, §§ 244‑46; and R.R. v. Poland, § 188, all cited above).", "The Court does not find it necessary to determine this point. Although the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see, among other authorities, Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007‑I; and Dickson v. the United Kingdom [GC], no.", "44362/04, § 70, ECHR 2007‑V). The salient issue in this case is precisely whether such a balance has been struck, regard being had to the State’s margin of appreciation in this domain. (c) The competing interests and the applicable margin of appreciation 118. In its recent judgment in S.H. and Others v. Austria (cited above, § 94), the Court summarised the principles for determining the breadth of the State’s margin of appreciation under Article 8 as follows.", "A number of factors must be taken into account. Where a particularly important facet of an individual’s existence or identity is at stake, the margin will normally be restricted. Where, however, there is no consensus within the Contracting States, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights. 119.", "The Court starts with the general point that matters of health-care policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008). 120. Turning to the competing interests, the Court observes that it is undeniable that the applicants’ interest in obtaining medical treatment capable of mitigating their illness or of helping them defeat it is of the highest order. However, the analysis cannot stop there.", "When it comes to experimental medicinal products, it is in the nature of things that their quality, efficacy and safety are open to doubt. The applicants do not deny this. They rather seek to argue that because of the dire prognosis attaching to their medical condition, they should have been allowed to assume the risks attendant on a potentially life‑saving experimental product. Framed in these terms, the applicants’ interest is of a different nature. It may be described as the freedom to opt, as a measure of last resort, for an untested treatment which may carry risks but which the applicants and their doctors consider appropriate to their circumstances, in an attempt to save their lives.", "121. That said, the Court nonetheless accepts that, in view of their medical condition and the prognosis for its development, the applicants had a stronger interest than other patients in obtaining access to experimental treatment whose quality, safety and efficacy have not yet been subjected to comprehensive testing. 122. The countervailing public interest in regulating the access of terminally ill patients such as the applicants to experimental products appears to be based on three premises. Firstly, to protect them, in view of their vulnerable state and the lack of clear data on the potential risks and benefits of experimental treatments, against a course of action which may prove harmful to their own health and life, their terminal condition notwithstanding (see, mutatis mutandis, Haas, cited above, § 54).", "The Court notes in this connection that it has emphasised, albeit in a different context, the importance of informed consent to medical procedures (see V.C. v. Slovakia, no. 18968/07, §§ 107‑17 and 152, ECHR 2011‑... (extracts), and N.B. v. Slovakia, no. 29518/10, §§ 76‑78 and 96, 12 June 2012).", "Secondly, to ensure that the prohibition laid down in section 7(1) of the Medicinal Products in Human Medicine Act 2007 (see paragraph 22 above) against the production, importation, trade in, advertisement, or use for medical treatment, prophylaxis or diagnostics of products which have not been granted authorisation under the appropriate regulatory channels is not diluted or circumvented. Thirdly, to ensure that the development of new medicinal products is not compromised by, for instance, diminished patient participation in clinical trials. All those interests are related to the rights guaranteed under Articles 2, 3 and 8 the Convention, the first very specifically and the second and third more generally. Moreover, balancing them against the applicants’ interest touches upon complex ethical and risk-assessment issues, against a background of fast-moving medical and scientific developments. 123.", "As regards the consensus within the Contracting States, the Court observes that, according to the comparative-law information available to it, a number of those States have made provision in their laws for exceptions, in particular in the case of terminally ill patients, to the rule that only authorised medicinal products may be used for medical treatment. They have, however, made this option subject to conditions of varying strictness (see paragraphs 54‑55 above). On that basis, and on the basis of the manner in which the issue is regulated in the law of the European Union (see paragraphs 44‑51 above), the Court concludes that there is now a clear trend in the Contracting States towards allowing, under certain exceptional conditions, the use of unauthorised medicinal products. However, that emerging consensus is not based on settled principles in the law of the Contracting States. Nor does it appear to extend to the precise manner in which that use should be regulated.", "124. On the basis of the above considerations, the Court concludes that the margin of appreciation to be afforded to the respondent State must be a wide one, especially as regards the detailed rules it lays down with a view to achieving a balance between competing public and private interests (see, mutatis mutandis, Evans, § 82, and S.H. and Others v. Austria, § 97, both cited above). (d) Balancing the interests 125. The Bulgarian authorities have chosen to balance the competing interests by allowing patients who cannot be satisfactorily treated with authorised medicinal products, including terminally ill patients such as the applicants, to obtain, under certain conditions, medicinal products which have not been authorised in Bulgaria, but only if those products have already been authorised in another country (see paragraphs 26 and 31 above).", "That was apparently the main reason for the refusals by the Medicines Executive Agency in the applicants’ cases (see paragraph 14 above). Such a solution tilts the balance between potential therapeutic benefit and medicine risk avoidance decisively in favour of the latter, because medicinal products authorised in another country are likely already to have been subjected to comprehensive safety and efficacy testing. At the same time, this solution leaves products which are still in the various stages of development entirely inaccessible. In view of the authorities’ broad margin of appreciation in this domain, the Court considers that regulatory solution did not fell foul of Article 8. It is not for an international court to determine in place of the competent national authorities the acceptable level of risk in such circumstances.", "The salient question in terms of Article 8 is not whether a different solution might have struck a fairer balance, but whether, in striking the balance at the point at which they did, the Bulgarian authorities exceeded the wide margin of appreciation afforded to them (see, mutatis mutandis, Evans, § 91, and S.H. and Others v. Austria, § 106, both cited above). In view of the considerations set out above, the Court is unable to find that they did. 126. The applicants’ other criticism of the regulatory arrangement was that it did not sufficiently allow individual circumstances to be taken into account.", "However, the Court finds that this was not necessarily inconsistent with Article 8. It is not in itself contrary to the requirements of that provision for a State to regulate important aspects of private life without making provision for the weighing of competing interests in the circumstances of each individual case (see, mutatis mutandis, Pretty, §§ 74‑76; Evans, § 89; and S.H. and Others v. Austria, § 110, all cited above). 127. The Court therefore concludes that there has been no violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 128. The applicants complained that they did not have effective remedies in respect of the alleged breaches of Articles 2, 3 and 8 of the Convention. They relied on Article 13, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 129. The Government submitted that the applicants could have sought to vindicate their rights under Articles 2, 3 and 8 of the Convention by bringing claims in tort, either under the general law of tort or under the special provisions governing the authorities’ liability in tort.", "They could also have appealed against the refusals to the Minister of Health and then sought judicial review. 130. The applicants referred to their submissions in relation to the exhaustion of domestic remedies. 131. The Court observes that in so far as the alleged breaches of Articles 2, 3 and 8 of the Convention appear to stem from the state of Bulgarian law, no issue arises under Article 13 of the Convention (see Christine Goodwin, cited above, § 113; Appleby and Others v. the United Kingdom, no.", "44306/98, § 56, ECHR 2003‑VI; Iordachi and Others v. Moldova, no. 25198/02, § 56, 10 February 2009; and V.C. v. Slovakia, no. 18968/07, § 167, 8 November 2011). 132.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the complaints concerning the authorities’ refusal to allow the applicants to use the experimental product that they wished to have administered admissible and the remainder of the application inadmissible; 2. Holds, by five votes to two, that there has been no violation of Article 2 of the Convention; 3. Holds, by five votes to two, that there has been no violation of Article 3 of the Convention; 4.", "Holds, by four votes to three, that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) Partly dissenting opinion of Judge Kalaydjieva; (b) Dissenting opinion of Judge De Gaetano joined by Judge Vučinić L.G.T.L.E . PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA The present case raises important issues concerning the interpretation of the legitimate purposes pursued by State regulation of public health and pharmaceutical services and its limits under the Convention. I regret being unable to join the opposing conclusions of my learned colleagues as to the principles governing this important sphere.", "I am not convinced that a comparison between the applicants’ situation and those obtaining in the cases of Pretty v. the United Kingdom (no. 2346/02, ECHR 2002‑III), Evans v. the United Kingdom ([GC], no. 6339/05, ECHR 2007‑I), and S.H. and Others v. Austria ([GC], no. 57813/00, ECHR 2011‑...) is appropriate for the purposes of analysis of the circumstances in the present case.", "The applicants in the above‑mentioned three cases sought to secure increased positive involvement by the authorities – including the enactment of new legislation – to improve the situation in their private lives. In their cases this involvement inevitably risked giving rise to conflicts with potentially competing or already protected individual rights or public interests. By contrast, the applicants in the present case cannot be said to have requested the establishment of any further positive obligations for the authorities beyond those already laid down in the context of the State’s regulatory functions. Furthermore, it is questionable whether the exercise of these functions in the present case risked generating any conflict with public welfare or with any other rights or interests, as was apparently assumed to be the case by the majority (see below). It appears appropriate to mention that the applicants’ situation is not necessarily different from that of any other patient affected by a disease which is regrettably not curable with standard products available for market distribution.", "While for centuries human medicine has been concerned with the treatment of individual patients under the responsibility of medical doctors, State authorities undertook to share this responsibility through stricter regulations only fifty years ago. In this regard, the finding that “there is now a clear trend in the Contracting States towards allowing, under exceptional conditions, the use of unauthorised medicinal products” (see paragraph 123 of the judgment) does not seem accurately to reflect the historical development of medical and pharmaceutical services. Furthermore, the conclusion that “[i]t is not contrary to the requirements of [Article 8] to regulate [these] important aspects of private life without making provision for the weighing of competing interests in the circumstances of each individual case” (see paragraph 126 of the judgment) appears inappropriate for the future development of the recent undertaking to ensure safe progress in that it “tilts the balance between potential therapeutic benefit and medicine risk avoidance decisively in favour” of the status quo. Indeed, a proper definition of the principles governing the State’s regulatory functions in human medicine cannot be achieved by using the safety valve of a “wide margin of appreciation” before analysing the scope and purposes of the positive obligations undertaken in ensuring safe progress in this field, and the extent to which the operation of the established mechanisms met those obligations. These issues concern the compatibility of the impugned refusals with the legitimate aims pursued by State regulation of medical and pharmaceutical services and I regret the Court’s failure to deal with the issue of lawfulness before turning to the doctrine of the margin of appreciation – an instrument introduced by this very Court to facilitate the assessment of the necessity and proportionality of interferences with the free exercise of the rights and freedoms guaranteed by the Convention, and not as a general waiver of the duty of States to respect them as required by Article 1 of the Convention.", "The reasoning of the majority leaves the impression that for the first time the phrase “margin of appreciation” has been interpreted not in the sense of an estimation and evaluation of merit, but as an instrument to justify the national authorities’ complete failure to demonstrate any appreciation whatsoever of the applicants’ right to personal life, or to strike the requisite balance between this right and the presumed counterbalancing public interests. It is a separate issue whether the interests of individual patients and those of the community in ensuring safe progress in improved medical and pharmaceutical services may indeed be seen as competing (see paragraph 117 of the judgment), or as giving rise to any potential conflict (see paragraph 125 of the judgment). I fail to see any conflict between the public and the individual interest in ensuring the safe progress of medical treatment. In any event, the existence of such a conflict in the present case has neither been demonstrated nor alleged. This dangerous use by the Court, of its own motion, of the instrument of “wide margin of appreciation” can easily be interpreted as granting the executive authorities unwarranted power to impose their own decisions as to the appropriate treatment of any patient, or the unjustified restriction of such treatment to the use of a limited pre‑defined list of products – disregarding equally the opinion of medical professionals and the personal wishes of patients.", "I am far from convinced that any individual’s medical treatment may be seen to necessarily (not to mention exclusively) fall within the executive authorities’ margin of appreciation. In my understanding, such a result renders the exercise of the medical profession and the notion of informed consent (which should be one aspect of the State’s regulatory functions) redundant. This goes far beyond the legitimate aims pursued in the establishment of regulatory mechanisms. It is true that the national regulations governing the applicants’ situation “do not appear to run counter to a higher‑ranking statutory or constitutional rule, or to a rule of European Union law” (see paragraph 88 of the judgment) in allowing for exceptions to the general rule that only authorised medicinal products may be “produced, imported, traded ... or used for medical treatment” (see paragraphs 22‑23 of the judgment). However, in this regard the State authorities have a margin of appreciation in deciding whether or not to undertake regulatory functions in relation to individual patients’ treatment (see paragraphs 45, 49, 50, 51 and 54‑55).", "The extent to which the implementation of the national secondary legislation fulfilled the intended purposes of such functions is highly questionable. The fact remains that these regulations did not require any analysis or consultation for the purposes of quality control of the product requested and the risk/benefit test normally involved in the process of authorisation. In this regard, these regulations served to restrict the meeting of individual needs concerning the “exceptional use of unauthorised products” only to “already authorised” ones (see paragraph 125 of the judgment), thus rendering meaningless the “exceptional” nature of such permission. On the other hand, the same regulations relieved the national authority “in charge of supervising the quality, safety and efficacy of medicinal products” (see paragraph 14 of the judgment) of any duty to carry out such supervision, by redirecting this duty to other countries’ regulatory bodies, thus rendering its own functions redundant. The facts of the present case illustrate that a failure to discharge the functions of “supervising the quality, safety and efficacy of medicinal products” leads automatically to unjustified restrictions on medical treatment, seeing that “unlike the situation obtaining in other European countries, in Bulgaria the compassionate use of unauthorised products was not possible” (see paragraph 14 of the judgment).", "The Court has failed to analyse whether the limited access of Bulgarian patients to allegedly useful products available elsewhere may be justified and, if so, on what grounds. Far from wishing to see my country become an arena for dangerous or degrading medical experiments with human beings, I am prepared to agree that there is no established positive obligation on the State authorities to ensure the access of individual patients to products for medicinal purposes which have not been tested for their quality, efficacy and safety – as concluded by the majority. If any positive obligations exist with regard to individual patients, they concern the duty to respect their rights and to ensure their properly informed consent to proposed medical treatment. However, where the authorities have undertaken the obligation to put in place regulatory mechanisms to control the practice of medical and pharmaceutical professions so as to meet the public and individual interests regarding safety, this undertaking requires them to assume relevant and appropriate functions capable of meeting this obligation, rather than substituting the undertaking with a discretion to refuse treatment in the absence of any justification. I am not prepared to accept that fifty years after the thalidomide tragedy, which triggered the requirement for stricter State regulation, this responsibility may be interpreted as involving some “wide margin of appreciation” as to how to avoid discharging it.", "Unlike the dissenting minority, I consider that this is a question of the lawfulness of the purpose of the restrictions which appear to have been imposed, instead of the promised proactive functions in the interests of safe medical services, and not a question of the authorities’ “margin of appreciation” in striking the requisite balance between the allegedly competing public and individual interests in obtaining such services. I also do not agree with the opinion of the minority that “the public interest identified by the majority in paragraph 122 of the judgment may be usefully served by more narrowly tailored requirements” (see paragraph 8 of the dissenting opinion of Judge De Gaetano joined by Judge Vučinić) rather than by the effective exercise of the responsibility undertaken, while in fact “there are no major factors of public interest to weigh against the interest of the applicants” (see paragraph 9). No specific considerations in this regard were submitted before the Court. Turning to the specific substantive issue of the presumed risk involved in “unauthorised”, “untested” or “experimental” products, it is impossible not to share the view that no particular dangers calling for the applicants’ protection were ever indicated or alleged, nor were they informed of such dangers in the course of the brief examination of their requests. In this regard, it cannot be overlooked that the applicants’ condition rendered them eligible for the compassionate use of morphine – a substance whose distribution is not only unauthorised, but also criminalised.", "It was not argued that the new product to which the applicants sought access was more dangerous or less effective than morphine. I mention this fact as it cannot be overlooked that the State’s functions relating to the authorisation of medicinal products involve a distinction of different levels of authorisation for the use of medicinal products for different purposes. I will not make any contribution to pharmaceutical or medical science in noting that some products, including poisons, are never authorised for market distribution, whereas their use is legitimate and authorised for specific medical purposes. Thus, even the thalidomide tragedy, which triggered the introduction of stricter controls on the distribution of medicinal products on the market, did not result in the “prohibition” of that product, but in its limited use, which is currently authorised for specific patients. Regrettably, the distinction of authorised use for different purposes, such as market distribution, prescribed use, off-label individual treatment or compassionate individual use, was neither reflected in the applicable secondary legislation nor taken into consideration by the majority in their analysis of the proportionality or necessity of the automatic refusal with which the applicants were confronted, despite the already approved use of the experimental product for specific purposes in other countries.", "Lastly, it appears that the impugned refusals served neither to inform the applicants of any risk to life or of any degrading experiments which the treatment requested might entail, nor to prevent such treatment. In fact, some of the applicants availed themselves of the product in question outside the territory over which the national authorities exercised jurisdiction. Is State regulation of patients’ and public safety in medical treatment only a question of money? Regrettably, in adopting the secondary regulations in question and issuing the resulting refusals, the national authorities failed to indicate any convincing reason pertinent to the regulatory functions of State authorities in relation to individual patients’ medical treatment. Looking at the cited case‑law of other courts (see paragraphs 59‑67 of the judgment), I find it embarrassing that the Court, when called upon to examine the extent to which the authorities complied with their duty to respect the individual right to medical services, as well as their positive obligations to ensure the effective and safe exercise of that right, seems to be the first to fail to examine the complex ethical and moral issues arising in similar cases.", "DISSENTING OPINION OF JUDGE DE GAETANO JOINED BY JUDGE VUČINIĆ 1. I regret that I cannot share the majority’s conclusions in this case, other than on the question of the admissibility of the complaints concerning the authorities’ refusal to allow the applicants to use the experimental product that they wished to have administered and on the question of the inadmissibility of the complaint in respect of the alleged violation of Article 13. In my view there was in this case a violation of Article 8, and such a finding would have rendered it unnecessary to examine the issue under Articles 2 and 3 (see Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions 1998‑I). 2. The facts of the case may be summed up as follows: a number of cancer patients in the terminal stage of their disease want, as a measure of last resort, to be allowed to try an experimental, and possibly controversial, anti-cancer product which is being developed by a Canadian company.", "They are fully aware of the risks which go with this treatment. The treatment is not available in Bulgaria, and, although it has been offered for free by the Canadian company, the participation of Bulgarian medical institutions and Bulgarian doctors is nevertheless required for it to be administered in Bulgaria. Hence the need for the applicants to apply to the domestic authorities for the necessary permission (see paragraphs 14 and 26 of the judgment). 3. In my view the possibility to “treat oneself” – whether it be by the use of non-medical products, the use of ordinary medication, or the use of available extraordinary medication, as in this case – and to make an informed and free choice in this connection (and provided such a choice does not negatively impinge upon another’s life or health) falls within the ambit of one’s private life.", "Indeed, as correctly pointed out in paragraph 116 of the judgment, the very notion of “private life” implies a degree of personal autonomy coupled with an assessment of the quality of life in a specific situation. I also agree that matters of health care policy are, in principle, within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see paragraph 119 of the judgment). However, the issue in the present case is a considerably narrower one, and does not involve the allocation of resources. No financial considerations or imperatives were involved. The applicants were not calling upon the State to pay for this treatment (contrast, among others, Wiater v. Poland (dec.), no.", "42290/08, § 33, 15 May 2010). They were simply asking for the State to “get out of the way” and allow them access to an experimental product which would be provided to them free of charge. In the instant case, therefore, the Court should have determined the applicable margin of appreciation by reference to factors that are more specific to the situation at hand (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 103, ECHR 2003‑VIII, where the Court said that a conflict of views on the margin of appreciation can be resolved only by reference to the context of a particular case), and in particular to the applicants’ critical medical condition and the available prognosis. 4.", "Moreover, a State’s margin of appreciation is not unlimited, and, broad as it may be, must always be viewed in the light of the values underpinning the Convention, chief among them the value of life. The Court has often stated that the Convention must be read as a whole and interpreted (and I would say also applied) in such a way as to promote internal consistency and harmony between its various provisions and the various values enshrined therein (see, albeit in different contexts, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005‑X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012‑...). The Court, therefore, in assessing this margin of appreciation in the circumstances of the instant case, and the method chosen by the Bulgarian authorities to “balance” the interests mentioned in paragraphs 120 and 122 of the judgment, should have given more weight to the value of life.", "5. As is stated in paragraph 125 of the judgment, the Bulgarian authorities chose “to balance the competing interests” – I very much doubt whether those interests were really “in competition” with each other given the facts of the case – by adopting the general formula that if a medicinal product is not authorised in another country, it cannot be exceptionally used to treat patients in Bulgaria. In my view, in the case of the applicants – terminally ill patients – this generalised solution is unnecessarily restrictive and exceeds the State’s margin of appreciation in this domain, for two reasons. The first reason concerns the manner in which the solution was arrived at (see, mutatis mutandis, Hatton and Others, cited above, § 99). There is no evidence that when adopting the regulations at issue, or those that succeeded them, the Minister of Health sought to weigh the competing interests or to assess the proportionality of the restriction (see, mutatis mutandis, Dickson v. the United Kingdom [GC], no.", "44362/04, § 83 in limine, ECHR 2007‑V) by, for instance, carrying out a public consultation process (contrast, mutatis mutandis, Hatton and Others, cited above, § 128). Moreover, since the bar on access to unauthorised medicinal products which have not been authorised in another country was not embodied in primary legislation, the various competing interests were never weighed, nor were issues of proportionality ever assessed, by the legislature (see, mutatis mutandis, Dickson, § 83, cited above, and contrast Evans v. the United Kingdom [GC], no. 6339/05, § 86, ECHR 2007‑I). It is important to observe in this connection that the issue has obvious life‑or‑death implications, and that its importance cannot be emphasised enough. 6.", "The second reason has to do with the solution’s substantive content. It is an unfortunate fact of life in the modern world that the development of new medicinal products is a complex endeavour facing scientific, financial and regulatory hurdles, and as a rule taking many years to complete. As a result, terminally ill patients often do not have the time to await the full testing and authorisation of new medicines which may help them mitigate or defeat their disease. A number of Contracting States, as well as other States and the European Union, are apparently alive to this problem and have for this reason made provision for early access to experimental products which have not yet obtained regulatory approval (see paragraphs 45, 49‑51 and 54‑58 of the judgment). It is true that the specific way in which such access is being provided varies among countries.", "However, it appears that in many of them it embraces products which have not obtained regulatory approval anywhere and are in this sense truly new and experimental. The development of new medicinal products is a field which is constantly impacted by scientific developments and advances in technology. By denying the applicants – terminally ill patients – any access to those developments, the Bulgarian authorities effectively disregarded completely their very strong interest in having the opportunity to try treatment which, although involving acceptance of additional uncertainty as to risk, may prove to be the only remaining opportunity for them to attempt to save their lives. 7. I am, of course, fully aware that allowing too many exceptions to the system of authorising medicinal products may undermine its function to ensure that only products whose quality, safety and efficacy have been convincingly demonstrated should be allowed for use by patients.", "However, I cannot overlook – and unfortunately the majority decision does overlook – the fact that such exceptions already exist and do not appear to have imperilled the operation of that system, both at the national and the higher level. The fact that a number of other States operate such mechanisms in respect of products which have not been authorised anywhere in the world shows that any difficulties that are likely to arise are manageable. 8. The public interest identified in paragraph 122 of the judgment may be usefully served by more narrowly tailored requirements. For instance, the applicable regulations could require the authorities to assure themselves that the possible benefit of using an unauthorised product justifies the possible risks of using it, and that the risks posed by the product are not unreasonable in the circumstances and do not outweigh the risks posed by the disease which it is purported to treat.", "They could additionally insist that medical practitioners who propose to treat terminally ill patients with an unauthorised product explain in detail the known and unknown risks, so as to allow those patients to make truly informed decisions. They could also require that the use of unauthorised products does not obstruct clinical trials of those products, and remains an option of last resort. The majority decision washes its hands of all these considerations by using the safety valve of the “wide margin of appreciation” (see paragraph 125 of the judgment). 9. In sum, I am of the view that there are no major factors of public interest to weigh against the very significant – indeed vital, in a very literal sense – interest of the applicants in obtaining access to experimental medicinal products which have not been authorised for use in another country.", "Naturally, the State cannot be required to grant access to such medicines without a regulatory framework. But this framework must allow for a proper balancing exercise of the interests involved. In the present case, however, there is no indication that such an exercise was undertaken, and in fact nowhere does the judgment conclude that the State struck a fair balance. The near uniformity of the reasons given by the Director of the Medicines Executive Agency for rejecting each of the applicants’ requests indicates that those refusals did not flow from relevant considerations, but were entirely based on the blanket prohibition on the compassionate use of products not authorised in other countries. More specifically, no attention was given to the special and vulnerable situation of the applicants and the consequent need for respect for, and protection of, their physical and psychological integrity.", "10. For these reasons, as has already been stated in paragraph 1, above, I am of the view that there has been a violation of Article 8 of the Convention in this case, and that as a consequence it was unnecessary to examine the applicants’ complaints under Articles 2 and 3." ]

[ "FIRST SECTION CASE OF KULKOV AND OTHERS v. RUSSIA (Applications nos. 25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06) JUDGMENT STRASBOURG 8 January 2009 FINAL 08/04/2009 This judgment may be subject to editorial revision. In the case of Kulkov and others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in ten applications (nos. 25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06, 44928/06, 44972/06, 45022/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Russian nationals (“the applicants”).", "The applicants’ names and the dates of their applications to the Court appear in the appended table. 2. The applicant Y. Shelestovskaya (no. 11512/03) was represented by Mr V. Gandzyuk, a lawyer practising in Ryazan. The applicant V. Kashcheyev (no.", "9794/05) was represented by Mr R. Zarbeyev, a lawyer practising in St. Petersburg. The applicant N. Sobakar (no.13110/06) was represented by Mr I. Sivoldayev, a lawyer practising in Voronezh. Other applicants were not represented by a lawyer. 3. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former representatives of the Russian Federation at the Court, and by Mr G. Matyushkin, the Representative of the Russian Federation at the Court.", "4. The applicants complained inter alia of non-enforcement of binding and enforceable judgments delivered in their favour between 2001 and 2006 and of their quashing in supervisory-review proceedings. 5. On various dates the President of the First Section decided to communicate these complaints to the respondent Government. It was also decided in all cases to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).", "The Government objected to the joint examination of the admissibility and merits in several cases, but the Court rejected this objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants’ names and other details are indicated in the appended table. All the applicants were active or retired servicemen at the material time.", "7. On various dates they sued their employer military units, a military commissioner’s office or the competent federal ministries in courts for payment of monetary sums on account of their service in the military forces or some specific missions undertaken during this service, such as field works (case of Kulkov) or peace-keeping operations in Bosnia-Herzegovina (case of Shelestovskaya), Kosovo (cases of Biserov and others, Dubovov, Davydov and Pyshnograyev) or South Ossetia (case of Kashcheyev). The applicant Doroshok claimed compensation of health damage and severe injuries caused during his military mission in Chechnya. The applicants Sobakar and Sereda claimed a recalculation of their pensions and a compensation of shortfalls in monthly payments made in the past. 8.", "The domestic courts granted the applicants’ claims (see dates of the judgments and sums awarded in the appended table). The judgments were not appealed against in cassation and became binding and enforceable on the dates indicated in the appended table. However, only one of these judgments was enforced (the judgment of 13 May 2003 in favour of V. Kashcheyev, see paragraph 12 below). All the other judgments, including the second judgment in favour of V. Kashcheyev delivered on 14 July 2006, were not enforced. 9.", "On various dates the Presidiums of higher courts decided, upon the defendant authorities’ requests for supervisory review, to quash the judgments in the applicants’ favour considering that the lower courts misapplied the material law (see details in the appended table). With the exception of two cases (Kulkov and Shelestovskaya), the higher courts dismissed the applicants’ claims in full by the same decisions. 10. In the case of Kulkov, the Presidium of the Privolzhskiy Circuit Military Court quashed on 18 April 2002 the judgment in the applicant’s favour by way of supervisory review initiated by the President of this court. However, the judgment of 18 April 2002 was itself overruled by the Supreme Court of the Russian Federation on 11 April 2003 and the first-instance judgment in the applicant’s favour was thus restored.", "It remained in force until it was quashed for a second time on 25 December 2003 by the Presidium of the Privolzhskiy Circuit Military Court upon application of the defendant military unit. While dismissing the applicant’s claims for field allowance (RUB 70,675), the Presidium upheld the first-instance court’s decision as regards the award of the regional bonus to the applicant (RUB 1,112.33). 11. In the case of Shelestovskaya, the Presidium of the Moscow Circuit Military Court quashed on 7 April 2004 the judgment in the applicant’s favour. However, the judgment of 7 April 2004 was itself overruled by the Supreme Court of the Russian Federation on 12 August 2004 and the first-instance judgment in the applicant’s favour was thus restored.", "On 15 September 2004 the Presidium again quashed the latter judgment and awarded the applicant smaller amounts, i.e. RUB 270 in respect special allowance and RUB 250 in respect of legal aid. The Presidium dismissed the remainder of the applicant’s claims. 12. The first of the two judgments, which was delivered in favour of V. Kashcheyev on 13 May 2003 and became enforceable on 26 May 2003, was enforced on 15 September 2005.", "On 18 June 2007 the Pskov Garnison Military Court awarded the applicant RUB 133,774.30 in respect of compensation for the inflation losses arising from this enforcement delay. On 26 December 2007 the authorities credited the latter amount on the applicant’s account. II. RELEVANT DOMESTIC LAW 13. The relevant domestic law governing the supervisory review procedure in the material time is summed up in the Court’s judgment in the case of Sobelin and others (see Sobelin and Others v. Russia, nos.", "30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, §§ 33-42, 3 May 2007). 14. In 2001-2005 the judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos.", "2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007). The Law of 27 December 2005 (No. 197-ФЗ) introduced a new Chapter in the Budget Code modifying this special procedure. The Law notably empowered the Federal Treasury to execute judgments against legal entities funded by the federal budget and the Ministry of Finance to execute judgments against the State. Under Article 242.2.6 of the Budget Code, the judgments must be executed within three months after receipt of the execution documents.", "THE LAW I. JOINDER OF THE APPLICATIONS 15. Given that these ten applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS’ FAVOUR 16.", "The applicants complained that the quashing by way of supervisory review of the binding and enforceable judgments in their favour violated their rights under Article 6 and Article 1 of Protocol No.1, which insofar as relevant, provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 17. The Government argued in all but two cases (Sobakar and Sereda) that Article 6 of the Convention was not applicable to the domestic litigations at issue as the applicants were on service in the Russian military forces at the material time. They supported their argument by reference to the special jurisdiction exercised by military courts and stressed that the applicants’ cases were not amenable to ordinary courts that were competent in ordinary civil cases.", "Accordingly, their lawsuits in Russian military courts could not be qualified as “civil” and the applicants’ complaints were incompatible ratione materiae with the Convention. 18. Some applicants contested this argument. They notably stressed that their access to courts was allowed by domestic legislation and that their claims had been effectively considered by domestic military courts. They concluded that Article 6 was applicable.", "Other applicants simply maintained their complaints. 19. The Court notes that it has already considered the argument submitted by the Government and rejected it in previous similar cases (see, among other authorities, Dovguchits v. Russia, no.2999/03, §§19-24, 7 June 2007). It recalls that civil servants can only be excluded from the protection embodied in Article 6 if the State in its national law expressly excluded access to a court for the category of staff in question and if this exclusion was justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland, [GC], no. 63235/00, §62, ECHR 2007‑...).", "The Court observes that these conditions were not satisfied in the present cases. The applicants lawfully sued their employer military units, the Ministry of Defence or the Ministry of Interior in domestic courts and the latter initially granted their claims. The cases were later reconsidered by higher courts and the judgments in the applicants’ favour quashed. The Court therefore concludes that the applicants’ access to a court was allowed by domestic legislation and that Article 6 accordingly applied to their cases. That the applicants’ cases fell within the jurisdiction of special military courts cannot alter this conclusion.", "The Government’s objection must therefore be dismissed. 20. The Court further notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 21. The applicants argued that the quashing of the binding and enforceable judgments delivered by domestic courts in their favour had violated the principle of legal certainty and, therefore, their right to a court and the right to peaceful enjoyment of their possessions. It was noted in particular that the defendant authorities had failed to appeal against the judgments within statutory time-limits before they became binding and enforceable and that their subsequent quashing in the supervisory review proceedings was not justified by higher courts’ mere disagreement with the decisions on the merits. 22.", "The Government stated that the supervisory-review proceedings had been lawful and necessary to remedy errors in the application of material law by lower courts. They provided detailed information on the material norms that had allegedly been ignored by the lower courts. In the Government’s view, the applicants should accordingly have had no expectation of any benefit arising from the judgments in their favour. They stressed that a judicial decision could not be considered as equitable and lawful, and the judicial protection as effective, without judicial errors being corrected. As regards the cases of Shelestovskaya, Biserov and others, Dubovov, Davydov and Pyshnograyev, the Government pointed out that Russian military courts had dismissed in 2001-2004 similar claims in more than 200 cases.", "23. The Government further submitted that the applications for supervisory review had been introduced within a reasonable time by the defendants in the proceedings and not by State officials. If there were delays they were justified by the circumstances. In cases of Sobakar and Sereda, the request for supervisory review had been introduced within a very short time, i.e. less than two months after the first-instance judgment in the applicants’ favour.", "The Government concluded that the quashing of the judgments in all present cases had been justified, well-founded and thus compatible with the principle of legal certainty. 24. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII; Ryabykh v. Russia, no.", "52854/99, § 51-52, ECHR 2003‑IX). 25. The Court recalls that it has already considered on numerous occasions the application of the supervisory review procedure governed by the new Code of Civil Procedure entered into force on 1 February 2003. The Code allowed a supervisory-review complaint to be introduced only by the parties to the proceedings and within one-year time-limit. The Court found nonetheless that the supervisory-review procedure so amended did not ensure respect for the legal-certainty requirement.", "Indeed, once launched, the proceedings might last indefinitely through various levels of supervisory-review adjudication (see Denisov v. Russia (dec.), no. 33408/03, 6 May 2004, and Sobelin and others, cited above, § 57). Furthermore, the laxity of the time-limits for instituting supervisory-review proceedings allow the defendant to lodge consecutive applications and to challenge the judgment even later than one year after it became binding and enforceable (see Prisyazhnikova and Dolgopolov v. Russia, no. 24247/04, § 25, 28 September 2006). 26.", "The Court has to consider whether the application of the supervisory-review procedure was justified in the present cases by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see paragraph 24 above). 27. The Court notes at the outset that the misapplication of material law by the first-instance courts was the sole reason quoted by the higher courts for quashing the binding and enforceable judgments in the supervisory-review proceedings. It is not the Court’s role to reconsider what domestic provisions should have been applied in the applicants’ cases. While acknowledging the need stressed by the Government to correct judicial errors and to ensure a uniform application of the domestic case-law, the Court considers that these must not be achieved at any cost and notably with disregard for the applicants’ legitimate reliance on res judicata.", "The authorities must strike a fair balance between the interests of the applicants and the need to ensure the proper administration of justice (Nikitin v. Russia, no. 50178/99, § 59, ECHR 2004‑VIII). 28. The Court considers that in the present cases the authorities failed to preserve the required balance in this regard. It reiterates that the mere disagreement about the application of the material law is not in itself an exceptional circumstance justifying departure from the principle of legal certainty (see Kot v. Russia, no.", "20887/03, § 29, 18 January 2007). Nor can this departure be justified by the position of other domestic courts which reportedly dismissed similar claims in numerous cases at the material time. 29. The Court further notes that none of the judgments delivered by the first-instance courts was appealed against by the defendant authorities in cassation before it became binding and enforceable. Yet such appeals would have allowed the respondent authorities to challenge in a timely matter the alleged misapplication of material law before the higher courts which were later led to reconsider the cases in supervisory-review proceedings.", "The Government pointed out in the case of Sobakar that the statutory time-limit of ten days for cassation appeal was too short for the authorities to lodge such an appeal. However, this fact cannot relieve the State from its obligations under the Convention. 30. As for the time elapsed between the judgments and their quashing, the Court reiterates that the one-year time-limit for introduction of a supervisory-review complaint did not guarantee the respect for the requirement of legal certainty (see paragraph 25 above). Thus, the relatively short time elapsed from the moment when the judgments became binding and enforceable in cases of Kashcheyev, Doroshok, Sobakar and Sereda to the moment of their quashing does not in itself make the procedure compatible with this requirement.", "31. The Court further observes that the one-year time-limit emphasised by the Government did not prevent the quashing of the judgments in the six other cases at a far later stage, i.e. more than two years after the judgments in the applicants’ favour became binding and enforceable. In the cases of Kulkov and Shelestovskaya, the delay was due to repeated examinations of the cases at various levels of supervisory-review adjudication. In cases of Biserov and others, Dubovov, Davydov and Pyshnograyev, the time-limit for the introduction of the supervisory-review complaint by the respondent military unit was restored by the Kaluga Garnison Military Court on 23 August 2005, i.e.", "more than 3 years after the judgment at issue became binding and enforceable. This decision to restore the time-limit was upheld by the Moscow Circuit Military Court on 1 November 2005. The Court is struck by the fact that the main justification provided by the defendant military unit and accepted by the courts was the lack of adequate legal assistance in the defendant military unit during the relevant period. These decisions by the domestic courts corroborate the Court’s earlier conclusion about the laxity of time-limits for institution of the supervisory-review proceedings (see paragraph 25 above). In the Court’s view, such a practice renders nugatory the statutory time-limit for lodging a supervisory-review complaint and thus seriously frustrates the reliance on a final judgment.", "32. In the view of the foregoing, the Court concludes that the quashing of the judgments in the applicants’ favour by way of supervisory review violated the requirement of legal certainty and, therefore, the applicants’ right to a court protected by Article 6 of the Convention. 33. The Court further reiterates that the binding and enforceable judgments created an established right to payment in the applicants’ favour, which is considered as “possession” within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou v. Greece, no.", "47541/99, § 22, 21 March 2002). The quashing of these judgments in breach of the principle of legal certainty frustrated the applicants’ reliance on the binding judicial decisions and deprived them of an opportunity to receive the judicial awards they had legitimately expected to receive (see Dovguchits, cited above, § 35). There has accordingly been also a violation of that Article 1 of Protocol No. 1. III.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENTS 34. The applicants also complained of a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 on account of non-enforcement of the judgments delivered in their favour. The relevant parts of these provisions are quoted above.", "35. The Court reiterates that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the right to a court. Having regard to its finding of violations of Article 6 on account of the quashing of the judgments in supervisory-review proceedings, the Court finds that it is not necessary to examine separately the issue of their subsequent non-enforcement by the authorities (see Boris Vasilyev v. Russia, no.30671/03, §§41-42, 15 February 2007; and Sobelin and others, cited above, §§67-68). Therefore, the Court does not consider it necessary to examine separately the issue of non-enforcement in the cases of Kashcheyev (judgment of 14 July 2006), Doroshok, Sobakar and Sereda, in which the judgments in the applicants’ favour were quashed within a relatively short time after they became binding and enforceable. 36.", "The Court considers that the situation is different in respect of the prolonged non-enforcement of the judgments prior to their quashing in supervisory-review proceedings. Indeed, the judgments in the applicants’ favour in the cases of Kulkov, Shelestovskaya, Biserov and others, Dubovov, Davydov, and Pyshnograyev and the judgment of 13 May 2003 in the case of Kashcheyev remained binding and enforceable for long periods of time but the authorities failed to abide by their terms. The applicants’ complaints in this respect thus call for a separate examination (see Dovguchits, cited above, §§ 40-41). 37. In the case of Kulkov, the applicant did not specify if the authorities had executed the decision to award him a regional bonus, as upheld by the judgment delivered on 25 December 2003 by the Presidium the Privolzhskiy Circuit Military Court (see paragraph 10 above).", "In these circumstances, the Court will limit its examination to the question of non-enforcement of the judgment of 28 March 2001 only in its part concerning the award of the field allowance. A. Admissibility 1. The alleged failure to exhaust domestic remedies in certain cases 38. In several cases (Kashcheyev, Biserov and others, Dubovov, Davydov, Pyshnograyev), the Government alleged that the applicants had not exhausted the domestic remedies available to them under domestic law. First, the applicants could have complained under Chapter 25 of the Code of Civil Procedure about the authorities’ failure to comply with the judgments in the applicants’ favour.", "The authorities’ negligence in the execution of judgments could thus have been condemned by domestic courts. Second, the applicants could have requested to upgrade the judgment debt under Article 208 of the Code of Civil Procedure. In certain earlier cases, the Court had found that the exhaustion of this remedy deprived the applicants of their victim status (see Nemakina v. Russia (dec.), no. 14217/04, 10 July 2007; Derkach v. Russia (dec.), no. 3352/05, 3 May 2007; Yakimenko v. Russia (dec.), no.", "23500/04, 15 May 2007). The Government submitted that the applicant Kashcheyev had successfully used this remedy (see paragraph 12 above) and lost his victim status under the Convention. Third, the applicants could have lodged a claim for non-pecuniary damage under Chapter 59 § 4 of the Civil Code. The Government argued that this remedy had proven its effectiveness in practice, quoting three examples from the domestic case-law (decision of 21 October 1999 in the case of Bylichev and Bylichev by the Lipetsk Regional Court; decision of 23 October 2006 in the case of Khakimovy by the Novo-Savinovskiy District Court of Kazan, Tatarstan; decision of 28 March 2008 in the case of Shubin by the Beloretskiy Town Court, Bashkortostan). 39.", "The applicants submitted that they had lodged their requests for execution of the judgments with the authorities. In their opinion, the competent authorities were thus aware of their claims but failed to comply with their obligation under domestic law to pay the judgment debt in a timely manner. The applicants concluded that they had not had in these circumstances any other remedy to exhaust. 40. The Court reiterates that the only remedies that must be exhausted are those that are effective and available in theory and in practice at the relevant time (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 68; K.-F. v. Germany, judgment of 27 November 1997, Reports 1997‑VII, § 46).", "The effective and available remedies are those which are accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see Akdivar, cited above, § 68). 41. The Court has already assessed the effectiveness of the remedies quoted by the Government and concluded that they did not satisfy the Convention requirements at the material time. 42. An appeal against the Ministry’s negligence would yield a declaratory judgment that would reiterate what was in any event evident from the original judgment: the State was to honour its debt.", "Such a new judgment would not bring the applicant closer to his desired goal, that is the actual payment of the judicial award (see Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000; Plotnikovy v. Russia, no. 43883/02, § 16, 24 February 2005). 43. As regards the compensatory remedies for delay in enforcement invoked by the Government, the Court notes that Article 208 of the Code of Civil Procedure would only allow for compensation of inflation losses but not of any further pecuniary or non-pecuniary damage caused by delays.", "The Court does not consider its decisions quoted by the Government (see paragraph 38 above) to establish a general principle that mere compensation for inflation losses constitutes full and adequate redress for late enforcement of a judgment. Such an upgrading remedy, however accessible and effective in practice, is thus not capable of affording redress as required by the Convention. The Court cannot therefore agree with the Government that the applicant in the case of Kashcheyev lost his victim status after the award in his favour was successfully upgraded under Article 208 of the Code (see paragraphs 12 and 38 above). 44. As for the possibility of compensation for non-pecuniary damage referred to by the Government, the Court refers to its previous finding that it was not, at the material time, sufficiently certain in practice as required by the Convention (see, inter alia, Wasserman v. Russia (no.", "2), no. 21071/05, § 54, 10 April 2008). With the exception of a limited number of cases listed in Articles 1070 and 1100 of the Civil Code, compensation of non-pecuniary damage is subject to the establishment of the authorities’ fault. The Court notes that this condition can hardly be systematically satisfied in non-enforcement cases in view of the complexities of the enforcement proceedings and of possible objective circumstances preventing enforcement, such as the lack of funds on the debtor’s account. 45.", "The doubts about the effectiveness of this remedy in cases of non-enforcement or late enforcement of domestic judgments are corroborated by the Government’s failure to demonstrate before the Court the existence of sufficiently established and consistent case-law proving that this remedy was effective both in theory and in practice. As regards the three domestic judgments cited by the Government (see paragraph 38 above), they rather appear as isolated instances and thus cannot alter the Court’s conclusion that the compensation of non-pecuniary damage in non-enforcement cases was highly uncertain and, therefore, ineffective at the material time. 46. It is all the more implausible that the applicants could have successfully sought such compensation in the present cases once the judgments in their favour were quashed in supervisory-review proceedings. Indeed, the Government provided no example demonstrating that compensation for non-enforcement or late enforcement of judgments was possible in practice after the quashing of judgments by way of supervisory review.", "47. The Court thus concludes that the remedies quoted by the Government cannot be considered as effective in theory and in practice and as offering reasonable prospects of success for the applicants. The Government’s objection must therefore be dismissed. 2. Other admissibility grounds 48.", "The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 49.", "The Government argued that the aforementioned delays in enforcement were reasonable and justified. It referred inter alia to a complex multilevel procedure of execution of judgments against the State and its entities and to the insufficient funding which delayed in 2001-2004 the execution of more than 96,000 judgments in similar cases. In the case of Kashcheyev, the Government argued that the applicant was responsible to a large extent for the delay: he initially sent the execution documents to the bailiffs and not to the competent Treasury department and then failed to provide the latter with a certified copy of the judgment and to request the court for clarification of the exact amount to be paid. 50. The applicants maintained their complaints.", "51. The Court reiterates that an unreasonably long delay in enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, the amount and the nature of court award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "52. The binding and enforceable judgments in the applicants’ favour remained unenforced, prior to their quashing, for prolonged periods of time ranging from 1 year and 8 months in the case of Shelestovskaya to 4 years in the cases of Biserov and others, Dubovov, Davydov and Pyshnograyev. 53. In the light of the Court’s established case-law, such long delays appear at the outset incompatible with the requirement to enforce the judgments within a reasonable time. The Court also recalls that it has already found violations of Article 6 of the Convention and of Article 1 of Protocol No.", "1 on account of non-enforcement of domestic judicial decisions in certain cases concerning similar facts as those at issue in the present case (see, among others, Dovguchits cited above, §§40-44, and Tetsen v. Russia, no. 11589/04, § 22-23, 3 April 2008). The Government provided no argument allowing the Court to come to a different conclusion in the present cases. 54. The Court notes in particular that the enforcement of judgments in these cases required a simple payment of monetary awards to the applicants and thus was not in itself of any complexity.", "The Court reiterates that it is not open to a State authority to cite the lack of funds as an excuse for not honouring a judgment debt (see Burdov, cited above, § 35). Nor can the complexity of the domestic enforcement procedure relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding and enforceable judicial decision enforced within a reasonable time. It is for the Contracting States to organise their legal systems in such a way that the competent authorities can meet their obligation in this regard (see mutatis mutandis Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000‑IV Frydlender v. France [GC], no. 30979/96, § 45, ECHR 2000‑VII).", "55. Finally, the Court cannot accept the Government’s argument in the case of Kashcheyev stating that the applicant is himself responsible for prolonged non-enforcement of the judgment. The Court reiterates that while a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt, this requirement must not go beyond what is strictly necessary and the authorities must in any event take timely and ex officio action, on the basis of the information available to them, with a view to honouring the judgment against the State (Akashev v. Russia, no. 30616/05, § 22, 12 June 2008). Accordingly, the applicant cannot be blamed for not having submitted a certified copy of the judgment.", "Indeed, since the State authorities were defendant in the proceedings at issue they must have been duly notified of the judgment and have taken the necessary action to ensure the payment the judgment debt within a reasonable time (see Akashev, cited above, § 21). Nor should the applicant be blamed for the alleged lack of clarity as to the amount to be paid (USD 13,004 less RUB 31,000). Even assuming that the competent authorities were unable to calculate the exact amount to be paid, they were well placed to seek any clarification from the competent court. In any event, the applicant cannot be held responsible for such errors or omissions in the judgment. 56.", "In view of the foregoing, the Court concludes that the prolonged failure to enforce the judgments in the applicants’ favour amounted to violations of Article 6 of the Convention and of Article 1 of Protocol No. 1. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 57. In the case of Kulkov, the applicant also complained of a violation of Article 6 of the Convention on account of excessive length of the domestic judicial proceedings.", "However, having regard to its finding that there has been a violation of the applicant’s right to a court, the Court does not consider it necessary to examine separately this complaint. 58. In the case of Doroshok, the applicant also alleged violations of Article 13 and 14 of the Convention. However, the applicant did not substantiate these complaints. In these circumstances, and having regard to its finding that it was not necessary to examine separately the applicant’s complaint concerning the non-enforcement of the judgment (see paragraph 35 above), the Court also considers that there is no need for a separate examination of the applicant’s complaint about the lack of domestic remedies in this respect.", "As to the complaint under Article 14, it does not disclose any appearance of a violation and must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties submissions 60.", "The applicants claimed in respect of pecuniary damage the sums awarded to them by the domestic courts’ judgments, which were later quashed in supervisory-review proceedings, and compensation for inflation losses or default interest. They also claimed various sums in respect of non-pecuniary damage. The details of the applicants’ claims appear below. Case of Kulkov Pecuniary damage: RUB 70,675 (judicial award) plus upgrades for inflation losses; Non-pecuniary damage: EUR 400,000; Case of Shelestovskaya Pecuniary damage: RUB 548,309.80 (judicial award) plus RUB 413,261.09 for inflation loss; Non-pecuniary damage: EUR 7,000; Case of Kashcheyev Pecuniary damage: RUB 193,679 (judicial award) plus upgrades for inflation loss (to be based on the index of consumer prices); Non-pecuniary damage: EUR 20,000; Case of Doroshok Pecuniary damage: RUB 226,344.11 (judicial award) plus RUB 163,420.45 for inflation loss; RUB 327,694.90 (total of upgraded monthly awards for 2004-2007); Non-pecuniary damage: EUR 50,000; Case of Pyshnograyev Pecuniary damage: RUB 460,534.80 (judicial award) plus RUB 368,888.37 for default interest; Non-pecuniary damage: EUR 10,000; Case of Dubovov Pecuniary damage: RUB 468,883.14 (judicial award) plus RUB 375,997.39 for default interest; Non-pecuniary damage: EUR 10,000; Case of Biserov and others V. Biserov: RUB 484,228.80 (judicial award) plus RUB 387,867.27 for default interest; Non-pecuniary damage: EUR 10,000 Y. Sviridov: RUB 484,228.80 (judicial award) plus RUB 387,867.27 for default interest; Non-pecuniary damage: EUR 10,000 S. Morozov: RUB 460,534.80 (judicial award) plus RUB 368,888.37 for default interest; Non-pecuniary damage: EUR 10,000 Case of Davydov Pecuniary damage: RUB 467,537.58 (judicial award) plus RUB 374,497.61 for default interest; EUR 100,000 (health damage); Non-pecuniary damage: EUR 14,000 Case of Sobakar Pecuniary damage: RUB 25,799,91 (judicial award); RUB 38,336.79 (total of monthly payments in 2005-2007); Non-pecuniary damage: EUR 3,000; Case of Sereda Pecuniary and non-pecuniary damage: no amount specified. 61.", "The Government considered that nothing should be awarded while making no specific comment on the methods of calculation of pecuniary damage by the applicants. They notably stated that the applicants could have sought compensation for inflation or other losses arising from the enforcement delays before domestic courts but had failed to do so. They considered the applicants’ claims for non-pecuniary damage as excessive and unreasonable. 2. The Court’s assessment 62.", "The Court recalls that the most appropriate form of redress in respect of the violations found would be to put the applicants as far as possible in the position they would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court considers that this principle should apply in the present cases (see Dovguchits cited above, §48). 63.", "The applicants were prevented from receiving the amounts they had legitimately expected to receive under the binding and enforceable judgments delivered by domestic courts in their favour. Accordingly the Court awards them these amounts to be converted in euros (EUR). In case of Shelestovskaya, the Court awards the applicant the difference between the amounts awarded by the judgment of the Ryazan Garnison Military Court of 25 July 2002 and those awarded to her by the judgment of 15 September 2004 of the Presidium of the Moscow Circuit Military Court (see paragraph 11 above), i.e. a total of RUB 547,789.80 to be converted in euros (EUR). 64.", "The Court further accepts the applicants’ arguments regarding the loss of value of these awards. The Court has already considered the Government’s argument about the applicants’ failure to apply for compensation of such losses before domestic courts and rejected it (see paragraphs 42-46 above). As the Government has not submitted any comment in respect of the methods used or suggested by the applicants for the calculation of these losses, the Court accepts them and grants the applicants’ claims in full. In the case of Kashcheyev, the applicant did not specify the amount of such losses and requested a compensation on the basis of the index of retail prices in Russia. In the case of Kulkov, the applicant also requested such a compensation without specifying any detail.", "The Court decides to grant the applicants’ claims and awards EUR 1,150 to Mr Kashcheyev and EUR 1,770 to Mr Kulkov for inflation losses. 65. The Court notes that the applicants in the cases of Doroshok and Sobakar claimed in addition the amounts of monthly payments that were due to them under the domestic judgments. They also requested these amounts to be upgraded so as to compensate for inflation losses. The Court considers that the applicants should have expected to receive these monthly payments at least until the quashing of the judgments in supervisory-review proceedings.", "The Court accordingly decides to award these applicants a sum of monthly awards including upgrades for inflation losses due until the quashing of the judgments in supervisory-review proceedings, i.e. the amounts of EUR 2,180 to A. Doroshok and of EUR 250 to N. Sobakar. The Court rejects the remainder of the applicants’ claims. The Court also notes that A. Sereda did not submit any specific claim for inflation losses or monthly payments and makes no award in this respect. 66.", "As regards the amount of 100,000 EUR claimed by the applicant in the case of Davydov for health damage, the Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. 67. The Court furthermore finds that the applicants have suffered non-pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the cases and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards to each applicant a sum of EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 68. The applicants in the cases of Shelestovskaya, Kashcheyev and Sobakar, who were represented by lawyers, claimed RUB 10,000 (EUR 285), RUB 100,000 (EUR 2,850) and EUR 2,000 respectively for legal costs. They attached the lawyers’ bills in support of their claims. The Government considered the claims as unsubstantiated in the cases of Shelestovskaya and Kashcheyev, while accepting that the sum claimed in the case of Sobakar was reasonable. 69.", "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 cases, regard being had to the information in its possession and the above criteria, the Court decides to award the sums claimed by Y. Shelestovskaya and N. Sobakar in full, i.e. EUR 285 and EUR 2,000 respectively, plus any tax that may be chargeable on that amount. The Court agrees with the Government that the sum claimed by V. Kashcheyev for costs and expenses appears excessive and decides to award him EUR 2,000, plus any tax that may be chargeable on that amount. 70.", "The applicants V. Bisserov and V. Davydov claimed EUR 283 and EUR 364 respectively for various costs relating to the proceedings before the Court. The Court notes that these claims are unsubstantiated and rejects them. C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaints concerning the quashing of the binding and enforceable judgments in supervisory-review proceedings and the non-enforcement of judgments admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in all cases on account of the quashing of the judgments in the applicants’ favour by way of supervisory review; 4. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No.", "1 on account of non-enforcement of the judgments prior to their quashing in cases of Kulkov, Shelestovskaya, Biserov and others, Dubovov, Davydov and Pyshnograyev and on account of late enforcement of the judgment of 13 May 2003 in the case of Kashcheyev; 5. Holds that it is not necessary to consider separately the reminder of the applicants’ complaints relating to non-enforcement of the judgments; 6. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums to be converted into Russian roubles at the rate applicable at the date of the settlement: (i) in respect of pecuniary damage: EUR 3,828 (three thousand eight hundred twenty eight euros) to V. Kulkov; EUR 27,255 (twenty seven thousand two hundred fifty five euros) to Y. Shelestovskaya; EUR 6,376 (six thousand three hundred seventy six euros) to V. Kashcheyev; EUR 13,315 (thirteen thousand three hundred fifteen euros) to A. Doroshok; EUR 23,299 (twenty three thousand two hundred ninety nine euros) to V. Pyshnograyev; EUR 23,733 (twenty three thousand seven hundred thirty three euros) to S. Dubovov; EUR 24,497 (twenty four thousand four hundred ninety seven euros) to V. Biserov; EUR 24,497 (twenty four thousand four hundred ninety seven euros) to Y. Sviridov; EUR 23,299 (twenty three thousand two hundred ninety nine euros) to S. Morozov; EUR 23,653 (twenty three thousand six hundred fifty three euros) to V. Davydov; EUR 957 (nine hundred and fifty seven euros) to N. Sobakar; EUR 811 (eight hundred and eleven euros) to A. Sereda; (ii) EUR 3,000 (three thousand euros) to each applicant in respect of non-pecuniary damage plus any tax that may be chargeable on these amounts; (iii) in respect of costs and expenses: EUR 285 (two hundred eighty five euros) to Y. Shelestovskaya; EUR 2,000 (two thousand euros) to V. Kashcheyev; EUR 2,000 (two thousand euros) to N. Sobakar; plus any tax that may be chargeable on these amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident APPENDIX App. No. (date) Applicant (year of birth) judgment(s) court(s)/date(s)/No(s) Amount(s) awarded (RUB) Domestic defendant supervisory review judgment(s) court(s)date(s) 25114/03 (4/09/03) Kulkov Valery Alexeyevich (1964) Ufa Garnison Military Court, 28/03/01, enforceable on 8/04/01 70,675.00 (field allowance); 1,112.33 (regional bonus) Military unit No. 71111 Presidium of the Privolzhskiy Circuit Military Court: 1st judgment of 18/04/02 (quashed on 11/02/03 by the Supreme Court); 2nd judgment of 25/12/03 11512/03 (5/02/03) Shelestovskaya Yelena Alexandrovna (1957) Ryazan Garnison Military Court, 25/07/02, enforceable on 6/08/02 544,257.00 (additional wage); 3,052.80 (special allowance); 1,000.00 (legal aid) Ministry of Defence Presidium of the Moscow Circuit Military Court: 1st judgment of 7/04/04 (quashed on 12/08/04 by the Supreme Court); 2nd judgment of 15/09/04 9794/05 (25/01/05) Kashcheyev Vyacheslav Borisovich (1968) Pskov Town Court, 13/05/03, enforceable on 26/05/03 Vyborg Garnison Military Court, 14/07/06, enforceable on 28/07/06 USD 13,004 less RUB 31,000; 193,679.78 Military unit No. 27880 Military unit No.", "41734 None; judgment of 13/05/03 enforced in full on 5/09/2005 Presidium of the Leningrad Circuit Military Court, 22/11/06 37403/05 (22/09/05) Doroshok Aleksey Alekseyevich (1966) Rostov Garnison Military Court, 21/05/04, enforceable on 1/06/04 226,344.11 (lump sum) 6,849.81 (monthly) Ministry of Interior Presidium of the Northern Caucasus Circuit Military Court, 22/03/05 13110/06 (25/02/06) Sobakar Nikolay Pavlovich (1955) Voronezh Central District Court, 2/08/05, enforceable on 26/08/05 25,799.91 (lump sum) plus additional monthly payments Voronezh Regional Military Commissioner Presidium of the Voronezh Regional Court, 19/12/05 (No.44г-441) 19469/06 (5/03/06) Sereda Alexadr Semenovich (1957) Voronezh Central District Court, 2/08/05, enforceable on 26/08/05 29,221.62 (lump sum) plus additional monthly payments Voronezh Regional Military Commissioner Presidium of the Voronezh Regional Court, 19/12/05 (No.44г-441) App. No (date) Applicant (year of birth) judgment(s) court(s)/date(s)/No(s) Amount(s) awarded (RUR) Domestic defendant supervisory review judgment(s) court(s)date(s) 42608/06 (12/09/06) Biserov Vasiliy Arkadyevich (1964) Sviridov Yuriy Vasiliyevich (1969) Morozov Sergey Nikolaevich (1959) Kaluga Garnison Military Court, 27/02/02, enforceable on 11/03/02 484,228.80 484,228.80 460,534.80 Military unit no.21939 Presidium of the Moscow Circuit Military Court, 5/04/06 (No.НГ-992) 44928/06 (12/09/06) Dubovov Sergey Anatolyevich (1966) Kaluga Garnison Military Court, 27/02/02, enforceable on 11/03/02 468,883.14 Military unit no.21939 Presidium of the Moscow Circuit Military Court, 5/04/06 (No.НГ-992) 44972/06 (12/09/06) Davydov Vitaliy Alekseyevich (1953) Kaluga Garnison Military Court, 27/02/02, enforceable on 11/03/02 467,537.58 Military unit no.21939 Presidium of the Moscow Circuit Military Court, 5/04/06 (No.НГ-992) 45022/06 (12/09/06) Pyshnograyev Vladimir Nikolayevich (1973) Kaluga Garnison Military Court, 27/02/02, enforceable on 11/03/02 460,534.80 Military unit no.21939 Presidium of the Moscow Circuit Military Court, 5/04/06 (No.НГ-992)" ]

[ "THIRD SECTION CASE OF BRENNAN v. THE UNITED KINGDOM (Application no. 39846/98) JUDGMENT STRASBOURG 16 October 2001 FINAL 16/01/2002 In the case of Brennan v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrmann,MrL. Loucaides,SirNicolas Bratza,MrsH.S. Greve,MrK.", "Traja,MrM. Ugrekhelidze, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 9 January and 25 September 2001, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 39846/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Thomas John Brennan (“the applicant”), on 27 January 1998. 2.", "The applicant, who had been granted legal aid, was represented before the Court by Mr A. O’Kane, a lawyer practising in Omagh. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office, London. 3. The applicant complained of the circumstances in which he was questioned by the police after his arrest on terrorist offences, alleging, inter alia, that he had been denied the right to consult his solicitor during the initial period in police custody, that he made admissions prior to receiving any legal advice, that he was not permitted to have his solicitor present during police interviews, that he was not permitted to see his solicitor in private and that he was, as a result, deprived of a fair trial due to the reliance on the admissions to convict him. He relied on Article 6 §§ 1 and 3 (c) of the Convention.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 9 January 2001, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable by the Registry].", "7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The applicant’s arrest and detention 8. The applicant was arrested in the early morning of 21 October 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 in Strabane by police officers of the Royal Ulster Constabulary (“the RUC”) investigating the murder of a former member of the Ulster Defence Regiment. The applicant was transported to the special holding centre for terrorist investigations at Castlereagh, Belfast. 9. The applicant was interviewed for thirty-five hours on consecutive days by RUC police officers, beginning at 11.01 a.m. on 21 October until 25 October.", "10. At the time when the applicant was arrested (1.50 a.m. on 21 October), there was an initial decision made to defer the applicant’s access to a solicitor by Superintendent M., the police officer in charge of the investigation. He communicated this decision to Castlereagh police station by telephone and confirmed this in writing when he arrived in Castlereagh. The applicant had by this time arrived in Castlereagh and had requested a solicitor. At a review at 9.15 p.m. on 21 October 1990, the applicant was informed that his right to see a solicitor had been delayed for twenty-four hours.", "The deferral was therefore effective until the morning of 22 October. His solicitor, Mr Fahy, was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period of time from early morning on 22 October when the applicant was not being denied access to his solicitor. He made relevant admissions that afternoon. 11.", "The applicant did not see his solicitor until the next day, namely 23 October. The applicant’s first interview with his solicitor lasted forty minutes until 12.50 p.m. and the applicant made no complaint of ill-treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and again no complaint of ill-treatment was made in that interview, which lasted until 4.00 p.m. During the first interview with his solicitor, a policeman was present. The consultation took place within sight and hearing of the police officer who was in close proximity to the applicant and his solicitor. At the beginning of the interview, the police inspector told the solicitor in the presence of the applicant that no names were to be discussed or information conveyed which could assist other suspects and that the interview should be purely on legal advice.", "12. The applicant was seen by doctors on a total of eight occasions during his stay in Castlereagh, beginning with an examination following his arrival in Castlereagh in the early morning of 21 October 1990. He made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no evidence to indicate any ill-treatment or mental handicap. 13.", "The police alleged that the applicant admitted his involvement in the murder during an interview in the afternoon of 22 October. They further stated that in a later interview the applicant signed a statement to this effect and that thereafter he freely and voluntarily admitted additional terrorist activity and signed further statements. 14. The applicant alleged that he had not volunteered the statements freely but, instead, that all the verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats to his family and other oppressive conduct. The allegations of ill-treatment were denied by the RUC.", "15. All of the verbal and written statements made by the applicant had been obtained by the police officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms: “You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.” 16. The applicant’s solicitor was never permitted to be present at any of the applicant’s interviews, nor was any independent person; nor were the interviews recorded on video or audiotape. 17.", "On 25 October 1990, at 7.30 p.m., the applicant was transferred from Castlereagh to Strandtown RUC station, where he was charged. B. The trial proceedings 18. On 14 October 1993 the applicant was tried by a single judge, McCollum J, sitting without a jury, for a total of eighteen serious offences including, inter alia, murder, attempted murder, possession of firearms and ammunition with intent, possession of explosives with intent, false imprisonment, hijacking a motor vehicle, and membership of a proscribed organisation, namely the Provisional Irish Republican Army (the “IRA”). He was found guilty on all counts.", "19. The disputed verbal and written statements by the applicant constituted the only evidence connecting the applicant to the charges brought. The admissibility of the statements was challenged by the applicant on the basis that they had been obtained by torture and inhuman or degrading treatment or, alternatively, should be excluded in exercise of the judge’s discretion. A voir dire (submission on a point of law in the absence of the jury) commenced and the applicant gave evidence over ten days which consisted of a highly detailed account of ill-treatment which he alleged he had experienced from the police. The officers denied ill-treating the applicant.", "20. The events in the interviews had been filmed by television camera and the pictures relayed to a monitor screen in a special room at Castlereagh police station. At all times, an officer of the rank of inspector was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and all of them told the court that they had seen no evidence of impropriety of any kind occurring during the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad behaviour by an interviewing officer.", "21. The doctors, who examined the applicant a number of times in Castlereagh, gave evidence that the applicant had been cooperative and composed, that there were no signs of recent injuries and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant in respect of his history of duodenal ulceration. 22. The applicant’s account of the interrogation was rejected by the trial judge, who said: “Having heard the officers concerned who impressed me as being honest and conscientious officers, I am absolutely convinced that all of [the applicant’s] allegations of ill-treatment at this stage are completely unfounded ...", "In my view if there had been any truth in the account of ill-treatment given by [the applicant] his distress would have been obvious to the doctors ... None of the medical evidence therefore gave any credence to the account given by [the applicant] in the witness box and all of that evidence is consistent with his being treated with absolute propriety ... ... I am satisfied ... that in no respect was [the applicant] subjected to any treatment which could be described as torture or inhuman or degrading treatment, violence or oppression in order to induce a confession from him. I am satisfied that he was not threatened in any way.” 23. At the trial, there was unchallenged independent medical evidence to the effect that: 1. The applicant had a full-scale intelligence quotient of 72.", "2. The applicant was on the borderline of mental retardation. 3. The applicant had a reading ability equivalent to that of an average 10-year-old child. 4.", "His suggestibility was average but he had a high level of compliance. 24. Evidence was given later in the trial by a psychologist that “[the applicant] is a psychologically vulnerable man and in my view would have required appropriate support in the context of police interviews. [The applicant’s] psychological vulnerabilities taken together with the lack of support from either the Solicitor or an appropriate adult during the police interviews and the prolonged and intensive nature of the interviews would in my opinion be of relevance to the reliability of his admissions”. 25.", "In convicting the applicant, the judge rejected this evidence, finding that the applicant had not needed any form of independent support during the interviews and the police had been entitled to treat him as an ordinary member of society. He noted that the applicant’s earliest admissions did not follow particularly prolonged or intensive questioning and that during those interviews he persisted with a consistent story told with an air of conviction. He also noted that no one thought to have the applicant’s mental capacity investigated prior to the commencement of the trial. The trial judge stated: “... I am satisfied that [the applicant] was not suffering from such a degree of mental handicap that would have required the police to exercise any special consideration for him and that his memory, understanding and intellect were quite adequate to enable him to resist making any false confession under questioning in Castlereagh and that the questioning was, therefore, not in any respect unfair to him.", "If he was an easier subject than others or more manageable I do not consider that that would be a matter which throws any doubt on the admissibility of any statements of confessions made by him”. 26. The police questioning which led to his confessions was therefore not unfair and the judge had no doubt about the reliability of the admissions made by the applicant. 27. In relation to the question of access to a solicitor, the judge observed that the deferral of twenty-four hours was effective until the morning of 22 October 1990.", "However, the applicant’s solicitor did not arrive until 12.10 p.m. on 23 October. The trial judge noted that there had been a suggestion that the solicitor may have been unintentionally misled as to the length of time of the deferral but found, having heard the solicitor and police officers concerned, that he was satisfied that the solicitor was accurately informed that the deferral was for twenty-four hours. He further noted that it might well have been convenient for the solicitor to delay his visit to Castlereagh until the next day because a number of other prisoners had had access deferred until then. In any event, it was not the deferral which prevented the applicant from seeing his solicitor after sometime early in the morning of 22 October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were made by the applicant at a time when he was no longer being denied access to a solicitor.", "The judge concluded that there was nothing improper in the decision to deny access for twenty-four hours, having regard to the police fears that messages might be passed through the solicitor with a view to alerting others implicated in offences. 28. The trial judge stated, inter alia: “Having considered the extent of the strength of character of the accused, his intellectual shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of questioning in Castlereagh would of itself be oppressive ... I am further satisfied that nothing was said or done during his questioning the effect of which upon him would justify the exercise of a discretion to exclude the statement ... I am satisfied that ... his admissions were made freely, and accept the police evidence that what triggered the making of admissions by this accused was the fact that the police were able to demonstrate to him that they had information available to them which discredited the alibi that he had given them ...", "In my view the particular circumstances of this case provided ample grounds for the belief that other persons could be alerted if a solicitor had seen this accused within 24 hours. In any case [the applicant] made no admission during the 24 hours for which the solicitor had been deferred. I am satisfied that the deferral was right and proper in this case and that in any case it was not the deferral that resulted in the accused not seeing his solicitor during the early part of 22 October.” 29. The judge further considered the applicant’s complaints that a police officer had been present during the first legal consultation with his solicitor and whether this had prevented him getting the full benefit of his solicitor’s advice. Evidence had been heard from the police inspector concerned who had stated that the purpose of sitting in to observe the interview was primarily to prevent information from being passed from the prisoner to the solicitor which might assist others suspected of involvement in the offence who had not yet been arrested.", "Under cross-examination, he stated that he had not been told of any codes that might be used and that it would be hard to identify such a code if it was used. The judge found, on the evidence of the applicant, his solicitor and the police officer, that the solicitor had not been in the least inhibited by the presence of the police officers and, according to the applicant, had been quite prepared to raise the crucial evidential issues with him. He was satisfied that an objective state of affairs existed justifying both the initial deferral of access and the supervision of the interview, namely, two other suspects were still at large whom the police wished to interview. 30. The judge concluded that he was satisfied beyond reasonable doubt that the confessions were made freely and voluntarily.", "There was no ground for exercising his discretion to exclude any of the oral or written statements made by the applicant. The judge was accordingly satisfied that the applicant knew that he was playing a part in a murder plot and was therefore, inter alia, guilty of murder. C. The appeal proceedings 31. The applicant appealed against conviction and sentence to the Court of Appeal of Northern Ireland. The Court of Appeal noted that the inspector had authorised the postponement of access to a solicitor before the applicant had made a request for a solicitor, which was in technical breach of the statutory provision.", "The Court of Appeal noted that there was no express sanction for breach of that provision. However, there was nothing unfair to the applicant as the deferral ran from the time of the arrest whenever the authorisation was given. The Court of Appeal was satisfied that substantial reasons existed for the police to postpone access to a solicitor in this particular case pursuant to section 45(8)(b) and (e) of the Northern Ireland (Emergency Provisions) Act 1991. In a judgment of 24 September 1996, the court dismissed the applicant’s appeal stating, inter alia: “We have no doubt that the learned trial judge was at all times aware of the need to bear the psychological evidence very much in mind when forming his conclusions both at the direction stage and when finally deciding if the Crown had established [the applicant’s] guilt beyond reasonable doubt ... We are entirely satisfied that the learned trial judge was entitled to refuse the application for a direction [regarding inadmissibility] and to rule the various statements to be admissible ... Equally our perusal of the evidence does not suggest that the learned judge should, in the exercise of his discretion have excluded the statements, or any of them, from evidence ...", "This is an appeal in which the evidence was lengthy and detailed. We have carefully considered all the evidence and [the applicant’s counsel’s] closely reasoned submission. We have finally stood back from all the detail and looked at the case ‘in the round’ as [the applicant’s counsel] invited us to do. We are satisfied that [the applicant’s] guilt was fully established by his admission and that his convictions are neither unsafe nor unsatisfactory.” 32. On 28 July 1997 the applicant’s petition seeking leave to appeal to the House of Lords was dismissed.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Evidence 33. Section 5 of the Northern Ireland (Emergency Provisions) Act 1987 provides in its relevant parts: “(1) In any criminal proceedings for a scheduled offence, ... a statement made by the accused may be given in evidence by the prosecution in so far as: (a) It is relevant to any matter in issue in the proceedings and (b) It is not excluded by the court in pursuance of subsection (2) below or in the exercise of discretion referred to in subsection (3) below ... (2) Where in any such proceedings: (a) the prosecution proposes to give, or has given ... in evidence a statement made by the accused, and (b) prima facie evidence is adduced that the accused was subjected to torture, inhuman or degrading treatment, or to any violence or threat of violence ... in order to induce him to make the statement then, unless the prosecution satisfies the court that the statement was not obtained by so subjecting the accused, ... the court shall do one of the following things, namely: (i) ... exclude the statement; (ii) ... continue the trial disregarding the statement; or (iii) in either case direct that the trial shall be restarted before a differently constituted court (before which the statement in question shall be inadmissible). (3) ... in the case of any statement made by the accused and not obtained by subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to do one of the things mentioned in subsection (2)(i) to (iii) above if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice ...” 34.", "The Criminal Evidence (Northern Ireland) Order 1988 includes the following provisions: Article 2(4) and (7) “(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2) ... (7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.” Article 3 “Circumstances in which inferences may be drawn from the accused’s failure to mention particular facts when questioned, charged, ... (1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, ... (c) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention ...” B. Provisions governing access to a solicitor 35. Section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (formerly section 15 of the 1987 Act) deals with the right of access to legal advice and provides in its relevant parts: “(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.", "(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies. (3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence. (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section ... ... (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it – ... (b) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or ... (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (e) by alerting any person, will make it more difficult - i. to prevent an act of terrorism, or ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ...” 36. The delay must be authorised by a police officer of at least the rank of superintendent and the detained person must be told the reason for the delay.", "The maximum delay is forty-eight hours. The officer may also give a direction that a person may only exercise his right to see a solicitor in the presence of a uniformed police officer, where he has reasonable grounds for believing that otherwise the consequences specified in section 45(8) might arise (see section 45(11)). 37. It was the practice of the police in Northern Ireland at the relevant time to refuse to permit the questioning of interviewees at Castlereagh holding centre to be: 1. witnessed by the interviewee’s lawyer; 2. independently witnessed and verified by any independent person; or 3. to be recorded and verified by video- or audio-recording. III.", "RELEVANT INTERNATIONAL MATERIALS A. American Convention on Human Rights 38. The relevant parts of Article 8 provide: “2. Every person accused of a criminal offence ... is entitled, with full equality, to the following minimum guarantees: ... (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.” B. Council of Europe Standard Minimum Rules for the Treatment of Prisoners 39. Article 93 provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions.", "At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” C. European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights 40. Article 3 § 2 (c) of this Agreement, currently ratified by twenty-two Contracting States provides in its relevant parts: “2. As regards persons under detention, the exercise of this right shall in particular imply that: ... (c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom.” THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 41. The applicant complained of the restrictions placed on his consultations with his solicitor after his arrest by the police, the conditions under which he was interviewed by the police and also that the use of the admissions made under those conditions deprived him of a fair trial. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which provide: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... ... 3.", "Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;” A. Deferral of access to the applicant’s solicitor 1. The parties’ submissions 42. The applicant submitted that he was a person of very limited intelligence and of a compliant personality. He had been questioned by the police over a lengthy period in custody which per se was coercive in nature.", "He was repeatedly cautioned under Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), which called for a considered and carefully advised legal assessment of his position with regard to his right against self-incrimination. However, the applicant did not receive legal advice before he began to confess and indeed was illegally denied access to his solicitor for twenty-four hours. He argued that this was in violation of the guarantees of Article 6 §§ 1 and 3 (c) of the Convention. 43. As regards the denial of access to a solicitor, the Government submitted that the applicant was well capable, despite his low intelligence, of understanding the caution and not making inaccurate confessions.", "For example, he only confessed to certain matters and maintained his denials in respect of others. In any event, the deferral was not the reason for the lack of access as it had ended by the time that the confessions were made. Both the trial judge and the Court of Appeal found that there were valid grounds under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”) to defer access to his solicitor. 2. The Court’s assessment 44.", "The Court recalls that the applicant was arrested at 1.50 a.m. on 21 October 1990. A decision was taken at this time to defer his access to his solicitor for twenty-four hours, although it was not until 9.15 p.m. that the applicant was informed of this deferral. The applicant’s solicitor was informed that there had been a 24-hour deferral of access. The deferral of access period, which ran from the time of arrest, expired on the morning of 22 October 1990. From that moment, the Court observes that he was no longer being prevented from seeing his solicitor, who did not, however, arrive to see the applicant until 12.10 p.m. on 23 October 1990.", "The applicant therefore did not obtain a consultation with his solicitor concerning the serious offences of which he was suspected until over forty-eight hours after his arrest. 45. The Court recalls in this connection that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36).", "The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In its judgment in John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996-I, pp. 54-55, § 63), the Court also observed that, although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. 46.", "The Court has therefore examined whether the measures taken by the police concerning the applicant’s access to his solicitor were compatible with the rights of the defence. It notes first of all that the deferral was in fact for a 24-hour period. As appears from the Court of Appeal judgment, there was a technical breach of section 45 of the 1991 Act as the decision to defer was premature – it should not have been taken until the applicant made a request to see a solicitor. However, it was found that the deferral was made in good faith and on reasonable grounds, namely, that there was a risk of alerting persons suspected of involvement in the offence as yet not arrested, or of making it more difficult to secure the apprehension of such a person or persons. 47.", "It is also apparent that after the 24-hour period in question the applicant was no longer being denied access to his solicitor. The fact that the solicitor did not arrive to see his client until a day later is not attributable to any measure imposed by the authorities. While the applicant’s solicitor sought to suggest that he had been led to believe that the deferral period was forty-eight hours rather than twenty-four hours, the trial judge rejected this during the trial and found that the solicitor had been correctly informed by the police of the 24-hour deferral. 48. Furthermore, while the applicant was interviewed by the police during the 24-hour deferral period, he made no incriminating admissions.", "The first admissions made by him occurred during interview on the afternoon of 22 October 1990 when he was no longer being denied access to a solicitor. Nor is it the case that any inferences were drawn from any statements or omissions made by the applicant during the first 24-hour period as was the case in John Murray (cited above; see also Averill v. the United Kingdom, no. 36408/97, § 58, ECHR 2000-VI). The essence of the applicant’s complaints is not that he was denied access to legal advice to enable him to choose between silence and participation in police questioning, but rather that he made incriminating statements after the deferral period ended and before the arrival of his solicitor (see O’Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999, unreported, and Harper v. the United Kingdom (dec.), no.", "33222/96, 14 September 1999, unreported). The Court is not persuaded therefore that the denial of access during this initial period can be regarded in the circumstances as infringing the applicant’s rights under Article 6 §§ 1 or 3 (c) of the Convention. It accordingly finds no violation of these provisions in this regard. B. The police interviews 1.", "The parties’ submissions 49. The applicant complained that during his interviews with the police in Castlereagh he was not permitted to have his solicitor present and there was no videotaping or audio-recording of the interviews, which was now the practice on mainland United Kingdom. He considered that this contributed to the oppressiveness of the interrogation process from which the guarantees of accountability were lacking. His inability to have a solicitor present at the police interviews is in striking contrast with the power of the police to insist on having an officer present at his legal consultations. He emphasised that he was a pliable young man of compliant personality, possessed of limited intelligence, held in the psychologically draining conditions of Castlereagh and subject to intensive interrogations.", "He made highly damaging admissions as a result of this situation and the use of the confessions obtained under these circumstances violated his right to a fair trial. He argued that his case was similar to that in Magee v. the United Kingdom (no. 28135/95, ECHR 2000-VI) where Article 6 § 1 had been found to be violated as the applicant had been held for forty-eight hours without access to a solicitor in the intimidating atmosphere of Castlereagh and made damaging admissions later relied on at his trial. His case was, on the other hand, to be distinguished from that in O’Kane (cited above) where no breach of Article 6 § 1 was found, as the applicant in that case had not asked for access to legal advice and had not been prevented from obtaining it. 50.", "The Government submitted that there was no reason to conclude that the confessions made by the applicant during his interviews were made as a result of any inherent compulsion in the caution under Article 3 of the 1988 Order, or as a result of any other coercion. He continued to admit his involvement in offences after seeing his solicitor. The Court of Appeal specifically found that the admissions were made freely. The confessions also occurred after the deferral of access to his solicitor had ended. There were safeguards in place to test the fairness of the confession statements, inter alia, the applicant was represented by senior counsel and a solicitor, the circumstances in which the confessions were made were subjected to strict scrutiny at the voir dire, and both the trial judge and the Court of Appeal, after considering the reliability of the confessions in detail, found that the applicant’s understanding and intellect were quite sufficient to avoid his making a false confession under questioning, that it would be fair to admit them in evidence and that the allegations of ill-treatment were a lie.", "This application was therefore, in their view, similar to that in O’Kane (cited above), which was declared inadmissible by the Court. 2. The Court’s assessment 51. The Court recalls that the rules on admissibility and the assessment of evidence are principally matters for domestic courts to determine. It is not, as a general rule, for the Court to substitute its own assessment of the evidence made by a domestic court, save in circumstances where the domestic court’s assessment was arbitrary or capricious, or the system of guarantees or safeguards which applied in the assessment of the reliability of confession evidence was manifestly inadequate (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no.", "247-B, pp. 34-35, § 34). The Court has therefore had regard to the safeguards which were in place in the present case to test the fairness of admitting the confession statements taken from the applicant. 52. It is to be noted that in the instant case the circumstances in which the confession evidence was obtained were subjected to strict scrutiny at the voir dire.", "The applicant was represented both at his trial and on appeal by experienced counsel. The trial judge heard the applicant in person as well as the police officers who had questioned him at Castlereagh police station. The trial judge, whose findings were upheld by the Court of Appeal following extensive review of the evidence presented in the course of the voir dire, was satisfied as to its reliability and the fairness of admitting the evidence. The Court also notes that the applicant does not complain that the decision of either court was in any way arbitrary, or that there was inadequate inquiry into the circumstances in which the confession evidence was obtained such that neither court could have reached a properly informed assessment as to its reliability or fairness. 53.", "The applicant argued that in the absence of independent evidence of video or taped records of the police interviews, and the absence of the accused’s solicitor, there were considerable difficulties for an accused to convince a court, against the testimony of the police officers, that any oppression took place. The Court agrees that the recording of interviews provides a safeguard against police misconduct, as does the attendance of the suspect’s lawyer. However, it is not persuaded that these are an indispensable precondition of fairness within the meaning of Article 6 § 1 of the Convention. The essential issue in each application brought before this Court remains whether, in the circumstances of the individual case, the applicant received a fair trial. The Court considers that the adversarial procedure conducted before the trial court, at which evidence was heard from the applicant, psychological experts, the various police officers involved in the interrogations and the police doctors who examined him during his detention, was capable of bringing to light any oppressive conduct by the police.", "In the circumstances, the lack of additional safeguards has not been shown to render the applicant’s trial unfair. 54. As regards the applicant’s reliance on Magee (cited above), the Court observes that this case concerned a more extreme situation where the applicant was kept incommunicado by the police for a 48-hour period and his admissions were all made before he was allowed to see his solicitor. In the present case, the applicant’s access to his solicitor was deferred for twenty-four hours and his admissions were made during the subsequent period when he was not being denied legal consultation. The applicant’s complaint that his legal consultations were prejudiced by the presence of a police officer is examined separately below.", "55. The Court concludes that there has been no violation of Article 6 § 1 of the Convention and/or Article 6 § 3 (c) as regards the police interviews. C. Presence of a police officer during the applicant’s consultation with his solicitor 1. The parties’ submissions 56. The applicant submitted that his right under Article 6 § 3 (c) to be assisted by a lawyer was violated by the presence of a police officer attending within sight and hearing of the consultation.", "This destroyed the confidentiality of lawyer/client communication and was extremely prohibitive of the necessary frankness with which a client must be permitted to express himself if he is to be properly, usefully and meaningfully advised and assisted by his lawyer. This was particularly the case where the applicant was of pliable personality and low intelligence, subject to restrictions on access to legal advice and coercive interrogation sessions. He denied that there was any justification for the presence of the police officer, since there was no imputation against the solicitor concerned as being likely to pass on messages and the risk of any sophisticated coded message being passed on unwittingly to the solicitor was unsubstantiated in the circumstances. That there was an effect on the interview was shown, for example, by the fact that the inspector at the beginning of the legal consultation stated that no names were to be discussed or information that could be of use to others. 57.", "The Government submitted that the applicant had not shown that he had suffered any form of actual prejudice or unfairness as a result of the presence of the police officer at the first consultation. They considered that Article 6 § 3 (c) did not guarantee any right to private consultations and that, to the extent such a right could be implied, it could be subject to restrictions for good reason as long as such restrictions pursued a legitimate aim and were proportionate. Furthermore, legal assistance could still be given effectively with third persons present. In this case, the police inspector, who was unconnected with the case, was only present at the first interview and the applicant was able to consult his solicitor privately at any time up to and including his trial. There was also good reason for the presence of the police inspector, namely, the risk of prejudice to the ongoing search for two other suspected persons.", "The applicant has not pointed to any matters on which he was unable to request or obtain legal advice, or that led him to act in any way differently, or that any use was made by the police of any confidential or privileged material. 2. The Court’s assessment 58. The Court has noted above (see paragraph 45) that Article 6 § 3 normally requires that an accused be allowed to benefit from the assistance of a lawyer at the initial stages of an interrogation. Furthermore, an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6 § 3 (c).", "If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, p. 16, § 48). The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of hearing of third persons, is illustrated by the international provisions cited above (see paragraphs 38-40). However, the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary for the applicant to prove, assuming such were possible, that the restriction had a prejudicial effect on the course of the trial, the applicant must be able to be claim to have been directly affected by the restriction in the exercise of the rights of the defence.", "59. In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act (see paragraph 35 above) of preventing information being passed on to suspects still at large. There was, however, no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure – there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes –, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction.", "60. As regards the proportionality of the restriction, the Court notes that the police officer was only present at one interview. Indeed, the measure could only apply during the first 48-hour period after the arrest, after which the applicant was able to consult out of hearing with his solicitor until his trial some months later. It was a restriction therefore of very limited duration, and may in that respect be distinguished from the breach found in S. v. Switzerland (cited above), where the restriction on consultations lasted for about eight months. 61.", "The consultation was, however, the first occasion since his arrest at which the applicant was able to seek advice from his lawyer. He had been cautioned under Article 3 of the 1988 Order (see paragraph 34 above) and, as noted in John Murray (cited above, p. 55, § 66), his decision as to whether to answer particular questions or to risk inferences being drawn against him later was potentially of great importance to his defence at trial. The Government have argued that the solicitor would have been able to advise him concerning the application of Article 3, even in the presence of the police officer. It also appears that the trial judge, after hearing the solicitor and applicant give evidence concerning the interview, considered that the solicitor had not been inhibited in any way in giving advice to the applicant. 62.", "Nonetheless, the Court cannot but conclude that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him. Both the applicant and the solicitor had been warned that no names should be mentioned and that the interview would be stopped if anything was said which was perceived as hindering the investigation. It is immaterial that it is not shown that there were particular matters which the applicant and his solicitor were thereby stopped from discussing. The ability of an accused to communicate freely with his defence lawyer, recognised, inter alia, in Article 93 of the Standard Minimum Rules for the Treatment of Prisoners, was subject to express limitation. The applicant had already made admissions before the consultation, and made admissions afterwards.", "It is indisputable that he was in need of legal advice at that time, and that his responses in subsequent interviews, which were to be carried out in the absence of his solicitor, would continue to be of potential relevance to his trial and could irretrievably prejudice his defence. 63. The Court finds therefore that the presence of the police officer within hearing during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there has been, in that respect, a violation of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed that he had suffered severe and continuing pecuniary damage, suffering and distress as a consequence of breaches of Article 6 §§ 1 and 3 (c) of the Convention. Through those breaches the authorities had obtained the admissions which were the sole basis for his conviction and detention for a period of almost eight and a half years. He lost his employment during that period, for which he claimed a pecuniary loss of 240 pounds sterling (GBP) per week.", "His imprisonment also inflicted great stress and suffering on him, contributing to the break-up of his marriage and the loss of contact with his daughter, as well as denying him contact with his wider family and friends. 66. The Government submitted that there was no evidence that the result of the applicant’s trial would have been any different if there had been no breach of the Convention. His admissions, some of which were made after seeing his solicitor, were found to be freely made at trial and by the Court of Appeal. A finding of a violation would in the circumstances constitute ample “just satisfaction”.", "67. The Court recalls that it has only found a breach of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 as regards one aspect of the applicant’s complaints, namely, the presence of a police officer during his first consultation with his solicitor after his arrest. The Court cannot speculate as to whether the outcome of the applicant’s trial would have been any different if he had obtained a private consultation with his solicitor. It agrees with the Government that a finding of a violation, in itself, constitutes sufficient just satisfaction for the purposes of Article 41 of the Convention. B.", "Costs and expenses 68. The applicant claimed GBP 6,920.62 for legal costs and expenses, inclusive of value-added tax (VAT), of which GBP 4,700 was for solicitors’ fees and expenses and GBP 2,220.62 was for counsel’s fees. 69. The Government considered that these fees were very high for an application which did not go beyond the written stage and having regard to the lower legal fees chargeable in Northern Ireland. They suggested that GBP 3,000 was a reasonable figure.", "70. Having regard to the awards made in comparable cases and making an assessment on an equitable basis, the Court awards the sum claimed by the applicant of GBP 6,920.62, inclusive of VAT. C. Default interest 71. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been no violation of Article 6 § 1 of the Convention and/or Article 6 § 3 (c) in respect of the deferral of access to the applicant’s solicitor; 2. Holds that there has been no violation of Article 6 § 1 of the Convention and/or Article 6 § 3 (c) in respect of the police interviews; 3. Holds that there has been a violation of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1 in respect of the presence of a police officer within hearing during the applicant’s first consultation with his solicitor after his arrest; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, for costs and expenses, GBP 6,920.62 (six thousand nine hundred and twenty pounds sterling sixty-two pence), inclusive of VAT; (b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; 6.", "Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 16 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. Costa RegistrarPresident" ]

[ "FIFTH SECTION CASE OF KURIPKA v. UKRAINE (Application no. 7918/07) JUDGMENT STRASBOURG 10 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Kuripka v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Ganna Yudkivska,Síofra O’Leary, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 18 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7918/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Vladimirovich Kuripka (“the applicant”), on 29 January 2007.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr I. Lishchyna. 3. On 14 February 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1964. He is currently serving a prison sentence. 5. At the time of the events the applicant had previous convictions from 1983 and 1989.", "He was released from prison in October 2002. A. Criminal proceedings against the applicant 6. Following his release from prison the applicant cohabited with T.B. in the village of Blahovishchenka, in the Zaporizhzhya Region.", "T.B.’s sister cohabited with Sh. in the same village. 7. On the evening of 24 April 2006 Sh. visited T.B.", "and the applicant. A conflict arose between him and the applicant, developing into a fight which T.B. attempted to settle down. At a certain point the applicant seized a knife and stabbed Sh. in the chest.", "The latter was taken to hospital, but he died shortly afterwards. 8. Later that evening the applicant was taken to the police station, where he was questioned in relation to the incident. He stated that he did not know who might have stabbed the victim. The applicant was not released and remained at the police station.", "9. At 2.00 a.m. on 25 April 2006 the applicant confessed that he had had a fight with Sh., and that during the fight he had grabbed a knife and stabbed Sh. twice in the chest and abdominal area. 10. At 8.00 p.m. on 25 April 2006 the investigator drew up an arrest report in respect of the applicant.", "According to the report, the applicant was suspected of murder. 11. On 26 April 2006 the applicant was allowed to consult a lawyer for the first time. On that day he was questioned again. He explained that he had stabbed Sh.", "when falling down from the blows he had received from him. The stab had been unintentional. Later on the same day, in the course of a reconstruction of the events, the applicant showed how he had been beaten by Sh. and how he had fatally stabbed him. 12.", "On 27 April 2006 a court ordered the applicant’s pre-trial detention. 13. On 28 April 2006 the applicant was questioned again. Before the questioning, the applicant signed a waiver of his right to a lawyer. He then made statements about the incident which were similar to those which he had made earlier.", "14. On 15 June 2006 the applicant was charged with aggravated murder and questioned again in the presence of his lawyer. That day, he stated that he had acted in self-defence, as Sh. had approached him with a glass bottle. 15.", "On 2 August 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) commenced the trial of the applicant. During the trial, he stated that he had fatally stabbed Sh., who had approached him with a glass bottle, while trying to defend himself. 16. On 8 August 2006 the court found the applicant guilty of aggravated murder and sentenced him to life imprisonment. The court relied on the material, oral, expert and documentary evidence examined during the hearings.", "It referred in particular to the applicant’s self-incriminating statements made on 25 April 2006 and later. His allegation that he had acted in self-defence was rejected as unsubstantiated. 17. The applicant and his lawyer appealed, claiming that the conviction was unfounded and that his right to a lawyer had not been properly ensured. 18.", "On 21 December 2006 the Supreme Court considered the applicant’s case and upheld the conviction. However, having regard to his behaviour immediately after the incident, namely the efforts he had made to provide the victim with medical assistance, it reduced the sentence to fifteen years’ imprisonment. B. The applicant’s correspondence during his time in custody 19. On three occasions between August and October 2006 the Court of Appeal allowed the applicant to have family visits.", "20. On 16 August 2006 the applicant lodged an application with the Court of Appeal, asking for permission to correspond with his relatives. His application was registered by the SIZO mailing service under number 2/k‑517. No reply followed. 21.", "On 2 October 2006 the applicant made the same application, which was registered by the SIZO mailing service under number 2/k-579. No reply followed. 22. On 12 October 2006 the applicant complained to a prosecutor in that regard, but received no response. II.", "RELEVANT DOMESTIC LAW The Pre-Trial Detention Act of 30 June 1993 23. Section 13 of the Act provides, inter alia, that a person held in custody may correspond with his or her relatives, other individuals and legal entities upon obtaining written permission from the authority dealing with the criminal case against him or her. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION 24. The applicant complained that that he had not had access to a lawyer at the initial stage of the proceedings.", "25. The Court decided to examine the complaint under Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 27. The applicant maintained his complaint.", "28. The Government submitted that the applicant’s right to legal assistance had not been violated, because he had incriminated himself both in the absence and in the presence of a lawyer. As regards the interview of 28 April 2008, the applicant had voluntarily waived his right to a lawyer on that day. In the Government’s opinion, the proceedings had been fair, and there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. 29.", "The Court reiterates that access to a lawyer should be provided from the first time a suspect is questioned by the police, unless it is demonstrated, in the light of the particular circumstances of each case, that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during questioning by police without access to a lawyer are used for a conviction. Accordingly, the test for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage the Court must assess whether there were compelling reasons for the restriction.", "In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 256 and 257, 13 September 2016). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (ibid., § 265).", "30. In the present case, the applicant was taken to the police station on 24 April 2006. After the initial interview, where he did not admit his guilt, the police did not let him go, and held him overnight at the police station. It is true that the arrest report was drawn up much later, at 8 p.m. on 25 April 2006. However, looking beyond appearances, the Court considers that, other than suspecting the applicant of having killed Sh., there was no other reason to hold him at the police station overnight.", "At the relevant time, in particular at the time of the second police interview at 2 a.m. on 25 April 2006, which resulted in a confession, the applicant had de facto already been treated as a suspect (see Sergey Afanasyev v. Ukraine, no. 48057/06, § 58, 15 November 2012; Yevgeniy Petrenko v. Ukraine, no. 55749/08, § 90, 29 January 2015; and, by contrast, Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012). 31.", "Accordingly, by virtue of the above-mentioned principles of the Court’s case-law, the applicant was entitled to have access to a lawyer at the interview resulting in his confession to the crime. 32. The question is therefore whether the absence of a lawyer was justified. On the facts, the Court does not discern any compelling reason for restricting the applicant’s right to a lawyer during that time. 33.", "Furthermore, the absence of legal assistance at the initial stage of the investigation prejudiced the applicant’s defence rights. In substantiating the applicant’s guilt, the first-instance court expressly referred to his initial confession of 25 April 2006. The Supreme Court maintained the reasoning of the first-instance court in that regard, and did not see any shortcomings as to the applicant’s rights of defence at the initial stage of the proceedings. 34. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicant complained that he could not correspond with his relatives during his time in custody, as the relevant permission could not be obtained from the authorities. He relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 37. The applicant maintained his complaint. 38. The Government submitted that the restriction of the applicant’s right to correspondence had been based on section 13 of the Pre-Trial Detention Act, and had been compatible with Article 8 of the Convention.", "In the context of the proportionality test, they emphasised that, even though the applicant had not been granted permission to correspond with his relatives, he had benefitted from three family visits during the relevant time. 39. The Court notes that, in the present case, the applicant could not correspond with his relatives by post because, despite his applications, the authorities did not give him the relevant permission under section 13 of the Pre-Trial Detention Act. There has therefore been an interference with the applicant’s right to respect for correspondence. 40.", "The Court previously examined a similar complaint and found that the applicable domestic law did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities in relation to granting detainees permission to correspond. It concluded that the interference had not been “in accordance with the law”, and had been in breach of Article 8 of the Convention (see Dovzhenko v. Ukraine, no. 36650/03, §§ 77-79, 12 January 2012). The Court does not find any reason to depart from that conclusion in the present case. 41.", "There has therefore been a violation of Article 8 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42. The applicant further complained of other violations of his rights under the Convention. 43.", "The Court has examined these complaints and considers that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 45. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. 46. The Government submitted that the claim was unfounded. 47.", "The Court has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. It cannot however speculate as to the outcome of the proceedings against the applicant (see Ibrahim, cited above, § 315). It notes that domestic law allows for the possibility of a reopening of proceedings (see Zakshevskiy v. Ukraine, no. 7193/04, §§ 50 and 51, 17 March 2016). The Court further considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of violations in the present case.", "Ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage. B. Costs and expenses 48. The applicant did not submit any claims under this head. The Court therefore makes no award.", "C. Default interest 49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning the applicant’s right of access to a lawyer and his right to respect for correspondence admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention; 3.", "Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAndré PotockiDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF NAZARCHUK v. UKRAINE (Application no. 9670/02) JUDGMENT STRASBOURG 19 April 2005 FINAL 19/07/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nazarchuk v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrR.", "Türmen,MrV. Butkevych,MrM. Ugrekhelidze,MrsE. Fura-Sandström,MsD. Jočienė, judges, and Mrs S. Dollé, Section Registrar, Having deliberated in private on 22 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 9670/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Zakharovych Nazarchuk (“the applicant”), on 6 August 2001. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska. 3.", "The applicant complained of the failure of the State authorities to execute the judgment of 16 August 1999, as amended by the resolution of 15 March 2000, given in his favour. He alleged an infringement of Articles 6 § 1 and 13 of the Convention. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. The application was communicated to the respondent Government on 10 April 2003. On the same date the Court decided that Article 29 § 3 of the Convention should be applied, and the admissibility and merits of the application be considered together. 6. The applicant and the Government each filed observations on the admissibility and merits (Rule 54A).", "THE FACTS 7. The applicant is a Ukrainian national who was born on 6 January 1941 and lives in Dolyns’ka, the Kirovograd Region. I. THE CIRCUMSTANCES OF THE CASE 8. In March 1999 the applicant instituted proceedings in the Dolyns’ka City Court against the State Treasury Department, the Dolyns’ka financial department of the Municipal Council and the Dolyns’ka Tax Police Department, seeking compensation for the damage caused by the unlawful seizure and confiscation of his car.", "9. On 16 August 1999 the Dolyns’ka City Court awarded the applicant UAH 50,000[1] in compensation for moral and material damage. 10. On 15 March 2000 the Presidium of the Kirovograd Regional Court allowed the protest of the Deputy Prosecutor General of Ukraine lodged against this decision. It amended the decision of 16 August 1999 and reduced the amount of compensation to UAH 20,000[2].", "11. On 21 June 2000 the Supreme Court of Ukraine rejected the further protest of the Deputy Prosecutor General lodged against the decision of 15 March 2000. The Supreme Court ruled that the UAH 20,000[3] compensation awarded to the applicant by the decision of 16 August 1999, as amended on 15 March 2000, had been reasonably established. 12. On 20 September 2000 the Dolyns’ska City Court initiated enforcement proceedings in the applicant’s case and delivered the relevant writs of execution to the applicant.", "13. On 12 December 2000 the Kyiv City Department of Justice informed the applicant that the State Treasury of Ukraine and its regional departments were responsible for such payments and therefore the writs of execution had to be forwarded to them. 14. On 18 July 2001 the State Treasury of Ukraine informed the applicant that it was not possible to execute the judgment because there were no relevant provisions in Ukrainian law (i.e. no relevant resolution of the Cabinet of Ministers of Ukraine) authorising it.", "15. On 15 May 2002 the National Bank of Ukraine transferred UAH 20,000[4] to the applicant’s account in execution of the judgment of 16 August 1999, as modified by the resolution of the Presidium of the Kirovograd Regional Court on 15 March 2000. II.RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).", "THE LAW 17. The applicant complained of an alleged failure of the State authorities to execute the decision of 16 August 1999, as amended on 15 March 2000, given in his favour. He invoked Articles 6 § 1 and 13 of the Convention, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” I. ADMISSIBILITY A. The Government’s preliminary objections 18.", "The Government considered that the applicant had not complied with the six months rule as he only lodged his application with the Court on 6 August 2001. Otherwise, he could no longer claim to be a victim of a violation of the Convention as he had received full payment of the judgment debt. They also contended that the applicant had not exhausted domestic remedies regarding the Bailiffs’ Service and the expedition of proceedings. 19. The applicant disagreed.", "20. The Court notes that, on the date of introduction of the application, the judgment had not been enforced. Thus the six months rule had no application to this continuing situation. As regards the other objections, the Court also notes that similar points have already been dismissed in a number of Court judgments (see the aforementioned Romashov judgment, § 41). In such cases the Court has found that applicants may still claim to be victims of an alleged violation of Article 6 § 1 in relation to the period during which the decisions of which complaint is made remain unenforced, and that the applicants were absolved from pursuing the remedies invoked by the Government.", "It finds no reason to reach different conclusions in the present case and, therefore, rejects the Government’s objections. 21. In the light of the parties’ submissions, the Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this part of the application inadmissible. For the same reasons, the applicant’s complaint under Article 13 of the Convention cannot be declared inadmissible.", "II. MERITS A. The applicant’s complaints under Article 6 § 1 of the Convention 22. The Government suggested that there was no infringement of Article 6 § 1 of the Convention in view of the enforcement of the judgment. 23.", "The applicant disagreed. 24. The Court notes that the decision of 16 August 1999, as amended by the judgment of the Presidium of the Kirovograd Regional Court of 15 March 2000, remained unenforced from 20 September 2000 (the date when the enforcement proceedings were instituted) until 15 May 2002 (the date of payment of UAH 20,000[5] to the applicant), i.e. a period of nearly one year and eight months. It further notes that this decision was enforced in full before the communication of the application to the respondent Government, although the applicant did not inform the Court of this for over a year.", "25. Nevertheless, the Court considers that by delaying for nearly one year and eight months the enforcement of the judgment in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. The Court finds that the Government have not advanced any justification for this delay (see Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 45). 26.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. B. The applicant’s complaints under Article 13 of the Convention 27. The Government maintained that the applicant had at his disposal effective remedies explicitly provided for by domestic legislation in order to challenge the non-enforcement of the court judgment given in his favour. They referred to their earlier argument on exhaustion of domestic remedies.", "28. The applicant challenged these submissions, stating that the purported remedies were ineffective in his case since no fault for the delay in the enforcement proceedings could be attributed to the Bailiffs or the Treasury, who were entrusted with its execution. 29. The Court refers to its findings (at paragraphs 20-21 above) concerning the Government’s argument regarding domestic remedies. For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings.", "Accordingly, there has also been a breach of this provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 31. The applicant originally claimed pecuniary damage for the unpaid compensation.", "He also claimed non-pecuniary damage amounting to UAH 50,000 (EUR 8,020). He subsequently maintained that he should be paid a total of UAH 150,000 (EUR 24,060) in compensation for both pecuniary and non-pecuniary damage for an allegedly unlawful detention. 32. The Government disputed the applicant’s claims. They alleged that they were unsubstantiated.", "Furthermore, they submitted that the finding of a violation would constitute sufficient just satisfaction in the case. 33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicant. It makes no award in this respect. As to non-pecuniary damage, it finds the applicant’s claim unsubstantiated and considers that the finding of a violation indeed constitutes sufficient just satisfaction, given the applicant’s prolonged silence regarding the enforcement of the judgment in his case.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the case; 5.", "Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 19 April 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident [1]. EUR 10,628.0. [2].", "EUR 3,758.65. [3]. See reference above. [4]. See reference no.", "2 above. [5]. EUR 4,320.23." ]

[ "SECOND SECTION CASE OF EL HASKI v. BELGIUM (Application no. 649/08) JUDGMENT [Extracts] STRASBOURG 25 September 2012 This judgment is final but it may be subject to editorial revision. In the case of El Haski v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Danutė Jočienė, President,Françoise Tulkens,Dragoljub Popović,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 4 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 649/08) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moroccan national, Mr Lahoucine El Haski (“the applicant”), on 27 December 2007.", "2. The applicant, who had been granted legal aid, was represented by Mr C. Marchand, a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, General Counsel, Federal Public Department of Justice. 3. On 12 January 2009 the application was communicated to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). The United Kingdom Government and the non-governmental organisations European Centre for Constitutional and Human Rights and Redress Trust were granted leave to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1975 and is detained in Andenne prison.", "5. After studying the Koran and Sharia law, the applicant left his country of birth, Morocco, for Syria. He stayed there from 1993 to 2002 and studied Islamic theology and Arabic. During that period he travelled on several occasions to Morocco, Turkey and Saudi Arabia. He also visited Afghanistan twice, in 1994 and 1995, for a few months each time.", "He carried out military training there and – according to his application – took part in “a training programme for the military leader Hekmatyar”. 6. The applicant returned to Morocco in 2002. Under the surveillance of the Moroccan authorities, he left the country for Saudi Arabia, arriving there in October 2002. He only remained there until 2003 because – he alleged – he was “wanted by both Moroccan and Saudi intelligence services”.", "7. The applicant reached Belgium via Turkey in early 2004, with false identity papers. He settled there with his Belgian wife and their son. He lodged an asylum application on 16 June 2004. 8.", "The applicant was arrested in Belgium on 1 July 2004. He was charged with participating, between 7 January and 2 July 2004, as a leader, in the activity of a terrorist group (the Moroccan Islamic Fighting Group, referred to hereinafter as “GICM” after its French name Groupe Islamique Combattant Marocain), and with forgery, conspiring in a leading capacity to commit an offence, handling of stolen goods, use of a false name and illegal entry and residence. A. The context of the applicant’s arrest 9. It can be seen from the report on the facts submitted on 26 April 2006 by the Federal Prosecutor before the Brussels Court of Appeal (see paragraph 27 below) and that court’s judgment of 19 January 2007 (see paragraphs 29-41 below) that, on 25 November 2002, the administrator-general of the State security service transmitted to the Federal Prosecutor’s office a report noting the presence in Belgium of a group of North African nationals with links to the GICM, made up of individuals who had undergone military training in Afghanistan in camps connected to Al-Qaeda and led by a certain “Shihab”, alias “Abdellah”.", "A second report dated 24 December 2002 indicated that B. was part of that group. 10. A judicial investigation was opened on 9 January 2003 against persons unknown on a charge of criminal conspiracy. 11. In a third report, dated 28 March 2003, the State security service informed the public prosecutor’s office that a certain O. was the individual known as “Shihab”, and that he had spent time in Afghanistan in 2001, where he had followed paramilitary training.", "12. In connection with the investigation into the Casablanca bombings of 16 May 2003, which left about fifty people dead, the Moroccan authorities arrested a number of Islamist militants. During an interview on 8 August 2003, one of them, N., alias Abu Muad, who acknowledged that he was one of the leaders of the GICM and that he had contributed to organising the movement in 2001 in Afghanistan, stated that a certain H. and the applicant had been given responsibilities within the group. He added that after the Western intervention in Afghanistan in 2001 the movement had been split up into small units based in Morocco, France, Belgium, Italy, the United Kingdom and Canada, and that the Belgian unit included H., B. and O. in particular. In view of those statements, and others made by another suspect on 9 August 2003, Morocco issued, on 3 October 2003, an international arrest and extradition warrant in respect of a number of individuals, including the applicant, H. and B., for, in particular, “conspiring to prepare and commit acts of terrorism, and collecting funds to support terrorist action”.", "13. On 9 October 2003 the State security service transmitted a fourth report to the investigating judge concerning a certain I., who, on 17 November 2003 reported the loss of his passport to the Moroccan Consulate in Antwerp and applied for a new one. He subsequently stated that he had done so in order to obtain a passport for the applicant to be able to enter Belgium. 14. On 15 March 2004 the State security service issued a fifth report, indicating in particular that B.’s home had been placed under surveillance in the second half of January 2004 and that it was frequented by the applicant, his brother Hassan, O. and H. 15.", "On 16 March 2004 the Federal Prosecutor’s Office filed additional submissions against persons unknown on a charge of participating in terrorist activity. 16. On 19 March 2004 the federal police arrested H., O. and two other persons, after carrying out searches during which forged passports and Belgian identity cards for foreign residents, among other items, had been seized. 17. In the same period in France, in connection with a judicial investigation against persons unknown, opened on 19 May 2003 on a charge of conspiring to commit acts of terrorism, six individuals suspected of taking part in the GICM were arrested on 4 and 5 April 2004 (three of whom had been named in the Moroccan extradition warrant of 3 October 2003).", "While they were in police custody, and again before the French investigating judges, the suspects made statements in particular about the international structure of GICM, the military training carried out by some of them in Afghanistan, their meeting in that country with those implicated in the Belgian proceedings, the role played by the latter in the GICM’s international structure and their activities in Belgium. 18. In a report of 1 June 2004, the State security service referred to its surveillance on 12 March 2004 of a snack bar (“Le Village”) in a suburb of Brussels. 19. A second wave of searches took place on 8 June 2004 and four individuals were arrested.", "20. On 26 June 2004, B., who had been arrested in the Netherlands on 27 January 2004 on the basis of a Moroccan warrant of October 2003, was extradited to Belgium. 21. I. was arrested on 16 September 2004. Individuals with links to the applicant or to some of his co-defendants were also arrested in Spain in connection with the investigation into the Madrid bombings of 11 March 2004.", "22. The last report of the State security service, dated 6 January 2005, indicated that a certain R. might also be linked to the suspects in the case. B. The criminal proceedings 23. In a decision of 29 August 2005 the Committals Division (chambre du conseil) of the Brussels Court of First Instance committed the applicant and twelve others to stand trial before the Brussels Criminal Court for, in particular, participation in a terrorist group.", "On the same day, finding that the applicant had provided evidence of low income, it granted him legal aid so that he could receive a free copy of the entire case file. 24. Documents transmitted by the Moroccan authorities in response to an international letter of request were added to the file after the finalising of the pre-trial proceedings. They were reports of interviews with four of the suspects who were held in Morocco. One of the reports concerned an interview on 14 January 2004 with a certain A., who had been arrested in Saudi Arabia and extradited on that date to Morocco.", "According to the indications in the Federal Prosecutor’s report on the facts (see paragraph 9 above), A. had stated, in particular, that he had met the applicant, who was a childhood friend of his, in Afghanistan in 1998, and then in 2000 had met the defendant H., while the latter was on a training course in the use of explosives and remote-controlled bombs. A. had added that, in early 2000, the GICM had been re-organised around committees, with the applicant chairing the religious affairs committee and H. being a member of the security committee. He had also explained that he had shared accommodation with the applicant for four months in Kabul in early 2001, in a “GICM guest house” where the group’s leaders would incite them to “go and carry out jihadist operations in Morocco”, and that after the Western intervention in 2001, he had travelled to Morocco, where he had taken part in GICM meetings accompanied, in particular, by the applicant; he had then met up with the applicant again in 2003 in Saudi Arabia. A. had also confirmed the existence of GICM units in France and Belgium, and the fact that B. and O., who he had seen in Afghanistan in 2000 and 2001 respectively, were involved in the Belgian unit. 1.", "Proceedings before the Brussels Criminal Court 25. The public prosecutor’s office set the case down for hearing on 3 November 2005 and then on 16 November 2005. The Criminal Court held a total of twenty-five hearings, which lasted from 3 November 2005 to 16 February 2006, when it sentenced the applicant to seven years’ imprisonment and a fine of 2,500 euros (EUR). It also handed down prison sentences and fines against eight of his co-defendants and acquitted the four others. 26.", "Five of the co-defendants – including the applicant – lodged an appeal, as did the Federal Prosecutor’s Office. 2. Proceedings before the Brussels Court of Appeal (a) Judgment in absentia of 15 September 2006 27. The first hearing before the Brussels Court of Appeal was scheduled for 26 April 2006. After briefly questioning the applicant about his identity and the reason for his appeal, the President asked the Federal Prosecutor to give a report on the case.", "The latter proceeded to read out a report on the facts, extending to several dozen pages, which had been prepared by the Federal Prosecutor’s office (even though, the applicant claimed, the usual practice in Belgian criminal courts was for the report on the facts to be presented by a judge of the Court of Appeal). The Court of Appeal subsequently requested the public prosecutor to give his submissions, without there having been any further examination of the applicant or of witnesses. In view of the voluminous nature of the case file (about a hundred binders containing thousands of pages), the co-defendants submitted in writing that the case should be adjourned until 1 September 2006. As the Court of Appeal denied that request, four of them, including the applicant, decided not to appear. 28.", "On 15 September 2006, ruling in absentia in respect of the four defendants, the Court of Appeal varied the judgment of 16 February 2006 and sentenced the applicant to eight years’ imprisonment and a fine of EUR 2,500. The applicant and two of his co-defendants applied to have the judgment set aside. (b) Judgment of 19 January 2007 29. Some ten hearings were held between 6 October and 10 November 2006 and on 19 January 2007 the Brussels Court of Appeal confirmed the applicant’s guilt and his original sentence of seven years’ imprisonment and a EUR 2,500 fine. (i) Criminal procedure issues ... 34.", "The defendants further protested against the addition to the case file of interview reports from France and Morocco. They argued that the statements had been obtained using treatment in breach of Article 3 of the Convention, adding that, in respect of the interviews conducted in Morocco, they were unlawful under Moroccan law. Invoking their right to a fair trial, they requested the Court of Appeal to remove them from the criminal case file. ... 36. As to the interviews conducted in Morocco, the Court of Appeal first noted that the defendants had not adduced any concrete evidence giving rise to reasonable doubt as to a possible breach of Moroccan law by the police or judicial authorities of that country in the proceedings from which the interview reports in question had emanated.", "The court found, in particular, that the interview reports recorded the statements in a detailed manner, mentioning the identity of the police officer by whom they were drawn up, the precise duration of the judicial custody periods and the fact that they had been authorised by the relevant public prosecutor. It further found as follows: “... Moreover, the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ... Lastly, it cannot be surmised from those interviews or from the Moroccan court decisions added to the file that ... the above-mentioned persons were questioned or sentenced after an expedited trial for participating in the Casablanca bombings, on the basis of a Moroccan Law of 28 May 2003 on the combating of terrorism that had been applied retroactively in breach both of Article 4 of the Moroccan Criminal Code and of the general principle that criminal legislation cannot have retrospective effect. An examination of the Moroccan court decisions – and more specifically the judgment of the Rabat Assize Court – reveals, on the contrary, that the eight Moroccan defendants had initially been charged with setting up a criminal association for the preparation and commission of acts of terrorism, forgery of passports, and the collection of funds in aid of terrorist actions, on the basis of legislation that was unconnected with the above-mentioned Law of 28 May 2003. It can be seen from the foregoing findings that the interview reports and Moroccan court decisions that were added to the file, with the possibility of being freely challenged by the parties, should not be excluded.", "In addition, the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture. Lastly, the Belgian trial courts are by no means bound by those statements and remain free to decide on their relevance and accuracy.” ... (ii) Examination on the merits 39. In its judgment, the Court of Appeal began by showing that the GICM was a terrorist group within the meaning of Article 139 § 1 of the Criminal Code, explaining that it was an organised association of more than two people, established on a lasting basis, which engaged in concerted action for the purpose of committing terrorist offences covered by Article 137 of the Criminal Code. It observed in particular that the group had set up a coordination committee in Morocco and a number of cells in Europe, which had acted in a concerted manner to commit terrorist offences (in particular, homicide and widespread destruction or damage) with the aim of destroying by violence the fundamental structures of Morocco, so that the caliphate could be restored in that country, and of engaging in a holy war that would spread to other countries. 40.", "As regards, more specifically, the guilt of the applicant himself, the Court of Appeal first noted that “it [could] be seen with certainty from certain elements of the procedure” that he had taken part in the activity of a terrorist group, within the meaning of Article 140 § 1 of the Criminal Code, by taking a number of initiatives to facilitate transfers of funds that were necessary for the financing of the GICM’s unlawful activities, by circulating information about them and acting as a coordinator between the members of the Belgian and French cells, and that he was aware that such participation would contribute to the commission of a criminal offence. It thus concluded that there were a “number of sufficiently strong presumptions of fact”, with reference to the following evidence: - statements made by individuals interviewed in Morocco and information from the Moroccan authorities; - statements made by individuals interviewed in France; - statements made by the applicant, from which it transpired that he had participated in GICM meetings in Europe; - the fact that the applicant had made “a number of journeys in countries known for radical Islamist opinions developed by certain influential groups”, had “followed paramilitary training in Jalalabad” and had had “numerous contacts with individuals known for their close relations with extremist Islamist cells or active participation therein”; - the applicant’s participation in the extremist activities of Islamist groups that were active on an international scale, based on an international arrest warrant issued against him by the Moroccan authorities in connection with an investigation into terrorist activities, and on the fact that he had fled Saudi Arabia, where he was suspected of taking part in the Riyadh bombings of 12 May 2003, for which an arrest warrant had also been delivered against him; - his participation in training specifically given to Islamist terrorist groups, as inferred from his own statements and those of individuals held in Morocco; - the applicant’s links with other members of the GICM’s Belgian cell. The Court of Appeal then noted that the applicant was one of the GICM’s leaders, a fact that could be sufficiently inferred from the statements taken in Morocco and France and from his role as coordinator for the GICM members in Belgium. 41. Lastly, the Court of Appeal found that “the acts committed by the defendants fell clearly within the context of a movement whose aim was to further, by violence and intolerance, the cause of a radical form of Islam, directly threatening the religious and philosophical pluralism that existed in democratic societies and the fundamental rights of their citizens, such as freedom of thought and freedom of expression”, and that the sanction should be “commensurate with this very serious breach of public safety and democratic order”.", "In sentencing the applicant, the court added as follows: “... It should be pointed out that the defendant played a major role within the GICM’s religious committee; that he was subsequently responsible for the Belgian and French cells of the GICM, together with the defendant [O]. As has already been mentioned, his duties in the Belgian cell mainly consisted in: directing the collection of funds that would serve to finance the group’s activities after the arrest of [N.]; playing a coordinating role between the members of the Belgian cell and those of the Belgian and French cells; and maintaining contact with numerous members of cells based in other countries. The acts committed by the defendant are clearly of a serious nature because they were committed: by an individual who, in particular, travelled on numerous occasions to Afghanistan, Chechnya, Turkey, Mauritania, Saudi Arabia and Syria to establish international relations between the members of the various cells of the terrorist group; by a professional who followed military training in Afghanistan and training in group leadership and who dispensed religious training as part of the responsibilities entrusted to him within the GICM; by an extremist who has no respect for the physical integrity of others and who is prepared to undermine international public safety, by making possible the use of violent methods to ensure that his opinions prevail. The features of the defendant’s personality, as can be seen from the case file, are a matter of concern.", "It should be pointed out in this connection that the defendant: has already been known for many years at an international level for his terrorist activities and is also wanted by the Moroccan judicial authorities under an international arrest warrant; resided illegally in Belgium for several months and did not lodge an asylum request with the aliens office until June 2004; cannot prove any means of subsistence and seems to survive only with the support of other members of the terrorist group. ..” 42. The applicant and some of his co-defendants appealed on points of law. (c) Proceedings before the Court of Cassation 43. The Court of Cassation dismissed the appeal by a judgment of 27 June 2007.", "... 44. As to the argument concerning treatment in breach of Article 3 that had allegedly been sustained by individuals whose statements had been taken in foreign countries, the Court of Cassation took the view that its examination would entail criticism of the factual assessment of the evidence in the case by the trial judge, or a request for verification of such evidence, and that it did not have jurisdiction in respect of such matters. 45. The court further found ... that, as a whole, the applicant had been given a fair trial within the meaning of Article 6 of the Convention. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 46. Articles 139 and 440 of the Belgian Criminal Code read as follows: Article 139 “A terrorist group shall be defined as an organised association of more than two people, established on a lasting basis and engaged in concerted action with a view to the commission of terrorist offences covered by Article 137. An organisation whose real purpose is solely of a political, trade union or philanthropic, philosophical or religious nature, or which solely pursues any other legitimate aim, cannot, as such, be considered a terrorist group within the meaning of paragraph 1.” Article 140 “1. Anyone who participates in an activity of a terrorist group, including by providing information or material resources to that group or through any form of financing of a terrorist group’s activity, in the knowledge that such participation aids the commission of an offence by the terrorist group, shall be liable to a prison sentence of between five and ten years and to a fine of between one hundred euros and five thousand euros. 2.", "Leaders of terrorist groups shall be liable to a prison sentence of between fifteen and twenty years and to a fine of between one thousand euros and two hundred thousand euros.” 47. Section 13 of the Law of 9 December 2004 on international mutual legal assistance in criminal matters provides that: It shall be prohibited to use in Belgian criminal proceedings any evidence: 1o that has been illegally obtained in a foreign country, where the illegality: – arises, under the law of the State in which the evidence has been gathered, from the breach of a procedural requirement prescribed on pain of nullity; – vitiates the reliability of the evidence; 2o or of which the use violates the right to a fair trial.” ... III. MATERIAL ON THE HUMAN RIGHTS SITUATION IN MOROCCO A. Findings and recommendations of the United Nations Committee against Torture and Human Rights Committee 50. In its conclusions and recommendations following the third periodic report of Morocco (CAT/C/CR/31/2; 5 February 2004), the United Nations Committee against Torture expressed its concern about, in particular, the increase in the number of allegations of torture and cruel, inhuman or degrading treatment or punishment, implicating the National Surveillance Directorate (DST) (§ 5.d) and the non-existence of a provision of criminal law prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 5.g).", "It recommended in particular: that the Criminal Code be amended such as to clearly prohibit any act of torture, even if perpetrated in exceptional circumstances or in response to an order received from a superior officer or public authority (§ 6.b), and to incorporate a provision prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 6.h); that all necessary measures be taken to eliminate impunity for public officials responsible for torture and cruel, inhuman or degrading treatment (§ 6.e); that all allegations of torture or cruel, inhuman or degrading treatment be immediately investigated impartially and thoroughly, especially allegations relating to cases and situations verified by the Independent Arbitration Commission and allegations implicating the DST in acts of torture, and that appropriate penalties be imposed on those responsible, with equitable compensation being granted to the victims. 51. The concluding observations of the United Nations Committee against Torture, having considered the fourth periodic report of Morocco (CAT/C/MAR/CO/4; 21 December 2011), read as follows: “... Use of torture in cases involving security concerns 10. The Committee is concerned by numerous allegations regarding torture and ill-treatment committed by police officers, prison staff and, in particular, agents of the National Surveillance Directorate (DST) who are acting as members of the criminal investigation police force when people are deprived of basic legal safeguards, such as access to legal counsel, particularly in the case of people who are suspected of belonging to terrorist networks or of being supporters of independence for Western Sahara and in the course of interrogations carried out in order to extract confessions from persons suspected of terrorism (arts. 2, 4, 11 and 15).", "The State party should immediately take substantive steps to investigate acts of torture and to prosecute and punish those who have committed such acts. The State party should ensure that law enforcement officers do not engage in torture through, inter alia, an unambiguous reaffirmation of the absolute prohibition of torture and a public condemnation of that practice by, in particular, the police, prison personnel and members of DST. It should also be made very clear that anyone who commits such acts or is complicit or otherwise participates in such acts will be held personally responsible before the law and will be subject to criminal prosecution and the appropriate penalties. ... Secret arrests and detention in cases involving security concerns 14. The Committee is concerned by reports that, in cases involving terrorism, legal procedures for arresting, questioning and holding suspects in custody are not always followed in practice.", "The Committee is also concerned by information pointing to a consistent pattern whereby suspects are arrested by plain-clothes officers who do not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amounts to incommunicado detention. The suspects are not officially registered and are subjected to torture and other cruel, inhuman or degrading treatment or punishment. They are held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families are not notified of their arrest, of their movements or of their whereabouts until such time as they are transferred to police custody in order to sign confessions that they have made under torture. It is only then that they are officially registered and their cases are processed through the regular justice system on the basis of falsified dates and information (arts.", "2, 11, 12, 15 and 16). ... The State party should ensure that the proper legal procedures are followed in the case of all persons who are arrested and taken into custody and that the basic safeguards provided for by law are applied, such as access for detained persons to legal counsel and to an independent physician, notification of their family of the arrest and of the location where they are being held and their appearance before a judge. The State party should take steps to ensure that all register entries, transcripts and statements, and all other official records concerning a person’s arrest and detention are kept in the most rigorous manner possible and that all information regarding a person’s arrest and remand custody is recorded and confirmed by both the investigative police officers and the person concerned. The State party should ensure that prompt, thorough, impartial and effective investigations are conducted into all allegations of arbitrary arrest and detention and should bring those responsible to justice.", "The State party should ensure that no one is held in a secret detention facility under its de facto effective control. As often emphasized by the Committee, detaining persons under such conditions constitutes a violation of the Convention. The State party should open a credible, impartial, effective investigation in order to determine if such places of detention exist. All places of detention should be subject to regular monitoring and supervision. Prosecution of perpetrators of acts of torture and ill-treatment 16.", "The Committee is particularly concerned that it has received no reports to date of any person being convicted under article 231.1 of the Criminal Code of having committed acts of torture. It notes with concern that police officers are, at the most, prosecuted for assault or assault and battery, but not for torture, and that the information provided by the State party indicates that the administrative and disciplinary penalties imposed on officers for such acts do not seem to be commensurate with their seriousness. The Committee observes with concern that allegations of torture, despite their number and frequency, rarely give rise to investigations and prosecution and that a climate of impunity appears to have taken hold, given the failure to impose genuine disciplinary measures or to bring any significant number of criminal cases against State officials accused of committing acts specified in the Convention, including the gross, large-scale human rights violations that took place between 1956 and 1999 (arts. 2, 4 and 12). The State party should ensure that any and all allegations of torture and of ill-treatment are promptly, effectively and impartially investigated and that the persons who have committed such acts are prosecuted and are given sentences that are commensurate with the grave nature of their acts, as provided for in article 4 of the Convention.", "The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should also take steps to ensure that complainants and witnesses are effectively protected from any ill-treatment or act of intimidation related to their complaint or testimony. Coerced confessions 17. The Committee is concerned by the fact that, under the State party’s current system of investigation, confessions are commonly used as evidence for purposes of prosecution and conviction. The Committee notes with concern that convictions in numerous criminal cases, including terrorism cases, are based on confessions, thus creating conditions that may provide more scope for the torture and ill-treatment of suspects (arts.", "2 and 15). The State party should take all steps necessary to ensure that criminal convictions are based on evidence other than the confession of the persons charged, especially when such persons retract their confessions during the trial, and to make certain that, except in cases involving charges of torture, statements made under torture are not invoked as evidence in any proceedings, in accordance with the Convention. The State party is requested to review criminal convictions that have been based solely on confessions in order to identify cases in which the conviction was based on confessions obtained under torture or ill-treatment. The State party is also invited to take the appropriate remedial measures and to inform the Committee of its findings. ...” 52.", "In its final observations (CCPR/CO/82/MAR; 1 December 2004) on the fifth periodic report of Morocco, the United Nations Human Rights Committee was concerned, in particular, about “the numerous allegations of torture and ill‑treatment of detainees” and “the fact that the officials who [were] guilty of such acts [were] generally liable to disciplinary action only, where any sanction exist[ed]”. It further “note[d] with concern that no independent inquiries [were] conducted in police stations and other places of detention in order to guarantee that no torture or ill-treatment [took] place” (§ 14). The Committee also observed with concern that the independence of the judiciary was not fully guaranteed (§ 19) and that, according to numerous reports, the Terrorism Act of 28 May 2003 was being applied retroactively. B. Reports by non-governmental organisations (“NGOs”) 53.", "In its report of 28 November 2005 entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”, which was referred to by the applicant before the Court, as previously before the domestic courts, Human Rights Watch examined the consequences of the Casablanca bombings of 16 May 2003. It made the following points: “... The fragility of Morocco’s human rights progress was laid bare by the state’s response to Morocco’s first-ever mass terrorist attack. On the night of May 16, 2003, suicide bombers struck several locations in Casablanca, killing forty-five persons, including twelve attackers. Less than one week later, parliament unanimously adopted an anti-terrorist law (Law 3/2003), which had been under debate since autumn 2002 and which raised numerous human rights concerns.", "The law extended the maximum duration of pre-arraignment detention from eight to twelve days in cases considered to involve terrorism. It also defined the term in a very broad manner. The law considers an act as terrorist if its ‘main objective is to disrupt public order by intimidation, force, violence, fear or terror’ and is composed of one or more acts listed in the article. These include, in addition to physical attacks on other persons, ‘the involvement in organized groups or congregations with the intent of committing an act of terrorism,’ and ‘the promulgation and dissemination of propaganda or advertisement in support of the above-mentioned acts.’ In the months following the Casablanca attacks, the government used this broad definition to convict hundreds of suspected members of terrorist cells, as well as several journalists accused of being apologists for terror. Various human rights organizations documented widespread abuses of the rights of the more than 2,000 suspected Islamists detained by the security forces and the Moroccan courts in the weeks following the attacks in Casablanca.", "[Human Rights Watch referred to the following reports: Moroccan Human Rights Organization, ‘Muhakamat ikhtal fiha mizan al-`adalah’ (Trials in which the scales of justice have been tipped), Rabat, November 2003; Human Rights Watch, ‘Morocco: Human Rights at a Crossroads’, A Human Rights Watch Report, New York, October 2004; Amnesty International, Morocco/Western Sahara: ‘Briefing to the Committee against Torture’ (London, November 2003); Amnesty International, ‘Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre’; International Human Rights Federation, ‘Les autorités marocaines à l’épreuve de terrorisme: la tentation de l’arbitraire’, (Paris: FIDH, February 2004), no. 379.] Many were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions. The courts denied them their right to a fair hearing. They routinely refused defense motions to call witnesses, and refused to order medical examinations of those who claimed to have been tortured.", "Many were tried in haste and convicted before October 2003, when legal reforms took place giving defendants the right to appeal their conviction on the basis of the facts ...” Human Rights Watch, commenting that the “crackdown on suspected [Islamist] militants after the Casablanca bombings constituted an alarming deterioration in rights conditions” and that, more generally, the “authorities instrumentalize[d] the courts to serve political ends”, also observed as follows: “... The mistreatment and unfair trials of suspected militants who were rounded up after the suicide bombings of May 16, 2003, recalled in some ways the grave violations of the past ... ... while some of the suspects arrested in 2003 went missing in police custody for up to several months, they were all accounted for eventually. However, many were subjected to torture or mistreatment while under interrogation. Some were held in an unacknowledged detention center in Temara, a facility under the auspices of the National Surveillance Directorate (Direction de la Surveillance du Territoire, DST). Some 900 of the suspects were sentenced to prison terms, many in hasty proceedings that did not provide defendants their basic due process rights.", "Seventeen were sentenced to death, sentences that have not been carried out yet. ... Authorities have responded to reports of present-day abuses by characterizing them as isolated phenemona. [footnote: For example, [the] Justice Minister ... said abuses in the context of the round-up of terror suspects were ‘rare’ and ‘isolated,’ but vowed, ‘We will respond to reports of violations.’ ...] Mohamed VI, in an interview published in the Spanish daily El País on January 16, 2005, acknowledged the existence of ‘twenty cases of abuse’ that he said were being handled by the courts. No details of these twenty cases have been disclosed, to Human Rights Watch’s knowledge, making it difficult to verify whether and for what offenses officials were being held accountable.", "Overall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [footnote: See the Concluding Observations of the Human Rights Committee on Morocco, November 5, 2004, CCPR/CO/82/MAR] shows that security forces continue to operate in a climate of impunity and disrespect for the law, and that the executive branch continues to exercise considerable influence over the courts. ...” 54. In the above-mentioned report, published in February 2004 and entitled “mission internationale d’enquête – les autorités marocaines à l’épreuve du terrorisme : la tentation de l’arbitraire – violations flagrantes des droits de l’Homme dans la lutte anti-terroriste” (international fact-finding mission – the Moroccan authorities’ response to terrorism: the temptation to act arbitrarily – flagrant human rights violations in the counter-terrorism context”, the International Human Rights Federation (FIDH) analysed the human rights situation in Morocco in the context of the crackdown on terrorism after the bombings of 16 May 2003. It reported that there had been thousands of arrests, many of which were illegal, followed by numerous cases of arbitrary deprivations of liberty in secret centres. Chapter 2-4, entitled “torture and cruel, inhuman and degrading treatment”, reads as follows [translation by the Registry]: “In such centres, interrogations are carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Morocco.", "At the Témara centre, where most prisoners are taken after their arrest, ill-treatment, violence and torture is, by all accounts, common practice. The cells, situated in the basement, are lit day and night. When they move around, as well as during interrogation, the prisoners are blindfolded. Interrogations are often very long, 16 hours a day, we have been told, with police officers taking it in turns to interrogate. Insults and blows are commonplace, with prisoners sometimes being stripped naked.", "A number of cases of electrical torture have been reported. 22 defendants from the Fikri group wrote in March 2003 to the AMDH to testify. ‘The cell at Témara where I was held had a high ceiling and a small window at the top with thick bars. There was a hole for a toilet and a bucket of water’. Having being assaulted during his arrest, and still having a sprained knee, the witness continued ‘I was in agony and was asking for treatment, as my knee had become very swollen and blue.", "A warder then answered me “I’ll saw off your bloody knee, then”‘. Abderrazek Fawzi had been held since his arrest on 18 September 2002 in a single cell with no windows. There was only a foam mattress and a dilapidated blanket lying on the floor. Blindfolded and handcuffed, he was ‘grilled’. ‘During that interrogation in Temara’, he wrote, ‘I was punched and kicked, humiliated and insulted and left with cigarette burns on my hands.", "These twice-daily practices resulted in physical and mental suffering, of which I still have obvious signs, not to mention the nightmares and lack of sleep’. ‘... They took me in secret to Tamara, where I underwent a number of interrogations using terrible methods because I would never see the sun again, according to them’, said Salah Zarli. ‘I acknowledged that I had been to Afghanistan . They asked me to work with them to better understand the “Afghans”, especially the Afghan Moroccans and the Islamists in Milan, where I worked at the Islamic Institute.", "Four days later, they let me go and asked me to keep them informed.’ After being released, S. Zarli was arrested again on 3 September 2002: ‘Four people accompanied me home, searched everywhere and took away all my papers. Once again they took me to Temara, where they kept me a month and a half locked in a single cell that I would leave only for interrogation, which lasted 16 hours at a time; the interrogation began at 8 in the morning and went on until midnight. I was beaten all over, stripped naked, insulted, spat at, threatened and so on. All this without seeing the faces of my torturers. What interested them was the Islamists in Italy and those who were going to Afghanistan or Bosnia.", "They tried to bribe me by promising to help me set up a business.’ Cases of rape have been reported. Abdelghani Bentaous claimed to have been raped three times. Abdelmajid Rais said he was raped with a bottle and burned with cigarettes. Other detainees said they had been burned with cigarettes and suspended for hours or tortured by water-boarding. Bouchaïeb Kermej told his sisters that, in addition to the beatings and threats, he had once been given an injection at the top of the spine, as a result of which he thought he must have fainted.", "Several detainees who had refused to sign their statements were finally tortured into signing. This was claimed, for example, by Abdelghani Bentaous and Atchane to their lawyers and to the judge. ‘... Handcuffed and blindfolded, I was taken to the torture chamber where I was made to kneel and put my arms on my head to keep me like that during the long interrogation that followed. Whenever I hesitated and stuttered or made a mistake, I was beaten with a braided electric wire.", "I was struck on the head, back, soles of the feet, buttocks and thighs, also being slapped and punched on the face, which left me deaf in my left ear. A doctor then came to see me and prescribed medication. When I went back the torture room, one of the torturers tore my shirt off in front of my younger brother, who was screaming – I heard him but could not see him because I was still blindfolded. I was taken to torture sessions, where I spent the first night without sleeping because I was interrogated virtually non stop’ (Kamel Chtoubi). The family of Mohamed Chtoubi has claimed that he was raped with a bottle and has insisted on telling us that he was denied treatment in Okasha prison even though he could no longer sit down, as they noticed during his trial.", "Mohamed Chtoubi was subjected to constant blackmail, being told: ‘confess and your brother will be released’. ‘The day I saw him’, his sister recounts, ‘his nose and mouth were distorted by the blows’. ‘They became more and more perverse as the nightmare went on’, recounted Mohamed Chtoubi, ‘threatening to rape my mother, my wife and my sisters in front of me. They did not, however, forget the physical torture, using electricity, hanging me, choking me with wet rags ... I was abandoned because my condition seriously deteriorated and I spent whole nights screaming after horrible nightmares haunted me as soon as I tried to sleep, as well as not being able to eat anything.", "They refused me sleeping pills, just like they refused to give me a Koran ... The most difficult thing was above all the fear of being raped, with which I was constantly threatened, and the screams of those being tortured ... After 40 days of this, I no longer knew what was going on or what I was saying or what I was doing ... One day in the month of Ramadan (November 2002) I removed the cover of my mattress to turn it into a rope, which I then tied to the window to hang myself ... My groans attracted the attention of the warders. The doctor who I was taken to see, blindfolded, told them that my low blood pressure could have serious consequences.’ At that point the prison directors summoned Mohamed Chtoubi to tell him than any other attempt on his part would cost him his life and that he would be ‘buried in the nearby forest without anyone knowing what became of him ...’. Three or four days later, new torturers took over with the same methods ... Abderrahman Majdoubi, who was arrested in Tangiers on the night of 2 July 2002, spoke of a place where he was taken from the second day of his arrest, in the presence of five individuals ‘some of whom interrogated me and others beat me. One of them used the edge of a chopper to strike me and another a rubber-coated metal pipe to tap my knees ... then I was pulled and dragged along the ground to be taken to another cell where a torturer hit my face with his boots while his accomplice interrogated me ...", "In the evening, I was put into a car and when we arrived on the outskirts of Rabat, I was blindfolded.’ He found himself there in a situation of extreme violence and one of the torturers promised Abderrahman Majdoubi that by the time he got out he would weigh just a few kilos. ‘At night, I heard animal sounds ...’. On the same night, they resumed the interrogation with slapping and kicking and the threat of rape using a bottle, up until daybreak. ‘... The torture lasted for 20 days ... My knee hurt so badly that I prayed sitting down and I had to be taken to see a doctor.", "In that place, I spent my last three days, handcuffed and blindfolded. When I asked for some water for my ablutions and to say my prayers, I was told that I could do it without water and without moving ...’ Kamel Hanouichi, who was sentenced to the death penalty at the trial of Youssef Fikri, testified for his part that when he was taken to Témara, after being arrested in Casablanca, he was, like most of his accomplices, kept in solitary confinement, which was characterised by ‘conditions of extreme cold’. Once his fingerprints had been taken, Kamel Hanouichi did not escape the ritual of blindfolding and also had his feet bound. As he could not walk very quickly, he was beaten, even before being interrogated. ‘When they beat me on the arms and on the soles of my feet with electric cables as hard as rope it was still less painful than the idea that they could go through with their threat to rape my sisters ... for 15 days in a row I endured the same torture and the same questions: my life, my commitments, my friends – 15 days after which I was taken to another place still handcuffed and blindfolded.", "There I remained, from Thursday evening to Monday morning, in a stinking dirty cell with three other inmates in the same state as me and guarded 24-hours a day by three shifts of 10 to 12 warders. It was only on the Monday that we were examined by the investigating judge and sent to Okacha prison in Casablanca.’” The FIDH further indicated that, according to its own findings, “acts of violence, including torture and cruel, inhuman and degrading treatment, committed against accused persons, together with breaches of the right to a fair trial, including defence rights ... [were] flagrant”. It noted in particular the hurried nature of the investigation phase and non-compliance with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It observed in particular as follows: “... Apparently being bound by an immediate obligation to produce a result, investigating judges have clearly taken liberties with the provisions of Moroccan law: ‘the judicial investigation certainly took place in atrocious conditions, often after midnight and even at 3 or 4 in the morning’ said one lawyer.", "The accused would wait for hours in the police van, where they would occasionally be allowed to drink. As to the interrogation itself, it was based, according to a lawyer, on a questionnaire that was practically completed beforehand, and the accused had to be precise in answering. ‘Don’t talk to me about anything that’s not connected with the case’, a judge told an accused who was trying to give an explanation. The charges were sometimes supported only by a denunciation or a mention by a third-party or other accused person, usually following ill-treatment or torture. The files rarely contained documents proving possession of weapons or explosives or participation in prohibited associations.", "... According to the lawyers ..., the reports drafted by the investigating judges during the preliminary investigation stage were based mainly or exclusively on the reports of the DST, and the judges did not allow them to be challenged, or obliged some of the accused to sign them without being able to read them first ... Neither the public prosecutor nor the investigating judge ordered a medical examination in any of the numerous sets of proceedings, which concerned, as has already been mentioned, hundreds of individuals. Such examinations would have constituted not only a safeguard for the accused, but also for the police officers accused of torture. Similarly, the lawyers found their requests for experts’ reports and for the summoning and appearance of witnesses systematically denied.", "... Before [the trial courts], the judges systematically refused to take account of the documents that the defence wished to present, or to hear witnesses for the defence and arrange confrontations that were necessary for the establishment of the facts, basing their findings exclusively on unilateral accusations that remained unsupported by evidence. Systematically, the courts first deferred the calling of witnesses until the end of the proceedings, then decided, after they had finished, to join the lawyers’ requests to the merits, delivering verdicts without ultimately allowing such hearings, even though they were guaranteed by a number of Articles (319, 430, 464, etc.) of the Code of Criminal Procedure. ... It unfortunately goes without saying that all the defence’s objections concerning the above-mentioned violations occurring during the periods of police custody and judicial investigation, were also dismissed in all the sets of proceedings, without exception as far as we know.", "In this connection, no request for a medical opinion, in order to support the allegations of ill-treatment, was accepted. ...” 55. In the above-mentioned report, published on 24 June 2004 and entitled “Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre”, Amnesty International indicated in particular as follows: “... The sharp rise in reported cases of torture or ill-treatment in the context of ‘counterterrorism’ measures in Morocco/Western Sahara since 2002 has been well documented. Reports on the subject have been published in recent months by Amnesty International and other international human rights organizations, as well as by Moroccan human rights groups, including the Moroccan Human Rights Association (Association marocaine des droits humains, AMDH), and the Moroccan Human Rights Organization (Organisation marocaine des droits humains, OMDH).", "Human rights lawyers and victim support groups such as the Forum for Truth and Justice (Forum pour la vérité et la justice, FVJ), have spoken out about the violations, and the Moroccan and international press have highlighted the problem in numerous articles. The torture or ill-treatment is generally reported to take place in the custody of the security forces, particularly the Directorate for the Surveillance of the Territory (Direction de la surveillance du territoire, DST), and the police, where it is allegedly perpetrated in order to extract confessions or information, or to force the detainee to sign or thumb-print statements, the content of which they reject, deny or do not know. The scores of people allegedly tortured or ill-treated have been among hundreds of Islamists or presumed Islamists arrested and detained on suspicion of belonging to ‘criminal gangs’ or of involvement in planning, inciting or carrying out violent acts. The arrests, numbering some 2,000 according to official sources, began in 2002 when the authorities began a clampdown on individuals accused of being part of groupings of Islamist activists who, in the case of one particular group, were planning bomb attacks or who had reportedly been involved in a number of targeted killings of people whose behaviour they disapproved of. Since May 2003, many of those arrested have been accused in connection with the bomb attacks in Casablanca on 16 May 2003, which killed 45 people, including the 12 assailants.", "Scores have been sentenced to long prison sentences and over a dozen to the death penalty following trials in which evidence reportedly extracted by torture or ill-treatment has been used to obtain convictions. The detention centre of Témara, operated by the DST, is one of the main places where torture is reported to occur. Dozens of those arrested in the context of ‘counterterrorism’ measures have allegedly been subjected to torture or ill-treatment while being held there. Their detention at the centre has been both secret and unacknowledged, and consequently in breach of both Moroccan law and international human rights standards. ...” Amnesty International reported that many former prisoners from Témara had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied.", "It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from the Témara centre to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply. As to the treatment inflicted, Amnesty International explained as follows: “... The torture or ill-treatment has taken a number of forms during interrogation sessions. Some detainees have allegedly been blindfolded and handcuffed throughout the session; others have been stripped or suspended from the ceiling of the interrogation room in contorted positions. Many have reported being beaten around the body and the head with fists or an implement, such as a wooden stick or a metal ruler.", "Reports have also indicated that electricshock batons or live electrodes were applied to the body of some of the detainees. One former detainee, Abdellah Meski, told Amnesty International that he had his head repeatedly plunged into a sink containing water. Some have reportedly had an object, such as a bottle, forcibly inserted into the anus or been threatened with this treatment and other sexual abuse. Some say that they were also threatened with the arrest and rape or other sexual abuse of their wife or other female relative. Some former detainees have even reported hearing screams which they believed at the time might have been those of a female relative in an adjoining room, but later, after leaving the Témara centre and confirming that no female relative had been detained there, concluded this might have been a tape recording meant to dupe them.", "... Former detainees have reported that, throughout their time at the Témara centre, whether for a few days or a few months, they were held in solitary confinement in basic cells, containing blankets on the floor rather than a bed, and a toilet and tap in one corner. They say they never saw other detainees and were not allowed outside the cell to enjoy fresh air or exercise. In addition, they were held in secret detention and denied contact with the outside world. Such conditions of detention may themselves amount to cruel, inhuman or degrading treatment, or even torture. ...”.", "Amnesty International further noted that government officials had, in press interviews, stressed that no complaints were made about torture or ill-treatment or secret detention when detainees were brought before the prosecutor after the police custody, explaining that if such complaints were made following the initial questioning they were dismissed as being merely a means of defence. On the first point, Amnesty International explained this situation by the fact, in particular, that the judicial authorities failed to inform the persons concerned of their right to be assisted by a lawyer and that, appearing alone, many were unaware that they were entitled to make such a complaint. On the second point, it criticised the judicial authorities’ attitude as follows: “... When, during the pre-trial investigation, they have appeared again before the examining magistrate for detailed questioning, they have in many cases complained about the alleged torture or ill-treatment or secret detention. When their cases have come to court, many of the accused have complained again, this time in front of the trial judges, about the treatment they were subjected to and the illegally prolonged nature of the period of garde à vue.", "Defence lawyers have requested that family members who witnessed the arrests and police officers who drew up the police statements be called to testify before the court to help establish the facts surrounding the contested arrest dates and the circumstances in which declarations were made to the police. The requests have been systematically rejected, however, on the basis that the proposed testimonies did not relate directly to the alleged crimes. Despite the persistent nature of allegations of torture or ill-treatment and secret detention, the judicial authorities appear to have repeatedly dismissed these allegations, without ordering investigations or medical examinations. Amnesty International is not aware of a single case in which an investigation or medical examination has been carried out. ...” Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom.", "It added that during their trials many accused challenged evidence against them which had been taken from statements made by others who had been arrested and detained by the security forces on similar charges. Given the persistent allegations of statements being made to the security forces under duress, defence lawyers had requested that those who made statements be summoned to the court as witnesses in order to test the veracity of their evidence. Such requests had, however, been denied by the courts on a systematic basis. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 58.", "The applicant complained that the domestic courts had principally and essentially based his conviction for participation in a terrorist organisation on evidence that was vitiated and obtained in conditions that were incompatible with the requirements of the Convention. Alleging a violation of his right to a fair trial, he relied on Article 6 of the Convention, of which paragraphs 1 and 3 (d) read as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” “3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” ... Secondly, he complained that, in finding that he had participated in a leading capacity in the activities of the Moroccan Islamic Fighting Group, the Brussels Court of Appeal, in breach of section 13 of the Belgian Mutual Legal Assistance Act of 9 December 2004, had based its findings decisively on statements that had been obtained in proceedings to which he was not a party, which had taken place in France and Morocco.", "... Those statements, he claimed, had been made as a result of treatment in breach of Article 3 of the Convention. ... A. The parties’ submissions 1. The Government ... 63. Thirdly, the Government asked the Court to dismiss the applicant’s argument that the Belgian courts had invoked statements that had been taken in France and Morocco in conditions that breached Article 3 of the Convention.", "The Government did not dispute the fact that, according to the Court’s case-law, the use by a court of evidence thus obtained would entail a violation of Article 6 § 1, even if the admission of such evidence was not decisive in securing a conviction. In addition, referring in this connection to the judgment of the United Kingdom House of Lords in the case of A. and Others v. Secretary of State for the Home Department (no. 2) and to Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984, they took the view that this principle should also apply where the breach of Article 3 had not been committed by the respondent State. 64. Relying on that same judgment and provision, and also on the El Motassadeq judgment of 14 June 2005 of the Hanseatic Court of Appeal of Hamburg and on the Court’s case-law, the Government nevertheless argued that the exclusionary rule did not apply unless it was clear that the statements in question had been obtained by torture.", "In their opinion, it was incumbent upon the applicant first to adduce evidence in support of his allegation. In that connection, a mere suspicion was insufficient: the standard of proof “beyond reasonable doubt” applied, bearing in mind that such proof might “follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”; the applicant must at least be able to allege “on arguable grounds” that such evidence had been obtained as a result of torture. The Government emphasised that the argument whereby an item of evidence had to be excluded if there was a “real risk” that it had been obtained by torture could not be upheld, in the light of the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They further observed that the “test of real risk” was in fact the test applied by the Court when it examined allegations of a potential violation of Article 3 in the event of the extradition or expulsion of an individual to a State where he might be subjected to treatment or punishment in breach of that Article. In cases such as the present, it was not a matter of determining whether there was a risk of such treatment, but whether such treatment had actually been inflicted on those individuals whose testimony was at issue.", "65. In the Government’s submission, even supposing that the applicant’s allegations concerning the interviews carried out in France were “arguable”, within the meaning of the Court’s case-law, the Court of Appeal had found, after a detailed examination of the available documents, that it not been established that the French authorities had breached Article 3. The court had begun by finding, in the light of the documents from the French proceedings, that all the procedural safeguards and the rights of the persons interviewed had been respected (the right to be immediately informed of the “complaint” and of one’s rights in police custody, the right to request an examination by a doctor, the right to have a lawyer, etc.). It had then found that the conditions in which the impugned interviews had taken place were acceptable and that the allegations of violence, intimidation and torture or inhuman and degrading treatment on the part of the police officers at the time of arrest and questioning, judging from the statements in question and from the file, lacked credibility. It had moreover taken the view that it did not suffice for the applicant to refer to general considerations contained in reports by NGOs on the functioning of the French judicial system in order to show that there had been a breach of Article 3 of the Convention.", "The Government further pointed out that the French witnesses had not brought proceedings before the Court for a violation of that provision. As regards the testimony taken in Morocco, the Government pointed out that the Court of Appeal had found that the applicant had not adduced the slightest evidence of a violation of Article 3. They draw attention to the following findings: “... the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ...”; and “... the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture”. 66. The Government were of the view that the authorities could not be criticised for failing to carry out an investigation into allegations that were so poorly substantiated.", "They added that, before the Court, as before the domestic courts, the applicant had failed to adduce any concrete evidence to show that the impugned statements had been taken using torture and inhuman or degrading treatment. 2. The applicant ... 69. As regards the application in the present case of the rule that evidence obtained by means contrary to Article 3 must be excluded, the applicant was of the view that it also applied to evidence obtained by such means in a foreign country, if the object and purpose of the Convention were not to be meaningless. He had reached this conclusion in particular from the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, from the case-law of the Committee against Torture and from the above-cited A. and others judgment of the House of Lords.", "70. The applicant further argued that the Government had been wrong to conclude from the above-cited Article 15 and the A. and others judgment that the burden of proof lay fully with him to show that the impugned statements had been obtained by a means contrary to Article 3. He observed that the standard adopted by the House of Lords in A. and others consisted in ascertaining whether it was “established, by means of such diligent enquiries into the sources that it [was] practicable to carry out and on a balance of probabilities, that the information [had been] obtained under torture”, and that the highest British court seemed to have concluded that the reports of humanitarian organisations did not suffice to show the “established nature” of torture sustained by a complainant. In his view, having regard to the purpose of the Convention and the need for effective protection of fundamental rights, the burden of proof that lay with a defendant should not, however, be “inaccessible”: it should be considered sufficient for him or her to show the existence of a “real risk” that the evidence had been obtained by torture, and to produce for that purpose the reports of respectable NGOs indicating that, in the country in question, torture was practised systematically. To require a defendant to provide more concrete information when he or she had no means of investigating in a foreign country would be asking the impossible.", "In other words, the defendant should merely be required to show the “likelihood” of what he or she alleged. The applicant claimed that, for his part, he had made such a demonstration. 71. As regards the statements obtained in Morocco, the applicant claimed that it was not in dispute that this country had been severely criticised by both governmental and non-governmental organisations for torture and ill-treatment inflicted systematically on persons charged with acts of terrorism after the Casablanca bombings in May 2003. The individuals who had given the statements incriminating the applicant had precisely been prosecuted in that context and during that period.", "He then pointed out that, before the Belgian courts, he had relied on the following evidence to show the existence of torture: - Reports condemning a systematic practice of ill-treatment of suspects in the months following the Casablanca bombings, in particular the Human Rights Watch report of 2005 (entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”), which noted that, according to various human rights organisations, over 2,000 suspected Islamists had been detained, many in secret detention, for days or even weeks, and had been subjected by the police to various forms of ill-treatment, and in some cases torture, in order to extract confessions. - The fact that the individuals in question had complained of acts of torture and inhuman or degrading treatment – in particular a certain N., who had apparently been arrested in Mauritania and had been held in secret detention for several months – and that the Moroccan authorities had not carried out any investigation in response to those allegations. - The fact that they had been held in police custody for twelve days, under the Terrorism Act of 28 May 2003, applied retroactively. - The fact that the Moroccan proceedings had taken place in a hurried manner, without the use of conventional methods of investigation. ... 73.", "In the applicant’s submission, in view of the likelihood of his allegations relating to the statements taken in Morocco and France, Article 6 of the Convention obliged the Belgian courts either to carry out investigations into those allegations – the principle of the prohibition of torture triggering an obligation to investigate – or to exclude the evidence in question. B. Observations of third-party interveners 1. The United Kingdom Government 74. Referring to the Court’s case-law, the United Kingdom Government invited the Court to confirm the existence, for the purposes of Article 6 of the Convention, of an “exclusionary rule” on statements that had been obtained directly by torture, with the result that a violation of this Article should be found where the rule applied, irrespective of the overall fairness of the proceedings. However, referring in particular to the decision in Sharkunov and Mezentsev v. Russia (no.", "75330/01, 2 July 2009), they further asked the Court to confirm that the alleged torture had to be established “beyond reasonable doubt”, and that, while general evidence of the human rights situation in the country from where the statement had been obtained might well be sufficient to trigger an inquiry by the domestic court into the provenance of the statement in issue, this would rarely be sufficient to establish “beyond reasonable doubt” that a particular statement had been obtained using torture: evidence of a direct causal link would in principle be necessary. They added that the standard of proof “beyond reasonable doubt” also corresponded to the requirement of Article 15 of the UN Convention against Torture, under which it had to be “established” that the statement in question had been made as a result of torture for the exclusionary rule to apply. That standard was moreover consistent with the approach taken by other courts and tribunals, in particular the United Kingdom House of Lords in A. and Others v. Secretary of State for the Home Department (no. 2). 75.", "The United Kingdom Government further observed that it was clear from the Court’s case-law – in particular the judgments in Jalloh v. Germany ([GC], no. 54810/00, § 105, ECHR 2006‑IX) and Ashot Harutyunyan v. Armenia (no. 34334/04, 15 June 2010) – that the exclusionary rule did not apply where the domestic court was left with a doubt as to whether the statement had been obtained by torture or where it concluded that the ill-treatment did not reach the necessary threshold of severity to be classified as “torture”. It emphasised in this context that the above-mentioned Article 15 applied only in relation to torture and not to cases of other prohibited ill-treatment. In their view, in any event, the domestic courts retained in such cases some discretion as to the admissibility of and assessment of weight to be given to such a statement, to be exercised bearing in mind the special status of Article 3 and the fact that the use of a statement obtained as a result of a violation of one of the core rights guaranteed by the Convention raised serious issues as to the fairness of the proceedings.", "The fairness of the proceedings had then to be assessed on a case-by-case basis, considering the proceedings as a whole. 2. NGOs European Center for Constitutional and Human Rights and REDRESS 76. The third-party interveners pointed out that the “exclusionary rule”, which prohibited the admission of evidence obtained by torture or cruel, inhuman or degrading treatment or punishment, was enshrined in a number of international instruments: Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10 of the Inter-American Convention to Prevent and Punish Torture, the Robben Island Guidelines for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adopted by the African Commission on Human and People’s Rights, and the rules of procedure of the ad hoc international criminal tribunals and of the International Criminal Court. They added that the Human Rights Committee and the Committee against Torture had repeatedly emphasised the importance of the exclusionary rule, with the latter taking the view that it was an inherent part of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.", "77. In the submission of the third-party interveners, the exclusionary rule applies to evidence obtained not only by torture but also by other cruel, inhuman or degrading treatment or punishment. Whilst Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Article 10 of the Inter-American Convention to Prevent and Punish Torture refer only to torture, Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment refers to other forms of prohibited ill-treatment; the position of the Human Rights Committee and the Committee against Torture is, moreover, consistent with the latter. In addition, the rule extends both to confessions by the person against whom evidence is being sought and to witness statements of third parties. Referring to the above-cited Jalloh and Ashot Harutyunyan judgments, they pointed out that it was clear from the Court’s case-law that the use of evidence obtained by torture automatically rendered the trial unfair.", "They further drew attention to the Court’s finding in Jalloh (§ 106) that where the evidence in question had been obtained by treatment contrary to Article 3 not amounting to torture, the impact on the fairness of the proceedings would depend on the circumstances of each individual case. They took the view, however, that the Court had left open the question whether the use of evidence obtained by other prohibited ill-treatment automatically rendered a trial unfair (ibid., § 107). 78. The third-party interveners observed that the Committee against Torture had considered that the forum State was under an obligation to ensure that statements admitted in evidence in any proceedings had not been obtained by torture (they referred in this connection to the Committee’s decision in G.K. v. Switzerland). They indicated that, whilst there was little international jurisprudence on the burden and standard of proof, it was quite well established that, where a party to proceedings alleged that evidence had been obtained by torture, the forum State had a duty to investigate the circumstances in which it had been obtained; if that proved to be the case, the evidence had to be excluded.", "The jurisprudence was inconsistent, however, as to the extent to which an individual had to sustain his or her allegations. Referring to the decisions in Halimi-Nedzibi v. Austria, Encarnación Blanco Abad v. Spain, P.E. v. France and G.K. v. Switzerland, they observed that the Committee against Torture seemed to require the author to demonstrate that his or her allegations were “well founded” – adding, however, that some legal writers took the view, in the light of that jurisprudence, that it was sufficient for the alleged victim to submit “some evidence” of ill-treatment – and that this view was supported by domestic case-law. In the United States of America, the US District Court for Columbia had merely verified that the petitioning detainees had made “sufficient allegations” (Re Guantánamo Detainee Cases, 31 January 2005); in Canada, the Supreme Court of British Columbia had looked at the “persuasive nature of the allegations” (India v. Singh, 8 May 1996); and the Supreme Court of the Netherlands had examined whether the allegations were “plausible” (Hoge Raad, judgment no. 103.094, 1 October 1996).", "In the submission of the third-party interveners, most of the case-law indicated that the burden of proof could not rest with either the individual or the State alone (they referred, inter alia, to the Human Rights Committee’s decision in Saimijon and Bazarov v. Uzbekistan). They said that this had also been the approach of the House of Lords in A. and others, cited above. 79. The third-party interveners further observed that under Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment it had to be “established” that the statement in question had been obtained by torture for the exclusionary rule to apply, and that similar wording was used in Article 10 of the Inter-American Convention to Prevent and Punish Torture and in Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as in the jurisprudence of the Committee against Torture and the Human Rights Committee. They added that in the case of A. and others, cited above, the House of Lords had considered the meaning of “established” in the context of the above-mentioned Article 15: the majority (four Law Lords out of seven) had interpreted it as requiring evidence to be excluded where it was “more likely than not” that torture had been used to obtain it; in the same vein, the Hamburg Court of Appeal, in its El Motassadeq judgment, cited above, had used certain testimonies despite the fact that serious doubts remained as to how they had been obtained.", "The interveners were, however, convinced by the opinion of the minority of Law Lords in the above-cited A. and others judgment, to the effect that the exclusionary rule had to apply where there was a “real risk” that evidence had been obtained by torture. In their view, the position of the majority of the Law Lords called into question the sharing of the burden of proof between the State and the defendant, by imposing on the latter too high a burden that in most cases would be impossible to meet. In their view, the fact that the evidence in question was intended to be used against someone accused of terrorism-related offences could not justify such a shift; they referred to the Court’s finding in Hulki Güneş v. Turkey (no. 28490/95, ECHR 2003-VII) that the need to combat terrorism could not justify a restriction on the very essence of the rights of the defence. This had also been the approach adopted by the Spanish Supreme Court in its judgment of 20 July 2006, reversing the conviction of Hamed Abderrahaman Ahmed on the ground that, because of the disrespect for the fundamental rights of the Guantánamo detainees and for due process safeguards, any act carried out in the Guantánamo context had to be declared completely invalid and as such inexistent.", "They observed that, similarly, the 2009 report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights had expressed concern that, due to the international dimension of recent terrorism attacks, there had been cases where the prosecution had sought to rely on statements of the accused or witnesses obtained abroad under conditions that cast doubt on their reliability. They emphasised that the prevention of torture or other ill-treatment of detainees could only be effectively safeguarded if the judiciary responded urgently and effectively when any allegations concerning such ill-treatment were brought to their attention. C. The Court’s assessment ... 2. Merits (a) General principles 81. The Court reiterates that its duty, pursuant to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention.", "In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other authorities, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998‑IV; Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007; and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010).", "82. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V; P.G.", "and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002‑IX; and Gäfgen, cited above, § 163). 83.", "In determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35 and 37; Allan, cited above, § 43; Jalloh, cited above, § 96; and Gäfgen, cited above, § 164). In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings (see Gäfgen, cited above, § 164).", "84. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, and in particular to the question of respect for the applicant’s defence rights and the quality and importance of the evidence in question (ibid.). 85. However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see İçöz v. Turkey (dec.), no.", "54919/00, 9 January 2003; Jalloh, cited above, §§ 99 and 104; Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006; Harutyunyan, cited above, § 63; and Gäfgen, cited above, § 165). Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 (see Gäfgen, cited above, §§ 166-167 and 173). This also holds true for the use of real evidence obtained as a direct result of acts of torture (ibid., § 173); the admission of such evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence (ibid., § 178). The Court is of the view that these principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned.", "It would point out in this connection that it has already had occasion to indicate in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, §§ 263 and 267, ECHR 2012), with regard more specifically to a flagrant denial of justice, that the use in a trial of evidence obtained by torture would amount to such a denial even where the person from whom the evidence had been thus extracted was a third party. 86. The Court examined the issue of evidence in the above-cited Othman case, where it examined, in particular, the question whether the deportation of a Jordanian national to his country of origin, where he claimed he would face conviction on the basis of statements by third parties that had been extracted under torture and would thus be the victim of a flagrant denial of justice, would entail a violation of Article 6 of the Convention. In response to the United Kingdom Government’s argument that the applicant had to establish “beyond reasonable doubt” that the evidence in issue had been obtained by torture, it took the view that it would be unfair to impose on the applicant a burden of proof that went beyond the demonstration of a “real risk” that the evidence in question had been thus obtained (ibid., § 273).", "The Court set out three reasons why it would be unfair to impose any higher burden of proof on the applicant. First, the Court did not consider that the balance of probabilities test, as applied by the majority of the House of Lords in the above-mentioned A. and others (no. 2) judgment, was appropriate, as that case had concerned not criminal proceedings but proceedings before the Special Immigration Appeals Commission (SIAC) to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. It further noted that, in any event, the majority of the House of Lords in that judgment had found that the balance of probabilities test was for SIAC itself to apply and that an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture (ibid., § 274). Second, the Court did not consider that the Canadian and German case-law, which had been submitted by the United Kingdom Government (in particular the Singh and El Motassadeq judgments, cited also by the parties in the present case), provided any support for their position (ibid., § 275).", "Third, describing this as the most important factor, the Court found that it was necessary to have due regard for the special difficulties in proving allegations of torture. It emphasised that torture was uniquely evil, both for its barbarity and its corrupting effect on the criminal process. It was practised in secret, often by experienced interrogators who were skilled at ensuring that it left no visible signs on the victim. All too frequently, those who were charged with ensuring that torture did not occur – courts, prosecutors and medical personnel – were complicit in its concealment. The Court observed that, in a criminal justice system where the courts were independent of the executive, where cases were prosecuted impartially, and where allegations of torture were conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture.", "However, in a criminal justice system which was complicit in the very practices which it existed to prevent, such a standard of proof was wholly inappropriate (ibid., § 276). 87. As to the standard of proof for the application of the exclusionary rule in respect of evidence allegedly obtained as a result of treatment contrary to Article 3, a number of situations may arise. Firstly, such treatment may be imputed to the authorities of the forum State or to those of a third State and the victim may be the actual defendant or a third party. Furthermore, in some cases the Court itself (see, for example, Levinta v. Moldova, no.", "17332/03, 16 December 2008), the courts of the forum State (see, for example, the Harutyunyan judgment, cited above) or the courts of the third State have confirmed the veracity and nature of the alleged ill-treatment; in other cases there has been no such judicial decision. 88. The Court will not proceed to examine each of those situations. It is sufficient in the present case for it to observe that, at least in a case where a defendant asks the domestic court to exclude statements obtained in a third State as a result, in his submission, of treatment contrary to Article 3 inflicted on another individual, it is appropriate to follow the approach set out in the Othman judgment, cited above. Accordingly, in any event, where the judicial system of the third State in question does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment, it will be necessary and sufficient for the complainant, if the exclusionary rule is to be invoked on the basis of Article 6 § 1 of the Convention, to show that there is a “real risk” that the impugned statement was thus obtained.", "It would be unfair to impose any higher burden of proof on him. 89. The domestic court may not then admit the impugned evidence without having first examined the defendant’s arguments concerning it and without being satisfied that, notwithstanding those arguments, no such risk obtains. This is inherent in a court’s responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained (see, mutatis mutandis, Stojkovic v. France and Belgium, no. 25303/08, 7 April 2011, § 55).", "(b) Application to the present case 90. The Court finds it appropriate primarily to examine the applicant’s allegation that, in violation of Article 6 of the Convention, the Belgian courts, in the context of the criminal proceedings against him, had admitted in evidence certain statements by third parties that had been obtained in Morocco using treatment prohibited by Article 3 of the Convention. 91. It would first observe that it has been established that the domestic courts refused to apply the exclusionary rule to statements of third parties obtained in Morocco by the Moroccan authorities in the course of criminal proceedings in that country, as can be seen from the reasoning of the Brussels Court of Appeal’s judgment of 19 January 2007 (see paragraphs 36 and 40 above). This has not been disputed by the Government.", "92. It remains to be determined, in the circumstances of the case, whether the Moroccan judicial system afforded, at the material time, meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman or degrading treatment, and, if not, whether there was a “real risk” that the impugned statements might have been obtained as a result of such means (see paragraph 88 above). 93. In the light of the plentiful information before it, the Court has cause to doubt that the Moroccan judicial system did afford such guarantees at the material time. It is at least apparent from that information that this was not the case at the time of the circumstances in question, in so far as the allegations concerned acts committed in the context of general counter-terrorism measures, and, more specifically, in that of the investigations and proceedings that followed the Casablanca bombings of 16 May 2003.", "94. The Court observes, in this connection, that in its report of 28 November 2005 (see paragraph 53 above) – to which the applicant referred before the Court, as before the domestic courts – Human Rights Watch explained that individuals tried in that context had been denied a fair hearing, that the courts refused, in particular, to order medical examinations of those who claimed to have been tortured, that it was not aware of any prosecution of officials suspected of torture, and that “[o]verall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [CCPR/CO/82/MAR] show[ed] that security forces continue[d] to operate in a climate of impunity and disrespect for the law, and that the executive branch continue[d] to exercise considerable influence over the courts”. Similarly, the FIDH report of February 2004, to which the previous report referred (see paragraph 54 above), commented in particular on the hurried nature of the judicial investigation phase and the failure to comply with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It emphasised that the trial courts had systematically dismissed objections based on alleged problems at the police custody and judicial investigation stages and that no application for a medical expert’s report for the purposes of substantiating ill-treatment allegations had been accepted. Amnesty International made the same observation in its report of 24 June 2004 (see paragraph 55 above) – mentioned in the above-cited report of Human Rights Watch.", "It reported, in particular, that the judicial authorities appeared to have repeatedly dismissed allegations of torture or ill-treatment, without ordering investigations or medical examinations. Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom. It added that during their trials many accused challenged, on the ground that it had been obtained by duress, evidence against them taken from statements made by others who had been arrested and detained on similar charges, and that their requests for confrontation with witnesses were denied by the courts on a systematic basis. 95. In the same vein, the United Nations Committee against Torture and the United Nations Human Rights Committee, in reports covering the relevant period (paragraph 50-51 above), referred to numerous allegations of ill-treatment imputed to agents of the State and expressed concern about the impunity that they enjoyed.", "The former also noted that there was no provision of criminal law prohibiting a statement obtained under torture from being invoked as evidence in any proceedings, whilst the latter was concerned that the independence of the judiciary was not fully guaranteed. 96. The Court concludes from the foregoing that, in order to seek the application of the exclusionary rule as regards statements taken in Morocco by the Moroccan authorities, it was sufficient for the applicant to demonstrate before the domestic court that there was a “real risk” that they had been obtained using torture or inhuman or degrading treatment. 97. In this connection, the Court notes that the applicant alleged before the domestic courts that the impugned statements emanated from individuals who were suspected of involvement in the Casablanca bombings of 16 May 2003, and who had been interrogated in Morocco in the context of the ensuing investigations and proceedings.", "He argued that the country had been harshly criticised by governmental and non-governmental organisations for acts of torture and ill-treatment inflicted systematically on individuals arrested after those events, referring in particular to the above-mentioned report of Human Rights Watch. He explained that those who had given the statements in question had complained of being subjected to acts of torture and inhuman or degrading treatment. He added that the Moroccan authorities had not carried out an investigation into those allegations. He further argued that the Moroccan proceedings had been conducted in a hurried manner. The Brussels Court of Appeal took the view, however, that by merely “citing in general terms” various reports of human rights organisations, the applicant had not adduced any concrete evidence that would be capable of giving rise in the present case to “reasonable doubt” as to the violence, torture or inhuman or degrading treatment that had allegedly been inflicted on the individuals interviewed in Morocco (see paragraph 36 above).", "98. The Court, for its part, takes that view that since those statements emanated from suspects interrogated in Morocco in the context of investigations and proceedings following the Casablanca bombings of 16 May 2003, the above-mentioned reports established the existence of a “real risk” that they had been obtained using treatment contrary to Article 3 of the Convention. It can be seen from those reports that ill-treatment for the purposes of extracting confessions was widely practised against such suspects. In 2004 the United Nations Human Rights Committee thus expressed concern about the numerous allegations of torture and ill-treatment against detainees in Morocco, as did the United Nations Committee against Torture, which specifically noted the increase in those allegations that implicated the National Surveillance Directorate (see paragraphs 50 and 52 above). In its final observations on the fourth periodic report of Morocco – adopted, however, after the domestic courts had given a final decision in the applicant’s case –, the Committee against Torture reiterated that concern, mentioning more particularly the use of such treatment during interrogations of individuals suspected of terrorism with the aim of extracting confessions from them.", "It further referred to allegations that pointed to a consistent pattern, “whereby suspects [were] arrested by plain-clothes officers who [did] not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amount[ed] to incommunicado detention. The suspects [were] not officially registered and [were] subjected to torture and other cruel, inhuman or degrading treatment or punishment. They [were] held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families [were] not notified of their arrest, of their movements or of their whereabouts until such time as they [were] transferred to police custody in order to sign confessions that they ha[d] made under torture. It [was ] only then that they [were] officially registered and their cases [were] processed through the regular justice system on the basis of falsified dates and information ...” (see paragraph 51 above).", "In addition, it can be seen from the report of Human Rights Watch that many of the suspected Islamists who were detained in the weeks following the Casablanca bombings “were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions” (see paragraph 53 above). The FIDH reported numerous cases of arbitrary detention in secret centres, where the interrogations were “carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. It pointed out that at the Témara centre, where most prisoners were taken after their arrest, ill-treatment, violence and torture were common practice. The cells, situated in the basement, were lit day and night and when they moved around, as well as during interrogation, which often lasted a very long time, the suspects were blindfolded. It added that insults and blows were commonplace, with prisoners under interrogation sometimes being stripped naked, and that several cases of electrical torture and rape had been reported.", "A number of prisoners had signed statements under torture. The FIDH also reproduced various detailed testimonies describing the poor conditions of detention and mentioning, in particular, beatings, blows, rape, cigarette burns, insults, humiliations, spitting, threats, blackmail, placement in solitary confinement, endless questioning, sleep deprivation and denial of medical care (see paragraph 55 above). Amnesty International gave a similar description of treatment inflicted on detainees at the Témara centre. It indicated that many former prisoners had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied. It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from Témara to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply (see paragraph 55 above).", "99. In the Court’s view, the foregoing information, which emanates from diverse, objective and concurring sources, establishes that there was, at the material time, a “real risk” that the impugned statements had been obtained in Morocco using treatment prohibited by Article 3 of the Convention. Article 6 of the Convention thus required the domestic courts not to admit them in evidence, unless they had first verified, in view of elements specific to the case, that they had not been obtained in such manner. As indicated above, in dismissing the applicant’s request for the exclusion of those statements, the Brussels Court of Appeal merely found that he had not adduced any “concrete evidence” that would be capable of raising “reasonable doubt” in this connection. This is sufficient for the Court to find that there has been a violation of Article 6 in the present case, without it being necessary to ascertain whether, as the applicant contends, that provision has also been breached for other reasons.", "... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 2. Holds that there has been a violation of Article 6 of the Convention; ... Done in French, and notified in writing on 25 September 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosDanutė JočienėDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF TATISHVILI v. RUSSIA (Application no. 1509/02) JUDGMENT STRASBOURG 22 February 2007 FINAL 09/07/2007 In the case of Tatishvili v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Loukis Loucaides,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Sverre Erik Jebens, judges,and Søren Nielsen, Section Regisrar, Having deliberated in private on 1 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1509/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mrs Larisa Artemovna Tatishvili (“the applicant”), on 21 December 2001. 2.", "The applicant, who had been granted legal aid, was represented before the Court by Mr E. Bobrov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained, in particular, of the arbitrary denial of residence registration at her chosen address and unfair judicial proceedings in respect of her claim. 4.", "On 7 June 2004 the President granted leave to the Human Rights Centre Memorial, a Moscow-based non-governmental organisation, to intervene as a third party in the proceedings. 5. By a decision of 20 January 2005, the Court declared the application partly admissible. 6. The applicant, but not the Government, filed observations on the merits (Rule 59 § 1 of the Rules of Court).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1939 in Tbilisi, Georgia. She was a citizen of the former USSR and continued to hold its citizenship until 31 December 2000; thereafter she became a stateless person. The applicant lives in Moscow.", "8. On 25 December 2000 the applicant applied to the passport department at the “Filevskiy Park” police station in Moscow for residence registration. She produced her USSR passport, a consent form signed by the flat owner and certified by the housing maintenance authority, an application form for residence registration, a document showing payment of housing maintenance charges and an extract from the residents’ list. 9. The Director of the passport department refused to process the application for residence registration.", "He told the applicant that she could not be registered because she was not a relative of the flat owner. 10. The applicant insisted on a written refusal. She was given a printed form on which a checkmark was placed next to the statement “failed to provide a complete set of documents”. It was not specified which documents were missing.", "11. On 15 January 2001 the applicant challenged the refusal before the Dorogomilovskiy District Court of Moscow. She submitted that there had been no legal basis for a restriction on her right to obtain residence registration in the flat, expressly provided to her for that purpose by its owner, and that the registration authorities had no discretion in granting residence registration once the appropriate documents had been produced, as had been the case. 12. On 12 February 2001 the Director of the passport department filed his observations on the applicant’s claim.", "He contended that the applicant did not have Russian citizenship and that she had originally come from Georgia. Georgian citizens were required to have an appropriate visa to enter Russia, which the applicant could not produce, and, in any event, the registration of foreign citizens was a matter for the Ministry of the Interior’s local visa departments. 13. On 13 February 2001 the Dorogomilovskiy District Court of Moscow ruled on the applicant’s claim. A representative of the flat owner stated before the court that the applicant had been living in the flat since 2000 and that the owner had no objections to her registration.", "The court dismissed the applicant’s claim, giving two reasons for its decision. 14. Firstly, referring to the provisions of the Civil and Housing Codes regulating the joining of family members and other persons to existing municipal-tenancy agreements and emphasising the absence of a family relationship between the applicant and the flat owner, the court ruled that the matter should be examined not as a challenge to the State official’s refusal to grant registration, but rather as a civil action for determination of the applicant’s right to move into the flat. 15. Secondly, the court held that the applicant had failed to prove her Russian citizenship or to confirm her intention of obtaining it and pointed out that “a treaty” between Russia and Georgia provided for visa-based exchanges.", "16. The judgment concluded as follows: “Given that the applicant failed to produce information confirming her right to move into the flat in question, information on [her] citizenship and the lawfulness of [her] entry into the Russian Federation, the Court accordingly dismisses her claim.” 17. On 5 March 2001 the Dorogomilovskiy District Court of Moscow confirmed certain amendments to the hearing record, as submitted by the applicant’s representative. In particular, the record was to reflect the applicant’s statements about the non-applicability of municipal-tenancy provisions to her situation, given that the flat had been in private ownership, and about the flat owner’s consent to her residence. 18.", "On 19 March 2001 the applicant’s representative filed a statement of appeal. He submitted, in particular, that the District Court had incorrectly referred to the applicant’s Georgian citizenship and to a visa requirement for her entry into the Russian Federation, since the applicant had never held Georgian citizenship and, in any event, the residence regulations applied uniformly to all persons lawfully residing within the Russian Federation, irrespective of their citizenship. He indicated that the District Court had failed to advance any justification for the restriction on the applicant’s right to choose her residence. He also contended that the District Court’s reliance on tenancy provisions had been invalid because the flat owner had had clear title to the flat and there could be no dispute as to the applicant’s right to move in, since she had the flat owner’s explicit consent. 19.", "On 2 August 2001 the Moscow City Court upheld the judgment. It reiterated the District Court’s findings that the applicant’s claim had to be dismissed because she had failed to prove her Russian citizenship or an intention to obtain it and because she had failed to provide any documents confirming her right to move into the flat in question. The City Court did not address the arguments advanced by the applicant’s representative in the grounds of appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Constitution of the Russian Federation of 12 December 1993 20. Article 19 provides for the equality of all before the law and the courts of law, and equality of rights and liberties. 21. Article 27 provides that everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence. 22.", "Article 62 § 3 provides that foreign citizens and stateless persons shall have the same rights and obligations in the Russian Federation as Russian citizens unless otherwise provided in a federal law or an international treaty to which the Russian Federation is a party. B. Law on Russian citizenship and the status of citizens of the former USSR 23. At the material time the issues related to Russian citizenship were governed by the Citizenship of the Russian Federation Act (Law no. 1948-I of 28 November 1991, as amended on 6 February 1995), which provided that all citizens of the former USSR who were permanently resident in Russia on 6 February 1992 (the date of entry into force of the Act) automatically obtained Russian citizenship unless they expressed their wish to the contrary before 6 February 1993.", "The basis for establishing whether a person was permanently resident within Russia was the propiska stamp (internal residence registration) in his or her USSR passport. Section 18(g) of the law provided for a simplified procedure (“by way of registration”) for obtaining Russian citizenship for citizens of the former USSR who arrived in Russia after 6 February 1992 and expressed their wish to become Russian citizens before 31 December 2000. 24. Under the powers vested in him by law, on 10 April 1992 the President of the Russian Federation adopted the Regulations on the procedure for consideration of issues of citizenship of the Russian Federation (Decree no. 386 – “the 1992 Regulations”).", "Section II(5) stated that the notion of “a citizen of the former USSR” applied only to those individuals who did not obtain the citizenship of one of the newly independent States which had previously been members of the USSR. The same section stipulated that after 31 December 2000 all citizens of the former USSR who had not obtained Russian or other citizenship would be considered to be stateless persons. 25. Until August 2002 the status of foreign citizens and stateless persons in the Russian Federation was regulated by the USSR Law on the legal status of foreign citizens in the USSR (no. 5152-X of 24 June 1981, as amended on 15 August 1996 – “the 1981 USSR Law”).", "By virtue of section 32, its provisions were likewise applicable to stateless persons. 26. In implementation of the 1981 USSR Law, on 26 April 1991 the USSR Cabinet of Ministers adopted Resolution no. 212, whereby it approved the Rules on the stay of foreign citizens in the USSR (“the 1991 Rules”). Those rules also applied to stateless persons and described the procedures for entering and leaving Russia, obtaining documents for temporary residence and permanent residence, etc.", "C. Visa requirements for Georgian citizens 27. On 9 October 1992 nine member States of the Commonwealth of Independent States (CIS), including the Russian Federation, signed in Bishkek an Agreement on visa-free movement of citizens of member States of the Commonwealth of Independent States throughout their territory (“the Bishkek Agreement”). Georgia acceded to the Bishkek Agreement on 1 August 1995. 28. On 4 September 2000 the Russian Federation denounced the Bishkek Agreement as of 3 December 2000.", "In the absence of a bilateral agreement on visa-free movement between Russia and Georgia, Georgian citizens were required to apply for a Russian entry visa from 5 December 2000. D. Regulations on residence registration 29. On 25 June 1993 Russia adopted a Law on the right of Russian citizens to liberty of movement and freedom to choose their place of temporary and permanent residence within the Russian Federation (Law no. 5242-I – “the 1993 Law”). Section 1 guaranteed the right of Russian citizens to liberty of movement and freedom to choose their place of residence, and extended the law’s application to non-Russian citizens lawfully residing in Russian territory.", "Sections 3 and 7 required a person to apply for residence registration at a new address within seven days of moving. Section 8 contained an exhaustive list of territories where this right could be restricted (such as military settlements, environmental disaster zones, etc.) 30. In order to implement the 1993 Law, on 17 July 1995 the Russian government approved the Regulations for registration of temporary and permanent residence of Russian citizens (no. 713).", "By Government Resolution no. 290 of 12 March 1997, the application of these Regulations was extended to former USSR citizens arriving from the Commonwealth of Independent States and the Baltic States. Section 9 of the Regulations imposed a general duty to seek residence registration at any address where a person intended to stay for longer than ten days. The person was required to file an application for registration within three days of the move and to submit an identity document, an application form and a document showing the legal basis for residence at the indicated address (such as a rent contract or the consent of the flat owner). Section 12 of the Regulations, as worded at the material time, provided that the registration could be refused if the applicant had not submitted written consent or had produced manifestly false documents; the list of grounds for refusal was exhaustive.", "31. On 2 February 1998 the Constitutional Court of the Russian Federation struck down certain provisions of the Regulations as incompatible with the Russian Constitution. It ruled, in particular, that “... the registration authorities are entitled only to certify the freely expressed will of a citizen in his or her choice of ... residence. For this reason, the registration system may not be permission-based and it shall not entail a restriction on the citizen’s constitutional right to choose his or her place of ... residence. Thus, the registration system in the sense which is compatible with the Russian Constitution is merely a means ... of counting people within the Russian Federation, ... is notice-based and reflects the fact of a citizen’s stay at a place of his or her temporary or permanent residence.” The Constitutional Court emphasised that, upon presentation of an identity document and a document confirming the person’s right to reside at the chosen address, the registration authority should have no discretion and should register the person concerned at the address indicated.", "The requirement to submit any additional document might lead to “paralysis of a citizen’s rights”. On that ground the Constitutional Court ruled that the registration authorities were not entitled to verify the authenticity of the submitted documents or their compliance with Russian laws and, accordingly, any such grounds for refusal were unconstitutional. E. Penalties for violations of residence registration rules 32. On 9 July 1997 the Moscow authorities passed a Law on the conditions of residence in Moscow for foreign citizens who have the right to enter Russia without a visa (Law no. 33).", "The Law applied to foreign citizens from the CIS and to stateless persons. It required non-Russian citizens to apply for residence registration within three days of their arrival (if staying for longer than ten days). Section 10 of the Law provided that a non-Russian citizen residing in Moscow for more than three days without the appropriate residence registration was liable to a fine of up to 500 Russian roubles (RUR) (approximately 20 euros (EUR) in 2001) or, in the event of a repeated offence, up to RUR 2,000 (EUR 80). The same penalty could be imposed on a flat owner who permitted a non-Russian citizen to live in his or her premises without residence registration. III.", "RELEVANT COUNCIL OF EUROPE DOCUMENTS 33. Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member States concerned ‘to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders’; ...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 34. The applicant complained of the domestic authorities’ arbitrary refusal to certify her residence at the chosen address, which had substantially complicated her daily life and rendered uncertain her access to medical care. The Court decided to examine this complaint under Article 2 of Protocol No. 4, the relevant part of which provides: “1.", "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ... 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” A. Applicability of Article 2 of Protocol No.", "4 1. The parties’ submissions 35. The Government denied that there had been an interference with the applicant’s right to liberty of movement because her presence in the Russian Federation had not been lawful. They claimed that the applicant, who had arrived from Georgia, had failed to take any steps to determine her citizenship and to make her residence in Russia lawful, such as confirming her Georgian citizenship or applying for Russian citizenship. They stated that the applicant’s situation had been governed by the 1981 USSR Law on the legal status of foreign citizens in the USSR and by the 1991 Rules on the stay of foreign citizens in the USSR.", "Pursuant to sections 5 and 32 of the 1981 USSR law, the applicant, as a stateless person, should have obtained a residence permit from the Ministry of the Interior. The Government concurrently claimed that, after entry visas had been introduced for Georgian citizens from 5 December 2000, the applicant could only have been lawfully resident in Russia on 25 December 2000 if she had crossed the border with a valid Russian visa in her national passport. 36. The applicant criticised the Government’s arguments as mutually exclusive and inconsistent. She continued to hold citizenship of the former USSR and had never acquired Georgian citizenship.", "Consequently, she had not been required to obtain an entry visa as a Georgian citizen. In any event, she had not crossed the Russian border in 2000 or later. As to the Government’s reliance on the 1981 USSR Law and the 1991 Rules, section 1 of that Law stated that it did not apply to USSR citizens, which the applicant had remained, and it had therefore not applied to her. In fact, until a new Russian Law on the legal status of foreign citizens was adopted on 25 June 2002, Russia had no legislation imposing an obligation on citizens of the former USSR to obtain residence permits as a condition of their lawful residence in Russia. Thus, at the material time she had been lawfully present in the Russian Federation.", "37. The third-party intervener submitted that at least after the adoption of Government Resolution no. 290 of 12 March 1997 (see paragraph 30 above) the conditions for enjoyment of liberty of movement across Russia had been the same for Russian citizens and citizens of the former USSR, that is, the very presence (even without registration at a place of residence) of citizens of the former USSR in Russia had constituted lawful residence. The status of citizens of the former USSR in the Russian Federation had ceased to be recognised only on 31 December 2000. After that date they were to be considered as stateless persons and subjected to the same legal regime as foreign citizens.", "The third-party intervener noted that before 1 November 2002 there had been no notion of temporary residence permits in Russian legislation, and registration at a permanent place of residence could not by its nature be regarded as such a permit. Failure to register at a place of residence could lead to a fine, but it did not affect the lawfulness of the residence of citizens of the former USSR in Russia per se. 2. The Court’s assessment 38. Article 2 of Protocol No.", "4 guarantees the right to liberty of movement and freedom to choose their residence to everyone who is “lawfully within the territory of a State”. The Government claimed that the applicant did not fit into that category because she did not possess a residence permit and an entry visa. 39. The Court notes at the outset that the reasons advanced by the Government did not form the basis for the initial administrative decision refusing registration of the applicant’s address for a failure to submit a complete set of documents (see paragraph 10 above). The contention that, as a Georgian citizen, the applicant should have possessed an entry visa appeared for the first time in the comments on the applicant’s statement of claim and was subsequently upheld by the domestic courts (see paragraphs 12 et seq.", "above). 40. In so far as the Russian authorities claimed that the applicant required an entry visa as a Georgian citizen, the Court observes that the applicant remained a citizen of the former USSR. She denied that she had ever acquired Georgian citizenship. Neither in the domestic proceedings nor before the Court did the Russian authorities produce any evidence in support of their claim that the applicant was a Georgian citizen.", "The registration of the applicant’s residence in Tbilisi dating back to the early 1990s had no automatic bearing on determination of her citizenship under either Russian or Georgian law. As the Government’s allegation that the applicant was a Georgian citizen has no evidentiary basis, the denunciation, by the Russian Federation, of the Bishkek Agreement on visa-free movement could not have affected the lawfulness of her residence on Russian territory. 41. The Government concurrently maintained that the applicant had been a stateless person – having acquired no other citizenship after the collapse of the Soviet Union – and had therefore been required to hold a residence permit in accordance with the 1981 USSR Law on foreign citizens. The Court notes at the outset that this argument first appeared in the Government’s observations of 26 March 2004 and that it had not been relied upon in refusing the application for residence registration in the domestic proceedings.", "In any event, the Court does not consider this argument convincing for the following reasons. 42. Before 31 December 2000 individuals who had not obtained the citizenship of one of the newly independent States which had once formed the Soviet Union, had had a special legal status in Russia, that of a “citizen of the former USSR”. Only after that date were they to be considered stateless persons (see paragraph 24 above). The applicant claimed that she belonged to that category and the Government did not produce any evidence to the contrary.", "It follows that at the material time, in early December 2000, the requirement to have a residence permit, established in the 1981 USSR Law governing the status of foreign citizens and stateless persons, did not apply to her because she was neither a foreign citizen nor a stateless person (see paragraph 25 above). In any event, both the 1993 Law on the liberty of movement and freedom to choose residence and the Government Resolution of 12 March 1997 established that the procedure for registration of residence of “former USSR citizens” should be the same as that for Russian citizens (see paragraphs 29 and 30 above). 43. Since the Government’s claim that the applicant’s presence in Russia was unlawful has been found to be without legal and/or factual basis, the Court accepts that the applicant, a “citizen of the former USSR” at the material time, was lawfully present in Russia. Article 2 § 1 of Protocol No.", "4 is therefore applicable in the instant case. B. Compliance with Article 2 of Protocol No. 4 1. Existence of an interference 44.", "The applicant submitted that residence registration is the proof of residence in the Russian Federation and its absence had prevented her from exercising many social rights, including access to medical assistance, social security, pension, the right to possess property, to marry, and others. 45. The Court reiterates that it has found the requirement to report to the police every time applicants wished to change their place of residence or visit family friends to disclose an interference with their right to liberty of movement (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, §§ 346-47 and 403-04, ECHR 2001-V, and Bolat v. Russia, no. 14139/03, § 65, 5 October 2006).", "46. In the present case the applicant was required by law to have her place of residence registered by the police within three days of moving in (see paragraph 30 above). The domestic authorities’ refusal to certify her residence at the chosen address exposed her to administrative penalties and fines (see paragraph 32 above). Accordingly, the Court considers that there has been an interference with the applicant’s right to liberty of movement under Article 2 of Protocol No. 4.", "2. Whether the interference was justified 47. The Court must further determine whether the interference complained of was justified. In this connection it observes that the Parliamentary Assembly of the Council of Europe expressed concern over the existing restrictive system of residence registration in Russia (see paragraph 33 above). It reiterates, however, that it is not the Court’s task to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied in a particular case gave rise to a violation.", "Accordingly, in the present case the Court has to ascertain whether the interference with the applicant’s right to freedom to choose her residence was “in accordance with the law”, pursued one or more of the legitimate aims set out in paragraph 3 of Article 2 of Protocol No. 4 and was “necessary in a democratic society” or, where it applies to particular areas only, was “justified by the public interest in a democratic society” as established in paragraph 4 (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 45, ECHR 2005‑XII). 48. The applicant maintained that she had produced a complete set of documents, even though some of these documents had not been required by law but requested as a matter of administrative convenience.", "In these circumstances, the police department had had no discretion to refuse her application for residence registration. 49. The Government did not offer any justification for the interference, beyond the argument of the unlawfulness of the applicant’s residence in Russia, which the Court has already examined and rejected above. 50. The Court notes that the Regulations on registering residence required an applicant to submit a completed application form accompanied by an identity document and a document showing the legal basis for residing at the indicated address (see paragraph 30 above).", "51. The applicant submitted to the “Filevskiy Park” passport department a completed application form, her passport and a document from the flat owner, duly signed and certified and indicating his consent to her residence, as well as certain other documents not required by law (see paragraph 8 above). Her application was nevertheless refused for a failure to submit a complete set of documents. It has never been specified which of the documents required by law were missing (see paragraph 10 above). 52.", "In this connection the Court reiterates that if the applicant’s application was not deemed complete, it was the national authorities’ task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents in order to be able to obtain residence registration (see Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006). This had not, however, been done. Accordingly, the Court considers that this ground for refusing registration has not been made out. 53.", "The Court pays special attention to the authoritative interpretation of the Regulations for registering residence given by the Constitutional Court of the Russian Federation in 1998 (see paragraph 31 above). That court held that the registration authority had a duty to certify an applicant’s intention to live at a specified address and that it should have no discretion for reviewing the authenticity of the submitted documents or their compliance with Russian law. It determined that any such grounds for refusal would not be compatible with the Constitution. It appears, however, that the binding interpretation of the Constitutional Court was disregarded by the domestic authorities in the applicant’s case. 54.", "In these circumstances, the Court finds that the interference with the applicant’s right to freedom to choose her residence was not “in accordance with law”. This finding makes it unnecessary to determine whether it pursued a legitimate aim and was necessary in a democratic society (see Gartukayev v. Russia, no. 71933/01, § 21, 13 December 2005). There has therefore been a violation of Article 2 of Protocol No. 4.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 55. The applicant complained under Article 6 § 1 of the Convention that the domestic courts’ findings had been arbitrary and contrary to the facts and that they had not applied the domestic laws correctly. In so far as relevant, Article 6 provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 56. The applicant submitted that the proceedings had not been fair because the domestic courts had based their findings on “a treaty” between Russia and Georgia on visa-based exchanges which had never existed.", "Although the representative of the flat owner had produced his written consent to her moving into the flat, the courts had insisted that her right to live in the flat had not been sufficiently established. The judges had misrepresented the facts with a view to dismissing her claim. 57. The Government claimed that the proceedings had been fair because the applicant and her representative had taken part in the hearings and put forward arguments in defence of her claim. There was no indication of any breach of the principle of equality of arms.", "The applicant and her representative had been able to appeal against the first-instance court’s judgment to an appellate court and also to lodge an application for supervisory review. Those applications had been duly examined and dismissed by reasoned decisions. 58. The Court reiterates that, according to its established case-law, which reflects a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. Article 6 § 1 obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument.", "The extent to which this duty to give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A). Even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. Finland, no. 37801/97, § 36, 1 July 2003). A further function of a reasoned decision is to demonstrate to the parties that they have been heard.", "Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (see, mutatis mutandis, Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 59. In the present case the judgments of the Dorogomilovskiy District Court and the Moscow City Court refusing the applicant’s complaint were founded on two grounds.", "They held, firstly, that there existed a dispute between the applicant and the flat owner as to her right to move into the flat. Secondly, they found that the applicant’s residence might have been unlawful because “a treaty” between Russia and Georgia on visa-based exchanges required her to be in possession of an entry visa. 60. As regards the first finding by the domestic courts, the Court observes that the applicant had produced a written certified consent from the flat owner to her moving in. A representative of the flat owner confirmed that consent in the oral submissions before the District Court.", "The District Court subsequently directed that the reference to those submissions be added to the hearing record (see paragraph 17 above). It follows that the flat owner’s consent was validly produced in the domestic proceedings and its existence was acknowledged by the District Court, which gave no reasons whatsoever for its finding that there existed a dispute between the applicant and the flat owner. Nor did the District Court indicate any reasons for holding that the municipal-tenancy provisions of the Housing and Civil Codes applied in a situation where the flat owner had clear title to the flat and wished to make it available to the applicant. 61. As to the domestic courts’ reliance on “a treaty” between Russia and Georgia on visa requirements, the Court observes that they omitted to verify whether such a treaty was in existence.", "In fact, the visa requirement for Georgian citizens had not been introduced by a treaty as the District Court maintained, but had resulted from the denunciation by Russia of the Bishkek Agreement in the absence of a separate treaty on visa-free movement between Russia and Georgia (see paragraph 28 above). The Court is not convinced that this discrepancy could have been the result of a mere difference in terms because the text of the “treaty on visa-based exchanges” was never produced in the domestic proceedings. The domestic courts appear to have taken the reference to it from the passport department’s submissions. Furthermore, the Court finds it anomalous that the District Court relied on a treaty governing the conditions of entry and stay for Georgian citizens without giving any reasons for the assumption that the applicant was a Georgian citizen. As the Court has found above, no evidence to that effect has been produced either in the domestic proceedings or before it.", "62. Nor was the inadequacy of the District Court’s reasoning corrected by the Moscow City Court, which simply endorsed the reasons for the lower court’s decision. While such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case it failed to satisfy the requirements of a fair trial. As the applicant’s statement of appeal indicated that the District Court’s findings had been devoid of a factual and/or legal basis, it was all the more important that the City Court give proper reasons of its own (see Hirvisaari, cited above, § 32). Nevertheless, the City Court endorsed the District Court’s findings in a summary fashion, without reviewing the arguments in the applicant’s statement of appeal.", "63. Accordingly, the Court considers that the manifestly deficient reasoning by the Dorogomilovskiy District Court and the subsequent approval of such inadequate reasoning by the Moscow City Court as an appellate body failed to fulfil the requirements of a fair trial. There has therefore been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed 6,940.58 Russian roubles (RUR) and 15,947 United States dollars in respect of compensation for pecuniary damage, representing the amounts she had spent on medicines that would have been provided to her free of charge had she had residence registration, the complementary pension for lawfully resident Muscovites, loss of earnings and the administrative fine for the absence of residence registration in the amount of RUR 515. She further claimed 49,900 euros (EUR) in respect of non-pecuniary damage. 66.", "The Government submitted that there was no causal link between the alleged violations and the purchase of medicines. 67. The Court considers that there existed no causal link between the violations found and the applicant’s claim for pecuniary damage in so far as it related to medical expenses and loss of potential income. It rejects this part of the applicant’s claim but awards her EUR 15 in respect of compensation for the administrative fine she had to pay for the absence of residence registration. The amount claimed in respect of non-pecuniary damage appears excessive.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000, plus any tax that may be chargeable. B. Costs and expenses 68. The applicant claimed RUR 203,960 in respect of legal fees (exclusive of the legal aid received from the Court), RUR 13,497.15 for translation expenses, RUR 708.74 for postage, RUR 2,734 for court fees in the domestic proceedings and RUR 150 for certification of authority forms. 69.", "The Government claimed that the legal fees were manifestly excessive and served as a means of unjust enrichment. The average legal fee for the preparation of a case before the Court was EUR 1,500, which was far less than the applicant’s claim. 70. The Court accepts that the applicant has incurred certain expenses in the domestic and Strasbourg proceedings. The amount claimed, however, appears excessive.", "Having regard to the materials in the case file and deducting the amount already paid to the applicant by way of legal aid, the Court awards her EUR 2,500 in respect of costs and expenses, plus any tax that may be chargeable. C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 2 of Protocol No.", "4; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 15 (fifteen euros) in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (iii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOVACHEVA AND HADJIILIEVA v. BULGARIA (Application no. 57641/00) JUDGMENT STRASBOURG 29 March 2007 FINAL 29/06/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kovacheva and Hadjiilieva v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrM.", "Villiger, judges,and Mr J.S. Phillips, Deputy Section Registrar, Having deliberated in private on 6 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57641/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Mrs Lili Georgieva Kovacheva and Mrs Petya Georgieva Hadjiilieva (“the applicants”), on 8 September 1999 2. The applicants were represented by Mr Y. Grozev, a lawyer practising in Sofia.", "The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Karadjova, of the Ministry of Justice. 3. On 8 November 2004 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "On 18 May 1990, the applicants, who are sisters, filed with the Sofia District Court a civil action against Hydrostroy'82 Apartment Construction Cooperative (“HACC”), claiming sums allegedly owed to their late father under a 1988 agreement between him and HACC. 5. Under the 1988 agreement the applicants' late father had undertaken to manage and supervise construction works against the payment of fees. He had worked until his death in July 1989 but had not been paid in full. The applicants thus considered that, as his heirs, they were entitled to 24,132 old Bulgarian levs (“BGL”) (the equivalent of approximately 6,000 US dollars (USD) at the relevant time) and submitted a partial claim for BGL 4,333, as is customary in legal practice.", "6. Between July and October 1990 the case could not proceed because of defective summons. In November 1990 an adjournment was necessary as the applicants had not clarified their claims. Between January 1991 and June 1992 the District Court held nine hearings. The adjournments were ordered because of defective summons, delays in the presentation of expert opinions, withdrawal of experts and alleged dilatory behaviour of the respondent party.", "7. The hearing listed for 8 October 1992 was adjourned until 16 November 1992 as HACC had not been validly summoned. 8. On 9 November 1992 the judge decided to adjourn the hearing until 19 November 1992. 9.", "On 19 November 1992 the hearing was adjourned owing to an anonymous telephone call warning that an explosive device had been installed in the court's building. Such calls were made on each of the next three dates for which the adjourned hearing was listed: 28 January, 23 March and 15 April 1993, which caused additional delay. 10. On 17 June 1993 the hearing was adjourned as only one witness had appeared. Witnesses had been called by both parties with a view to establishing the work done on the construction site.", "11. The hearings listed for 13 October and 24 November 1993 were adjourned as witnesses and expert-witnesses had not appeared. The court fined two of them for their failure to appear without cause. 12. At the hearing on 21 February 1994 the court replaced the expert who had failed to appear repeatedly.", "The case was adjourned. 13. The hearing held on 25 April 1994 was adjourned as the court granted the applicants' disclosure order against HACC. 14. The hearing listed for 13 June 1994 was adjourned as one of the experts did not appear.", "15. On 24 October 1994 the court, having heard the experts' opinion, accepted the applicants' request for an additional question to the experts and adjourned the examination of the case until 5 December 1994. 16. In view of the experts' opinion who gave an estimate on the value of the construction works and the inflation, at the hearing on 5 December 1994 the applicants sought to increase their claim. The court considered that it was necessary to give them seven days to file such a request in writing and adjourned the hearing until 6 March 1995.", "The applicants filed a written request increasing their claim to BGL 100,000, the value of the national currency having dropped significantly since 1990. 17. On 6 May 1995 the hearing could not proceed owing to defective summons. The final hearing was held on 17 May 1995. 18.", "On 22 May 1995 the District Court delivered its judgment, served on 16 June 1995. It awarded the applicants BGL 15,851 plus interest since 18 May 1990. The court noted that the inflation and depreciation of the national currency could not be taken into account as the relevant law did not allow the revalorisation of monetary claims. 19. On 19 June 1995 the applicants filed an appeal.", "The file was transmitted to the higher court with a delay of two months. 20. The Sofia City Court held a hearing in November 1995 and dismissed the appeal by judgment of 29 December 1995. On that date the judgment awarding the applicants BGL 15,851 plus interest became enforceable. As of December 1995 the amount awarded plus interest did not exceed the equivalent of approximately USD 350.", "21. On 26 February 1996 the applicants filed a petition for review (cassation) with the Supreme Court. They argued that the lower courts' refusal to accept the revalorisation of their claim had resulted in unjust enrichment for HACC. They considered that the value of the construction work done should be evaluated on the basis of current prices. 22.", "On 21 May 1997 the applicants, noting that their petition for review (cassation) must have been misfiled in the Supreme Court's registry, requested a speedy examination of their case. 23. In 1998 the Supreme Court was divided into a Supreme Court of Cassation and a Supreme Administrative Court. 24. A hearing before the Supreme Court of Cassation was eventually held on 10 February 1999.", "25. On 8 March 1999 the Supreme Court of Cassation dismissed the petition for review stating succinctly that it endorsed the reasoning of the lower courts. 26. As of March 1999 the amount awarded to the applicants plus interest did not exceed the equivalent of approximately USD 25. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 28. The Government did not submit written observations on the admissibility and merits of the case within the relevant time-limit. A. Admissibility 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 30. The period to be taken into consideration began only on 7 September 1992, the date of the Convention's entry into force for Bulgaria and ended on 8 March 1999, when the Supreme Court of Cassation delivered its final judgment in the case.", "It thus lasted six years and six months for three levels of jurisdiction. 31. The Court must also have regard to the fact that as of the date of the Convention's entry into force for Bulgaria the proceedings had already been pending before the first instance court for two years and almost four months (see paragraphs 4 and 6 above). 32. The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 33. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above, and – for a detailed analysis of the relevant issues in a recent case concerning Bulgaria – Vatevi v. Bulgaria, no. 55956/00, 28 September 2006). 34.", "Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. In reaching this conclusion, the Court takes into account that the case was not complex (see paragraphs 4 and 5 above) and that the applicants were not responsible for any significant delay, the adjournments requested by them having been necessary for the collection of evidence (see paragraphs 13 and 15 above). Moreover, numerous adjournments and other delays were imputable to the authorities: the failure to secure the presence of experts appointed by the court and of witnesses (see paragraphs 10, 11, 12 and 14 above), the failure to undertake efficient measures to avoid delays caused by false security alerts (see paragraph 9 above), defective summons (see paragraphs 7 and 17 above), inactivity periods (see paragraphs 19 and 21-24 above) and a formalistic approach to procedural requirements (see paragraph 16 above). Finally, in the particular circumstances of rampant inflation the courts failed to display diligence in conducting the proceedings despite the fact that the value of the applicants' claim was bound to diminish significantly with the passage of time (see paragraphs 5, 16, 18, 20 and 26 above). There has accordingly been a breach of Article 6 § 1.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 35. The applicants complained that the length of the proceedings complained of had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.", "36. The Government did not reply within the relevant time-limit. 37. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 38.", "Having regard to its finding under Article 6 § 1 (see paragraph 35 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicants claimed jointly 8,000 euros (EUR) in respect of non‑pecuniary damage, referring to the Court's case-law. They stated that the anxiety suffered by them had been exacerbated by the fact that at the relevant time inflation had run high and with the passage of time the applicants had practically lost the value of their claim. In the applicants' view, where a State had chosen – as Bulgaria had done – to apply, in court judgments, low interest rates fixed by law in disregard of the inflation, the judicial authorities of such a State must undertake special measures to secure the right to a trial within a reasonable time as any failure to do so undermined the very essence of the right to a court.", "41. The Government contested the amount claimed, considering it excessive. The Government referred to other Bulgarian cases decided recently (Kiurkchian v. Bulgaria, no. 44626/98, 24 March 2005 and Todorov v. Bulgaria, no. 39832/98, 18 January 2005).", "42. The Court considers that the applicants must have sustained non‑pecuniary damage as a result of the excessive length of the civil proceedings in their case. In determining the amount, the Court also finds it appropriate to take into consideration the fact that with the accumulation of delays in the proceedings the applicants must have experienced a growing frustration, witnessing those delays contributing to the loss of value of their claim, during a period of high inflation not compensated by the applicable interest rates (see paragraphs 5, 16, 18, 20 and 26 above). Ruling on an equitable basis, the Court awards to each of the applicants the sum of EUR 1,200 plus any tax that may be chargeable (EUR 2,400 in total). B.", "Costs and expenses 43. The applicants also claimed EUR 1,500 in respect of legal fees. They submitted a legal-fees agreement between them and their representative. The claim concerned thirty-two hours of legal work on the case. The applicants asked that any sums awarded in respect of costs and expenses be paid directly into their lawyer's bank account.", "44. The Government asked the Court to reject the claim for costs and expenses. They stated that the claim was not supported by details as to the type of work done (for example, research, drafting or other work). Also, no proof of expenses made, such as postal expenses for example, had been submitted. 45.", "The Court finds that in the present case the claim for reimbursement of expenses other than legal fees is fully unsubstantiated and must be rejected. In so far as legal fees are concerned, the Court notes that the applicants have submitted a copy of the legal-fees agreement they had signed with their lawyer and have specified the number of hours of legal work claimed. In the absence of details, such as a time sheet, the Court cannot accept the claim as proven in full but finds it established that the applicants have actually and necessarily incurred certain costs in respect of legal fees for the proceedings before it. It considers it reasonable to award the applicants jointly the sum of EUR 500 under this head. C. Default interest 46.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that it is not necessary to examine separately the complaint under Article 1 of Protocol No.", "1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) in respect of non‑pecuniary damage, EUR 1,200 (one thousand two hundred euros) to the first applicant and EUR 1,200 (one thousand two hundred euros) to the second applicant; (ii) EUR 500 (five hundred euros) in respect of costs and expenses, payable into the bank account of the applicants' lawyer in Bulgaria; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 29 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsPeer Lorenzen Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF SALONTAJI-DROBNJAK v. SERBIA (Application no. 36500/05) JUDGMENT STRASBOURG 13 October 2009 FINAL 13/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Salontaji-Drobnjak v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria,Kristina Pardalos, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 22 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36500/05) against the State Union of Serbia and Montenegro lodged with the Court, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by, at that time, a national of the State Union of Serbia and Montenegro, Mr Slavko Salontaji-Drobnjak (“the applicant”), on 11 October 2005. 2. As of 3 June 2006, following the Montenegrin declaration of independence, Serbia remained the sole respondent in the proceedings before the Court. 3. The applicant was represented by Mr Y. Grozev, a lawyer practising in Sofia, and Ms Lj.", "Palibrk of the Helsinki Committee for Human Rights in Serbia, a non-governmental organisation based in Belgrade. The Government of the State Union of Serbia and Montenegro and, subsequently, the Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić. 4. The applicant alleged numerous violations of his rights guaranteed under Articles 6 § 1, 8 and 13 of the Convention, all of which occurred in the context of the partial deprivation of his legal capacity and his subsequent attempts to have this capacity fully restored. 5.", "On 22 May 2008 the President of the Second Section decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it was also decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1949 and lives in Vrbas, Serbia.", "7. The facts of the case, as submitted by the parties, may be summarised as follows. A. Introduction 8. Since 1973 the applicant has brought, mostly before the Municipal Court (Opštinski sud) in Vrbas, some two hundred lawsuits against his employer and its management, as well as various private parties and Government officials, alleging irregularities, harassment and/or malfeasance.", "He has also lodged numerous criminal complaints on the same grounds. 9. In 2003 insolvency proceedings were instituted in respect of the applicant's employer and the applicant was laid off. 10. The said lawsuits, however, continued, some of which were subsequently concluded in favour of the applicant.", "B. The first set of criminal proceedings and other related facts 11. In June 1996 the applicant threatened his employer's general manager with a hunting knife and a fake hand grenade. Ultimately, however, he voluntarily surrendered both, leaving the manager with a cut on his right hand. 12.", "The applicant was subsequently charged with the crime of intimidation (ugrožavanje sigurnosti). 13. In the course of these proceedings the applicant was examined by two teams of medical experts. 14. On 30 August 1996 the first team of experts (Medicinski centar Novi Sad - Institut za psihijatriju) stated that he was mentally ill, suffering from paranoid psychosis, and could not therefore be held criminally liable.", "Further, since there was a real danger that the applicant could reoffend, the team recommended mandatory psychiatric treatment on an in-patient basis. 15. On 6 November 1996 the second team of experts (KPD bolnica u Beogradu) found that the applicant had a borderline personality disorder, but deemed him not seriously aggressive and recommended no in-house psychiatric treatment. 16. On 22 November 1996 the Municipal Court in Vrbas found that the applicant was not criminally liable given that he could not control his actions nor properly comprehend their meaning (see paragraph 84 below).", "It ordered, however, the applicant's mandatory psychiatric treatment on an out-patient basis. 17. Between 22 November 1996 and 15 November 1998 the applicant regularly reported for treatment. On 16 November 1998 he was discharged from this obligation. 18.", "On 5 September 2003 the applicant was summoned by the Vrbas police in order to give a statement concerning his repeated threats allegedly made to the same general manager. C. The proceedings for the assessment of the applicant's legal capacity and other related facts 19. Following receipt of requests to this effect from the District Court (Okružni sud) in Novi Sad and the Supreme Court of Serbia (Vrhovni sud Srbije) of 26 October 2001 and 31 October 2001 respectively, which courts had themselves already been dealing with the applicant's claims in a number of separate, pending civil suits (see paragraph 106 below, Articles 82 and 79, in that order), in March 2002 the Municipal Court in Vrbas recommended to the local Social Care Centre (Centar za socijalni rad, “the SCC”) to formally request the institution of proceedings for the assessment of the applicant's legal capacity. 20. On 18 March 2002 the SCC agreed with this proposal.", "21. On 21 March 2002 the Municipal Court noted that the said proceeding had thus been instituted ex officio and ordered that the applicant be subjected to a psychiatric examination by the Forensic Medical Board of the Novi Sad Medical Faculty (Sudsko-medicinski odbor medicinskog fakulteta u Novom Sadu). In so doing, it reasoned as follows: “Considering the fact that [the applicant] is involved in many legal cases and that the number of these cases ... is sharply on the increase, it is in the court's interest that his decision-making ability be examined ... [as already] ... pointed out by the District Court in Novi Sad and the Supreme Court of Serbia ...” 22. On the same day the applicant was served with this decision. 23.", "The Forensic Medical Board thereafter scheduled examinations for 8 April 2002 and 15 April 2002, but the applicant refused to be examined unless certain conditions were met. In particular, the applicant requested that: (i) he be informed in advance of the identity of the experts who would examine him; (ii) he, ultimately, be given an opportunity to accept or reject the experts selected; (iii) his examination be carried out in a courtroom in the presence of the judge as well as the public; and (iv) the entire examination be recorded audio-visually. 24. On 26 April 2002 and again on 14 March 2003 the Forensic Medical Board informed the Municipal Court that these conditions were unacceptable. 25.", "Two other experts, appointed by the Municipal Court subsequently, shared this view and declined the assignment, while another two were unavailable or unwilling to personally examine the applicant. 26. In the meantime, on 20 March 2003, the SCC appointed Lj.Z. to act as the applicant's temporary guardian and represent him in the proceedings. 27.", "On 29 May 2003 the applicant was informed that the President of the Municipal Court had agreed to allow him to make an audio recording of his psychiatric examination. 28. On 8 November 2003 the SCC appointed Z.P. to act as the applicant's new temporary guardian. 29.", "On 17 February 2004 the applicant requested a loan from one of the experts, given his “difficult financial situation”. 30. On 19 February 2004 the applicant informed the Municipal Court about his family's grave financial difficulties, citing his inability to obtain compensation in various civil suits as the main reason therefor. 31. Following several hearings, held by June 2004, attended by the experts and/or the applicant, on 28 June 2004 the Municipal Court ordered that the latter be subjected to a compulsory examination and placed in a psychiatric institution for a period of no longer than three months.", "In so doing, the court relied on the opinions of the experts heard to date and the applicant's own unwillingness to be subjected to a psychiatric examination. 32. The applicant and Z.P. each filed an appeal against this decision. 33.", "On 12 July 2004 the District Court confirmed the decision rendered at first instance. 34. On 5 August 2004 the District Public Prosecutor (Okružni javni tužilac) in Novi Sad urged the Municipal Court to expedite the proceedings, alleging that the applicant had recently threatened his staff in a telephone conversation. 35. The Municipal Court subsequently, on two separate occasions, invited the applicant to willingly undergo a psychiatric examination.", "36. On 13 September 2004, 17 September 2004 and 8 October 2004 Z.P. complained to the President of the Municipal Court, the President of the Supreme Court and the SCC, respectively, stating that the proceedings were initiated in violation of the law, that they were excessively long and had a negative impact on the applicant and his family. 37. On 20 October 2004 Z.P.", "informed the SCC and the Municipal Court that he had decided to cease being the applicant's temporary guardian. 38. On 25 November 2004 the SCC informed the Municipal Court that the applicant could represent himself in the proceedings. 39. On an unspecified date the Municipal Court ordered the police to arrest the applicant and place him in a psychiatric institution for examination.", "40. On 7 December 2004 the applicant accepted to be examined in the premises of the Novi Sad Psychiatric Institute (Institut za psihijatriju kliničkog centra u Novom Sadu). Upon his request, the judge in charge of his case was present during the examination. 41. On 24 December 2004 the Novi Sad Psychiatric Institute concluded that the applicant suffered from litigious paranoia (paranoia querulans), and recommended that his legal capacity be restricted.", "The experts recalled, inter alia, numerous lawsuits brought and submissions lodged by the applicant, the criminal proceedings instituted against him in 1996, the threats allegedly made in August 2004, and his debt incurred on account of legal costs. 42. On 16 December 2004 the presiding judge, V.J., requested to be removed from the case, noting that he had been subjected to continued harassment by the applicant. On 27 December 2004, however, the acting President of the Municipal Court rejected this request. 43.", "In response to the Municipal Court's prior motion, on 12 February 2005 the SCC appointed M.G. to act as the applicant's temporary guardian and represent him in the proceedings. 44. On 20 January 2005 the applicant informed the Municipal Court about his family situation. He described the ongoing conflict with his wife concerning his alleged failure to contribute to the family budget, the mutual threats made, and her opinion that all problems stemmed from his “status”.", "45. The applicant subsequently gave a written authorization to his neighbour S.N. to represent him before the Municipal Court. S.N. duly submitted his power of attorney and was accordingly summoned to appear at the next hearing.", "46. The hearing scheduled for 7 February 2005 was adjourned, at the applicant's request, and the next hearing was scheduled for 22 February 2005. 47. On 22 February 2005 the hearing was held and presided over by another judge. The applicant was not present because he had already been placed in pre-trial detention within a separate criminal case brought against him (see paragraph 53 below).", "The applicant's representative, S.N., appeared at the hearing, but was not allowed inside the courtroom. The applicant was instead represented by M.G., the lawyer employed at the SCC who had been appointed to represent him. It would seem that the applicant had never met M.G. and was not aware of her appointment. 48.", "After the hearing, on the same day, the Municipal Court ruled that the applicant was to be partially deprived of his legal capacity. It further specified that his capacity for taking part in legal actions, deciding about his own medical treatment, and dealing with large amounts of money, was to be restricted (“ograničava se poslovna sposobnost za učestvovanje u pravnim radnjama, odlučivanje o sopstvenom lečenju i raspologanje većim novčanim sredstvima”). The Municipal Court relied on the report produced by the Novi Sad Psychiatric Institute, and recalled the expert reports produced in 1996. Lastly, it stated that there was no need to hear the applicant in person since, based on the available psychiatric evidence, this would serve no useful purpose (nije celishodno) within the meaning of Article 36 § 2 of the Non-contentious Proceedings Act (“the NCPA”; see paragraph 101 below). There is no evidence in the case file indicating that M.G.", "had challenged this decision or the report issued by the Novi Sad Psychiatric Institute. 49. On 24 March 2005 the applicant filed an appeal, arguing that: (i) the proceedings had been instituted unlawfully; (ii) the SCC had appointed a person to represent him without his knowledge; (iii) the person whom he had authorised to represent him was not allowed to do so; and (iv) he had personally been excluded from the hearing when his legal capacity was being considered. 50. On 12 May 2005 the District Court in Novi Sad upheld the decision rendered at first instance.", "51. On 31 May 2005 the applicant filed an appeal on points of law (revizija) with the Supreme Court, relying on the same arguments. He further complained about the methods of his examination and its conclusions. 52. On 28 February 2006 the Supreme Court ruled against the applicant.", "D. The second set of criminal proceedings 53. On 9 February 2005 the applicant was arrested by the police and charged with the crime of intimidation. These charges were based on complaints filed by V.J., the judge who had been dealing with the applicant's civil case, the President of the Municipal Court in Vrbas, and several other individuals. 54. On the same day the applicant was questioned by the investigating judge of the Municipal Court in Vrbas who ordered his detention.", "55. On 14 February 2005 the investigating judge opened a formal judicial investigation against the applicant, and on 23 March 2005 he ordered that the applicant be subjected to a psychiatric examination. 56. On 26 April 2005 a team of medical experts from the Belgrade Prison Hospital (KPD bolnica u Beogradu) issued a report. The report, inter alia, concluded as follows: “It is evident that at the time when ... [the criminal act in question was allegedly committed by the applicant] ... he had had distorted ideas ... [about] ... the court ... [as well as] ... the judges and other ... [persons] ... involved in the proceedings ...", "Taking into account ... [the applicant's] ... personality and his ... disorder ... we consider that his capacity to comprehend the meaning of his actions, as well as to control them, was significantly reduced ... [but not excluded] ...” 57. On 9 May 2005 the applicant was released from detention. 58. On 25 May 2005 the investigating judge questioned one of the members of the said team of medical experts in order to clarify their current conclusions in the light of any inconsistencies with their report of 1996. The expert explained, inter alia, that the applicant suffered from a borderline personality disorder, that this disorder was not, as such, a mental illness, but that it was also characterised by occasional psychotic episodes when the applicant' state could be considered as a temporary mental illness.", "The decisive factor was the specific situation faced by the applicant and his reaction thereto. In 1996, in view of the relevant circumstances, the applicant was therefore rightly considered as not being criminally responsible, whilst in 2004 his criminal responsibility could not be excluded altogether. 59. On 12 September 2005 the District Court in Novi Sad decided that the proceedings should be continued before the Municipal Court in Bačka Palanka. It reasoned that this was necessary because the alleged victims in the case were all employed with the Municipal Court in Vrbas.", "60. On 16 May 2006 the Municipal Court in Bačka Palanka found the applicant guilty and sentenced him to six months in prison, suspended for a period of three years. The court noted that the applicant had already been deprived of his legal capacity, but relied on the opinion of the Belgrade Prison Hospital as regards his criminal responsibility. 61. On 30 May 2006 and 31 May 2006, respectively, the applicant's lawyer and the applicant personally each filed an appeal with the District Court in Novi Sad.", "Both appeals, however, were ultimately rejected. E. The attempted restoration of the applicant's legal capacity and other related facts 62. On 7 June 2005 the applicant filed a request with the Municipal Court in Vrbas, seeking restoration of his full legal capacity. The clerk, however, refused to accept it, referring to an internal order issued by the court's vice-president on 31 May 2005, whereby no submission lodged by the applicant was to be accepted until he was provided with a guardian. 63.", "On 13 June 2005 the SCC appointed I.S., the applicant's son, as his guardian. The SCC specified that, in order to undertake the “restricted actions” on the applicant's behalf, I.S. would have to obtain its consent. 64. On 23 June 2005 I.S lodged a request with the Municipal Court, seeking restoration of the applicant's full legal capacity (2P 6/05).", "65. On 25 August 2005 I.S. filed another submission with the Municipal Court to the same effect (2P 8/05). 66. On 12 September 2005 the SCC informed the Municipal Court that it would not support the request.", "67. On 23 September 2005 the court rejected the request of 23 June 2005, explaining that, in the absence of the SCC's consent, I.S. had no standing to initiate the proceedings at issue. On the same date the Municipal Court also rejected the request of 25 August 2005, stating that a motion of this sort had already been filed. 68.", "I.S appealed both decisions, but on 25 January 2006 the District Court in Novi Sad confirmed the decision adopted in case no. 2P6/05. On the same date, however, it quashed the decision adopted in case no. 2P 8/05, stating that the submission filed on 25 August 2005 was not a separate matter, but merely additional written pleadings to the first request. 69.", "On 30 March 2006 the applicant filed a request with the SCC, seeking institution of judicial proceedings for the restoration of his full legal capacity. 70. On 20 April 2006 the SCC rejected this request, stating that the applicant's legal capacity was restricted which is why he could not file any requests personally. 71. On 28 April 2006 the applicant filed an appeal, via the SCC, against this decision.", "The appeal was addressed to the Regional Secretariat for Health and Social Policy (Pokrajinski sekretarijat za zdravstvo i socijalnu politiku). 72. On 5 June 2006 the SCC rejected the appeal, stating that the applicant was not authorised to file it. 73. On 8 June 2006 I.S.", "filed a new request for the restoration of the applicant's legal capacity with the Municipal Court (2P 4/06). On the same day he filed an identical request with the SCC. 74. On 10 June 2006, as part of the process of reviewing the applicant's status, the SCC stated, inter alia, that he had remained litigious, the only difference being that his submissions were now being signed by I.S. The SCC's team comprised of a psychologist, a lawyer, and a social worker.", "75. On 14 June 2006 the applicant again filed an appeal against the SCC's decision of 20 April 2006, this time directly with the Regional Secretariat. 76. On 19 July 2006 I.S received a letter from the Regional Secretariat informing him that he should address his requests to the SCC. 77.", "On 3 October 2007 the SCC lodged a disability pension request on behalf of the applicant. 78. On 21 November 2007 the SCC, inter alia, reaffirmed its views of 10 June 2006. 79. On 19 December 2007 the Municipal Court decided to join the proceedings in case files nos.", "2P 8/05 and 2P 4/06, and on 20 December 2007 it invited the SCC to express its opinion as to whether proceedings for the restoration of the applicant's full legal capacity should be instituted. 80. On 25 December 2007 the SCC stated that there were no reasons for so doing, and on 26 December 2007 the Municipal Court rejected the request in question. 81. On 18 March 2008 the SCC appointed T.M.", "as the applicant's new guardian. 82. The applicant subsequently wanted to take out a loan in order to purchase a new car, but T.M. refused to act on his behalf. The SCC thereafter appointed I.S.", "as the applicant's temporary guardian in this respect only. 83. On 11 August 2008 the SCC discharged T.M. from being the applicant's guardian and re-appointed I.S. to this position.", "II. RELEVANT DOMESTIC LAW A. General Criminal Code (Osnovni krivični zakon, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 46/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, as well as the Official Gazette of the Republic of Serbia – OG RS – no.", "39/03) 84. The relevant provisions of Article 12 read as follows: “1. A perpetrator [was] mentally incompetent if, at the time of commission of the offence in question, he was unable to understand the significance of his own actions or control his behaviour due to a permanent or temporary mental illness, a temporary mental disorder or mental retardation ... 2. A perpetrator ... whose ability to understand the significance of his own actions or control his behaviour was substantially diminished due to any of the conditions referred in paragraph 1 of this Article ... may be punished with more leniency ...” B. Marriage and Family Relations Act (Zakon o braku i porodičnim odnosima; published in OG RS nos.", "22/80, 11/88, 22/93, 25/93, 35/94, 46/95 and 29/01) 85. Article 15 provided that at the age of 18 all persons shall gain full legal capacity. 86. Article 274 § 2 provided that persons of age who, due to mental illness or “retardation”, substance abuse or “old age feebleness”, or another similar reason, put in jeopardy their own rights and interests, or those of others, shall be partially deprived of their legal capacity. C. Family Act (Porodični zakon; published in OG RS no.", "18/05) 87. Article 12 § 1 provides, inter alia, that family support and guardianship shall be provided by the guardianship authority (organ starateljstva), i.e. the competent SCC. 88. Article 64 §§ 1, 2 and 3 provides that a child below the age of 14 shall only be able to independently engage in legal actions of minor significance or those which do not entail the undertaking of any obligations.", "A child aged between 14 and 18, however, shall be able to undertake all legal actions, albeit with the prior or subsequent consent of his or her parents, or the consent of the guardianship authority concerning particularly valuable properties. A child aged 15 shall be able to independently undertake legal actions as regards the management and disposal of his or her earnings or of other property acquired through employment. 89. Articles 124, 125 § 3 and 137 state that a child without parental care, as well as a person of age who has been deprived of his or her legal capacity, shall be provided with a guardian. The guardian shall be appointed by the guardianship authority, and shall represent his or her ward in the same way in which a parent represents a child.", "With the prior consent of the guardianship authority, the guardian shall, inter alia, be able to decide about any medical procedures needed by the ward, give consent to any legal actions undertaken by a ward aged 14 or more, and undertake all legal actions necessary for the management and disposal of the income acquired by a ward below the age of 15. 90. Article 139 provides that the ward's property not acquired through his or her own work shall be managed by the guardian. The guardian shall be independent as regards the “regular management” of this property, but may undertake additional actions only with the prior consent of the guardianship authority. 91.", "Article 140 §§ 1 and 2 provides that the guardian shall, with the prior consent of the guardianship authority, be able to dispose of the ward's property not acquired through his or her own work. 92. Article 147 provides that a person of age may be fully or partially deprived of legal capacity if, due to an illness or developmental problems, he or she endangers his or her own rights or interests or the rights and interests of others. The legal capacity of the person partially deprived thereof shall be equal to the legal capacity of a minor between the age of 14 and 18. A court decision shall determine the legal actions which the person concerned may or may not undertake independently.", "93. Article 132 § 1 provides that the guardianship authority may also, if needed, appoint a temporary guardian to safeguard the rights and interests of the ward. 94. Article 148 provides that a ward's legal capacity may be restored by the competent court once the reasons for its deprivation have ceased to exist. 95.", "The Family Act entered into force on 1 July 2005, thereby repealing the Marriage and Family Relations Act. D. Non-contentious Proceedings Act (Zakon o vanparničnom postupku; published in OG RS nos. 25/82, 48/88, 46/95 and 18/05) 96. Articles 31-44 provide details as regards the procedure for the full or partial deprivation of legal capacity, as well as its possible subsequent restoration. 97.", "Article 31 § 1, in particular, states that a person of age shall be fully or partially deprived of legal capacity depending on the degree of ability to independently take care of his or her rights and interests, and providing there are legal grounds for so doing. 98. Article 32 provides that the proceedings can be instituted by the competent court ex officio, by the guardianship authority, by a spouse, a child or a parent of the person concerned, or by his grandparents, brothers, sisters, or grandchildren, if they live together. The procedure may also be initiated by the person concerned if he or she is capable of understanding the significance of such a motion. 99.", "Article 33 § 2 provides that if the proceedings have not been instituted by the guardianship authority, the request must be submitted with the necessary authorisation. 100. Article 35 provides that the court shall decide after having held a hearing. The court shall summon to this hearing the person concerned, a representative of the guardianship authority, the concerned person's guardian or temporary representative, as well as the person who had proposed the institution of the proceedings. At the hearing the person concerned shall be heard by the judge.", "Should he or she happen to be placed in a medical institution, the hearing shall be held in that institution. 101. Article 36 § 1 provides that the court shall “personally hear” the individual concerned. Under Article 36 § 2, however, the court may dispense with a hearing if it would be harmful to his or her health or if no hearing is possible due to his or her mental or physical condition. 102.", "Article 37, inter alia, provides that the court shall also hear all other persons capable of providing relevant information. 103. Article 38, inter alia, provides that the person concerned shall be examined by at least two medical specialists who shall give their opinion as regards his or her mental condition. If needed in this respect and if this would not be harmful to his or her health, the competent court shall have the right to order the placement of the person concerned in a psychiatric institution for a period no longer than three months. 104.", "Article 42 provides that full legal capacity shall be restored by the court, either upon a motion filed by the guardianship authority or ex officio, when the reasons for the deprivation have ceased to exist. All those entitled to file a motion for the deprivation of legal capacity may also file a motion for its restoration. 105. Finally, Article 43 states that the provisions concerning the deprivation of legal capacity shall, mutatis mutandis, be applied in the proceedings concerning its restoration. E. Civil Procedure Act 1977 (Zakon o parničnom postupku; published in OG SFRY nos.", "4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as OG FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02) 106. The relevant provisions of this Act provide as follows: Article 79 “A party with full legal capacity may personally undertake all acts in the proceedings (litigation capacity). A person of legal age whose legal capacity has been partially restricted ... [shall be able to litigate] ... within the limits of his or her [existing] legal capacity. ...” Article 82 “Throughout the proceedings the [civil] court shall ex officio monitor whether the person appearing as a party may [indeed] be a party to the proceedings, as well as whether he or she has the [necessary] litigation capacity ...” III.", "RELEVANT INTERNATIONAL DOCUMENTS 107. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows: Principle 2 – Flexibility in legal response “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations.", "... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” Principle 3 – Maximum reservation of capacity “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2.", "The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration review and appeal “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3.", "There should be adequate rights of appeal.” THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 108. The Government implied that a part of the application was incompatible ratione temporis with the provision of the Convention since it concerned events which had occurred before the Serbian ratification thereof. 109. The applicant did not comment.", "110. The Court observes that, in accordance with the generally accepted principles of international law, a Contracting Party is only bound by the Convention in respect of events occurring after its entry into force. It further notes that Serbia ratified the Convention on 3 March 2004 and that some of the events referred to in the application in the present case had indeed taken place before that date. The Court shall therefore have jurisdiction ratione temporis to examine the applicant's complaints in so far as they concern events as of 3 March 2004. It shall nevertheless, for reasons of context and whilst examining the applicant's complaints as a whole, also take into account any and all relevant events prior to that date (see, mutatis mutandis, Sovtransavto Holding v. Ukraine, no.", "48553/99, §§ 54-58, ECHR 2002‑VII). Consequently, the Government's preliminary objection must be dismissed. 111. The Court notes that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 112. The applicant complained, under Article 6 § 1 of the Convention, about the violation of his right to a fair hearing in the proceedings concerning the assessment of his legal capacity. 113.", "The applicant further complained, under the same provision, that he had been denied access to a court as regards his request to have his legal capacity fully restored. 114. Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ...” A. As regards the applicant's complaint about the fairness of the proceedings concerning the assessment of his legal capacity 1. The parties' arguments 115.", "The applicant reaffirmed his complaint. He placed particular emphasis on the manner and circumstances in which the proceedings had been instituted, his exclusion from the final hearing held on 22 February 2005, the lack of any effective legal representation on that occasion, the inconsistency of the existing medical reports, and, lastly, the insufficiency of the domestic courts' reasoning. 116. The Government asserted that the impugned proceedings had been fair within the meaning of Article 6 § 1 of the Convention. 117.", "In particular, the Municipal Court's decision to institute ex officio the proceedings for the assessment of the applicant legal capacity could not, in itself, lead to a conclusion that the said court had breached the principle of procedural fairness. Certain lawsuits had to be instituted ex officio because, inter alia, the party concerned was unable to do so personally. 118. On 21 March 2002 the Municipal Court had both instituted the proceedings for the assessment of the applicant's legal capacity and ordered that the applicant be subjected to a psychiatric examination. It had also provided adequate reasoning in each respect.", "119. The reason for the institution of the proceedings in question had been to assess the applicant's ability to independently take care of his own rights and interests, whilst his excessive litigiousness had been merely a relevant factual indication in this respect. 120. In accordance with the NCPA, the Municipal Court had had no obligation to produce a “formal motion of its own” in order to institute the impugned proceedings. Instead, having taken into account the requests issued by the District Court and the Supreme Court, and having obtained the consent of the SCC, it had adopted a decision to institute the proceedings at issue and had thus fully complied with the relevant domestic legislation.", "121. The Municipal Court had also complied with Article 36 § 2 of the NCPA, having decided that there had been no need to hear the applicant in person on 22 February 2005. The applicant had already been heard in court on several prior occasions, his temporary guardian had attended the hearing in question, and there had been compelling forensic, as well as other documentary evidence to decide the case on its merits in his absence. The Municipal Court had further reasonably presumed that, if summoned, the applicant could not have been properly heard due to his condition and/or that a hearing would have had an adverse effect on his health. In any event, even if the applicant had been heard, the Municipal Court could not have reached a different conclusion.", "122. The appointment, on 12 February 2005, of a temporary guardian to represent the applicant had been in the latter's best interests and, as such, had disclosed no hidden agenda. In accordance with Article 35 § 2 of the NCPA, the person authorised by the applicant to represent him had clearly not been entitled to attend the final hearing in the proceedings. The temporary guardian appointed by the SCC had been a professional, fully committed to the protection of the applicant's interests, which cannot be disputed merely on the basis that he had not contested the overwhelming evidence indicating that the applicant's legal capacity had to be restricted. 123.", "The applicant had had every opportunity to present his case, and various expert reports concerning his mental condition had not been mutually exclusive, as the issue of the applicant's criminal responsibility had been separate and distinguishable from the issue of his legal capacity in the civil context. Lastly, the Government maintained that the Municipal Court had collected and thoroughly examined various pieces of evidence and had ultimately reached a reasonable conclusion. 2. The Court's assessment 124. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention.", "However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see, for instance, Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33; Sanchez-Reisse v. Switzerland, judgment of 21 October 1986, Series A no. 107; Kampanis v. Greece, 13 July 1995, Series A no. 318-B; Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001).", "Therefore, in deciding whether the proceedings here at issue were “fair”, the Court will have regard, mutatis mutandis, to its case-law under Articles 5 § 1 (e) and 5 § 4 of the Convention, as well as Article 6 § 1 thereof. 125. The Court recalls that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain margin of appreciation. It is in the first place for the national authorities to evaluate the evidence adduced in a particular case; the Court's task is to review under the Convention the decisions of those authorities (see Luberti v. Italy, judgment of 23 February 1984, Series A no. 75, § 27).", "126. In the context of Article 6 § 1 of the Convention, the Court assumes that in cases involving a mentally ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the good administration of justice, the protection of the health of the person concerned, etc. However, such measures should not affect the very essence of the applicant's right to a fair hearing as guaranteed by Article 6 (see, inter alia, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008).", "127. Turning to the present case, the Court firstly notes that the applicant had been excluded from the final hearing and had therefore been unable to personally challenge the experts' report recommending the partial deprivation of his legal capacity (see paragraphs 47-48 above). Secondly, the Municipal Court's decision to this effect had merely stated that the applicant's appearance in person would not have been “purposeful”, offered no additional reasoning, and referred to Article 36 § 2 of the NCPA in only the vaguest of terms (see paragraphs 48 and 101 above). Thirdly, the applicant's participation could neither have reasonably been excluded on the basis of an arbitrary prediction of its hypothetical “uselessness”, as subsequently argued by the Government. Finally, given the information contained in the case-file, although the applicant had been provided with a State-appointed lawyer to represent him at the hearing in question, he had had no opportunity to meet with her or give her instructions as to how the case should be conducted (see paragraphs 47 and 48 above).", "128. Having regard to the above and notwithstanding its readiness to accept the Government's position that the various expert reports had not, per se, been mutually exclusive (see paragraphs 123, 84, 86, 92 and 97 above, in that order), the Court concludes that the proceedings in question, “taken as a whole” (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146), have not satisfied the requirements of a fair hearing. Consequently, it finds a violation of Article 6 § 1 of the Convention. B.", "As regards the applicant's complaint that he has been denied access to a court concerning his request to have his legal capacity fully restored 1. The parties' arguments 129. The applicant reaffirmed his complaint, adding that his inability to institute proceedings for the restoration of his legal capacity, even with the consent of his guardian, amounted to a violation of Article 6. 130. The Government noted that mental illness may render legitimate certain limitations upon the exercise of the “right to a court”.", "The applicant's inclination towards vexatious litigation did not serve his own best interests, nor indeed the best interests of the State, which had limited resources to deal with a large number of cases within its jurisdiction. 131. As regards the specific attempts to have the applicant's legal capacity fully restored, the Government maintained that the domestic authorities had properly applied the relevant domestic law, which was itself fully in accordance with the Convention. The applicant had had the possibility to have these proceedings instituted at any point when the relevant evidence so justified. Finally, the Government pointed out that there had been no contradiction between the various expert reports.", "2. The Court's assessment 132. In its Golder v. the United Kingdom judgment of 21 February 1975, the Court held that Article 6 § 1 “secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal” (§ 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her (civil) rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no.", "32555/96, § 117, ECHR 2005‑X). 133. Certainly, the right of access to a court is not absolute but may be subject to limitations (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). In laying down such regulations, the Contracting States enjoy a certain margin of appreciation (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no.", "28, p. 23, § 49). Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among others, the Ashingdane judgment cited above, § 57). 134. As regards the present case and even assuming that the restriction on the applicant's right of access to a court was fully in accordance with the relevant domestic law and in pursuit of a legitimate aim, it is this Court's opinion that it was nevertheless disproportionate.", "Firstly, although the applicant and his guardian have lodged numerous requests to this effect, four years later a court of law has yet to consider on the merits the full restoration of the applicant's legal capacity (see paragraphs 62-83 above). Secondly, during this time and quite apart from a seemingly rather cursory review of the applicant's condition by the SCC on two separate occasions (see paragraphs 74 and 78 above), there has been no comprehensive psychiatric examination of the applicant undertaken in this context. Lastly, the applicable domestic legislation does not seem to provide for a periodical judicial re-assessment of the applicant's condition (see paragraphs 94 and 104 above; see also paragraph 107, Principle 14, above), the key, almost discretionary, role in this regard having instead been granted to the SCC (see paragraphs 79 and 80 above, as well as paragraph 124 above and, mutatis mutandis, X v. the United Kingdom, 5 November 1981, §§ 53 and 54, Series A no. 46). 135.", "The foregoing considerations are sufficient to enable the Court to conclude that the very essence of the applicant's right to a court has been impaired. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 136. Under Article 8 of the Convention, the applicant complained that the partial deprivation of his legal capacity had been disproportionate and, as such, in a violation of the right to respect for his private life.", "137. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties' arguments 138.", "The applicant maintained that the filing of allegedly frivolous lawsuits could not have been a sufficient reason for the partial deprivation of his legal capacity, and that, even if there had been a need to protect the public interest, this could easily have been achieved by significantly less intrusive means. 139. The Government restated their arguments made under Article 6 above and concluded that the applicant had suffered no violation of Article 8. They further noted that the domestic courts' decisions had been adopted in accordance with the relevant domestic legislation, pursued the legitimate aim of protecting the rights of the applicant, as well as the rights of others, and were proportionate in view of the fact that there were no other less intrusive measures available. B.", "The Court's assessment 140. The Court reiterates that any interference with an individual's right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought. 141. In particular, the authorities must strike a fair balance between the interests of a person of “unsound mind” and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody's mental capacity, the authorities should enjoy a wide margin of appreciation.", "This is mostly explained by the fact that the national authorities have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers (see, mutatis mutandis, Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1491, § 59). 142. The margin of appreciation to be afforded to the competent national authorities will vary according to the nature of the issues and the importance of the interests at stake (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII).", "A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life. 143. Further, the Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, “the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8” (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State's margin of appreciation thus depends on the quality of the decision-making process.", "If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see, mutatis mutandis, Sahin v. Germany, no. 30943/96, §§ 46 et seq., 11 October 2001). 144. Turning to the present case, the Court notes that the restriction of the applicant's legal capacity undoubtedly amounts to an interference with his “private life”. Even assuming that this interference has been “in accordance with the law” and that the domestic authorities have pursued a “legitimate aim”, within the meaning of Article 8 § 2, the Court is of the opinion that the means employed were not proportionate to the aims sought to be realised.", "In particular, whilst the limitation of the applicant's legal capacity (involving his inability to independently take part in legal actions, file for a disability pension, decide about his own medical treatment, or even get a loan) has been very serious, the procedure on the basis of which the domestic courts had so decided had itself been fundamentally flawed (see paragraphs 127 and 128). Moreover, some four years later and despite repeated requests to this effect, the applicant's legal capacity has yet to be re-assessed on the merits by a court of law (see paragraphs 134 and 135). Finally, the Court acknowledges that a legal system must be allowed to protect itself from vexatious litigants, but considers that it is up to the domestic authorities to set up an effective judicial mechanism of dealing with such litigants' claims, without necessarily having to resort to additional measures affecting their legal capacity. 145. There has, accordingly, been a breach of the applicant's right to respect for his private life and a violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 146. Lastly, the applicant complained, under Article 13 of the Convention that the proceedings resulting in the partial deprivation of his legal capacity had not provided him with an effective remedy for the violation of his private life, and that his subsequent attempts to have this decision reviewed were all rejected without having been considered on their merits. 147. The Court is of the opinion that this complaint, although somewhat rephrased, is essentially the same as those already examined under Article 6 § 1.", "Having regard to its finding in relation to this provision, the Court considers that the applicant's complaint under Article 13 does not require a separate examination on the merits. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 149. The applicant claimed 20,000 euros (EUR) in respect of the non-pecuniary damage suffered.", "150. The Government contested this claim. 151. The Court considers that the applicant has suffered some non-pecuniary damage which cannot be sufficiently compensated by its mere finding of a violation of the Convention. Having regard to the character of the violations found in the present case and making its assessment on an equitable basis, the Court therefore awards the applicant EUR 12,000 under this head.", "B. Costs and expenses 152. The applicant also sought the reimbursement of EUR 3,360 incurred in lawyers' fees for the proceedings before the Court. He submitted a fee agreement between him and Mr Y. Grozev, as well as a time-sheet. 153.", "In the Government's view, this claim was excessive. 154. 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 also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the applicant the sum of EUR 3,000 for the proceedings before it. C. Default interest 155.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings resulting in the partial deprivation of the applicant's legal capacity; 3. Holds that there has also been a violation of Article 6 § 1 of the Convention as regards the applicant's right of access to a court concerning the restoration of his full legal capacity; 4.", "Holds that there has been a violation of Article 8 of the Convention; 5. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into Serbian dinars at the rate applicable on the date of settlement: (i) EUR 12,000 (twelve thousand euros) in respect of the non-pecuniary damage suffered, plus any tax that may be chargeable, (ii) EUR 3,000 (three thousand euros) for costs and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 13 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosFrançoise Tulkens Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF ÖZTUNÇ v. TURKEY (Application no. 74039/01) JUDGMENT STRASBOURG 27 March 2007 FINAL 27/06/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Öztunç v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrR. Türmen,MrK. Traja,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mrs F. Aracı, Deputy Section Registrar, Having deliberated in private on 6 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 74039/01) 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 Hasan Öztunç (“the applicant”), on 14 July 2001. 2. The applicant was represented by Mr A. Kıran, a lawyer practising in Van. The Turkish Government (“the Government”) did not designate an agent for the purposes of the proceedings before the Court.", "3. On 2 September 2005 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1936 and lives in Van.", "5. In 1985 the applicant obtained a contract from the Provincial Administration of Van to carry out repair work in twelve public schools in Başkale in order to render them operational. 6. At a later date, however, he noticed that some of the schools had not yet been fully constructed. He applied to the Governor's Office in Van and requested the contract to be annulled.", "He submitted that the payment agreed on for the repairs was too low, given the amount of work needed to complete the construction of those schools. 7. The Governor's Office requested the applicant to start the construction and the repairs, reassuring him that he would be reimbursed for his additional work. 8. After having completed the construction, the applicant applied to the Provincial Administration of Van and requested additional compensation of 47,000,000 Turkish liras (TRL).", "However, his repeated efforts proved fruitless as no payment was made. 9. On 17 July 1989 he filed an action with the Van Civil Court and claimed the outstanding amount of TRL 47,273,000 plus interest. 10. On an unspecified date, the court appointed an expert to determine the amount of additional payment that the applicant was entitled to recover.", "However, the expert failed to submit his report. 11. In the absence of the expert report, the court ordered on-site visits to the schools in order to establish the additional work carried out by the applicant. 12. On 30 September 1999 the members of the court, accompanied by new experts, conducted an on-site examination at the schools.", "13. On an unspecified date, the experts submitted their calculation of the sums incurred by the applicant for the additional work. 14. On 26 April 2000 the Van Civil Court awarded the applicant TRL 47,273,000 plus interest calculated at three different rates depending on the relevant period of time, i.e., 30% per annum running from 17 July 1989 to 1 January 1998; 50% per annum from 1 January 1998 to 1 January 2000; and at the rediscount rate running from 1 January 2000 until the date of payment. 15.", "The applicant appealed. In his petition to the Court of Cassation he complained about the loss that he had suffered as a result of the high rate of inflation during the proceedings before the civil court. 16. On 30 November 2000 the Court of Cassation upheld the decision of the civil court. On 9 April 2001 the same court dismissed the applicant's request for rectification.", "17. On 23 July 2001 the applicant was paid the total amount of TRL 282,795,000, consisting of the capital plus interest incurred until the payment date. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 19.", "The Government contested the applicant's argument. A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 21. The Court notes that the period to be taken into consideration began on 17 July 1989 when the applicant filed his action with the first-instance court and ended on 9 April 2001, when the Court of Cassation dismissed his request for rectification. The proceedings in question lasted approximately eleven years and nine months before three levels of jurisdiction. 22.", "The Government argued that the case was complex, given that the first-instance court had had to conduct on-site examinations and to review two expert reports. They further maintained that the applicant had contributed to the length of the proceedings by failing to pay court fees on time and that there had been no delays attributable to the judicial authorities. 23. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "24. As regards the conduct of the applicant, the Court observes that, it does not appear from the case file that he contributed to the prolongation of the proceedings to any significant extent. His delay in paying court fees appears to have halted the proceedings only for a few weeks. 25. As to the conduct of the authorities, the Court observes that there was a substantial delay in the proceedings before the first-instance court.", "In this connection, it observes that the first‑instance court took more than ten years to render a decision on the case. Between 1989 and 1999 the court postponed the conduct of an on-site examination on account of bad weather conditions and the security situation in the region. The Court considers that ten years before one instance is an excessively long period which cannot be justified with reference to the above-mentioned considerations or the complexity of the case. The Court therefore considers that no convincing justification for these excessive delays has been offered by the respondent Government. 26.", "The Court reiterates in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 74, ECHR 1999‑II). 27. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings had been excessive and failed to meet the “reasonable time” requirement. 28.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 29. The applicant further complained, in substance, that the length of the proceedings had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No.", "1 to the Convention. 30. In particular, he maintained that the delay had caused the amount of compensation to lose its value. 31. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "32. Having regard to its finding under Article 6 § 1 (see paragraph 28 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 1 of Protocol No. 1 (see, mutatis mutandis, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed EUR 150,000 for non-pecuniary damage. He further claimed a total of EUR 305,000 in respect of pecuniary damage.", "35. The Government contested these claims. 36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, given the unreasonable length of the proceedings, the Court considers that the applicant must have sustained non‑pecuniary damage.", "Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 8,400 for non-pecuniary damage. B. Costs and expenses 37. The applicant also claimed EUR 20,670 for the costs and expenses incurred before the domestic courts and the Court. 38.", "The Government contested the claim. 39. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 40.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that it is not necessary to examine whether there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish Liras at the rate applicable at the date of the settlement and free of any taxes that may be chargeable; (i) EUR 8,400 (eight thousand four hundred euros) in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF PUZAN v. UKRAINE (Application no. 51243/08) JUDGMENT STRASBOURG 18 February 2010 FINAL 18/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Puzan v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 26 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "51243/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belarusian national, Mr Dmitriy Petrovich Puzan (“the applicant”), on 27 October 2008. 2. The applicant, who had been granted legal aid, was represented by Ms A. Mukanova, a lawyer. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice. 3.", "On 24 March 2009 the Court declared the application partly inadmissible and decided to communicate the applicant's complaints related to his detention and possible extradition under Articles 3, 5 §§ 1 (f) and 4, 6 § 1, and 13 of the Convention, and his complaint concerning interference with his right of individual petition under Article 34 of the Convention, to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1980 and is currently detained in Simferopol pre-trial detention centre (the “Simferopol SIZO”) awaiting his extradition to Belarus.", "5. The applicant has already been convicted twice in Belarus for drug-related offences. The second time, in 2004, he was sentenced to four years' and three months' imprisonment. After having served part of his sentence, he was granted early release. 6.", "On 1 April 2006 the Sovetskyy District Police Department of Minsk instituted criminal proceedings against the applicant on suspicion that he had illegally purchased a psychotropic substance (Section 328 § 1 of the Belarus Criminal Code). 7. On 12 June 2006 the Belarus authorities issued an international arrest warrant for the applicant. 8. On 29 September 2008 the Head of the Sovetskyy District Police Department of Minsk sent a request to the Crimea Police Department for the applicant to be arrested and detained pending extradition to Belarus.", "9. On the same day the applicant was arrested by officers of the Zheleznodorozhnyy District Police Department of Simferopol. 10. On 30 September 2008 the Zheleznodorozhnyy District Court of Simferopol (the “District Court”) ordered the applicant's detention for forty days pending his extradition to Belarus. 11.", "On 17 October 2008 the Deputy General Prosecutor of Belarus requested the General Prosecutor's Office of Ukraine to extradite the applicant to Belarus. The request contained the following assurances: that the applicant would not be prosecuted for a crime committed prior to extradition without the consent of the General Prosecutor's Office of Ukraine; that he would not be removed to a third country without the consent of the General Prosecutor's Office of Ukraine; that he would not be subjected to torture, inhuman or degrading treatment or punishment; that after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus; and that the applicant would not be prosecuted for political, racial, religious or ethnic reasons. 12. On 26 October 2008, during a meeting with his lawyer, the applicant signed a power of attorney for the purpose of bringing his case to the Court. 13.", "On 28 October 2008 the applicant was questioned by the assistant prosecutor of the Zheleznodorozhnyy Prosecutor's Office as to whether he or his lawyers had made any claims or complaints to the State authorities or institutions alleging violation of his rights and freedoms. The applicant replied that his lawyer had told him to ask for an authority form and explained that he would be further defended by the Kharkiv group of lawyers, which intended to lodge a complaint with the “European Commission on Human Rights”. He said that he had signed no other documents and made no complaints or petitions to any other institutions. If his lawyers had done so, he would learn about it later. The minutes of this interview also mentioned that the applicant was informed of his right to remain silent under Article 63 of the Constitution.", "14. On the same date, 28 October 2008, the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that they should not extradite the applicant to Belarus. 15. On 7 November 2008 the General Prosecutor's Office of Ukraine informed the Government's Agent that no decision on the applicant's extradition would be taken prior to the examination of his case by the Court. 16.", "The same day the District Court ordered the applicant to be detained pending his extradition to Belarus, without indicating any time-limit for such detention. 17. On 20 November the Crimea Court of Appeal upheld the decision of 7 November 2008, stating that the applicant had been lawfully detained pending his extradition. 18. On 26 December 2008 the District Court rejected the applicant's lawyer's request to change the preventive measure in respect of his client.", "The applicant appealed against this decision. By letter of 16 January 2009, the Deputy President of the Crimea Court of Appeal replied to the applicant that the appellate court had previously examined his appeal concerning lawfulness of detention and would not examine the same issue again. The applicant is still in detention. II. RELEVANT LAW AND PRACTICE A.", "Relevant international and domestic law and practice 19. The relevant international and domestic law and practice are summarised in the judgment in the case of Soldatenko v. Ukraine, no. 2440/07, §§ 21-31, 23 October 2008. B. Relevant international materials concerning the human rights situation in Belarus 1.", "The Country Reports on Human Rights Practices of the US Department of State 20. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2007, released on 11 March 2008, noted with respect to Belarus: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces on occasion beat detainees and demonstrators. Police also occasionally beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities. On January 12, police severely beat opposition youth activist Ales Kalita as he was arranging legal representation for a fellow youth activist, who had refused to act as a BKGB informant.", "Two days later, police kicked and hospitalized opposition activist Anastasiya Shashkova, a minor, after detaining her for participating in a protest against the country's fraudulent January 14 local elections. On March 23, Mogilyov police incarcerated activist Kristina Shatikova in a local psychiatric hospital as she was coordinating preparations for a major Freedom Day opposition demonstration. During her three-day detention, Shatikova reported that she was drugged and interrogated about her connections to political prisoners Dmitriy Dashkevich and Artur Finkevich. On August 16, police officers beat 18-year-old Tatyana Tyshkevich as she and other opposition youth activists gathered in Minsk to show solidarity with the jailed political prisoners. She was treated at a local hospital for head and stomach injuries.", "According to credible sources, a policeman visited Tyshkevich at the hospital and pressured her not to file a complaint against police. On December 12, after violently dispersing a peaceful opposition demonstration on Minsk's October Square, police severely beat opposition youth leader Dmitriy Fedaruk and abandoned him unconscious on a sidewalk. Fedaruk was hospitalized for eight days and treated for serious head trauma. Credible sources and eyewitnesses reported that, during demonstrations following the March 2006 presidential elections, OMON riot police and other special forces, such as the antiterrorist unit ALMAZ, beat demonstrators in custody and threatened others with death or rape. In March 2006 special forces and OMON riot police used truncheons and tear gas to break up a peaceful march to Okrestina prison to protest the detention of 250 demonstrators.", "Ministry of Interior Colonel Dmitriy Pavlichenko, who was implicated in the 1999 disappearances and presumed deaths of opposition activists, personally beat opposition presidential candidate Aleksandr Kozulin before he was tied up and transported by ALMAZ forces to a pretrial detention center. Kozulin suffered head and spine injuries from the beatings by Pavlichenko and ALMAZ officers. Neither Pavlichenko, ALMAZ officers, nor other special forces were punished for their actions. In July 2006 Kozulin was sentenced to five and one- half years in prison on politically motivated charges of alleged hooliganism and disturbing the public peace. He remained in prison at year's end.", "Hazing of new army recruits by beatings and other forms of physical and psychological abuse continued, according to official sources; however, the number of reported cases declined. Other parts of this report contain information related to this subsection; see subsections 1.d, 1.e, 2 and 2.b and section 3. Prison and Detention Center Conditions Prison conditions remained austere and were marked by occasional shortages of food and medicine and the spread of diseases such as tuberculosis and HIV/AIDS. In March Leila Zerrougui, chairperson of a UN working group on arbitrary detention, reported that conditions in detention centers were worse than those in prisons because of poor sanitary and living conditions and restrictions on visitation, phone, and mail privileges. According to domestic human rights monitors, prison conditions have somewhat improved over the past 10 years.", "However, these groups reported that prisoners did not receive adequate food or warm clothing and were often denied a bed, sheets, change of clothes, and restroom privileges. As a result, tuberculosis, pneumonia and other diseases remained widespread. Former prisoners reported that medical check-ups were rare and conducted by under-qualified medical personnel and that examination results were often fabricated. Dental services were even less available. The law permits family and friends to bring detainees food and hygiene products, but in many cases authorities did not respect this law.", "Overcrowding in prisons, detention centers, and in work release prisons, also known as \"khimya,\" was a serious problem. Persons sentenced to khimya, which is a form of internal exile, live in prison barracks and are forced to work under conditions set by the government. According to the government, the total number of confined persons in the country was more than 38,000, which included 30,000 inmates in prisons and nearly 8,000 convicts in open-type correctional facilities. In addition an estimated 7,000 persons were awaiting trials in detention centers. Some former political prisoners reported that they were treated worse than murderers, subjected to psychological abuse and often had to share a cell with violent criminals.", "They also reported that their legal rights were neither explained nor protected. Prisoners who complained about abuse of their rights often were threatened with death, humiliation, or other forms of punishment. Credible reports indicated that police and prison officials continued to mistreat, torture, and blackmail prisoners. Numerous credible sources claimed that applications for parole frequently depended on bribing prison personnel. While standard bribes were generally between $200 to $300 (430,000 to 646,000 Belarusian rubles) high-profile prisoners were often asked to pay larger sums.", "For example, on June 5, the independent Belarusian Committee for Protection of Prisoner's Rights, Nad Baryerom, reported that a parole board denied Dmitriy Korolyov, a former intelligence officer, early release in March after Korolyov refused to pay $2,000 (4.3 million Belarusian rubles) to a fellow inmate who claimed to be demanding the bribe on behalf of prison officials. Authorities frequently kept persons arrested for political activities in the Okrestina jail or the Volodarskogo detention center in Minsk. Many former detainees described food and medical conditions in Volodarskogo as inadequate but better than those in Okrestina, where demonstrators were usually held for short-term, pretrial detention. There were reports that Aleksandr Kozulin's health seriously deteriorated in prison. Although his living conditions were said to be decent, associates claimed that he did not receive adequate medical attention after he was severely beaten by police during his March 2006 arrest and following a 53-day hunger strike to protest his jailing and the fraudulent results of the presidential election.", "Authorities denied Kozulin's wife and attorney visitation rights during the hunger strike. During the year there were no reported instances of the government permitting independent monitoring of prison conditions by local or international human rights groups, independent media, or the International Committee of the Red Cross. However, the government granted some international experts access to the general prison population. In September an official German delegation visited inmates in three correctional facilities in and around Minsk. On occasion, authorities granted foreign diplomats access to political prisoners in the presence of officials; however, most requests to visit political prisoners were denied.” 2.", "Report of the Special Rapporteur on the situation of human rights in Belarus (E/CN.4/2006/36) 21. The relevant parts of the report read as follows: “IV. THE SITUATION OF THE BASIC FREEDOMS AND HUMAN RIGHTS A. Civil and political rights; mechanisms of protection 10. Systematic violations of civil and political rights and the deprivation of Belarusian citizens' right to effectively take part in the conduct of public affairs continue to be observed.", "Human rights protection mechanisms remain extremely weak, and there is no national human rights institution. The judicial system is still subservient to the executive branch and there is no genuine independent legislative branch... Administration of justice and law enforcement, the death penalty, disappearances and summary executions 13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pretrial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police. 14.", "Furthermore, it is alleged that judges virtually never refer to the Constitution or international treaties when they hand down rulings and that the decisions of the Constitutional Court are often ignored. Trials are often held behind closed doors without adequate justification, and representatives of human rights organizations are denied access to courts to monitor hearings. Punishments are often totally disproportionate. The right to appeal is limited as the Supreme Court acts in many cases as the court of first instance, leaving no possibility for appeal. Before and after the presidential elections, over 150 people were reportedly summarily put on trial without access to a defence lawyer.", "Concerns were expressed regarding respect for their right to a fair trial.” 3. Parliamentary Assembly Resolution 1671 (2009): Situation in Belarus 22. PACE Resolution No. 1671 reads insofar as relevant as follows: “1. The situation in Belarus has been the focus of close attention by the Parliamentary Assembly since 1992, when the Belarusian parliament was granted Special Guest status.", "Belarus' lack of progress in the field of democracy, human rights and the rule of law, however, led to the suspension of this status in 1997, and to the freezing of Belarus' membership application to the Council of Europe the following year. The Assembly continues to look forward to the time when Belarus meets the conditions to be a member of the Council of Europe and its authorities undertake a firm commitment to live up to the standards of the Organisation and embrace its values. 2. In recent months, important developments have taken place in Belarus: between January and August 2008, nine opposition figures considered as political prisoners were released, including former presidential candidate Alexander Kozulin. As a result, since then, in Belarus, there have been no internationally-recognised political prisoners.", "The Assembly welcomes this tangible progress and calls for it to be made irreversible. 3. The Assembly also welcomes the registration of the opposition movement For Freedom!, as well as the possibility for three independent media outlets – Narodnaya Volya, Nashe Niva and Uzgorak – to be published in Belarus and their inclusion in the state distribution network. However, media freedom is far from being respected in Belarus, especially with regard to broadcasting. 4.", "It also considers as a positive development the setting up of a number of Consultative Councils, under the aegis of the Presidential administration and other state bodies, as fora where the authorities can engage in a constructive dialogue with representatives of non-governmental organisations and civil society. The Assembly hopes that the outcome of the discussions taking place in the Consultative Councils will lead to inform legislative and policy measures. 5. Concerning the disappearance of four political opponents in 1999/2000, the Assembly notes with satisfaction that none of the senior officials named in Resolution 1371 (2004) as being strongly suspected of involvement either in the disappearances themselves or in their cover-up still occupies a position of responsibility. But it strongly regrets that the investigations into these crimes have still not been allowed to progress any further, despite the elements provided in the Assembly's report.", "6. What adds to the importance of these developments is that they respond to precise demands coming from European organisations, and that they have been undertaken in the context of the resumption of political dialogue with the Belarusian leadership. 7. In effect, following the release of all political prisoners in Belarus, in October 2008 the European Union took the decision to resume contacts with the Belarusian leadership at the highest level and to suspend, even if partially and temporarily, the visa-ban against a number of high-ranking Belarusian officials, including President Lukashenko. This suspension was extended for an additional nine months in April 2009.", "The willingness of the European Union to normalise relations with Belarus was epitomised by the visit of the European Union High Representative for Common Foreign and Security Policy, Mr Javier Solana, to Minsk and his meeting with President Lukashenko on 19 February 2009. 8. Belarus is also one of the six countries that will participate in the Eastern Partnership, a new instrument designed to strengthen political and economic co-operation between the European Union and its Eastern and Caucasian neighbours, with a view to enhancing their stability and supporting democratic and market-oriented reforms. The level of Belarus' participation will depend on the overall development of its relations with the European Union. In this context, Belarus attended the Eastern Partnership summit in Prague, on 7 May 2009.", "The European Union also intends to establish a Human Rights Dialogue with Belarus. 9. The Council of Europe, for its part, has recently intensified its contacts with the Belarusian authorities: following a visit by a delegation of the Assembly's Political Affairs Committee in February 2009, Minister Miguel Angel Moratinos conducted an official visit to Minsk, in March 2009, in his capacity as Chair of the Committee of Ministers. A few weeks earlier, the Belarusian authorities had finally given their consent to the opening of an infopoint on the Council of Europe in Minsk, an idea initiated by the Assembly itself and developed by the Slovak Chairmanship of the Committee of Ministers. The opening ceremony of the Infopoint took place in June 2009.", "10. Furthermore, in December 2008, the Congress of Local and Regional Authorities of the Council of Europe decided to grant observer status to the Council for Co-operation of Local Self-Government Bodies of the Council of the Republic of the National Assembly of the Republic of Belarus. 11. Despite recent positive developments, however, and the resumption of contacts with European organisations, the situation in Belarus continues to be a cause for concern. 12.", "Firstly, the parliamentary elections of September 2008 were a missed opportunity for a decisive change towards democracy, as they failed to meet European standards of freedom and fairness. As highlighted by the OSCE/ODIHR, serious shortcomings affected all stages of the electoral process, from the availability of pluralist information for voters to the lack of transparency of the vote count. These shortcomings inevitably cast a doubt over the representativeness of the present Parliament, where no single opposition candidate managed to gain a seat. It is, however, to be welcomed that, following the final OSCE/ODIHR assessment, the Belarusian authorities agreed to work with the OSCE/ODIHR on the reform of the country's electoral legal framework and practice, in order to align them with Belarus' OSCE commitments. 13.", "As regards respect for political freedoms, harassment and intimidation of opposition activists, in particular youth, continue to take place through various means, such as unwarranted searches of private houses, unlawful requisition of equipment, police brutality during demonstrations and forced conscription into the military service despite previous declarations of being unfit for service. In addition, a number of political activists are under house arrests and the criminal record of those political prisoners who were released has not been erased, with the result that they face limitations in the exercise of some rights, including the right to run for elections. 14. The Assembly also takes note of the fact that, as of today, three entrepreneurs, who are currently in detention, as well as other persons who are subjected to limitations of personal liberty, are considered by the Belarusian opposition as political prisoners or, at least, as victims of an abuse of the criminal justice system for political reasons. The Assembly calls for an independent investigation to be conducted into these cases, in order to clarify whether they are political prisoners and, if so, to secure their release.", "15. The situation regarding freedom of association also gives rise to concerns: even if the political opposition movement For Freedom! was finally registered in December 2008, other opposition and human rights organisations continue to face obstacles in obtaining registration by the Ministry of Justice, the latest example being the human rights organisation Nasha Viasna, and its members risk prosecution for membership in a non-registered organisation, under Article 193,1 of the Criminal Code. 16. The Assembly regrets that, despite the inclusion of three independent publications in the state distribution network, the other independent media outlets cannot benefit from this scheme and cannot even be printed in Belarus.", "Absolute governmental control over the printing and the distribution of the press as well as over broadcasting is a flagrant violation of media freedom. Similarly, the Assembly expresses concern at the difficulties encountered by foreign journalists in obtaining press accreditation and by foreign media, such as the satellite channel Belsat, in obtaining registration by the Ministry of Foreign Affairs. It takes note, however, of the numerous statements emanating from the Belarusian leadership on their willingness to ensure that the new media law is not implemented in such a way as to restrict freedom of expression. The Assembly wishes that the same could be said for the implementation of the Law on counteraction against Extremism, which has recently led to the suspension of the publication of the magazine Arche, later withdrawn following international pressure. 17.", "It also regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions. While no public statistics are available, the Assembly also takes note of the information provided by the authorities that currently there are no capital sentences whose execution is pending. 18. Considering that, although Belarus is far from Council of Europe standards in the field of democracy, the rule of law and human rights, its authorities have recently taken important steps in the right direction, the Assembly resolves to encourage the continuation of this process by engaging in a political dialogue with the authorities, while at the same time continuing to support the strengthening of democratic forces and civil society in the country...” 4.", "Other sources 23. “Amnesty International Concerns in 2006” in respect of Belarus noted, in particular, disregard for political freedoms, including police violence and arrest of political activists. 24. The International Helsinki Federation for Human Rights in its 2006 Report on Human Rights in the OSCE Region noted that the most frequent victims of ill-treatment were participants in peaceful demonstrations who were taken to police stations and placed in pre-trial custody. With respect to the judiciary, the Report said that “the judicial system remained dependent on the executive power and the courts acted as executors of state ideology...The political engagement of the judiciary was confirmed in their rulings on politically motivated cases.” As to prison conditions, the Report observed: “In many cases, conditions in pre-trial facilities ... were poor enough to amount to cruel, inhuman or degrading treatment.", "As a rule, the average floor area per inmate in pre-trial facilities and prisons was less than two square metres (including bed), in dirty, poorly ventilated cells without necessary hygiene facilities. It was reported that inmates sometimes had to sleep in turns, for lack of a bed for everyone. The inmates also lacked sufficient nutrition and were not always provided with the necessary medical care and medication.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION 25. The applicant complained that if extradited he would face the risk of being subjected to ill-treatment and flagrant denial of justice by the Belarus authorities.", "He relied on Articles 3 and 6 § 1 of the Convention, which provide in so far as relevant as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Compatibility ratione personae 26. The Government maintained that the applicant could not claim to be a victim of a violation of his rights guaranteed by Articles 3 and 6 of the Convention, as no decision on his extradition had been taken. 27. The applicant considered that the lack of a formal decision on his extradition did not mean that the authorities did not intend to extradite him.", "The seriousness of that intention was confirmed by the fact that he remained imprisoned. 28. The Court reiterates the exceptional nature of the application of the “victim” notion in extradition cases as formulated in the case of Soering v. the United Kingdom (7 July 1989, § 90, Series A no. 161): “It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article.” 29.", "The Court further notes that the extradition proceedings against the applicant are still pending and that he remains at risk of being extradited to Belarus until the final resolution of the above proceedings. In the absence of any domestic remedy offering review of the decision on extradition and suspending the extradition pending such review (Soldatenko v. Ukraine, no. 2440/07, § 49, 23 October 2008), the applicant did not need to await the final decision on his extradition prior to lodging his application with this Court. The Court accordingly dismisses this objection of the Government. B.", "Otherwise as to admissibility 30. The Government maintained that the applicant had failed to substantiate his complaints under Articles 3 and 6 of the Convention. They considered that his reference to the reports describing the general human rights situation in Belarus were insufficient and that evidence was needed that the applicant himself ran a personal risk of facing ill-treatment and unfair trial back in Belarus. They also noted that despite his previous convictions the applicant had not alleged, either before the domestic authorities or before the Court, that his previous dealings with the law-enforcement, prison and judicial authorities pointed to any such risk. 31.", "The applicant considered that the general human rights situation in Belarus was serious enough to justify his fears. He further maintained that the domestic authorities had not questioned him on the matter of his previous convictions. 32. In determining whether it has been shown that the applicant runs a real risk, if expelled, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu. In cases such as the present the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no.", "215, § 108 in fine). To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007; and Saadi v. Italy [GC], no.", "37201/06, §§ 143-146, 28 February 2008). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I). 33.", "As to the applicant's complaint under Article 6 of the Convention, the Court observes that in Soering (cited above, § 113) it held: “The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society ... The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial ...” 34. In the circumstances of the present case, the Court notes that the available international documents demonstrate serious concerns as to the human rights situation in Belarus, in particular with regard to political rights and freedoms. However, reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition. In this regard, the Court notes that the applicant does not claim that he belongs to the political opposition, which is widely recognised as a particularly vulnerable group in Belarus, or to any other similar group.", "Nor did he refer to any individual circumstances which could substantiate his fears of ill-treatment and unfair trial. What is particularly notable is that neither in his original submissions, nor in his reply to the Government's observations, did the applicant allege that his previous experience of criminal prosecution in Belarus had involved any circumstances that might substantiate a serious risk of ill-treatment or unfair trial in the future. 35. In the Court's opinion therefore, the applicant has failed to substantiate his allegations that his extradition to Belarus would be in violation of Articles 3 and 6 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 36. The applicant also complained that he had had no effective remedy to challenge his extradition to Belarus. He relied on Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 37. The Court, having found the applicant's complaints under Articles 3 and 6 of the Convention inadmissible, concludes that he has no arguable claims for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 18 April 1988, Series A no.", "131, p. 23, § 52). 38. It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 39.", "The applicant complained that he had been unlawfully detained by the Ukrainian authorities and that there had been no effective judicial review of the lawfulness of his detention. He relied on Article 5 §§ 1 (f) and 4 of the Convention which read in so far as relevant as follows: Article 5 (right to liberty and security) “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. ... 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” A. Admissibility 40. The Government maintained that the applicant had not appealed against the Zaliznychnyy Court's decision of 26 December 2008 and had therefore not exhausted the remedies available to him under domestic law. 41. The applicant disagreed.", "He maintained that he had appealed against the impugned decision, but in reply was informed by the Deputy President of the Crimea Court of Appeal that the appellate court had already examined his appeal previously. 42. The Court finds that the Government's contentions concerning non-exhaustion are so closely linked to the merits that they should be joined to them and considered together. 43. The Court therefore joins to the merits the Government's contentions concerning the availability or effectiveness of remedies for the applicant's complaints under Article 5 § 4.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 44.", "The parties submitted arguments similar to those made in the cases of Soldatenko v. Ukraine (cited above, §§ 104-107 and 116-120) and Svetlorusov v. Ukraine (no. 2929/05, §§ 43-46 and 52-56, 12 March 2009). 45. The Court has previously found violations of Article 5 §§ 1 and 4 of the Convention in cases raising issues similar to those in the present case (see Soldatenko v. Ukraine, cited above, §§ 109-114 and 125-127, and Svetlorusov v. Ukraine, cited above, §§ 47-49 and 57-59). These findings were primarily based on the lack of sufficient legal basis for the applicants' detention pending extradition and of regular review of the lawfulness of the detention.", "46. Having examined all the materials submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. For the same reasons, the Government's objections as to the admissibility of the applicant's complaint under Article 5 § 4 must be dismissed. There has accordingly been a violation of Article 5 §§ 1 and 4 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 47. The applicant complained that he had been questioned by the assistant prosecutor in order to deter him from applying to the Court. He relied on Article 34 of the Convention, which provides as follows: Article 34 (individual applications) “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 48. The Government considered that the applicant had not exhausted the domestic remedies as he had not complained at the domestic level about his interview with the prosecutor.", "49. According to the Court's case-law, a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000, and Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, § 105). 50. The Court reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition.", "While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringement in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). The Court also underlines that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual's right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, § 105; Kurt v. Turkey, 25 May 1998, Reports 1998-III, § 159; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Şarlı v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no.", "25656/94, 18 June 2002). 51. The Court further recalls that it is of the utmost importance for the effective operation of the system of individual petition guaranteed by Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the paragraphs of the Akdivar and Others and Kurt judgments cited above). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention complaint (see the above-mentioned Kurt and Şarlı cases, §§ 160 and 164, and §§ 85-86 respectively). 52.", "The Government maintained that the interview between the applicant and the prosecutor had been held in the context of the ordinary activities of the prosecution service, whose task was to supervise the observance of the law by the prison authorities. They also maintained that the conversation had been necessary in the context of extradition proceedings against the applicant. They further noted that the applicant had been informed of his right to remain silent. Therefore, they concluded that the prosecutor had acted within the law and his interview with the applicant could not be considered as putting pressure on the applicant because of his application lodged with the Court. 53.", "The applicant maintained that the prosecutor had not asked him anything about extradition, but instead had tried to find out about his confidential relations with his lawyer and about their possible complaints. He further maintained that despite being represented, he had been interviewed in the absence of his lawyer. He also noted that as he had made no complaints to the prosecutor, there had been no need for the prosecutor to conduct any interview with him. 54. The Court notes that in the instant case the minutes of the interview between the applicant and the prosecutor, the accuracy of which the applicant did not contest, demonstrate that he was informed of his right to remain silent.", "The applicant was asked about any complaints to State bodies or institutions and when he replied that his lawyer was going to lodge a complaint on his behalf to “the European Commission of Human Rights”, the prosecutor did not question him further about that complaint but asked whether the applicant or his lawyer had made any other complaints. The Court considers that the applicant's interpretation of the above conversation does not appear to be supported by the minutes of the interview, which do not reveal any hindrance of the applicant's right of individual petition (see, mutatis mutandis, Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 35-37 et 105-126, ECHR 2007‑II). Accordingly, Ukraine has not failed to comply with its obligations under Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage. 57. The Government considered the claim unsubstantiated.", "58. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, it awards him EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 59.", "The applicant also claimed EUR 1,625.72 for the costs and expenses incurred before the domestic courts (EUR 506 in legal fees and EUR 1,119.72 in travel expenses for his lawyer) and EUR 17 for those incurred before the Court. 60. The Government considered that the applicant's claims for transportation and representation in the national courts were irrelevant to the present case. They noted that the applicant had been granted legal aid and it was sufficient. As to postal expenses, the Government left the issue to the Court's discretion.", "61. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the sum of EUR 523 in this respect. C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 5 §§ 1 (f) and 4 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that Ukraine has not failed to comply with its obligations under Article 34 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 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 523 (five hundred and twenty-three euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 18 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "SECOND SECTION CASE OF AKTÜRK v. TURKEY (Application no. 70945/10) JUDGMENT STRASBOURG 13 November 2014 FINAL 13/02/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aktürk v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Egidijus Kūris,Robert Spano,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 14 October 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "70945/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ender Bulhaz Aktürk (“the applicant”), on 21 September 2010. 2. The applicant was represented by Ms O. Gümüştaş, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 18 June 2012 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1982 and is currently detained in the Tekirdağ F-type Prison. 5. According to the arrest report, signed by thirteen police officers, on 18 March 2009 at 2.15 p.m. the applicant was stopped by police officers for an identity check.", "He resisted and opened fire, killing a police officer. The other police officers used force to neutralise and arrest him. Several fake identity cards were found in the applicant’s bag. 6. At 5.15 p.m. the applicant was sent to the Bursa Şevket Yılmaz State Hospital for a medical examination.", "The medical report indicated that there were superficial grazes on the applicant’s back and bruises to the frontal region of his head, caused by blunt instrument trauma. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs. The report concluded that the injuries on the applicant’s body were not life-threatening. 7. The applicant was then taken to the Kestel District Police Station.", "According to the form explaining the rights of arrested persons, the applicant was reminded of his rights, including his right to have the assistance of a lawyer, to remain silent, and to inform his family members of his arrest. According to a report signed by seven police officers, the police tried to conduct a fingerprint examination in order to identify the applicant, but he resisted, shouted slogans, tried hitting his head on the machine and kicked the nearby furniture. The applicant alleged that he had been beaten at the police station. 8. The applicant was subsequently transferred to the anti-terrorism branch of the Bursa Security Headquarters, where he was allegedly subjected to ill-treatment.", "According to the applicant, in the basement of the Bursa Security Headquarters, his testicles were squeezed and he was beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket. 9. According to a police report, on 19 March 2009 at about 7 p.m. the applicant was taken by four police officers to Istanbul, where he had offered to show the officers a house used as a cell by the MLKP (Marxist-Leninist Communist Party), an illegal organisation. It was reported that, as the applicant could not find the house, they returned to the Bursa Security Headquarters on 20 March 2009 at 4.15 a.m. This report was signed by four police officers, but the applicant declined to sign it.", "10. On 20 March 2009 the applicant was questioned in the presence of his lawyer at the Bursa Security Headquarters in connection with the killing of a police officer and his alleged involvement in the MLKP. The applicant exercised his right to remain silent. 11. On the same day, the applicant was taken to the Bursa Forensic Medicine Institute.", "During his examination, the applicant complained that he had been ill-treated whilst in custody. He stated that he had been beaten, hung by his arms and hosed with cold water and alleged that ice cubes had been placed over his body. The medical examination revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, and purple‑coloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma, on both sides of his mouth, between his eyebrows, on his left arm and both wrists, and also on his penis. The doctor noted that the bruises on the applicant’s wrists could have been sustained as a result of the use of handcuffs.", "It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. The doctor requested consultations from the thoracic surgery, neurosurgery and internal medicine departments. 12. Later on the same day, the applicant was interrogated, in the presence of his lawyer, by both the Kestel Public Prosecutor and the investigating judge at the Kestel Magistrates’ Court and exercised his right to remain silent. On the basis of the evidence in the case file, the judge ordered his detention on remand.", "13. On 21 March 2009 at about 1.40 a.m. the applicant was taken to the emergency department of the Bursa Uludağ University Hospital. In the hospital he was examined by several doctors, specifically from the neurosurgery, general surgery, thoracic surgery and radiology departments. The radiology examinations did not reveal any abnormality in the bones, lungs or heart. The general surgeon indicated that there was no need for surgery.", "Finally, the thoracic surgeon noted in his report that the applicant had no respiratory problems but that he had several bruises on his body, specifically on his back. He also stated that no fractured ribs had been observed. According to the information in the file, the applicant left the emergency department at about 4 a.m. 14. Later on 21 March 2009 the applicant was also taken to the emergency service of the Bursa State Hospital as he had complained of a pain in his chest. Following consultation of doctors from general surgery, neurosurgery and radiology departments, a doctor from the emergency service issued a report concluding that the applicant’s eighth and ninth ribs had been fractured and that he was suffering from post-traumatic injury.", "He was accordingly admitted to the emergency department for monitoring and observation. 15. On 30 March 2009 the applicant filed a complaint with the Bursa Public Prosecutor and alleged that he had been ill-treated in custody. In his petition, the applicant maintained that he had been beaten at the Kestel Police Station. He also maintained that following his transfer to the Anti‑Terrorism Branch of the Bursa Security Headquarters, his testicles had been squeezed, he had been beaten, subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice-covered blanket.", "The applicant further stated that he could identify the police officers who had ill-treated him if he met them face to face. 16. Upon receiving the applicant’s complaint, the Bursa Public Prosecutor initiated an investigation into his ill-treatment allegations. In this connection, the applicant gave a statement on 31 March 2009, and claimed in a detailed account that he had been ill-treated during his custody. The applicant further maintained that he would be able to identify the police officers who had ill-treated him.", "17. The public prosecutor interviewed seven police officers who had been on duty at the time of the applicant’s arrest and during his custody at the Kestel Police Station and the Anti-Terrorism Branch of the Bursa Security Headquarters. They all denied the accusations against them. The police officers who had arrested the applicant stated that they had used proportionate force to neutralise him. 18.", "At the request of the public prosecutor, on 8 April 2009 the applicant was once again taken to the Bursa Uludağ University Hospital for a medical examination. As the gendarme officer refused to leave the consultation room, the doctor did not perform the examination. The gendarme officer issued a report stating that the doctor had not complied with the Protocol for Prisons signed by the Ministries of Justice, Health and Interior, dated 6 January 2000 ‒ according to which a gendarme officer is obliged to stay in the consultation room during the medical examination in a hospital of a person who has been remanded in connection with terrorism‑related crimes ‑and the examination was then carried out in the absence of the gendarme officer. The doctor prepared a detailed report stating that there were several bruises on the front of his left arm which appeared to be self-inflicted. Similar marks were also noticed on his abdomen.", "Healed scars were observed on both wrists. Bruises on the fingers and right knee were also noted. 19. The doctor further ordered certain medical tests but according to the information in the case file, the prison authorities did not allow the applicant to go to the hospital on the appointment dates and transferred him to the Tekirdağ F‑type Prison. 20.", "On 15 April 2009 the Forensic Medicine Institute issued a medical report about the applicant based on the medical reports dated 20 March 2009 and 21 March 2009 issued by the Uludağ University Hospital. It was concluded that his injuries were not life-threatening and would heal with simple medical care. It was also noted that no fractured ribs had been observed. No reference was made to the medical report dated 21 March 2009 issued by the Bursa State Hospital. 21.", "In the course of the investigation, the public prosecutor also requested the video camera recordings taken during the applicant’s periods in custody in Kestel Police Station and the Bursa Security Headquarters. The Bursa Security Directorate informed the public prosecutor’s office that the camera recordings were only kept for eight days. 22. On 3 November 2009 the public prosecutor issued a non-prosecution decision. In his decision the prosecutor held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest.", "The prosecutor also concluded that the force used to neutralise the applicant had been in compliance with Article 16 of Law no. 2559 on the Duties and Powers of the Police. 23. On 1 December 2009 the applicant filed an objection against the public prosecutor’s decision. He repeated that he would be able to identify the police officers who had ill-treated him.", "On 23 March 2010 the Yalova Assize Court rejected the objection. 24. In the meantime, criminal proceedings were initiated against the applicant for killing a police officer. By a judgment delivered on 20 January 2012 the applicant was found guilty as charged and sentenced to life imprisonment. The case file contains no information regarding the current status of these proceedings.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. The applicant alleged that he had been subjected to ill-treatment during his time in police custody. He also argued that no effective investigation had been conducted into the matter. In this connection, the applicant relied on Articles 3 and 13 of the Convention.", "26. The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 27. The Government maintained that since the application form was twenty-four pages long, the applicant had failed to comply with Rule 47 of the Rules of the Court, which require that the application form should be concise. They therefore asked the Court to dismiss the case. 28.", "The Court points out that it has examined a similar objection in the case of Yüksel v. Turkey ((dec). no. 49756/09, §§ 40-42, 1 October 2013) and rejected it. It finds no reason to depart from that finding in the instant case. As a result, the Government’s arguments in this respect should not be taken into consideration.", "29. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Substantive aspect 30. The applicant complained that he had been ill-treated during his police custody. In this connection, he maintained that he had been beaten at the Kestel Police Station and tortured at the Bursa Security Headquarters. He alleged that at the Bursa Security Headquarters, his testicles had been squeezed and he had been subjected to hanging by his arms, hosed with cold water, exposed to cold air circulation and forced to lie in an ice‑covered blanket.", "31. The Government denied the allegations and stated that the applicant had sustained the injuries which were recorded in the medical reports during the scuffle that broke out at the time of his arrest. In this connection, the Government pointed out that the applicant had shot and killed the police officer who was carrying out an identity check and that other police officers at the scene had had to use force to neutralise him. 32. At the outset, the Court reiterates the absolute nature of the prohibition of torture or inhuman or degrading treatment or punishment.", "The Court also recalls that allegations of ill-treatment must be supported by appropriate evidence (see Tanrıkulu and others v. Turkey (dec.), no. 45907/99, 22 October 2002). Furthermore, in assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)). Such proof may, however, follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Güler and Öngel v. Turkey, nos.", "29612/05 and 30668/05, § 26, 4 October 2011, and Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).", "33. In that respect, where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how these injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations are corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, § 108-111, Series A no. 241‑A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).", "34. In the present case the Court is faced with two conflicting versions of the facts. Although the applicant maintained that he had been ill-treated while in police custody, in their observations the Government stated that the police officers had had to use force because at the time of his arrest the applicant had resisted and had shot and killed a police officer. The Court observes in this connection that, according to the medical report issued on the day of his arrest, namely 18 March 2009, there were superficial grazes on the applicant’s back and bruises to the frontal region of his head. These injuries support the Government’s contention that the police officers had had to use force to neutralise the applicant.", "However, the second report, issued on 20 March 2009, revealed that the applicant had a haematoma under his left eyelid, a red-coloured bruise measuring 5 x 10 cm and swellings in his occipital region, and purple-coloured bruises on his right eye and periorbital region. It was also noted that the applicant had several bruises on his left eyebrow, on the zygoma, on both sides of his mouth, between his eyebrows, on his left arm and both wrists, and also on his penis. The doctor noted that the bruises on the applicant’s wrists could have been sustained as a result of the use of handcuffs. It was further noted that the applicant had complained about shortness of breath, headaches and pain in his ribs. Consultations from the thoracic surgery, neurosurgery and internal medicine departments were requested.", "Consequently, on 21 March 2009 the applicant was taken to the Emergency Service of the Uludağ University Hospital, where he was examined by several doctors from the radiology, general surgery, thoracic surgery and neurosurgery departments. In the final report, it was noted that there were no fractures to the applicant’s body. According to the documents in the case-file, on the same day the applicant was also taken to the Bursa State Hospital, where he was examined by several doctors. The medical report prepared by the doctor in the emergency department noted that the applicant’s eighth and ninth ribs were fractured and it was concluded that the applicant was suffering from post-traumatic injury and he was admitted to the emergency department for monitoring and observation. The Court considers that these new findings matched at least the applicant’s allegation of having been beaten during his police custody.", "It further notes that the applicant remained in detention during this time and therefore reiterates that the domestic authorities were under an obligation to provide a plausible explanation for these injuries. However, the Government have failed to the so. 35. In the absence of a plausible explanation from the Government as to the cause of the new injuries sustained by this applicant, the Court finds that these injuries were the result of ill-treatment for which the Government bore responsibility. 36.", "There has therefore been a substantive violation of Article 3 of the Convention on account of the inhuman and degrading treatment to which the applicant was subjected. 2. Procedural aspect 37. The applicant maintained that there had been no effective investigation into his allegations of ill-treatment. In particular, he referred to the lack of details in the first medical report.", "He further maintained that if he had been given an opportunity, he would have been able to confront the police officers who had allegedly ill-treated him. 38. The Government contested the allegations. 39. The Court reiterates that Article 3 of the Convention requires the authorities to carry out an effective official investigation into allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, § 101‑102, Reports 1998‑VIII).", "In the present case, in the light of the contents of the medical reports compiled about the applicant’s condition (see paragraphs 6, 11, 13 and 14 above), the Court considers that the domestic authorities were under an obligation to conduct an effective investigation regarding his allegations of ill-treatment. 40. The Court observes that, following the applicant’s complaint, the Kestel Public Prosecutor immediately initiated an investigation into the applicant’s ill-treatment allegations. However, for the reasons explained below, there appear to be several shortcomings in the investigation. 41.", "In this connection, the Court firstly notes that the applicant‑who had repeatedly stated that he would be able to recognise the police officers who had ill-treated him ‒ was not given an opportunity to confront the accused officers. The Court further notes that the public prosecutor did not seek any additional medical opinion from the doctors who had examined the applicant during his police custody nor did he try to find a plausible explanation for the new injuries which were recorded in the medical reports of 20 and 21 March 2009, while the applicant was still under the control of the authorities. In the Court’s view, an additional expert opinion from the Forensic Medicine Institute on the cause and timing of the injuries on the applicant’s body could have provided helpful information regarding the applicant’s allegation that he had been ill-treated while in police custody. In this connection, the Court further notes that in the public prosecutor’s non‑prosecution decision there appears to be no mention of the medical report drawn up by the Bursa State Hospital on 21 March 2009 stating that the applicant’s eighth and ninth ribs were fractured. Taking these shortcomings into account, the Court concludes that the public prosecutor failed to establish the reason for the differences between the medical reports and the real cause of the injuries observed on the applicant’s body.", "42. In view of the foregoing, the Court holds that those procedural shortcomings had adverse repercussions on the effectiveness of the investigation into the applicant’s allegations of ill-treatment. 43. There has therefore been a violation of Article 3 of the Convention under its procedural limb. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 44. The applicant alleged under Article 5 of the Convention that during his police custody, he had not been informed of his right to contact his family and that he had been deprived of his right to legal assistance. He also referred to Article 14 of the Convention, without substantiating the allegation. 45. In the light of all the material in its possession, the Court finds that these allegations by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols.", "It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 46. The applicant claimed 40,000 euros (forty thousand euros (EUR)) in respect of non-pecuniary damage.", "47. The Government contested the claim. 48. Considering that the applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation, and ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage. B.", "Costs and expenses 49. The applicant also claimed 7,080 Turkish liras (TRY) (approximately EUR 2,400) for the costs and expenses incurred before the Court. In support of this claim, he submitted a copy of the invoice from his lawyer. 50. The Government contested the claim.", "51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking into account the documents in its possession and the above criteria, the Court considers it reasonable to award the full amount claimed by the applicant covering costs under all heads. C. Default interest 52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT,UNANIMOUSLY, 1. Declares the complaints concerning Article 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its substantive aspect; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "FOURTH SECTION CASE OF VARGA v. HUNGARY (Application no. 54589/15) JUDGMENT STRASBOURG 7 March 2019 This judgment is final but it may be subject to editorial revision. In the case of Varga v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President,Marko Bošnjak,Péter Paczolay, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 14 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 October 2015. 2.", "The applicant was represented by Mr C. Visontai, a lawyer practising in Budapest. 3. Notice of the application was given to the Hungarian Government (“the Government”). THE FACTS 4. The applicant’s details and information relevant to the application are set out in the appended table.", "5. The applicant complained of the excessive length of criminal proceedings. He also raised a complaint under Article 5 § 3 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6.", "The applicant complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement. He relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).", "8. In the leading case of Barta and Drajkó v. Hungary, no. 35729/12, 17 December 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.", "The applicant submitted another complaint which raised issues under Article 5 § 3 of the Convention, given the relevant well-established case-law of the Court (see appended table). This complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Barta and Drajkó, cited above, § 26. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law, the Court finds it reasonable to award the sum indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that it discloses a breach of Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings; 3. Holds that there has been a violation of Article 5 § 3 of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table); 4. Holds (a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 7 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtGeorges Ravarani Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 6 § 1 of the Convention (excessive length of criminal proceedings) Application no. Date of introduction Applicant’s name Date of birth Representative’s name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 54589/15 28/10/2015 Titusz Zoltán Varga 14/05/1980 Visontai Csongor Budapest 26/04/2011 04/07/2016 5 year(s) and 2 month(s) and 9 day(s) 2 level(s) of jurisdiction Art. 5 (3) - excessive length of pre-trial detention. In detention from 26/04/2011 to 29/04/2013 and from 23/01/2014 to 05/11/2015 6,800 [1].", "Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF DAVUT ABO v. TURKEY (Application no. 22493/07) JUDGMENT STRASBOURG 26 November 2013 This judgment is final but it may be subject to editorial revision. In the case of Davut Abo v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,Paulo Pinto de Albuquerque,Helen Keller, judges,and Seçkin Erel, Acting Deputy Section Registrar, Having deliberated in private on 5 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22493/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Davut Abo (“the applicant”), on 15 May 2007.", "2. The applicant was represented by Ms E. Akgül, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3. On 2 November 2010 the application was communicated to the Government.", "THE FACTS 4. The applicant, Mr Davut Abo, is a Turkish national who was born in 1975 and is currently serving his prison sentence in Diyarbakır. 5. On 1 October 2000 the applicant was arrested by gendarmerie forces on the suspicion of his membership of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan). 6.", "Between 2 and 4 October 2000 the applicant was questioned by police officers from the Anti-Terrorism Branch of the Beytülşebap Security Directorate. All of the interviews were conducted in the absence of a lawyer. In his statements, the applicant acknowledged that he was a member of the PKK and gave details of certain events in which he had taken part. 7. On 5 October 2000 the Beytülşebap Public Prosecutor took statements from the applicant.", "The applicant confirmed the contents of his police statements and gave detailed information about the events, again in the absence of a lawyer. 8. On the same day, an investigating judge at the Beytülşebap Magistrate’s Court ordered the applicant’s pre-trial detention, without the assistance of a lawyer. The applicant repeated the statements he had made to the police and public prosecutor. 9.", "On 1, 2, 4 and 5 October 2000, the applicant was medically examined by a doctor who noted that there were no sign of physical violence on the applicant’s body. 10. On 22 December 2000 the Diyarbakır Public Prosecutor lodged an indictment with the Diyarbakır State Security Court, composed of three civilian judges, accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory, pursuant to Article 125 of the Criminal Code in force at the time. 11. In his written submissions to the Diyarbakır State Security Court lodged on 6 February 2001, the applicant explained in detail the treatment to which he had allegedly been subjected.", "12. On 22 February 2001 the Diyarbakır State Security Court heard the applicant at its first hearing. He denied all the accusations against him and retracted his statements given to the police, the public prosecutor and the investigating judge. He maintained that he had been threatened by the police whilst being taken to both the public prosecutor and the investigating judge, and he further stated that he thought that he was being brought before police officers when he had been taken to the offices of the prosecutor and judge. He complained that he had been subjected to torture in police custody.", "During the hearing, the applicant read out his written submissions. 13. State Security Courts were abolished by Law no. 5190 of 16 June 2004. The case was accordingly transferred to the Diyarbakır Assize Court.", "14. On 22 September 2005, the applicant’s recently appointed lawyer requested the court for a fresh medical examination to be ordered in order to determine whether the applicant had been subjected to ill-treatment five years ago during his detention in police custody. The court dismissed this request, having based its rejection on the content of the case file and the state of the evidence. 15. On 9 November 2006 the Diyarbakır Assize Court convicted the applicant as charged.", "The court emphasised the consistency of the applicant’s statements during the preliminary investigation with the investigation reports obtained from another case file related to the offence in question. It further found the applicant’s allegation of ill-treatment implausible in the light of the medical reports in the case file. Subsequently, the court sentenced him to aggravated life imprisonment. 16. On 10 November 2006 he appealed against the judgment without raising a complaint into ill-treatment.", "17. On 10 May 2007 the Court of Cassation upheld the conviction. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 AND 3 (C) AND 13 OF THE CONVENTION 1. Right of access to a lawyer 18.", "The applicant alleged Article 6 § 3 (c) of the Convention that his defence rights had been violated as he had been denied access to a lawyer during his police custody. 19. The Court finds it appropriate to examine these complaints under Article 6 §§ 1 and 3 (c) of the Convention, which reads: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” 20.", "The Government contested the allegations. 21. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible. 22.", "The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the custody period. The restriction imposed on the applicant’s right of access to a lawyer was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz v. Turkey, [GC], no. 36391/02, §§ 56-63, 27 November 2008). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. 23.", "In view of this, the Court holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. 2. Length of the criminal proceedings 24. The applicant complained that the length of the proceedings had exceeded the “reasonable time” requirement and alleged that there had been no domestic remedy available under Turkish law whereby he could challenge the length of the criminal proceedings in question. He relied on Articles 6 § 1 and 13 of the Convention, which reads as follows: Article 6 § 1 “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...” 25.", "The Government contested the claims. 26. The Court notes that the criminal proceedings commenced on 1 October 2000 with the applicant’s arrest and ended on 10 May 2007 with the final decision delivered by the Court of Cassation. They thus lasted for six years and seven months before two levels of jurisdiction. 27.", "The Court observes that a new domestic remedy has been established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies as a new domestic remedy had been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.", "28. The Court further recalls that in its decision in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed that it could pursue the examination of the applications of this type which were already communicated to the Government. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. 29. In light of the above, the Court decides to pursue the examination of the present application.", "However, it notes that this conclusion is without prejudice to an exception that may ultimately be raised by the Government in the context of other communicated applications. 30. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "31. As regards Article 6 § 1, the Government argued that the length of the proceedings in the present case had been reasonable, considering the complexity of the prosecution of crimes committed on behalf of an illegal organisation, the difficulty in collecting evidence and the number of accused, intervening and complainant parties involved in the proceedings. In this connection, the Government contended that there had been no delay in the proceedings which could be attributable to the national authorities. 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII, and Ümmühan Kaplan, cited above § 49, 20 March 2012). 33. Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Daneshpayeh, cited above, § 28). 34. The Court therefore holds that there has accordingly been a breach of Article 6 § 1 of the Convention.", "35. In view of the above (see paragraphs 27-28 above) the Court considers that it is unnecessary to examine the complaint raised under Article 13 of the Convention (see Rifat Demir v. Turkey, no. 24267/07, § 41, 4 June 2013). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 1.", "Article 3 of the Convention 36. The applicant complained under Articles 3 and 13 of the Convention that he had been tortured while in police custody and that the domestic authorities had not conducted an adequate investigation into his allegations of ill-treatment. 37. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone. The Court observes that the applicant did not provide any concrete evidence in support of his allegations of ill-treatment, demonstrating that he had been subjected to any physical or psychological pressure while in police custody.", "Nor did he argue that he had been unable to obtain, or had been prevented from obtaining, any such evidence. On the contrary, the medical reports drafted on 1, 2, 4 and 5 October 2002 did not reveal any signs of physical violence on his body. The Court therefore considers that the applicant has failed to substantiate his complaint with appropriate evidence and to lay the basis of an arguable claim that he was ill-treated in police custody (see Yıldırım v. Turkey (dec.) no.33396/02, 30 August 2007; Tanrikolu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002; and Kesik v. Turkey (dec.), no. 18376/09, 24 August 2010).", "This complaint is therefore inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. 2. Article 5 §§ 1 (c), 3 and 4 of the Convention 38. The applicant complained under Article 5 §§ 1 (c), 3 and 4 of the Convention that there had been no reasonable suspicion for his arrest. He further maintained that the length of his police custody and pre-trial detention was excessive, and there was no effective remedy in domestic law to challenge the lawfulness of his detention on remand.", "39. The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place. The Court observes that the applicant was taken into police custody on 1 October 2000 and that his detention in police custody ended on 5 October 2000, when the judge ordered his detention on remand. He notes that the applicant’s detention on remand continued until the final judgment of the Assize Court of 9 November 2006.", "Following that date, the applicant was detained “after conviction by a competent court”. However, the application was lodged with the Court on 15 May 2007, which is more than six months from the end of the detention period complained of. The Court considers that these complaints are introduced out of time and should be rejected for non-compliance with the six-month rule under Article 35 § 1 of the Convention. 3. Article 6 § 1 of the Convention (the use of unlawful evidence and the independence of the tribunal) 40.", "As regards the applicant’s allegation that he had been convicted on the basis of statements extracted from him while being ill-treated by the police, the Court notes that it has not been established that the applicant was subjected to ill-treatment in police custody. This complaint should therefore be rejected for being manifestly ill-founded (see Musa Karataş v. Turkey, no. 63315/00, § 84-86, 5 January 2010). 41. Concerning the applicant’s complaint that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried him, the Court notes that the military judges in the state security courts were replaced by civilian judges in June 1999.", "In the present case, the proceedings commenced before the Diyarbakır State Security Court only after the public prosecutor’s indictment dated 22 December 2000, that is, after the removal of the military judge from the bench. Accordingly, the applicant was tried by a tribunal consisting of three civilian judges. The Court considers that this complaint should be rejected for being manifestly ill-founded under Article 35 § 4 of the Convention (see Sever and Aslan v. Turkey (dec.), no. 33675/02, 12 April 2007; and Şaman v. Turkey, no. 35292/05, § 39, 5 April 2011).", "4. The remaining complaints 42. The applicant also made certain complaints under Article 6 of the Convention concerning the unfairness of the proceedings, the principle of equality of arms and the right to be presumed innocent. 43. The Court considers that none of the remaining complaints seem to disclose any appearance of a violation of the rights and freedoms set out in the Convention.", "These complaints are therefore inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. He further claimed EUR 2,178 for legal fees and EUR 242 for translation and postal expenses.", "He did not submit any copies of invoices, but referred to the Diyarbakır Bar Association’s tariff of fees for attorneys. 45. The Government contested these claims. 46. Deciding on an equitable basis, the Court awards the applicant EUR 3,900 in respect of non-pecuniary damage.", "47. The Court further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention, should he so request (see Salduz, cited above, § 72). 48. As regards the costs and expenses, according to the Court’s case‑law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not substantiated that he actually incurred the costs claimed.", "In particular, he failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Accordingly, the Court makes no award under this head. 49. The Court further considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning the length of the criminal proceedings against the applicant, the absence of an effective remedy for undue length of proceedings and the denial of access to a lawyer admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance available to the applicant while in police custody; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings; 4. Holds that there is no need to examine the complaint raised under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred euros), to be converted into Turkish liras at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Seçkin ErelDragoljub PopoviċActing Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF TAKHAYEVA AND OTHERS v. RUSSIA (Application no. 23286/04) JUDGMENT STRASBOURG 18 September 2008 FINAL 26/01/2009 This judgment may be subject to editorial revision. In the case of Takhayeva and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 28 August 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23286/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals (“the applicants”), on 26 April 2004.", "2. The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. 3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court.", "4. On 9 March 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The Government objected to the joint examination of the admissibility and merits of the application.", "Having considered the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are: 1) Ms Rabu Mutushovna Takhayeva, who was born in 1959; 2) Mr Khashim Nurdinovich Takhayev, who was born in 1952; 3) Ms Zaira Khashimovna Takhayeva, who was born in 1977; 4) Mr Islam Sultanovich Tumanov, who was born in 1998, and 5) Ms Razet Zayndiyevna Terkibayeva, who was born in 1934. The applicants live in the village of Mesker-Yurt, in the Shalinskiy District of the Chechen Republic.", "7. The first and second applicants are married. They are the parents of Mr Ayub Khashidovich Takhayev, born in 1982, and the third applicant. The fourth applicant is the third applicant’s son and Ayub Takhayev’s nephew. The fifth applicant is Ayub Takhayev’s grandmother.", "A. Disappearance of Ayub Takhayev 1. The applicants’ account 8. On the night of 13 November 2002 the first, second, third and fourth applicants, Ayub Takhayev and his grandfather slept in their family home at 42 Shkolnaya Street, Mesker-Yurt. The house had a common courtyard with three other houses inhabited by the applicants’ relatives.", "The fifth applicant slept in one of those houses. (a) Abduction of Ayub Takhayev 9. At about 2.40 a.m. on 13 November 2002 the first applicant heard a noise coming from the courtyard. She looked out of the window and saw about ten to fifteen men wearing camouflage uniforms. A group of about five men headed towards the applicants’ house and entered without identifying themselves.", "They were armed with machine guns and grenades. All but one of them wore masks. The unmasked man had Slavic features. The first applicant assumed that the men belonged to the Russian military. 10.", "The servicemen ordered the second applicant to rise, took him into the corridor, forced him down onto the floor, tied his arms behind his back and hit him several times. In the meantime they locked Ayub Takhayev’s grandfather in one of the rooms. 11. Then the men entered the room where Ayub Takhayev and the third applicant were sleeping and woke them up with torch lights. They shouted at Ayub Takhayev to get up and kicked him; then they took him to the kitchen and forced him down onto the floor.", "12. The intruders kept the first and third applicants locked in their rooms. When the first applicant tried to break through the door, one of the servicemen entered her room and pushed her in the chest so that she fell down. Then the servicemen locked the first, third and fourth applicants in one room. The women cried and begged them not to take Ayub Takhayev away.", "The fourth applicant was scared and cried. The servicemen ordered the third applicant to calm the child down and demanded the identity papers of the second applicant and Ayub Takhayev. The unmasked man with Slavic features shouted at the women and gave orders to the other men in Russian. The first applicant gave the men two internal passports; they took away the one belonging to Ayub Takhayev. 13.", "As the servicemen were leaving, they ordered everyone to stay indoors, threatening to blow up the house, and took Ayub Takhayev with them. The second applicant enquired as to where his son would be taken, but received no answer. Instead he was told he should thank the armed men for not taking him as well. 14. When the first and third applicants managed to open the locked door and leave their room, they ran out into the street and saw that the armed men had left.", "Then they went back inside and untied the second applicant. 15. Early in the morning on 13 November 2002 the second applicant found tracks left by an armoured personnel carrier (“APC”) about 100 metres from his house. Some neighbours confirmed that they had seen an APC on the night of 13 November 2002. (b) The fifth applicant’s account 16.", "On the night of 13 November 2002 the fifth applicant heard a noise outside and went out into the courtyard. Two men pointed machine guns at her and ordered her to stand still and keep quiet. She realised that the noise had been caused by the men’s attempts to break the door down. The armed men did not allow the fifth applicant to go back inside the house although it was cold outside and she was wearing only a nightgown. The fifth applicant heard the armed men speaking Russian without an accent.", "One of them stood behind the fifth applicant’s back with his machine gun pointed at her. After ten or fifteen minutes the armed men ordered the fifth applicant to go back inside the house. She did so and then watched through the window as the men ran out of the courtyard into the street. (c) Subsequent events 17. At about 4 a.m. on 14 November 2002 the first and second applicants saw four APCs driving down their street.", "Then they heard screaming coming from their neighbours’ house. In the morning of 14 November 2002 the applicants learnt that two men, Mr V.M. and Mr Kh.M., had been taken away from their neighbours’ home by armed men in APCs. Mr V.M. and Mr Kh.M.", "went missing. 18. At 6.15 a.m. on 15 November 2002 the fifth applicant saw four APCs arriving in Mesker-Yurt. Later the applicants found out that on that night another villager, Mr A.I., had been abducted. Mr A.I.", "went missing. 2. Information submitted by the Government 19. At about 2.45 a.m. on 13 November 2002 unidentified persons armed with machine guns and wearing camouflage uniforms entered the house at 42 Shkolnaya Street, Mesker-Yurt, the Shali District, in the Chechen Republic, kidnapped Ayub Takhayev and took him away in an unknown direction. B.", "The search for Ayub Takhayev and the investigation 1. The applicants’ account 20. From 13 November 2002 onwards the applicants contacted, both in person and in writing, various official bodies. They described in detail the circumstances of their relative’s disappearance and asked for assistance in establishing his whereabouts and fate. In particular, they applied to the prosecutors’ offices at different levels, the military commander’s office of the Shali District, the Shali District Department of the Interior, the Russian State Duma, the Special Envoy of the Russian President in Chechnya for Rights and Freedoms, the Russian President’s Commission on Human Rights and the Administration of the Chechen Republic.", "Most of the complaints were filed by the first applicant, apparently on behalf of the whole family. The applicants retained copies of some of these complaints and submitted them to the Court. The official bodies forwarded the majority of the complaints to the prosecutors’ offices for investigation. 21. On the morning of 13 November 2002 the applicants wrote to the prosecutor’s office of the Shali District (“the district prosecutor’s office”).", "They complained about their relative’s abduction but did not challenge, as such, the intrusion into their home. 22. On 21 November 2002 the district prosecutor’s office instituted an investigation into Ayub Takhayev’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given number 59259. 23.", "On 22 November 2002 the first applicant requested the district prosecutor’s office to help her to establish her son’s whereabouts. 24. On 23 November 2002 the first applicant was granted victim status in case no. 59259. 25.", "On 29 December 2002 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 26. On 21 January 2003 the investigation in case no. 59259 was suspended for failure to identify the alleged perpetrators. 27.", "On 25 March 2003 the military prosecutor’s office of military unit no. 20116 informed the first applicant of the outcome of the inquiry conducted at her request. The inquiry had established that military personnel had not been implicated in Ayub Takhayev’s disappearance. 28. On 8 April 2003 the first applicant wrote to the district prosecutor’s office and the prosecutor’s office of the Chechen Republic enquiring about progress in the investigation into her son’s disappearance and requesting to be granted victim status.", "On 11 April 2003 the district prosecutor’s office acknowledged receipt of her letter but did not reply as to the substance. 29. On 30 July 2003 the first applicant again wrote to the district prosecutor’s office repeating the request of 8 April 2003. 30. On 15 August 2003 the prosecutor’s office of the Chechen Republic ordered the district prosecutor’s office to rescind the decision of 21 January 2003 on suspension of the investigation and informed the first applicant that the investigation had been opened on 21 November 2002 and then suspended on 21 January 2003.", "31. On 20 August 2003 the South Federal Circuit Department of the Prosecutor General’s Office informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 32. On 22 August 2003 the district prosecutor’s office rescinded the decision of 21 January 2003 and resumed the proceedings in case no. 59259.", "33. In a letter of 25 August 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 59259 had been resumed and that the search for Ayub Takhayev was currently under way. They further stated that the investigating authorities had checked detention centres and had requested various law enforcement agencies to establish the identities of those responsible for the kidnapping and those in charge of the special operation conducted in Mesker-Yurt on 13 November 2002, but those requests had remained unanswered and had been repeated. The first applicant was also asked to ensure that witnesses of the kidnapping visit the district prosecutor’s office and make statements.", "34. On 18 September 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the district prosecutor’s office had resumed the investigation on 22 August 2003. 35. On 19 September 2003 the military prosecutor of the United Group Alignment informed the first applicant that there were no grounds to presume any kind of implication of Russian federal troops in her son’s kidnapping. 36.", "On 21 February 2005 the first applicant requested the district prosecutor’s office to update her on progress in the investigation into her son’s kidnapping. 37. On 14 April 2006 the district prosecutor’s office informed the first applicant that her complaint to the prosecutor’s office of the Chechen Republic had been included in the case file and that the investigation had been suspended on 3 July 2005. 38. On 31 May 2007 the prosecutor’s office of the Chechen Republic informed the first applicant that Ayub Takhayev had been kidnapped by “unidentified men armed with machine guns and wearing camouflage uniforms who had arrived in APCs”.", "They also noted that the investigation in case no. 59259, suspended on 3 July 2005, had been resumed on 8 May 2007 and was under way. 39. After the investigation resumed in May 2007, the investigators visited the applicants’ house and questioned the first, second, third and fifth applicants, as well as the applicants’ neighbours. According to the first applicant, it was the first time the investigators had visited the village of Mesker-Yurt since the summer of 2003.", "2. Information submitted by the Government 40. The investigation in case no. 59259 did not establish any involvement of special units of law enforcement and security forces in the kidnapping of Ayub Takhayev. 41.", "The law enforcement agencies of the Chechen Republic did not institute any criminal proceedings against Ayub Takhayev. 42. According to the district department of the interior and the military commander’s office, Ayub Takhayev was not arrested; none of the detachments of the military commander’s office had left their premises at the time of his abduction. 43. The investigators sent requests for information to the Department of the Federal Security Service of the Chechen Republic and the military prosecutor’s office of the United Group Alignment.", "The information received in reply confirmed that Ayub Takhayev had not been arrested or charged with any crime. 44. Requests for information were also sent to remand prisons in the Chechen Republic, the Stavropol Region and other adjacent regions of Russia. 45. In numerous letters of recommendation Ayub Takhayev was described in a positive manner, which proved that the institution of criminal proceedings against him was improbable.", "46. Ayub Takhayev was not admitted to the Central Hospital of the Shali District. 47. The investigation had not identified the perpetrators and was currently under way. Investigative measures aimed at resolving Ayub Takhayev’s kidnapping were being taken.", "48. Despite specific requests by the Court the Government did not disclose any documents from the investigation file in case no. 59259. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. II.", "RELEVANT DOMESTIC LAW 49. Article 125 of the Russian Code of Criminal Procedure 2001 (“CCP”) provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 50. Article 161 of the CCP establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of participants in the criminal proceedings and does not prejudice the investigation.", "It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission. 51. Article 1069 of the Russian Civil Code provides that damage sustained by an individual because of unlawful actions or inaction of State and municipal agencies or their officials is to be indemnified by a State or municipal treasury. THE LAW I. The government’s objection AS TO ABUSE OF PETITION 52.", "The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application was clearly of a political nature as the applicants wanted to “incriminate the Russian Federation of allegedly adopting a policy of violating human rights in the Chechen Republic”. They concluded that the application should be dismissed pursuant to Article 35 § 3 of the Convention. 53. The Court considers that the Government may be understood to be suggesting that there was an abuse of the right of petition on the part of the applicants.", "It observes in this respect that the complaints the applicants brought to its attention concerned genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed. II. The government’s objection AS TO non-exhaustion of domestic remedies A.", "The parties’ submissions 54. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Ayub Takhayev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the allegedly unlawful detention of their relative or to challenge in court any actions or omissions of the investigating or other law enforcement authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to bring civil claims for damages pursuant to Article 1069 of the Civil Code which theybut they had failed to do so.", "55. The applicants stated that the criminal investigation had proved to be ineffective. B. The Court’s assessment 56. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged.", "The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1210, §§ 65-67; and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).", "57. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65). 58. The Court first notes, having regard to the Government’s objection concerning the applicants’ failure to complain of their relative’s unlawful detention to the domestic authorities, that after Ayub Takhayev had been taken away by armed men, the applicants actively attempted to establish his whereabouts and applied to various official bodies, whereas the authorities denied responsibility for the detention of the missing person. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicants, it is more than questionable whether a court complaint about the unacknowledged detention of Ayub Takhayev by the authorities would have had any prospects of success.", "Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicants’ situation, namely that it would have led to the release of Ayub Takhayev and the identification and punishment of those responsible (see Musayeva and Others v. Russia, no. 74239/01, § 69, 26 July 2007). Accordingly, the Government’s objection concerning non-exhaustion of domestic remedies in respect of Ayub Takhayev’s unlawful deprivation of liberty must be dismissed. 59. As to the alleged violation of Ayub Takhayev’s right to life, the Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.", "60. As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006).", "In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed. 61. As regards criminal criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law law enforcement authorities immediately after the abduction of their relative and that the criminal proceedings have been pending since 21 November 2002. The applicants and the Government disagree about the effectiveness of the investigation of the kidnapping.", "62. Furthermore, the Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints under Article 2. Thus, it considers that these matters fall to be examined below under that provision of the Convention. III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.", "The parties’ submissions 63. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Ayub Takhayev had been State agents. In support of that affirmation they referred to the following facts. The armed men who had abducted Ayub Takhayev had moved freely around the village in APCs, vehicles that were only in the possession of the military. They had spoken Russian without an accent, which proved that they were not of Chechen origin.", "The applicants also pointed out that the ground given for the Government’s refusal to submit the file in criminal case no. 59259 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”. 64. The Government submitted that unidentified armed men had kidnapped Ayub Takhayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights.", "They further argued that there was no convincing evidence that the applicants’ relative was dead. B. The Court’s evaluation of the facts (a) General principles 65. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants’ allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no.", "65899/01, § 160, ECHR 2005‑...). 66. The Court points out that a number of principles have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)).", "Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others, cited above, § 160). 67. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 32; and Avşar v. Turkey, cited above, § 283) even if certain domestic proceedings and investigations have already taken place. 68. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Tomasi v. France, 27 August 1992, Series A no.", "241-A, pp. 40-41, §§ 108-11; Ribitsch, cited above, § 34; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 69. These principles apply also to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since.", "In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş and Others, cited above, § 160). 70. Finally, when there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that criminal-law liability is distinct from international-law responsibility under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions, which are to be interpreted and applied on the basis of the objectives of the Convention and in light of the relevant principles of international law.", "The responsibility of a State under the Convention, for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Avsar, cited above, § 284). (b) Establishment of the facts 71. The Court notes that despite its requests for a copy of the investigation file into the abduction of Ayub Takhayev, the Government produced no documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure.", "The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)). 72. In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicants’ allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants’ relative can be presumed dead and whether his death can be attributed to the authorities.", "73. The applicants alleged that the persons who had apprehended Ayub Takhayev on 13 November 2002 had been State agents. 74. The Court notes that this allegation is supported by the witness statements collected by the applicants. It finds that the fact that a large group of armed men in uniform, equipped with military armoured vehicles, was able to move freely around the village at night and proceeded to check identity papers and apprehend several persons at their homes strongly supports the applicants’ allegation that these were State servicemen.", "75. According to the applicants, three other villagers of Mesker-Yurt were abducted in circumstances similar to those of their relative’s kidnapping (see paragraphs 17 and 18 above). The Court considers that such a series of events bears strong resemblance to a special operation carried out by law enforcement agencies or the military. However, it cannot clarify whether the investigators have ever tried to establish any possible links between the abductions owing to the Government’s failure to produce a copy of the investigation file. 76.", "The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 77.", "Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that Ayub Takhayev was apprehended by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court considers that Ayub Takhayev was apprehended on 13 November 2002 by State servicemen during an unacknowledged security operation. 78. There has been no reliable news of Ayub Takhayev since the date of the kidnapping.", "His name has not been found in any official detention facilities’ records. The Government have not submitted any explanation as to what happened to him after his abduction. 79. Having regard to previous cases concerning disappearances of people in Chechnya which have come before the Court (see, among others, Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva, cited above; Luluyev and Others v. Russia, no.", "69480/01, ECHR 2006‑... (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Ayub Takhayev or of any news of him for more than five years supports this assumption. 80.", "Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Ayub Takhayev must be presumed dead following his unacknowledged detention by State servicemen. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 81. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads: “1.", "Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties’ submissions 82.", "The Government contended that the domestic investigation had obtained no evidence to the effect that Ayub Takhayev was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government noted that the applicants had reported Ayub Takhayev’s kidnapping to the district prosecutor’s office only on 20 November 2002 and that the investigation had been opened on the following day. They further claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 83. The applicants argued that Ayub Takhayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years.", "The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy as required by the Court’s case-law on Article 2. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court. B. The Court’s assessment 1. Admissibility 84.", "The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies provided for by criminal law should be joined to the merits of the complaint (see paragraph 62 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) The alleged violation of the right to life of Ayub Takhayev 85.", "The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar, cited above, § 391). 86.", "The Court has already found it established that Ayub Takhayev must be presumed dead following his unacknowledged detention by State servicemen and that his death can be attributed to the State. In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Ayub Takhayev. (b) The alleged inadequacy of the investigation of the kidnapping 87. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.", "This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 88. In the present case the kidnapping of Ayub Takhayev was investigated.", "The Court must assess whether the investigation met the requirements of Article 2 of the Convention. 89. The Court notes at the outset that all the documents from the investigation file were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the scarce information about its progress presented by the Government. 90.", "The Court notes that the authorities were immediately made aware of the crime by the applicants’ submissions. The investigation in case no. 59259 was instituted eight days after Ayub Takhayev’s abduction. The Court is not persuaded by the Government’s argument that the delay in instituting the criminal proceedings was a result of the applicants’ failure to lodge a complaint with the district prosecutor’s office immediately after the incident. The Government did not dispute that the applicants had reported Ayub Takhayev’s abduction to the police in the morning of 13 November 2002.", "In such circumstances the Court considers that the applicants were not obliged to lodge their complaints directly with the district prosecutor’s office. Once the law enforcement authorities were duly and promptly made aware of the crime, it was incumbent on them to organise co-operation between the various State agencies in such a manner that would guarantee the effectiveness of a criminal investigation. Therefore, in the Court’s opinion, the investigating authorities failed to promptly commence the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. 91. As it can be seen from the letter of the district prosecutor’s office of 25 August 2003, the investigators attempted to obtain information on the special operation carried out in Mesker-Yurt in November 2002 and the identities of those in charge of it from the military and law enforcement agencies (see paragraph 33 above).", "It appears that their attempt was futile. 92. The Court notes that it appears that the applicants and their neighbours were questioned for the first time only in 2007, that is, five years after the incident. Furthermore, it appears that the investigating authorities have not questioned any servicemen of law enforcement agencies or the military at all. These failures alone compromised the effectiveness of the investigation and could not but have had a negative impact on the prospects of arriving at the truth.", "It appears that no real effort was made by the authorities to establish the whereabouts and fate of Ayub Takhayev. 93. As to the manner in which the investigation was conducted, the Court notes that in a period of five years it was suspended and resumed a number of times. There were lengthy periods of inactivity and, in particular, no proceedings whatsoever were pending between 3 July 2005 and 8 May 2007. 94.", "The Court also notes that even though the first applicant was granted victim status in case no. 59259, she was only informed of some decisions on the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. 95. The Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies.", "The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of the investigating authorities before a court. Furthermore, taking into account that the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation. 96. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Ayub Takhayev, in breach of Article 2 in its procedural aspect.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 97. The applicants relied on Article 3 of the Convention, submitting that as a result of Ayub Takhayev’s disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 98. The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.", "They also insisted that the investigative authorities had replied to the applicants’ queries with due diligence. 99. The applicants maintained their submissions. B. The Court’s assessment 1.", "Admissibility 100. 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 101. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan v. Turkey, no.", "25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 102. In the present case the Court notes that the applicants are the close relatives of the missing person who witnessed his abduction. For more than four years they have not had any news of Ayub Takhayev. During this period the applicants have applied to various official bodies with enquiries about Ayub Takhayev, both in writing and in person.", "Despite their requests, they have never received any plausible explanation or information as to what became of Ayub Takhayev following his abduction. The responses received by the applicants mostly denied that the State was responsible for the abduction or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 103. In view of the above, the Court finds that the applicants have suffered distress and anguish as a result of the disappearance of their close relative and the inability to find out what happened to him.", "The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3. 104. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants. VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 105.", "The applicants further stated that Ayub Takhayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3.", "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5.", "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 106. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Ayub Takhayev had been deprived of his liberty in breach of the guarantees set out in Article 5 of the Convention. 107. The applicants reiterated the complaint.", "B. The Court’s assessment 1. Admissibility 108. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.", "2. Merits 109. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).", "110. The Court has found it established that Ayub Takhayev was apprehended by State servicemen on 13 November 2002 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).", "111. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 112. In view of the foregoing, the Court finds that Ayub Takhayev was held in unacknowledged detention without any of the safeguards contained in Article 5.", "This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 113. The applicants complained, relying on Article 8 of the Convention, that their house was unlawfully searched on the night of 13 November 2002. Article 8 of the Convention, in so far as relevant, provides: “1.", "Everyone has the right to respect for ... his home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 114. The Court reiterates that while, in accordance with Article 35 § 1 of the Convention, those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00 et seq., 10 January 2002).", "There is no evidence that the applicants properly raised before the domestic authorities their complaints alleging a breach of their right to respect for their home. But even assuming that in the circumstances of the present case no remedies were available to the applicants, the events complained of took place on 13 November 2002, whereas their application was lodged on 26 April 2004. The Court thus concludes that this part of the application was lodged outside the six-month limit (see Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006; and Ruslan Umarov v. Russia (dec.), no. 12712/02, 8 February 2007).", "115. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 116. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13, taken in conjunction with Articles 2, 3 and 5 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.", "The parties’ submissions 117. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had not brought any complaints in relation to Ayub Takhayev’s kidnapping to courts of the Chechen Republic, Kabardino-Balkaria and Ingushetia or to the courts of the Stavropol, Krasnodar and Rostov Regions. Furthermore, the applicants could have brought civil claims for damages pursuant to Article 1069 of the Civil Code. In sum, the Government submitted that there had been no violation of Article 13.", "118. The applicants reiterated the complaint. B. The Court’s assessment 1. Admissibility 119.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 120.", "The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997‑III, p. 1020, § 64). 121. As regards the complaint of lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no.", "38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183). 122. In view of the Court’s above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no.", "131, § 52). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 123. It follows that in circumstances where, as here, the criminal investigation into the disappearance of Ayub Takhayev has been ineffective and the effectiveness of any other remedy that may have existed, including civil claims for damages, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention. 124.", "Consequently, there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention. 125. As regards the applicants’ reference to Article 3 of the Convention, the Court notes that it has found a violation of the above provision on account of the applicants’ mental suffering as a result of the disappearance of Ayub Takhayev, their inability to find out what happened to him and the way the authorities handled their complaints. However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.", "126. As regards the applicants’ reference to Article 5 of the Convention, the Court reiterates that, according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention as a result of unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. IX. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 127. In their initial application form the applicants complained that they had been discriminated against in the enjoyment of the Convention rights, arguing that the violations complained of had taken place because of their residence in Chechnya and their ethnic background as Chechens.", "This was contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 128. In the observations on admissibility and merits of 11 September 2007 the applicants stated that they no longer wished their complaint under Article 14 of the Convention to be examined. 129. The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see Stamatios Karagiannis v. Greece, no.", "27806/02, § 28, 10 February 2005). 130. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. X. APPLICATION OF ARTICLE 41 OF THE CONVENTION 131.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 132. The first and second applicants claimed damages in respect of the lost wages of their son from the time of his kidnapping. They submitted that, even though Ayub Takhayev was unemployed at the time of his arrest, it was reasonable to suppose that he would have found a job and earned at least the official minimum wage. The first and second applicants insisted that each of them would have received 20 % of their son’s earnings. The first and second applicants claimed 387,430.40 and 295,035.67 Russian roubles (RUB), respectively (approximately 10,760 and 8,200 euros (EUR)).", "133. The Government regarded these claims as unfounded. 134. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.", "135. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicants’ son and the loss by the applicants of the financial support which he could have provided. Having regard to the applicants’ submissions and the fact that Ayub Takhayev was not employed at the time of his apprehension, the Court awards EUR 3,000 to the first and second applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 136.", "The first, second and third applicants claimed EUR 25,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relative. The fourth and fifth applicants claimed EUR 5,000 each under this heading. 137. The Government found the amounts claimed exaggerated. 138.", "The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relative. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the first and second applicants EUR 25,000 jointly, the third and fourth applicants EUR 5,000 jointly and the fifth applicant EUR 5,000, plus any tax that may be chargeable thereon. C. Costs and expenses 139.", "The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff, totalling EUR 6,300. They also claimed administrative expenses in the amount of 7 % of the above amount. The applicants claimed RUR 1,662.89 in translation fees and EUR 55.15 in international courier mail fees. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 7,245.33.", "140. The Government pointed out that the applicants were only entitled to reimbursement of costs and expenses that had actually been incurred and had been reasonable. They also noted that two of the SRJI’s lawyers who had signed the applicants’ observations on admissibility and merits had not been named in the powers of attorney. 141. The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).", "142. Having regard to the details of the information submitted by the applicants, the Court is satisfied that these rates are reasonable. Turning to the Government’s argument concerning the number of lawyers who signed the applicants’ observations, it points out that the powers of attorney were issued first and foremost in the name of the SRJI, not in that of its employees, and, accordingly, the NGO had a right to assign any of its collaborators to deal with the applicants’ case. Therefore, the Court finds no ground of objection. 143.", "Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that, due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives. Moreover, the case involved little documentary evidence, in view of the Government’s refusal to submit the case file.", "The Court thus doubts that research was necessary to the extent claimed by the representatives. 144. Having regard to the details of the claims submitted by the applicants and acting on an equitable basis, the Court awards them the amount of EUR 4,500, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants. D. Default interest 145. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaint under Article 14 of the Convention; 2. Dismisses the Government’s objection as to the abuse of the right of petition; 3. Dismisses the Government’s objection as to non-exhaustion of civil domestic remedies, as well as non-exhaustion of domestic remedies in respect of Ayub Takhayev’s unlawful deprivation of liberty; 4. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it; 5.", "Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible; 6. Holds that there has been a violation of Article 2 of the Convention in respect of Ayub Takhayev; 7. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Ayub Takhayev disappeared; 8. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 9. Holds that there has been a violation of Article 5 of the Convention in respect of Ayub Takhayev; 10.", "Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violation of Article 2 of the Convention; 11. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 12. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 3,000 (three thousand euros) in respect of pecuniary damage to the first and second applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on this amount; (ii) EUR 25,000 (twenty-five thousand euros) to the first and second applicants jointly, EUR 5,000 to the third and fourth applicants jointly and EUR 5,000 to the fifth applicant in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts; (iii) EUR 3,650 (three thousand six hundred and fifty euros) in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands, plus any tax that may be chargeable to the applicants; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 18 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF ŞİMŞEK AND OTHERS v. TURKEY (Applications nos. 35072/97 and 37194/97) JUDGMENT STRASBOURG 26 July 2005 FINAL 26/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Şimşek and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrK. Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, judges,and Mr S. Naismith, Deputy Section Registrar, Having deliberated in private on 28 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in two applications (nos. 35072/97 and 37194/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-two Turkish nationals, Mr Ali Şimşek, Ms Şaziment Şimşek, Ms Dilay Şimşek, Mr Erkan Şimşek, Mr Gökhan Şimşek, Ms Şenay Şimşek and Mr Hakkı Yılmaz, Mr Hüseyin Kopal, Mr Cemal Poyraz, Ms Hacer Baltacı, Mr Mustafa Tunç, Mr Mahmut Engin, Mr Arslan Bingöl, Mr Veli Kaya, Mr Mehmet Gürgen, Ms Çiçek Yıldırım, Mr Hüseyin Sel, Ms Mukaddes Gündüz, Mr Sabri Puyan, Mr Zeynel Abit Çabuk, Ms Aynur Demir and Mr Aligül Yüksel (“the applicants”), on 7 February and 12 May 1997 respectively. 2. The applicants, who had been granted legal aid, were represented by Mr S. Kuşkonmaz, a lawyer practising in Istanbul. In the instant case, the Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicants alleged, in particular, that their relatives had been killed during demonstrations that had taken place in Istanbul as a result of the use of force by the police which was more than absolutely necessary. They further complained about the inadequacy and ineffectiveness of the domestic investigation into the events. In respect of their complaints, the applicants alleged that there had been a breach of Articles 2, 6, 14 and 17 of the Convention. 4.", "The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the cases (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 20 April 1999 the Court decided to join the applications and to communicate them to the Government (Rule 42 § 1). 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 8. By a decision of 4 May 2004, the Court declared the applications partly admissible. 9. The applicants and the Government each filed additional observations on the merits (Rule 59 § 1) and replied in writing to each other’s observations.", "10. On 1 November 2004 the Court again changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11.", "The facts as submitted by the parties may be summarised as follows. A. General background 12. All of the applicants reside in Istanbul. 1.", "Application no. 35072/97 13. The applicants Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek are relatives of Dilek Şimşek Sevinç, who died during the Gazi incident. 2. Application no.", "37194/97 14. The following applicants are all relatives of persons who also died during the Gazi incident: –Hakkı Yılmaz is the father of Dinçer Yılmaz (deceased); –Hüseyin Kopal is the father of Reis Kopal (deceased); –Cemal Poyraz is the father of Zeynep Poyraz, (deceased); –Mustafa Tunç is the father of Fevzi Tunç (deceased); –Mahmut Engin is the father of Sezgin Engin (deceased); –Arslan Bingöl is the husband of Fadime Bingöl (deceased); –Veli Kaya is the father of Mümtaz Kaya (deceased); –Mehmet Gürgen is the father of Hasan Gürgen (deceased); –Çiçek Yıldırım is the mother of Ali Yıldırım (deceased); –Hüseyin Sel is the father of Hasan Sel (deceased); and –Mukaddes Gündüz is the wife of Mehmet Gündüz (deceased). The remaining applicants are relatives of persons who died during the Ümraniye incident: –Hacer Baltacı is the wife of İsmail Baltacı (deceased); –Sabri Puyan is the brother of Hasan Puyan (deceased); –Zeynel Abit Çabuk is the father of Hakan Çabuk (deceased); –Aynur Demir is the wife of Genco Demir (deceased); and –Aligül Yüksel is the son of İsmihan Yüksel (deceased). B. The facts as presented by the applicants 1.", "The Gazi incidents 15. Gazi is a neighbourhood located within the Gaziosmanpaşa district of Istanbul. A majority of residents living in the Gazi neighbourhood belongs to the Alevi sect. 16. At around 9 p.m. on 12 March 1995, a group of unidentified persons opened fire from a taxi on five cafés situated in the Gazi neighbourhood.", "The shooting continued for approximately five minutes. An elderly person, Halil Kaya, was killed and twenty-five persons were wounded. Many shops were badly damaged during the shooting. The perpetrators of the attack killed the driver of the taxi and fled. 17.", "Following this incident, residents of the neighbourhood gathered on the street outside the cafés and in front of the Cemevi[1] to protest against the indifference displayed by police officers after the shooting. People also gathered outside the hospitals, where injured people were being treated. At about midnight, the group started marching towards the local police station. The police set up barricades with panzers and subsequently attacked the group with their truncheons and the butts of their weapons. 18.", "At 4 a.m. on 13 March 1995, the Istanbul governor and the chief of police went to the Gaziosmanpaşa governor’s office and held a meeting with the community leaders to stop the incidents. The demonstrators began to calm down. 19. At that moment two panzers approached the demonstrators and began firing at them. As a result, Mehmet Gündüz was killed on the spot and ten persons were injured.", "20. In the morning of 13 March 1995 thousands of people from the surrounding neighbourhoods joined the demonstrators. According to the applicants, there was no provocation by any terrorist organisation. Some of the demonstrators started throwing stones and coins at the police barricades. 21.", "At 11 a.m. police began firing from behind their barricades. Snipers were positioned on nearby buildings, targeting the protesters. During the firing, Fadime Bingöl and Sezgin Engin were killed and a number of others were injured. 22. The killing of these two persons raised the tension and the demonstrators began advancing towards the police barricades at 2 p.m. Uniformed and plainclothes police officers, who had positioned themselves behind the barricades, on the side streets and on some of the buildings, fired intensively.", "For about twenty minutes, the police officers chased a number of demonstrators who were trying to run away from the scene and shot them. Zeynep Poyraz, Dilek Şimşek Sevinç, Ali Yıldırım, Reis Kopal, Mümtaz Kaya, Fevzi Tunç, Hasan Sel, Hasan Gürgen, Dinçer Yılmaz and Hasan Ersürer were shot and killed. More than a hundred persons were injured. The police prevented the demonstrators from taking the wounded persons to hospital. 23.", "At 3.15 p.m. the same day the police attacked the crowd who were attending the funerals of Halil Kaya and Mehmet Gündüz. Military reinforcements were called to the area. The applicants state that the group did not protest against the soldiers. 24. At 4 p.m. a curfew was imposed in the area.", "25. In total, fifteen people, including a person in the café, Halil Kaya, and the taxi driver were killed, and 276 people were injured during these events. 2. The Ümraniye incident 26. The events in the Gazi neighbourhood sparked widespread outrage throughout the country and a number of demonstrations were held in different parts of Turkey during which the actions of the police were condemned.", "27. On 15 March 1995 a large crowd gathered in the Mustafa Kemal neighbourhood, located within the Ümraniye district of Istanbul. The group began marching towards the funerals of those who had been killed during the Gazi incident. 28. At 2.30 p.m. the same day, the crowd came across barricades which had been set up by the police in a square outside a primary school.", "A number of demonstrators started throwing stones towards the barricades, upon which, without any warning, uniformed and plainclothes police officers began firing at the crowd. No one in the group returned fire. None of the police officers were killed or injured. Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk were killed during the shooting. More than twenty people were injured.", "C. The facts as submitted by the Government 29. Upon receipt of information that five cafés in the Gazi neighbourhood were under fire, police officers were sent to the scene of the incident. When the police officers arrived in front of the cafés, they saw a crowd of forty people who were shouting slogans against the police. The crowd attacked the police vehicles and the police officers were unable to conduct an investigation. Therefore they called for reinforcements.", "Following the arrival of additional security forces, the police conducted an investigation and wounded persons were sent to hospital. At the same time, some people from the neighbourhood joined the protesting group. Together, they started shouting slogans, and throwing coins and stones at the police. Some of the protesters had fire bombs in their hands. With the participation of other people from the neighbourhood, the crowd became larger and they started to march towards the Gazi Police Station.", "Many shops and vehicles were set on fire. Some masked men in the crowd threw fire bombs towards the police officers. In order to prevent the crowd from going further, the police officers built barricades. Security forces verbally warned people to stop. They then used pressurised water and batons to disperse the crowd.", "When they were not able to disperse them, they fired warning shots in the air. However, the crowd continued to walk towards the security forces and attacked the panzers with fire bombs. The riot in the Gazi neighbourhood lasted for two days. At the end of the second day, a curfew was imposed in the area. During the riot, 13 people died and 195 persons (152 residents, 36 police officers and 7 soldiers) were wounded.", "30. Following the incidents that took place on 12 March 1995, the security forces received intelligence reports about further possible riots in the Ümraniye area. In order to prevent any untoward occurrences, a meeting was organised on 14 March 1995 at the Ümraniye district security directorate building. The district director of security, the mayor of the neighbourhood and the president of the Pir Sultan Abdal Association participated in the meeting, which was presided over by the district governor. During the meeting, the situation was discussed and residents were requested not to be influenced by provocation.", "In the morning of 15 March 1995, upon threats from a terrorist organisation, all the shops in the neighbourhood closed down as a sign of protest. A second meeting was held to discuss the situation. At about 1 p.m. the same day, a group of 1,500 people gathered in front of the Pir Sultan Abdal Association in the Mustafa Kemal neighbourhood and started to march towards the Örnek neighbourhood. The security forces announced that the march was illegal and requested the participants to disperse. The group started shouting slogans and continued to march.", "The number of people increased to thousands. Some of the protesters were wearing red berets and scarves. Some people from the crowd threw stones and coins at the security forces. As the tension increased, the group started attacking the security forces with bricks and stones. The security forces took precautions and established a security line.", "After some time, armed men, who were amongst the group, started shooting towards the security forces and the crowd. The security forces fired warning shots in the air and the attack stopped. The wounded persons were taken immediately to hospital. While the wounded were being evacuated, the crowd continued shouting slogans and throwing stones from behind the shelters. Traffic was also halted by burning tyres.", "Military forces arrived at the scene, a curfew was established and the entrance to the neighbourhood was placed under strict control. 31. Following the incidents, the domestic authorities immediately commenced investigating the events. Several witness statements were taken, autopsies were conducted and the bullets recovered from the bodies of the wounded and dead persons were sent for ballistic examination. Seven ballistic reports were prepared by the Istanbul Forensic Medicine Institute on 26 and 31 July, 11 September and 15 November 1995, 27 October 1997 and 12 October 1999, respectively.", "According to these reports, none of the bullets that had been recovered from the bodies of the victims matched the weapons of the security forces who were on duty during the two incidents. 32. In accordance with Article 22 of Law No. 3713 on the Prevention of Terrorism, in April 1995 the families of the deceased persons were paid 150,000,000 Turkish Liras (TRL), the equivalent of 2,800 euros (EUR), by way of compensation from the Social Collaboration and Solidarity Encouragement Fund (Sosyal Yardımlaşma ve Dayanışmayı Teşvik Fonu). D. The domestic proceedings concerning the Gazi and Ümraniye incidents 1.", "Proceedings concerning the Gazi incidents 33. On 11 April 1995 Arslan Bingöl, Celal Sevinç, Çiçek Yıldırım, Mukaddes Gündüz, Sabahat Engin and Cemal Poyraz filed a criminal complaint with the Gaziosmanpaşa public prosecutor against the Ministry of the Interior, the Governor of Istanbul, the Director of the Istanbul Police and the police officers who were involved in the incidents of 12-13 May 1995 in the Gaziosmanpaşa district. They maintained that their relatives had been killed by police officers who had used more force than was absolutely necessary. They further alleged that the crowd which protested against the police had not used firearms and that the police had opened fire at the crowd without any warning. They maintained that the police should have first used pressurised water, tear gas or plastic bullets to disperse the demonstrators.", "According to the complainants, the police deliberately used firearms against the demonstrators who were residents of the Gazi district and who belonged to the Alevi sect. 34. Following this criminal complaint, the Public Prosecutor commenced an investigation into the events. On 19 April 1995 he issued a decision of non-jurisdiction to examine the complaint against Hayri Kozakçıoğlu, the Governor of Istanbul. The prosecutor accordingly sent the file to the Ministry of the Interior for further investigation.", "35. On 4 July 1995 the public prosecutor issued a decision of non-prosecution against Necdet Menzir, the Head of the Istanbul Security Department. 36. On 5 July 1995 the prosecutor decided that no criminal prosecution could be initiated against Nahit Menteşe, the Minister of the Interior. He held that, in his capacity as the Minister, Mr Menteşe did not have legal responsibility concerning the alleged events.", "37. On the same day, the public prosecutor also decided to separate the investigation concerning the death of Dinçer Yılmaz, Sezgin Engin, Mümtaz Kaya, Hasan Gürgen, Hasan Sel and Hasan Ersürer from the other killings. This file was accordingly registered under file no. 1995/6570. 38.", "On 10 July 1995 the public prosecutor filed an indictment with the Eyüp Assize Court against twenty police officers who had been on duty during the demonstrations between 12 and 13 May 1995. The indictment involved the death of Dilek Şimşek Sevinç, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Fadime Bingöl, Ali Yıldırım and Mehmet Gündüz. In his indictment, the prosecutor relied on witness statements, medical reports, police reports, autopsy reports, video footage and newspaper clippings. He stated that, following the attack on the cafés located in the Gazi district and upon provocation from an illegal organisation, the residents of the neighbourhood had started protesting against the police. The crowd marched towards the local police station, chanting slogans, and throwing stones and fire bombs.", "Some people among the group fired at the police officers. The crowd was shouting slogans to incite hatred between the Alevis and Sunnis. The prosecutor further maintained that the police panzers had opened fire at the crowd to disperse the demonstrators and, as a result, Mehmet Gündüz was shot and killed. A police officer, identified as Adem Albayrak, had further shot and killed Ali Yıldırım, Dilek Şimşek Sevinç and Fadime Bingöl. Another police officer, whose identity could not be established, shot and killed Reis Kopal.", "Adem Albayrak, together with Officer Mehmet Gündoğan, killed Zeynep Poyraz. The prosecutor alleged that the officers in the panzer, together with Officer Gündoğan, had shot and killed Fevzi Tunç. The prosecutor therefore requested the court to prosecute these officers for intentional homicide under Article 448 of the Criminal Code. 39. Mukaddes Gündüz (wife of Mehmet Gündüz), Mustafa Tunç (father of Fevzi Tunç), Çiçek Yıldırım (mother of Ali Yıldırım), Cemal Poyraz (father of Zeynep Poyraz), Celal Sevinç (husband of Dilek Şimşek Sevinç), Ali Şimşek (father of Dilek Şimşek Sevinç), Hüseyin Kopal (father of Reis Kopal) and Aslan Bingöl (husband of Fadime Bingöl) intervened in the proceedings.", "40. On 13 July 1995 the Eyüp Assize Court decided to transfer the case to another city for security reasons as its location was very close to the vicinity where the incident had taken place. 41. On 15 August 1995 the Court of Cassation upheld the decision of the Eyüp Assize Court and decided to transfer the case to the Trabzon Assize Court, approximately 1000 kilometres away from Istanbul. 42.", "On 11 September 1995 the Trabzon Assize Court held a preliminary hearing. It decided to send letters rogatory to a number of courts to take statements from fifty eye-witnesses. It also decided that taking oral evidence from another 250 witnesses would be considered at a later stage. It finally requested the public prosecutor to find the current addresses of the twenty accused police officers who, since the incident, had been posted elsewhere in the country. It adjourned the examination of the case until 15 November 1995.", "43. On 15 November 1995 the Trabzon Assize Court stayed the trial on the ground that the indictment lacked the prior authorisation of the Istanbul Provincial Administrative Council to initiate criminal proceedings against the police officers. It therefore sent the case-file to the governor’s office in Istanbul, in accordance with the Law on the Prosecution of Civil Servants. The applicants filed an objection against this decision with the Court of Cassation. 44.", "On 8 October 1996 the Court of Cassation decided that the decision of the Trabzon Assize Court to stay the proceedings was not a final decision and, as such, the Court of Cassation did not have jurisdiction to examine this appeal. On 15 October 1996 the prosecutor at the Court of Cassation appealed against this decision. 45. On 17 December 1996 the Joint Criminal Chambers of the Court of Cassation confirmed that the Court of Cassation was not the competent forum to examine the appeal request. Accordingly, the case file was transferred to the Rize Assize Court.", "46. On 3 March 1997 the Rize Assize Court found in line with the applicants’ objection and decided to quash the decision of the Trabzon Assize Court dated 15 November 1995. It held that a prior authorisation from the Istanbul Provincial Administrative Council was not necessary to commence the prosecution of the accused police officers. 47. On 28 March 1997 the Trabzon Assize Court insisted that its decision of 15 November 1995 was valid and that the authorisation of the Istanbul Provincial Administrative Council was required to try the defendants.", "It decided to send the file to the Ministry of Justice to obtain a written order instructing the public prosecutor at the Court of Cassation to refer the case to the Court of Cassation. The Trabzon public prosecutor was requested to forward the file to the Ministry of Justice. 48. On 31 March 1997 the Trabzon public prosecutor sent the file to the Ministry of Justice together with his observations, in which he stated that the issue had already been examined by the Joint Criminal Chambers of the Court of Cassation and that, in his opinion, it was not necessary for the Ministry of Justice to issue a written order. 49.", "On 13 May 1997 the Ministry of Justice returned the file to the Trabzon Assize Court, rejecting its request for a written order. 50. On 23 May 1997 the president of the Trabzon Assize Court submitted a two-page letter informing the court about his decision to abstain from sitting as a member of the court during the prosecution of the police officers. In his letter, the president stated that it was impossible for him to remain impartial and independent during the trial of the police officers when his own life was being protected by members of the security forces. He also stated that, in his opinion, the police officers were not guilty and the Gazi district incident was a premeditated riot against the security forces.", "51. On 13 June 1997 the Trabzon Assize Court resumed the trial and held a preliminary hearing. The president of the court, who had abstained from hearing the case, was replaced by another judge. 52. On 16 September 1997 the Trabzon Assize Court held the first hearing in the case.", "The defendants did not attend the hearing but were represented by their lawyers. During the hearing, the court heard testimonies from the interveners, namely Mustafa Tunç, Çiçek Yıldırım, Ali Şimşek, Cemal Poyraz and Aslan Bingöl. All interveners complained that the police had used excessive force against the demonstrators, which had led to the killing of their relatives. As none of them were eye-witnesses to the events, they were unable to give precise details about the incident. However they asked the court to punish those who were responsible for the killings.", "The same day, the court heard evidence from two people who had been injured during the Gazi Incident. In their statements, both witnesses stated that they had been severely beaten by the police. They also identified the accused officer Adem Albayrak as the officer who had beaten them. At the end of the hearing, the court ordered the detention on remand of eight of the defendants. It also summoned the remainder of the defendants to the next hearing.", "53. In its hearing held on 17 November 1997, the court took statements from fifteen accused police officers. Before the court, the defendants stated the following: Adem Albayrak “At that time, I was a working at the Gaziosmanpaşa District Security Directorate Investigation Unit. Following the attack on the cafés, I was called to the scene with other police officers. I was in command of one of the units.", "During the incident, I was in civilian clothes, equipped with a handgun. I did not have a rifle or other firearms. When I arrived at the scene, I saw that a huge crowd had already gathered in front of the police station. Some of the demonstrators were throwing stones and fire bombs at the police officers. There were terrorists amongst the demonstrators.", "They set fire to a white car and a gas container was thrown at this car from a nearby building. The demonstrations continued for about 4 hours. With the help of two panzers, the police officers were trying to disperse the crowd. At some point, the demonstrators marched back but I did not follow them. I stayed near the police station the whole time.", "Some civilians fired at the police officers from the roofs of the buildings. I did not fire at the crowd. I deny the charges brought against me.” Mehmet Gündoğan “When I arrived in the Gazi district, there was a huge gathering. The demonstrators were carrying banners. The officers warned them and fired in the air.", "Some of the demonstrators fired at the police. I was equipped with a handgun; I did not have a rifle. I admit that I am the person in the photograph holding a stick with my right hand and a gun with my left hand. However the security of the gun was locked. I did not fire at the demonstrators.” 54.", "The same day, the court heard the statements of thirteen other defendants who had been on duty in the panzers at the time of the incident. All of the accused officers denied firing at the crowd. They stated that there were three panzers at the scene on 13 March 1995. The panzers had acted as protective shields for the police officers who were trying to disperse the crowd. According to the accused officers, the crowd was not peaceful; the demonstrators were chanting slogans, and throwing stones and fire bombs at the police.", "The three panzers had been ordered to drive towards the demonstrators to force them to disperse. All the police officers acknowledged that they had had handguns but denied having had rifles. 55. On 15 December 1997 the court heard the statements of two other accused police officers, who maintained that the crowd was not peaceful, but was chanting slogans, and throwing stones and fire bombs at the police. They denied firing at the crowd and stated that some people in the group had fired at the police.", "The same day, the court took statements from Hüseyin Kopal, who had intervened in the proceedings, and six more eye-witnesses. Their accounts may be summarised as follows: Hüseyin Kopal “I am Reis Kopal’s brother. When Reis did not come home on the day of the incident, I was worried about him. I therefore went to the Gazi district looking for him. It was very crowded.", "There was a clash. The demonstrators were throwing stones at the police. I saw three dead bodies near a wall. I later learned that these belonged to Fevzi Tunç, Ali Yıldırım and Sezgin Engin. Uniformed and plainclothes police officers were firing at the crowd.", "I saw the accused officer, Adem Albayrak, shooting at the crowd with a M5 type rifle. I continued looking for my brother. A few minutes later, I witnessed the killing of Mümtaz Kaya. He was shot by a police officer near the high school. I was not able to find my brother and I returned home.", "Later that night, as I was watching the events from the TV, I recognised my brother. He was amongst the demonstrators, throwing stones at the police. We were later informed that he was shot dead during the incidents.” Şeyho Tunç “On 13 March 1995 I went to the Gazi district. When I arrived near the police station, a clash broke out. Police officers targeted the demonstrators and fired at them.", "I saw the accused police officer Adem Albayrak firing at Fevzi Tunç. Adem Albayrak was in civilian clothes, equipped with a rifle.” Mahmut Türkmen “At the time of the incident, I was working at the Cemevi. Following the attack on the cafés, we tried to convince the residents to calm down. At about 4 a.m. a panzer drove towards our building and projected a light. Thereafter I heard gunshots.", "Mehmet Gündüz was shot and killed during the shooting. Because of the light, I was unable to see whether the firing came from the panzer or somewhere else.” Erkan Şimşek “I am the brother of Dilek Sevinç who died during the Gazi incident. Following the attack on the cafés, together with Dilek and my younger sister Dilay we approached the police station to see what was going on. One plainclothes police officer, namely Mehmet Gündoğan, started beating me. Then some other police officers started firing at the crowd.", "Dilek was shot as a result of the shooting. She was shot by a plainclothes police officer who was wearing jeans and holding a rifle. I later learned from the press that his name was Adem Albayrak.” Şahnaz Türkkan “I am the neighbour of Fadime Bingöl who was shot dead during the Gazi incident. On the day of the incident, Fadime was worried about her daughter who had gone to school. When she saw that other students were returning to their houses, she wanted to go out and find her daughter.", "I accompanied her. Together, we went towards the crowd. When we were in front of the pharmacy, Fadime climbed on a ladder in order to be able to see her daughter in the crowd. Suddenly there was shooting, and I saw Fadime fall down. She was shot by a police officer who was standing on the opposite side of the road.", "I cannot identify the officer as he was wearing a helmet.” Songül Bingöl “Fadime Bingöl is my relative. On the day of the incident, we went out to search for Fadime’s daughter who had gone to school in the morning. Fadime climbed on a ladder in front of the pharmacy, looking for her daughter. She was shot in the face by police officers standing on the opposite side of the building.” Safiye Obalı “On 13 March 1995 at about 10 a.m. together with my sister-in-law Fadime Bingöl, we went out looking for Fadime’s daughter. We first went to the Cemevi, then continued walking.", "Fadime saw a ladder and climbed on it to find her daughter in the crowd. At that time plainclothes and uniformed police officers started firing at the crowd. Fadime was shot in the face. I could not see who shot her. I just saw police officers shooting at the crowd.” 56.", "On 28 January 1998 the court held its fourth hearing and took the statement of an accused police officer, Sedat Özdemir. Mr Özdemir maintained that he had been on duty in one of the panzers during the Gazi incident. He explained that the panzers had been used as shields to protect the police officers from the crowd. He stated that all of the officers in the panzer were equipped with handguns. 57.", "The same day, the court further heard oral evidence from two witnesses, namely Sadık Bakır and Hıdır Elmas. Both witnesses had been working at the Cemevi at the time of the incidents. They maintained that, following the attack on the cafés on 12 March 1995, people started gathering in front of the Cemevi. While they were waiting peacefully in front of the building, at about 4 a.m. a panzer approached and projected its lights towards the Cemevi. The witnesses recalled hearing gun shots and maintained that Mehmet Gündüz had been shot and killed and several people wounded as a result of this shooting.", "58. On 27 February 1998 the court heard witness statements, which may be summarised as follows: Petrikan Konak “I am a police officer. On the day of the incident, we were called to the Gazi district as reinforcement. We waited in front of the local police station for a long time. We were confronted with a large gathering.", "They were shouting slogans. In the morning, military forces arrived at the scene. The crowd was attacking the police barricade with stones and bricks. Fire bombs were thrown at the police. As I was behind, I could not see clearly what was going on near the barricades, but at some point the crowd started marching back.", "Some officers followed them. I heard screams and gunshots but I never left the police station. I saw that some of the police officers from the anti-terrorism branch were equipped with MP5 rifles and Kalashnikovs. They were wearing bullet proof vests.” Engin Turan “I was waiting in the Cemevi on the night of the incident. At about 4 a.m., I saw a panzer which projected its lights onto the building.", "Then from behind the panzer, I heard gun shots. Many people were hit during the firing. We tried to take the wounded persons to hospital. One of the wounded persons died on the spot. I later learned that his name was Mehmet Gündüz.” Fazıl Dural “I am a journalist.", "I work for one of the weekly magazines. On Sunday when I heard about the Gazi incident, I went to the district at about 11 p.m. When I was in front of the police station, I heard an explosion. Then I saw the panzers. They were trying to extinguish a taxi that was on fire.", "On the left side, I saw police officers shooting in the air with their hand guns. From their clothes, I understood that they were from Rapid Intervention Force. I saw that many of the police officers acted in panic. A commander shouted, “Stop or you will shoot each other”. Someone from a nearby building threw a gas container at the burning taxi.", "The car exploded. Children were attacking the shops by throwing stones. I saw some people with fire bombs; their faces were covered. I assumed they were members of an illegal organisation. They were throwing these fire bombs at the panzers.", "An announcement was made from the Cemevi, asking the residents to go home. The crowd started calming down. I went to a nearby café to wait. After some time, someone rushed into the café and shouted, “They’ve started attacking”. When we went to the Cemevi, I saw that a panzer was projecting lights on the crowd, and guns were fired from behind the panzers.", "Many people were wounded. Mehmet Gündüz died on the spot.” Maksut Doğan “I am the director of the Cemevi. I was watching TV when I heard about the attack on the cafés. Immediately, I went to the Cemevi. A group of 200-300 persons had gathered in front of our building.", "The mayor of the district talked to the group and told them to go home. While we were trying to organise the funeral of Halil Kaya, at about 4 a.m. two panzers approached our building. One of them projected its lights onto the building. At first, I heard two gun shots. Then the shooting continued.", "A person who was waiting in front of the Cemevi was shot and killed.” Nazmi Yükselen “Fevzi Tunç, who was killed during the Gazi incident, was my colleague. On the day of the incident, I was at Fevzi’s apartment in Gazi district. Together we were watching a football game. While we were watching TV, we heard about the attack on the cafés. We did not go out that night.", "The following morning at about 10 a.m. we went out. When we approached the Cemevi, we came across a huge crowd. Our aim was to catch the bus. However, at that moment we heard gun fire. We saw someone fall down.", "Fevzi went to help him. I then saw two police officers pointing their guns at us. One of them was wearing a uniform; the other was in civilian clothes. The police officer who was dressed in civilian clothes was holding a M5 rifle. They both fired at us.", "Fevzi was shot from a distance of 60-70 metres.” 59. On 2 April 1998 the court heard the statements of three interveners, Menevşe Poyraz, Haydar Kopal and Şaziment Şimşek, none of whom had been eye-witnesses to the incident. They all requested the court to punish those responsible for the killing of their relatives. The same day, the court heard evidence from Özlem Tunç and Mahmut Yağız. In her statement Özlem Tunç submitted that she was living in the Gazi district at the time of the incident.", "On the day of the incident, she was at home when she heard the attacks on the cafés. She went out with her mother to see what was going on. She witnessed police officers attacking the crowd. She was severely beaten by the police. She saw the dead body of Fevzi Tunç and witnessed the death of Fadime Bingöl.", "She stated that Fadime was standing right in front of her when she had been shot in the face. However, the witness had not been able to see who had fired the shot. 60. When asked about his recollection of the incident, the second witness Mahmut Yağız explained that on 13 May 1995 at about 10 a.m. he had gone out to see the events. The streets had been extremely crowded.", "He recalled hearing gun shots and seeing a group of demonstrators throwing stones at the police. He also remembered seeing two police officers, in civilian clothes, firing with rifles from behind a car. He explained that, as a result of the firing, four persons had been shot and killed. He subsequently learned that amongst the dead were Fevzi Tunç, Reis Kopal and Sezgin Engin. The witness maintained that the killing of these persons had raised the tension and the crowd had started throwing stones at the police.", "He recalled seeing two uniformed police officers fire at the crowd, targeting the demonstrators. 61. While the proceedings before the Trabzon Assize Court were under way, on 5 March 1998 the Gaziosmanpaşa public prosecutor filed another indictment with the Eyüp Assize Court against the two police officers Adem Albayrak and Mehmet Gündögan for the killing of Sezgin Engin and Mümtaz Kaya during the Gazi incident. On 10 March 1998 the Eyüp Assize Court decided to join these proceedings to those already pending before the Trabzon Assize Court. At its hearing on 2 April 1998, the Trabzon Assize Court endorsed this decision.", "The applicants Veli Kaya and Mahmut Engin intervened in those proceedings. At its hearing held on 7 May 1998, the court took their statements. Both Mr Kaya and Mr Engin asked the court to find the police officers who had shot and killed their sons. 62. On 7 May 1998 the court heard the testimony of Sevgili Kaya, the mother of Mümtaz Kaya.", "She gave the following account: “On 13 March 1995 I went to the Gazi district together with my son to visit a friend. On the way, we saw a large group of people. Suddenly, the group started running away. My son panicked and tried to escape. Police officers in civilian clothes fired at the people who were running away.", "My son was shot. I saw the officer who shot Mümtaz. He was in civilian clothes wearing a coat. I also saw the same officer shoot Zeynep Poyraz.” 63. When asked to identify the officer who had shot her son, Sevgili Kaya identified Mehmet Gündoğan amongst the defendants.", "She also stated that it was the same police officer who had shot Zeynep Poyraz. 64. The same day the court heard the statement of Nuriye Yıldız. She stated: “I was in the Gazi district to visit a relative. I stayed there on Sunday and on Monday morning I went out to go back to my house.", "Near the school, which is close to the Cemevi, I met Mümtaz Kaya and his mother. Suddenly a clash broke out and Mümtaz was shot by a police officer. The officer, who shot Mümtaz from 15 metres away, was in civilian clothes, holding a truncheon with one hand and a gun with the other. People were chased by the police. I also saw panzers.” 65.", "When the witness was asked to identify the police officer who had shot Mümtaz, she pointed out Mehmet Gündoğan and confirmed before the court that it was Mehmet Gündoğan who had shot Mümtaz. 66. At its ninth hearing on 12 June 1998, the court took evidence from two eye-witnesses. Their accounts may be summarised as follows: Muharem Buldukoğlu “I was in the Gazi district when the incidents took place. I first saw the panzers and the officers who had been positioned behind the panzers.", "There was a group of people waiting in front of the panzers. Suddenly the panzers started driving towards the gathering. People started running away. I saw Zeynep Poyraz being shot and she fell down. She was shot from a distance of 50-60 metres.", "I did not see who shot her. Zeynep was not attacking the officers and she was not a member of an illegal group; she was just trying to run away from the police.” Yalçın Yılmaz “I was in the Gazi district at that time. There was a large group of people out on the streets. Amongst the group, I recognised Reis Kopal, who is a relative. Reis was throwing stones at the police.", "The police started firing at the group and Reis fell down. I saw two police officers equipped with rifles. One of them was wearing a uniform, the other one was in civilian clothes.” 67. When the witness was asked by the court to identify the police officer who had shot Reis Kopal, he pointed out Adem Albayrak amongst the defendants. 68.", "The Trabzon Assize Court further held 21 hearings until 3 March 2000 and heard testimonies from six more witnesses, mainly journalists who had reported the incidents. The defendant police officers Mehmet Gündoğan and Adem Albayrak were released from detention on 6 November 1998 and 3 March 2000 respectively pending trial. 69. On 3 March 2000 the court delivered its judgment. Basing itself on autopsy reports, ballistics reports, incident reports, testimonies, photographs and video footage of the incident, the court found it established that police officer Adem Albayrak had shot and killed Dilek Şimşek Sevinç, Reis Kopal, Fevzi Tunç and Sezgin Engin.", "It accordingly sentenced him to six years and eight months’ imprisonment, pursuant to Article 448 of the Criminal Code, and barred him from public service for four months and twenty-eight days. The court also found police officer Mehmet Gündoğan guilty of killing Mümtaz Kaya and Zeynep Poyraz and sentenced him to three years and four months’ imprisonment, and barred him from public service for two months and fourteen days, pursuant to Article 448 of the Criminal Code. The remaining eighteen police officers were acquitted of the charges against them. 70. On 5 April 2001 the Court of Cassation upheld the judgment of the Trabzon Assize Court in respect of the acquitted police officers.", "However it quashed the first-instance court’s judgment in respect of the convictions of Adem Albayrak and Mehmet Gündoğan. It held that the first instance court had failed to establish the facts of the case. Holding that the assize court’s evaluation of evidence was insufficient, the Court of Cassation quashed this part of the judgment. 71. On 4 June 2001 the Trabzon Assize Court resumed the proceedings.", "It held four hearings and re-examined the case file. 72. On 5 November 2001 the court applied the decision of the Court of Cassation and rectified its former judgment. Accordingly, the Assize Court found Adem Albayrak guilty of killing Fevzi Tunç, Reis Kopal and Dilek Sevinç and sentenced him to five years’ imprisonment. Adem Albayrak was further barred from public service for three months.", "The court acquitted him of the remaining charges against him, namely the killing of Sezgin Engin. 73. The court found that Mehmet Gündoğan was guilty of killing Mümtaz Kaya, contrary to Article 448 of the Criminal Code. It accordingly sentenced him to one year and eight months’ imprisonment, and barred him from public service for three months. It acquitted Mehmet Gündoğan of the remaining charges against him, namely the killing of Zeynep Poyraz.", "Finally, pursuant to Section 6 of the Execution of Sentences Act (Law no. 647), the court decided to suspend the sentence of Mehmet Gündoğan, considering that the accused did not have a tendency to break the law again. 74. On 11 June 2002 the Court of Cassation upheld the judgment of the first instance court. 75.", "The investigation which had been commenced in April 1995 concerning the killing of Dinçer Yılmaz, Hasan Gürgen, Hasan Sel and Hasan Ersürer is still pending before the Gaziosmanpaşa Public Prosecutor under file no. 1995/6570 (see paragraph 37 above). During the investigation, the public prosecutor took oral evidence from witnesses, and examined the autopsy reports, the photographs taken during the demonstration and the video footage of the event. He further requested the list of police officers who had been on duty during the Gazi incidents and ordered a ballistic examination of their guns. As the bullet which killed Dinçer Yılmaz could not be found, no ballistic examination could be performed.", "According to the Government, the authorities are still searching the perpetrators. 2. Proceedings concerning the Ümraniye incidents 76. On 11 April 1995 a criminal complaint was filed with the Üsküdar public prosecutor’s office against the Ministry of Interior, the Governor of Istanbul, the Director of the Istanbul Security Department and the police officers who were involved in the incidents of 15 March 1995 in the Ümraniye district. It was submitted that, as a result of the disproportionate use of firearms by the police, five persons, namely Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk, were killed and twenty others were injured.", "It was argued that the Ministry of Interior, the governor of Istanbul and the director of the Istanbul police headquarters had been negligent in failing to control the actions of the police. The relatives of the deceased persons further argued that the police officers had even followed those running away from the scene and fired at them. They contended that the demonstrators had not fired at the police and, in support of this allegation, they maintained that no police officers had been injured or killed during the Ümraniye incident. 77. On 15 April 1997 the Üsküdar prosecutor’s office decided not to prosecute the 238 police officers who had been on duty during the Ümraniye incident.", "He stated that police officers had fired warning shots in the air to disperse the demonstrators and concluded that the deceased persons had not been killed by fire opened by members of the Rapid Intervention Force. It had not been possible to establish the accuracy of the claims that a number of civilians who opened fire on the crowd were plainclothes police officers. In reaching this conclusion, the Üsküdar public prosecutor’s office had regard to the eye-witness accounts of a number of persons, including the relatives of the deceased persons. A number of police officers working at the Ümraniye police headquarters had also been questioned. Eight bullets which had been removed from the bodies of the deceased and the injured persons had been compared with those obtained from the weapons of the 238 defendants.", "As a result, it was established that these eight bullets had not been fired from any of the weapons owned by the defendants. Video recordings and a number of pictures of the scene were obtained by the prosecutor’s office but they turned out to relate to events which had taken place after the killing of the applicants’ relatives. It was concluded that it had not been possible to identify the demonstrators who had opened fire at the crowd. The prosecutor further held that the firing in the air by police officers did not constitute a criminal offence. Finally, the prosecutor noted that, as the ballistic examinations of the weapons belonging to seven other police officers had not yet been concluded, a decision as to whether to prosecute these officers would be taken at a later date.", "78. The applicants Sabri Puyan, Hacer Baltacı, Aynur Demir and Aligül Yüksel appealed against the decision. 79. On 13 November 1998 the appeal was dismissed by the Kadıköy Assize Court. 80.", "On 10 November 1998 the Üsküdar prosecutor’s office decided not to prosecute the remaining seven police officers for the same reasons it had relied on in its decision of 15 April 1997. 81. On 30 November 1998 the applicants appealed against the decision of 10 November 1998 not to prosecute. Their appeal was rejected. II.", "RELEVANT LAW AND PRACTICE A. Domestic legislation 1. Constitutional provisions and administrative liability 82. Article 125 of the Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 83.", "This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 2. Criminal law and procedure 84.", "The Criminal Code makes it a criminal offence to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 85. For all these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Criminal Procedure Code, with the public prosecutor or local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Criminal Procedure Code. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.", "3. Legislation concerning the use of firearms by the police 86. The relevant provisions of Law No. 2559 on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Kanunu), enacted in 1934, read as follows: Article 16 The police may use firearms in the event of: (a) Self defence, ... (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” Additional Article 6 (dated 16 June 1985) “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm.", "In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.” 87. Section 17 of the Regulation on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Nizamnamesi) provides: “Pursuant to Article 16 of the Law on the Duties and Powers of the police, police officers are entitled to use firearms. However recourse to firearms arms should be limited to cases when all other means remain ineffective. In this connection, it should be recalled that the police should not aim to kill but to capture the accused person(s) with minimum physical injury, and should try to avoid using firearms in crowded areas.” A. International legal materials 88.", "According to Part A paragraph 13 of Resolution 690 on the Declaration on the Police adopted by the Parliamentary Assembly of the Council of Europe in 1979, “police officers shall receive clear and precise instructions as to the manner and circumstances in which they may make use of arms”. 89. Article 6 § 1 of the International Covenant on Civil and Political Rights provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 90.", "In this connection, the Human Rights Committee noted the following (see General Comment no. 6, Article 6, 16th Session (1982), § 3): “The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” 91.", "The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 1 of the Principles states that Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. Pursuant to paragraph 2, the Governments undertake to develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of the means capable of causing death or injury to persons.", "For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defence equipment such as shields, helmets, bullet-proof vests and bullet-proof transport, in order to decrease the need to use weapons of any kind. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. In accordance with paragraph 7, “governments shall ensure that the arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 9 foresees that “law enforcement officers shall not use firearms against persons except in self-defence or the defence of others against the imminent threat of death or serious injury... In any event, the intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.", "Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. In paragraphs 13 and 14 the following Principles are adopted for policing unlawful assemblies: Paragraph 13 “In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.” Paragraph 14 “In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in Principle 9.” 92. Furthermore, Article 3 of the United Nations Code of Conduct for Law Enforcement Officials, adopted by the General Assembly resolution on 17 December 1979, reads: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. 93.", "In December 1998, Amnesty International further adopted ten basic human rights standards for law enforcement officials. The relevant standards read as follows: Basic Standard 3 “Do not use force except when strictly necessary and to the minimum extent required under the circumstances.” Basic Standard 4 “Avoid using force when policing unlawful but non-violent assemblies. When dispersing violent assemblies, use force only to the minimum extent necessary. ” Basic Standard 5 “Lethal force should not be used except when strictly unavoidable in order to protect your life and others.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 94.", "The applicants complained that their relatives had been unlawfully killed by police officers in the course of the demonstrations between 13 and 15 March 1995. In this respect, they relied on Article 2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Arguments before the Court 1. The applicants 95. The applicants submitted that the incidents that had taken place in the Gazi and Ümraniye districts in March 1995 had caused the death of seventeen persons. All these people had been shot and killed by the police.", "The applicants argued that police officers had fired at the demonstrators either intentionally to kill them or with a disregard for life. In any event, the force used had been more than absolutely necessary and disproportionate. The applicants further stated that the criminal proceedings which ended with the conviction of two police officers had only covered the death of nine persons. In this respect, they complained of a lack of effective investigation into the events. They drew particular attention to the non-prosecution decision delivered by the Üsküdar Public Prosecutor on 10 November 1998.", "The applicants further maintained that, by transferring the case from the Istanbul Eyüp Assize Court to the Trabzon Assize Court, the domestic authorities had hindered their right to a fair hearing. During the proceedings, the applicants feared for their lives due to poor security measures. 2. The Government 96. The Government contested the version of events given by the applicants.", "They highlighted the fact that the competent domestic authorities had properly conducted their investigations into the events in dispute. They also submitted that the relatives of the deceased persons had been paid compensation, pursuant to Article 22 of Law No. 3713. 97. The Government maintained that the Trabzon Assize Court had convicted two police officers of killing Fevzi Tunç, Reis Kopal, Dilek Sevinç and Mümtaz Kaya.", "They underlined the fact that the assize court had rendered its decision following a detailed examination of the case file and had based itself on the witness statements, autopsy reports, medical reports, photographs and video footage. 98. The Government submitted that the use of force during both of the demonstrations was proportionate and necessary. They stated that the demonstrators, who were attacking the police officers with fire bombs and stones, had first been verbally warned to disperse, then pressurised water and sticks had been used and, as a last resort, the police officers had fired warning shots in the air. According to the Government, the demonstrators had been stirred up by members of an illegal organisation.", "The police officers, who had a duty to maintain public safety, were under great stress and psychological pressure as the incidents lasted for almost two days. Finally, the Government referred to the ballistics reports which indicated clearly that the bullets recovered from the bodies of the deceased did not match the bullets obtained from the weapons of the security forces. B. The Court’s assessment 99. In the present case, the Court is called on to determine whether the facts of the instant case disclose a failure by the respondent State to protect the right to life of the applicants’ relatives and to comply with the procedural obligation imposed by Article 2 of the Convention to carry out an adequate and effective investigation into the incident.", "100. The Court notes at the outset that it is confronted with divergent accounts of the events, in particular as regards the conduct of the police during the two demonstrations that took place in Gazi and Ümraniye districts respectively. 101. In assessing evidence, the Court recalls that it adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no.", "25, p. 65, § 161, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII, and Ülkü Ekinci v. Turkey, no. 27602/95, §§ 141-42, 16 July 2002). 102. The Court is sensitive to the subsidiary nature of its function and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no.", "28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas, cited above, p. 18, § 30). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no.", "336, § 32, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 103. Accordingly, the Court must reach its decision on the basis of the available evidence submitted by the parties (see the most recent authority, Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004). It will thus examine the issues that arise in the light of the documentary evidence adduced in the present case, in particular the documents in respect to the investigations carried out before the domestic authorities and the parties’ written observations.", "1. As to the responsibility of the Government for the deaths in the light of the substantive aspect of Article 2 of the Convention 104. As the text of Article 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. Nonetheless, Article 2 does not grant a carte blanche. It goes without saying that a balance must be struck between the aim pursued and the means employed to achieve it (see Güleç v. Turkey, judgment of 27 July 1998, Reports of Judgments and Decisions 1998‑IV, § 71).", "Unregulated and arbitrary action by State officials is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, police operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force (see Makaratzis v. Greece [GC], no. 50385/99, § 57, ECHR 2004; see also Human Rights Committee, General Comment no. 6, Article 6, 16th Session (1982), paragraph 90 above). 105.", "In view of the foregoing, in keeping with the importance of Article 2 in a democratic society, the Court must subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force, but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 46, § 150). In the latter connection, police officers should not be left in a vacuum when exercising their duties, whether in the context of a prepared operation or a spontaneous pursuit of a person perceived to be dangerous. A legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect (see, for example, the “UN Force and Firearms Principles”, paragraph 91 above). 106.", "Against this background, the Court must examine in the present case not only whether the use of lethal force against the applicants’ relatives was legitimate but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to the life of the demonstrators. 107. It appears from the evidence produced before the Court that the demonstrations in the Gazi and Ümraniye districts were not peaceful. The demonstrators were chanting slogans, throwing stones and fire bombs at the police barricades and causing damage to the nearby buildings. This fact is confirmed by many witnesses who appeared before the assize court (see paragraphs 53, 54, 55, 58, 60 and 66 above).", "Confronted with resistance and acts of violence, the police asked for reinforcements and three panzers and additional police officers were deployed in the area. 108. The Court repeats that the use of force may be justified under Article 2 § 2 (c), in cases where the action is taken for the purpose of quelling a riot or insurrection. However in the instant case, the submissions of the applicants and the decision of the Trabzon Assize Court show that, in order to disperse the crowd, officers shot directly at the demonstrators without first having recourse to less life-threatening methods, such as tear gas, water cannons or rubber bullets. In this connection, the Court observes that Turkish legislation allows police officers to use firearms only in limited and special circumstances (see paragraphs 86-87 above).", "However, it appears that this principle was not applied during the Gazi and Ümraniye incidents. 109. In their observations, the Government maintained that the police officers had used lethal force as they had been under great stress and psychological pressure (see paragraph 98 above). The Court recognises that the police play a vital role in protecting the right to life. They should therefore be able to evaluate all parameters and carefully organise their operations.", "In the Court’s opinion, Governments should undertake to provide effective training to the police force with the objective of complying with international standards for human rights and policing. Furthermore, as indicated in many international documents (see, amongst many others, the Resolution adopted by the Council of Europe, paragraph 88 above), police should receive clear and precise instructions as to the manner and circumstances in which they should make use of firearms. 110. The Court observes that the Gazi incidents lasted for almost two days and the Ümraniye incident occurred the day after the Gazi events. It appears from the case file that the police officers who were on duty at both incidents enjoyed great autonomy of action, and they took initiatives whilst in the grip of panic and pressure, which they would probably not have taken had they had the benefit of proper training and instructions.", "The Court therefore cannot accept the Government’s argument and finds that the absence of a clear, centralised command was an important lacuna which must have increased the risk of police officers shooting directly at the crowd. 111. Furthermore, it was the responsibility of the Security Forces, who had been aware of the tense situation in both districts, to provide the necessary equipment, such as tear gas, plastic bullets, water cannons, etc., to disperse the crowd. In the Court’s view, the lack of such equipment is unacceptable. 112.", "In conclusion, the Court considers that, in the circumstances of the instant case, the force used to disperse the demonstrators, which caused the death of seventeen people, was more than absolutely necessary within the meaning of Article 2. 113. There has therefore been a violation of Article 2 in that respect. 2. As to the alleged inadequacy of the investigation 114.", "The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV). 115. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, in general, McKerr v. the United Kingdom, no.", "28883/95, §§ 108-115, ECHR 2001-III). 116. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. A requirement of promptness and reasonable expedition is implicit in this context (see Kelly and Others v. the United Kingdom, no.", "30054/96, §§ 96-97, 4 May 2001). 117. In any event, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 108, ECHR 2001‑III).", "The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention; so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined. 118. Turning to the particular circumstances of the case, the Court observes that the domestic authorities initiated three separate investigations concerning the Gazi and Ümraniye incidents (see paragraphs 33 to 81 above). However there were striking omissions in the conduct of these inquiries. 119.", "As stated above, the investigation concerning the death of Dilek Şimşek Sevinç, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Fadime Bingöl, Ali Yıldırım, Mehmet Gündüz, Mümtaz Kaya and Sezgin Engin led to the prosecution of twenty police officers. At the end of the proceedings, which lasted for almost seven years, one police officer was found guilty of killing Fevzi Tunç, Reis Kopal and Dilek Şişek Sevinç, and he was sentenced to five years’ imprisonment. Another police officer was found guilty of killing Mümtaz Kaya, however his sentence was suspended by the court. Both officers were barred from public service for three months. 120.", "In connection with this part of the investigation, the Court observes that the steps taken by the assize court were dilatory and half-hearted. Although the case was initiated in July 1995, until June 1997 the case file was transferred between the domestic courts, first due to security reasons then due to jurisdictional problems (see paragraphs 38 to 51 above). Furthermore, at no stage of the proceedings did the domestic court examine the overall responsibility of the authorities for the deficiencies in the conduct of the operation and for their inability to ensure a proportionate use of force to disperse the demonstrators, notwithstanding that at the end of the proceedings, two officers were found guilty of killing four persons. In that respect, it may be noted that these officers received relatively light sentences (see paragraphs 72 and 73 above). 121.", "As regards the investigation into the death of Hasan Sel, Hasan Ersürer, Hasan Gürgen and Dinçer Yılmaz, the Court observes that this investigation is still pending before the Gaziosmanpaşa Public Prosecutor. In this connection, it observes that the investigation has been pending for more than ten years now, and does not appear to have produced any tangible results. 122. Finally, as regards the investigation concerning the Ümraniye incidents, which ended with the non-prosecution decision of the Üsküdar public prosecutor, the Court considers that, faced with such a serious allegation which concerned the disproportionate use of lethal force by the police, the public prosecutor should have shown greater initiative. It observes in this connection that the non-prosecution decision was based on the statements of the complainants, statements taken from some of the police officers who had been on duty that day and the ballistic examination of eight bullets which had been found at the incident scene and which had been recovered from the bodies of the deceased and injured persons.", "However, the Court finds it striking that the authorities could only collect eight bullets after the incident. Furthermore, the ballistic reports were solely confined to the comparison of these bullets with the handguns of the two hundred and thirty eight police officers who had been on duty that day. There was no indication as to what sort of guns they had been fired from or from what distance. 123. Furthermore, it appears from the documents submitted to the Court that the public prosecutor seems to have accepted the police officers’ account of the facts without question (see paragraph 77 above).", "124. Against this background, the Court finds that the domestic authorities did not conduct prompt and adequate investigations into the killing of the applicants’ relatives. The manner in which the Turkish criminal justice system operated in response to the tragic events of March 1995 failed to secure the full accountability of State officials or their authorities for their role in them. As a result, the authorities concerned disregarded their essential responsibilities in this respect. 125.", "In sum, the Court concludes that in the instant case there has been a violation of Article 2 of the Convention in its procedural aspect for failure to provide a prompt and adequate investigation into the circumstances surrounding the killing of the applicants’ relatives. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 126. The applicants complained that they had been deprived of effective access to a court, in breach of Article 6 § 1 of the Convention. They contended that the facts of the case demonstrated that there was no commitment to carrying out an effective investigation into the killings of Dilek Şimşek Sevinç, Dinçer Yılmaz, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Sezgin Engin, Fadime Bingöl, Mümtaz Kaya, Hasan Gürgen, Ali Yıldırım, Hasan Sel, Mehmet Gündüz, İsmail Baltacı, Hasan Puyan, Hakan Çabuk, Genco Demir and İsmihan Yüksel.", "Article 6 § 1 provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” 127. The Government argued that the investigation into the incident and the prosecution of the police officers provided an effective remedy into the applicants’ allegations. 128. The Court observes that the applicants’ grievance under Article 6 § 1 of the Convention is inextricably bound up with their more general complaint concerning the manner in which the investigating authorities treated the death of their relatives and the repercussions which this had on their access to effective remedies which would help redress the grievances which they had. It is accordingly appropriate to examine the applicants’ Article 6 complaint in relation to the more general obligation on Contracting States under Article 13 of the Convention to provide an effective remedy in respect of violations of the Convention.", "It is to be noted that a violation of Article 2 cannot be remedied exclusively through an award of compensation to the relatives of the victim (see, mutatis mutandis, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, pp. 2285‑86, §§ 93–94, and Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1894–96, §§ 100–103). 129. On the basis of the evidence adduced in the present case, the Court has found that the Government are responsible under Article 2 of the Convention for the death of the applicants’ relatives (see paragraphs 104 to 113 above).", "The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, § 107). 130. The authorities thus had an obligation to carry out an effective investigation into the circumstances surrounding the death of the applicant’s brother. For the reasons set out above (see paragraphs 118-125 above), no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which are broader than the obligation to investigate imposed by Article 2 (see Kaya, cited above, § 107).", "The Court finds therefore that the applicants have been denied an effective remedy in respect of the death of their relatives and thereby access to other available remedies such as a claim for compensation. 131. Consequently, there has been a violation of Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 14 AND 17 OF THE CONVENTION 132.", "The applicants alleged under Articles 14 and 17 of the Convention that they were discriminated against on account of their religious beliefs. 133. The Government did not address these allegations beyond denying the factual basis of the complaints. 134. The Court has examined the applicants’ allegations in the light of the evidence submitted to it, but finds them unsubstantiated.", "There has therefore been no violation of these provisions. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 135. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 136.", "The applicants each claimed 200,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 137. The Government contested the claim. They submitted it was excessive and devoid of any basis. 138.", "The Court notes that the applicants have not proved that they have suffered any pecuniary loss as a result of the death of their relatives. The file contains no information whether the deceased persons provided any financial assistance to their families or not. As a result, the Court does not find it appropriate, in the circumstances of this case, to make any award to the applicants for pecuniary damage. 139. The Court nevertheless considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 2 and 13 of the Convention.", "Accordingly, having regard to the sums it has awarded in comparable cases and deciding on an equitable basis, it awards in respect of non-pecuniary damage – EUR 30,000 to Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek jointly; and – EUR 30,000 to each of the other applicants, namely Hakkı Yılmaz, Hüseyin Kopal, Cemal Poyraz, Hacer Baltacı, Mustafa Tunç, Mahmut Engin, Arslan Bingöl, Veli Kaya, Mehmet Gürgen, Çiçek Yıldırım, Hüseyin Sel, Mukaddes Gündüz, Sabri Puyan, Zeynel Abit Çabuk, Aynur Demir and Aligül Yüksel. B. Costs and expenses 140. The applicants did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head.", "It notes that the applicants received legal aid from the Council of Europe to present their applications. C. Default interest 141. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there have been violations of Article 2 of the Convention in both its substantive and procedural aspects; 2.", "Holds that it is not necessary to consider the applicants’ complaints under Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that there has been no violation of Articles 14 and 17 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, free of any tax that may be chargeable, such sum to be converted into Turkish liras at the rate applicable at the date of payment and to be paid into the bank account in Turkey indicated by the applicants: (i) EUR 30,000 (thirty thousand euros) to Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek, jointly, in respect of non-pecuniary damage; (ii) EUR 30,000 (thirty thousand euros) to each of the other applicants, namely Hakkı Yılmaz, Hüseyin Kopal, Cemal Poyraz, Hacer Baltacı, Mustafa Tunç, Mahmut Engin, Arslan Bingöl, Veli Kaya, Mehmet Gürgen, Çiçek Yıldırım, Hüseyin Sel, Mukaddes Gündüz, Sabri Puyan, Zeynel Abit Çabuk, Aynur Demir and Aligül Yüksel, 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; 6. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 26 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. CostaDeputy RegistrarPresident [1]1. A meeting place for Alevis for social and religious gatherings." ]

[ "SECOND SECTION CASE OF RUDENKO v. UKRAINE (Application no. 11412/02) JUDGMENT STRASBOURG 29 November 2005 FINAL 29/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rudenko v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrI.", "Cabral Barreto,MrR. Türmen,MrV. Butkevych,MsD. Jočienė,MrD. Popović, judges,and Mr S. Naismith, Deputy Section Registrar, Having deliberated in private on 8 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 11412/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Yekaterina Nikolayevna Rudenko (“the applicant”), on 9 February 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska. 3.", "On 23 November 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in the village of Kosharivka, the Kharkiv region, Ukraine.", "5. In 2000 the applicant instituted proceedings in the Kupyansk Town Court against the Joint Stock Company “Kupyanskyi Liteinyi Zavod” (the “KLZ”), in which the State held about 41% of the share capital. She sought the recovery of salary arrears. On 18 December 2000 the court awarded her UAH 1,400[1] in salary arrears and other payments. 6.", "On 22 January 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of that judgment. 7. In 2001 the applicant filed an application with the labour disputes commission of the KLZ, seeking recovery of salary arrears. On 17 May 2001 the labour disputes commission allowed the applicant’s claims and ordered the KLZ to pay the applicant UAH 857[2] in arrears. On 23 May 2001 the commission issued a certificate in respect of its decision of 17 May 2001, which had the same status as a writ of execution issued by a court.", "8. On 8 June 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of the commission’s decision. 9. In June 2001 the applicant instituted proceedings in Kupyansk City Court against the KLZ, seeking compensation for non-pecuniary damage. On 5 July 2001 the court found against the applicant.", "On 25 October 2001 the same court rejected the applicant’s request for leave to appeal for failure to comply with procedural formalities. The applicant did not appeal against this decision. 10. On 8 July 2002 the Bailiffs’ Service informed the applicant that the decisions of 18 December 2000 and 17 May 2001 could not be executed due to the large number of enforcement proceedings against the KLZ and the fact that the procedure for the forced sale of assets belonging to the debtor company had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Order of the President of Ukraine of 23 May 2001. 11.", "By two decisions of 28 January 2005, the Bailiffs’ Service discontinued the enforcement proceedings on the ground that the decisions had been enforced in full. 12. The applicant did not challenge these decisions of the Bailiffs’ Service before the domestic courts. II. RELEVANT DOMESTIC LAW 13.", "The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 18-22, 26 April 2005). THE LAW I. ADMISSIBILITY 14. The applicant complained about the State authorities’ failure to enforce the judgment of the Kupyansk Town Court of 18 December 2000 and the decision of the labour disputes commission of the KLZ of 17 May 2001 in full and in due time. She invoked Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” A.", "The Government’s preliminary objections 1. The applicant’s victim status 15. The Government submitted that, since the decisions of 18 December 2000 and 17 May 2001 had been enforced in full, the applicant could no longer be considered a victim of a violation of her rights under Article 6 § 1 or Article 1 of Protocol No. 1. They therefore proposed that the application be declared inadmissible.", "16. The applicant disagreed. In particular, she argued that the judgment of the Kupyansk Town Court of 18 December 2000 had not been enforced in full and the outstanding debt under that judgment was UAH 25[3]. The applicant also stated that she had not been paid compensation for the length of the non-enforcement of the decisions of 18 December 2000 and 17 May 2001. 17.", "The Court observes that it is not clear from the parties’ submissions whether these judgments have been enforced in full. However, it assumes that the judgments were so enforced by 28 January 2005, given the fact that, on that date, the Bailiffs’ Service established that the amounts due had been paid to the applicant in full, which the applicant did not contest at the national level. 18. At the same time, the fact that the decisions in the applicant’s favour were enforced does not deprive her of her victim status in relation to the period during which they remained unenforced (see Romashov v. Ukraine, no. 67534/01, §§ 26-27, 27 July 2004,).", "Accordingly, the Court rejects the Government’s preliminary objection as to the applicant’s lack of victim status. 2. Exhaustion of domestic remedies 19. The Government further contended that the applicant has not exhausted domestic remedies as she did not challenge the actions or inactivity of the State Bailiffs’ Service before the domestic courts. 20.", "The applicant disagreed. 21. The Court considers that, in the light of its findings in similar cases, the Government’s objection must be rejected (see Romashov v. Ukraine, cited above, §§ 30-33). B. Conclusion 22.", "The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Kupyansk Town Court of 18 December 2000 and the decision of the labour disputes commission of the KLZ of 17 May 2001 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible. II.", "MERITS 23. In their observations, the Government contended that there had been no violation of Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (as in the cases of Romashov, cited above, § 37, and Voytenko v. Ukraine, no. 18966/02, § 37, judgment of 29 June 2004). 24.", "The applicant disagreed. 25. The Court notes that the judgment of the Kupyansk Town Court of 18 December 2000 and the decision of the labour disputes commission of the KLZ of 17 May 2001 remained unenforced for four years, and three years and seven months, respectively. It observes that, despite the fact that the State does not appear to have a major share in the debtor company’s assets, the latter qualified for immunity under domestic law from the attachment of its property, as the State held more than 25% of its share capital. As was noted earlier, the ban on the attachment of the debtor’s property was applied in the present case (see paragraph 10 above).", "26. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see Sokur v. Ukraine, no. 29439/02, §§ 34-37, 26 April 2005, and Voytenko, cited above, §§ 53-55). 27.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 29. The applicant claimed UAH 12,438[4] in respect of pecuniary damage and UAH 419.50[5] in relation to her legal and postal expenses. She also claimed UAH 49,900[6] in respect of non-pecuniary damage. 30.", "The Government contended that the applicant had not substantiated the amounts claimed in respect of pecuniary and non-pecuniary damage and submitted that the finding of a violation would constitute sufficient just satisfaction. 31. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant a global sum of EUR 1,920 in respect of pecuniary and non-pecuniary damage, costs and expenses. B. Default interest 32.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,920 (one thousand nine hundred and twenty euros) in respect of pecuniary and non-pecuniary damage, costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. Costa Deputy RegistrarPresident [1].", "Around 229 euros – “EUR”. [2]. Around EUR 140. [3]. Around EUR 4.", "[4]. Around EUR 2,027. [5]. Around EUR 69. [6].", "Around EUR 8,129." ]

[ "FIRST SECTION CASE OF HASANOV v. AZERBAIJAN (Application no. 50757/07) JUDGMENT STRASBOURG 22 April 2010 FINAL 22/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.. In the case of Hasanov v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 25 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "50757/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Vekil Hasanov (“the applicant”), on 8 August 2007. 2. The applicant was represented by Mr N. Ismayilov, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicant alleged, in particular, that the failure to enforce the judgment of 23 June 1998 violated his right to a fair trial and his property rights, as guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. 4. On 23 October 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Baku. 6. On 21 January 1998 the applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in a recently constructed residential building in Baku on the basis of an order of the Baku City Executive Authority of 19 January 1998.", "7. At the same time, the applicant became aware that the flat had been occupied by M. and his family, who were internally displaced persons (“IDP”) from Shusha, a region under the occupation of the Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno‑Karabakh. 8. According to the applicant, despite numerous demands, M. refused to vacate the flat, pointing out that he was an IDP and had no other place to live. 9.", "On an unspecified date in 1998 the applicant lodged an action with the Yasamal District Court asking the court to order the eviction of M. and his family from the flat. 10. On 23 June 1998 the Yasamal District Court granted the applicant's claim and ordered that M. and his family be evicted from the flat. The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of 21 January 1998 and therefore that the flat was being unlawfully occupied by M. and his family. 11.", "No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days of its delivery. However, M. and his family refused to comply with the judgment and, despite the applicant's complaints to various authorities, it was not enforced. 12. On an unspecified date in 2006, the applicant and a group of other persons who were in the same situation lodged an action with the Yasamal District Court complaining that the Yasamal District Department of Judicial Observers and Enforcement Officers (“the Department of Enforcement Officers”) had not taken measures to enforce the judgments. 13.", "On 27 December 2006 the Yasamal District Court dismissed that complaint as unsubstantiated. The applicant appealed against this judgment. On 2 May 2007 the Court of Appeal quashed the first-instance court's judgment and delivered a new judgment on the merits in the applicant's favour. The Court of Appeal held that the Department of Enforcement Officers' inaction had been unlawful and that the judgment of 23 June 1998 should be enforced. Following a cassation appeal of M. and other persons against this judgment, by a decision of 18 September 2007, the Supreme Court quashed the Court of Appeal's judgment and remitted the case for a new examination.", "On 12 November 2007 the Baku Court of Appeal quashed the judgment of 27 December 2006 and terminated the civil proceedings. The Baku Court of Appeal held that the judgments should be enforced under the domestic law and there was no need to deliver a new judgment on that issue. It appears from the case file that the Court of Appeal's judgment was not challenged by the parties in the proceedings. 14. On 5 July 2007 M. and a group of other persons who were in the same situation lodged a request with the Yasamal District Court asking for postponement of the execution of the judgment of 23 June 1998.", "M. alleged that, as he was an IDP, he had no other place to live but the flat in question. 15. On 10 July 2007 the Yasamal District Court granted M.'s request and ordered the postponement of the execution of the judgment of 23 June 1998 until M. could move to one of the houses recently constructed for temporary settlement of IDPs. The court relied on the Presidential Order of 1 July 2004 on Approval of the State Programme for Improvement of Living Conditions and Increase of Employment of Refugees and Internally Displaced Persons (“the Presidential Order of 1 July 2004”), according to which the relevant State organs were instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, lands and other premises, regardless of ownership, they had settled in between 1992 and 1998. Following a series of appeal proceedings, on 3 July 2008 the Yasamal District Court delivered a new decision, which it subsequently rectified on 14 July 2008.", "The court granted M.'s claim and ordered the postponement of the execution of the judgment of 23 June 1998. It appears from the case file that the applicant did not challenge that decision. 16. On an unspecified date in 2008 the applicant lodged an action against the State Committee on the Affairs of Refugees and Internally Displaced Persons, the Ministry of Finance and other authorities asking for compensation for non-enforcement of the judgment of 20 April 1998. On 7 May 2008 the Yasamal District Court dismissed the applicant's claim as unsubstantiated.", "On 7 July 2008 the Baku Court of Appeal and on 10 November 2008 the Supreme Court upheld the first-instance court's judgment. II. RELEVANT DOMESTIC LAW A. Housing Code of 8 July 1982 17. Azerbaijani citizens are entitled to obtain the right of use of apartments owned by the State or other public bodies under the terms of a tenancy agreement (Articles 10 and 28).", "A decision to grant an apartment is implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51). The right of use of apartments is granted for an indefinite term (Article 10). B. Law on Privatisation of Housing of 26 January 1993 18.", "Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer those apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7). C. Law on Social Protection of Internally Displaced Persons and Equivalent Individuals of 21 May 1999 19. IDPs are defined as “persons displaced from their places of permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire” (Article 2).", "The IDPs may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure that the internally displaced persons are resettled in other accommodation (Article 5). D. Regulations on Settlement of Internally Displaced Persons in Residential, Administrative and Other Buildings Fit for Residence or Feasible to make to Fit for Residence, adopted by the Cabinet of Ministers, Resolution No. 200 of 24 December 1999 (“the IDP Settlement Regulations”) 20. Article 4 of the IDP Settlement Regulations provides as follows: “In order to prevent the eviction of internally displaced persons from dwellings in which they settled between 1992 and 1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...” 21.", "Article 4 of the IDP Resettlement Regulations provides as follows: “In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation” 22. In the order, inter alia, the relevant state organs of the Republic of Azerbaijan are instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, land and other premises, regardless of ownership, they had settled in between 1992 and 1998. 23. A judge examining a civil case may, at the request of a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of its execution because of the parties' property situation or other circumstances (Article 231). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION 24. Relying on Article 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained of the non‑enforcement of the Yasamal District Court's judgment of 23 June 1998. Article 6 of the Convention reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No.", "1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 25. 1. The Court's competence ratione temporis 26.", "The Court observes that the judgment of 23 June 1998 which was in favour of the applicant had been delivered prior to 15 April 2002, the date of the Convention's entry into force in respect of Azerbaijan. In this connection, the Court reiterates that it is only competent to examine complaints of violations of the Convention arising from events that have occurred after the Convention had entered into force with respect to the High Contracting Party concerned (see, for example, Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March 2003). The Convention entered into force with respect to Azerbaijan on 15 April 2002. However, the Court notes that in the light of the authorities' continued failure to execute the judgment of 23 June 1998, the latter remains still unenforced.", "Therefore, there is a continuous situation and the Court is thus competent to examine the part of the application relating to the period after 15 April 2002 (see Ilić v. Serbia, no. 30132/04, § 54, 9 October 2007, and Sladkov v. Russia, no. 13979/03, § 16, 18 December 2008). 2. Domestic remedies 27.", "The Government argued that the applicant had failed to exhaust domestic remedies. In particular, the Government alleged that the applicant could have challenged the domestic authorities' failure to enforce the judgment of 23 June 1998 before the domestic courts. In this regard, the Government argued that the proceedings against the Department of Enforcement Officers instituted by the applicant were still pending before the Court of Appeal. Moreover the Government advanced that the applicant had failed to exhaust domestic remedies, because on 3 July 2008 the Yasamal District Court ordered the postponement of the execution of the judgment of 23 June 1998 and the applicant did not challenge that decision. 28.", "The applicant disagreed with the Government and maintained his complaints. 29. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV, and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V).", "The Court further emphasises that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI). 30. As for the proceedings against the Department of Enforcement Officers, the Court notes that the Government failed to provide any explanation as to how those proceedings could have put an end to the continued violation or as to the kind of redress which the applicant could have been afforded as a result of these proceedings. In any event, the Court observes that the applicant did not complain about any unlawful action on the part of the competent authorities but, rather, about the fact that the judgment was not enforced.", "Even if the domestic courts in the pending proceedings had ruled in favour of the applicant and decided that the failure to enforce the judgment of 23 June 1998 had been unlawful in domestic terms, such decision would only have produced the same results, the only outcome being confirmation of the judgment's legal force enabling the enforcement officers to proceed with the enforcement proceedings (see, mutatis mutandis, Tarverdiyev v. Azerbaijan, no. 33343/03, § 47, 26 July 2007 and Yavorivskaya v. Russia (dec.), no. 34687/02, 13 May 2004). Therefore, this part of the Government's objection should be dismissed. 31.", "As for the proceedings concerning the postponement of the execution of the judgment of 23 June 1998, the Court observes that those proceedings were instituted at the request of M. and their purpose was not to ensure or to accelerate the execution of the judgment, but on the contrary to deprive it of its binding force for an indefinite period. The Court notes that the Government failed to provide any explanation as to how the proceedings concerning the postponement of the execution of the judgment of 23 June 1998 could have put an end to the continued situation of non‑execution or as to the kind of redress which the applicant could have been afforded as a result of those proceedings. In any event, the Court observes that the applicant did not complain about the outcome of the proceedings concerning the postponement of the execution of the judgment in question but rather about the fact that the judgment was not enforced. Even if the domestic courts had ruled in favour of the applicant in the postponement proceedings and decided that the execution of the judgment of 23 June 1998 should not be postponed, such a decision would only have produced the same results, the only outcome being confirmation of the judgment's enforceability enabling the enforcement officers to proceed with the enforcement proceedings. Therefore, this part of the Government's objection is irrelevant to the present complaint and should be dismissed.", "3. Conclusion 32. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties' submissions 33. The Government submitted that, due to the large number of IDPs in Azerbaijan as a result of the Armenian-Azerbaijani conflict over Nagorno‑Karabakh, there was a serious problem with housing for IDPs in Azerbaijan. The Government noted that, despite the fact that the judgment of 23 June 1998 had ordered the eviction of M. from the flat, this judgment could not be enforced because there was no other accommodation available for the IDPs settled in the flat in question. The Government further argued that, due to the postponement of the execution of the judgment of 23 June 1998, it was no longer enforceable.", "Moreover, relying on different provisions of the domestic law (see the Relevant Domestic Law above), the Government alleged that IDPs should not be evicted from their temporary places of residence until their return to their native lands or their resettlement in other accommodation. The Government also submitted that the solution of the IDPs' housing problem was one of the priorities of the Government's policy and that the relevant measures were being implemented in this respect. 34. The applicant reiterated his complaints. 2.", "The Court's assessment (a) Articles 6 and 13 of the Convention 35. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II).", "36. The Court notes that a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III). The Court also reiterates that State responsibility for enforcement of a judgment against a private party extends no further than the involvement of State bodies in the enforcement procedures.", "When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their failure to take action can engage the State's responsibility under Article 6 § 1 of the Convention (see, mutatis mutandis, Cebotari and Others v. Moldova, nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, § 39, 27 January 2009). 37. At the outset, the Court observes that, since the date of the Convention's entry into force with respect to Azerbaijan on 15 April 2002, the Yasamal District Court's judgment of 23 June 1998 has remained unenforced for more than seven and a half years, thus preventing the applicant from benefiting from the success of the litigation which concerned his property rights. Before 15 April 2002, the judgment had not been enforced for approximately three years and ten months.", "38. The Court notes that the dispute in the present case was between private parties. However, in so far as the judgment of 23 June 1998 ordered the eviction of the IDPs from the flat to which the applicant had the occupancy voucher, the situation at hand necessitated an action by the State in order to assist the applicant with the enforcement of the judgment when the IDPs, as a private party, refused to comply with it. In the instant case, it is undisputed by the parties that the judgment of 23 June 1998 had been enforceable under the domestic law at least until the delivery of the decision of 10 July 2007 by the Yasamal District Court concerning the postponement of the enforcement proceedings. It appears from the case file that, despite the fact that the enforcement proceedings had been instituted ten days after the delivery of the judgment of 23 June 1998, the Government had taken no action in this connection and had not advanced any justification for non‑enforcement of the judgment in question during this period.", "39. As for the order on postponement of the execution, the Court notes that it has already examined a similar case, in which the execution of the judgment on eviction was postponed by the court which delivered the judgment (see Akimova v. Azerbaijan, no. 19853/03, §§ 45-50, 27 September 2007). The Court found in that case that the order on the postponement of the judgment's execution without any lawful basis and justification was in breach of Article 1 of Protocol No. 1 to the Convention; the Court further found that it was not necessary to examine the same complaint under Article 6 in that case.", "Unlike that case, in the present case the order on the postponement of the execution of the judgment was taken approximately nine years after the judgment became final and enforceable. The Court notes that in the instant case the postponement of the execution of the judgment was based on the Presidential Order of 1 July 2004. The Court notes, however, that this Presidential Order did not contain any specific provisions on civil procedure vesting the domestic courts with the competence to postpone indefinitely the execution of judicial eviction orders, which is what happened in the present case. Moreover, the Law of 21 May 1999 provided that if the settlement of the IDPs of their own accord infringed the rights and lawful interests of other persons, the domestic authorities must ensure the resettlement of the IDPs in other accommodation. Accordingly, the relevant presidential order appeared to be contradictory to the legislative act possessing superior force; in such circumstances, a question arises as to the lawfulness of the postponement order based on this Presidential Order.", "However, from the standpoint of Article 6 of the Convention, the Court is not concerned with the question whether such postponement was “lawful” under the domestic law. The Court reiterates that the rights guaranteed by Article 6 of the Convention would be illusory if the Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (see § 35 above). Moreover, a formal postponement of execution of a final judgment for an indefinite period of time without compelling reasons is incompatible with the principle of legal certainty. 40. The Court is prepared to accept that, in the instant case, the existence of a large number of IDPs in Azerbaijan created certain difficulties in the execution of the judgment of 23 June 1998.", "Nevertheless, the judgment remained in force, but for many years no adequate measures were taken by the authorities to comply with it. It has not been shown that the authorities had continuously and diligently taken the measures for the enforcement of the judgment in question. In such circumstances the Court considers that no reasonable justification was advanced by the Government for the significant delay in the enforcement of the judgment. 41. The Court considers that by failing to take necessary measures to comply with the final judgment in the instant case, the authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see Burdov, cited above, § 37).", "There has accordingly been a violation of Article 6 § 1 of the Convention. 42. In view of the above finding, the Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is lex specialis in regard to this part of the application (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007, and Jasiūnienė v. Lithuania, no. 41510/98, § 32, 6 March 2003).", "(b) Article 1 of Protocol No. 1 to the Convention 43. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‑B).", "44. The Court observes that in the instant case the applicant did not own the flat in question, but had only tenancy rights to it pursuant to the occupancy voucher issued by the local executive authority. However, the Court has found that a claim to a flat based on such an occupancy voucher constitutes a “possession” falling within the ambit of Article 1 of Protocol No. 1 (see Akimova, cited above, §§ 39-41). In the present case, the applicant's tenancy right to the flat was recognised by the judgment of 23 June 1998.", "Moreover, the judgment ordered the eviction of the IDPs from the flat, thus granting the applicant an enforceable claim to use the flat in question. 45. The judgment had become final and enforcement proceedings had been instituted, giving the applicant a right to use the flat. Subsequently, the enforcement of the judgment of 23 June 1998 was postponed for an indefinite period of time. The Court finds that the impossibility for the applicant to obtain the execution of this judgment for more than seven and a half years constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No.", "1. The Court does not consider it necessary to examine whether such interference was “lawful” (compare Akimova, cited above, §§ 44 et seq. ), as it finds that, in any event, this interference was not justified for the following reasons. 46. As noted in paragraph 40 above, the Court is prepared to accept that the authorities may have faced difficulties in the enforcement of the judgment in the applicant's favour.", "In particular, the situation at hand called for balancing the applicant's right to peaceful enjoyment of his possessions protected under Article 1 of Protocol No. 1 to the Convention against IDPs' right to be provided with accommodation. In other words, the domestic authorities had, on the one hand, to secure the applicant's property rights and, on the other, to respect the IDPs' rights. In such situations, a wide margin of appreciation should be accorded to the respondent State (see, mutatis mutandis, Radanović v. Croatia, no. 9056/02, § 49, 21 December 2006).", "However, the exercise of the State's discretion cannot entail consequences which are at variance with Convention standards (see Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004‑V). 47. In this regard, the Court reiterates that a situation as the one in the present case calls for a fair distribution of the social and financial burden involved. This burden cannot be placed on a particular social group or a private individual alone, irrespective of how important the interests of the other group or the community as a whole may be (see, mutatis mutandis, Radanović, cited above, § 49, and Hutten-Czapska v. Poland [GC], no.", "35014/97, § 225, ECHR 2006‑VIII). 48. In the present case, pursuant to the final domestic judgment in his favour, the applicant had an enforceable right to use his flat. According to the legislation enacted by the Parliament, this right was contingent on the State authorities' duty to provide alternative accommodation to the IDPs who occupied the flat. As mentioned above, although the Government referred to some general policies implemented in connection with the housing of IDPs and refugees, it has not been established either in the domestic proceedings or before the Court that any specific measures have been taken by the domestic authorities in order to comply with their duty in the applicant's specific case.", "In such circumstances, the failure to ensure the execution of the judgment for several years, followed moreover by the domestic courts' subsequent reliance on the Presidential Order of 1 July 2004 in order to formally postpone the execution, resulted in a situation where the applicant was forced to bear an excessive individual burden. 49. The Court considers that, in the absence of any compensation for having this excessive individual burden to be borne by the applicant, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicant's right to peaceful enjoyment of his possessions. 50. There has accordingly been a violation of Article 1 of Protocol No.", "1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 52. The applicant claimed 72,944 euros (EUR) in respect of pecuniary damage, of which EUR 15,506 was for the loss of rent, and EUR 57,437 for the alleged current market value of the flat. He calculated the amount of the lost rent based on the information on the monthly market rent of flats situated in that area of the city. This information was obtained from an association specialising in these matters. 53.", "The Government argued that the applicant could not claim any compensation for the market value of the flat. The Government further noted that, having applied to the same association, they had checked the grounds for the remainder of the claim corresponding to the loss of rent sustained as a result of the applicant's inability to use his flat and indicated that the applicant might claim EUR 10,376 in respect of pecuniary damage under this head. In this regard, the Government submitted that the building in question was half-constructed and that the applicant would have incurred certain maintenance expenses in connection with this flat. 54. As for the part of the claim relating to the market value of the flat, the Court rejects this part as it does not find any causal link between the violation found and this part of the claim.", "55. As for the part of the claim relating to the loss of rent, the Court finds that there is a causal link between this part of the claim and the violation found and that the applicant must have suffered pecuniary damage as a result of his lack of control over his flat. Having examined the parties' submissions and deciding on an equitable basis, the Court considers that the basis for calculation of the damage proposed by the Government is reasonable and awards the applicant the sum of EUR 10,376 on account of the loss of rent, plus any tax that may be chargeable on that amount. 2. Non-pecuniary damage 56.", "The applicant claimed EUR 25,000 in respect of non‑pecuniary damage. 57. The Government indicated their willingness to accept the applicant's claim for non-pecuniary damage up to a maximum of EUR 1,000. 58. The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgment in his favour.", "However, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 4,800 under this head, plus any tax that may be chargeable on this amount. 59. Moreover, the Court considers that, in so far as the judgment of 23 June 1998 remains in force, the State's outstanding obligation to enforce it cannot be disputed. Accordingly, the applicant is still entitled to enforcement of that judgment.", "The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that this principle also applies in the present case. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 23 June 1998. B.", "Costs and expenses 60. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. This claim was not itemised or supported by any documents. 61. The Government considered the claim to be unjustified.", "62. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the fact that the applicant failed to produce any supporting documents, the Court dismisses the claim for costs and expenses. C. Default interest 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 5. Holds that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the domestic court's judgment of 23 June 1998; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,376 (ten thousand three hundred and seventy-six euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into New Azerbaijani manats 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; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 22 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF KARATAY AND OTHERS v. TURKEY (Application no. 11468/02) JUDGMENT STRASBOURG 15 February 2007 FINAL 15/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karatay and Others v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrC. Bîrsan,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 11468/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Fırat Karatay, Fesih Karatay and Mr Şeyhmus Karatay (“the applicants”), on 16 January 2002. 2. The applicants were represented by Mr A. Terece, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicants complained under Article 5 § 3 of the Convention about the length and the lawfulness of their detention on remand. They complained that during their detention they were never brought before a judge, which deprived them of the possibility of effectively arguing for their release pending trial. 4. On 3 November 2005 the Court decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1975, 1973 and 1949 respectively and live in Mardin. 6. On 5 December 2000, a textile company in Çukurova filed a petition with the office of the Bornova Public Prosecutor, complaining about the fraudulent acts of Fırat Karatay, the first applicant.", "7. On 4 February 2001 the Bornova Public Prosecutor requested the Bornova Criminal Court of First Instance to issue an arrest warrant, for all three applicants, on suspicion of having committed fraud. On 8 February 2001 the public prosecutor filed an indictment with the same court, charging the applicants and four others with embezzlement under Articles 510 of the Criminal Code. 1. The applicants' arrest and detention 8.", "On 25 April 2001 the third applicant was arrested and placed in detention at the Kızıltepe Prison, by the judge at the Kızıltepe Criminal Court. The judge did not take his statements, but merely informed the applicant of the charges against him and noted his personal data. 9. On 14 May 2001, considering the state of the evidence and the nature of the offence, the Bornova Criminal Court ordered the continuation of the third applicant's detention on remand in his absence and demanded his presence for the following hearing. 10.", "In a letter dated 28 May 2001, addressed to the Bornova Criminal Court the third applicant requested to be released pending trial. 11. At the hearings of 11 June 2001 and 9 July 2001 the applicant was not brought before the court. The court ordered the third applicant's continued detention on remand reiterating the same reasoning. It further requested his transfer from the Kızıltepe Prison to Buca Prison in order to facilitate his presence before the court.", "In the meantime, the Kızıltepe Public Prosecutor informed the Bornova Criminal Court that the first and second applicants had been arrested and detained on remand on 7 July 2001 and 1 May 2001, respectively. 12. In a letter dated 9 July 2001, addressed to the Bornova Criminal Court the first applicant confessed to his guilt. 13. On 25 July 2001 the applicants' lawyer, who was present before the Bornova Criminal Court for the first time, requested the applicants' release pending trial.", "Taking into consideration the state of the evidence and the nature of the offence, the Bornova Criminal Court dismissed the lawyer's request, and requested the applicants' transfer to Buca Prison. 14. At the same hearing the applicants' lawyer requested the court not to transfer the third applicant from one prison to another due to his health problems. Subsequently, the court sent a letter rogatory to the Kızıltepe Criminal Court of First Instance in order to take the third applicant's statements. 15.", "At the hearings of 22 August 2001 and 21 September 2001 the court repeated its previous requests concerning the first and second applicants' transfer to the court and ordered, once again, the continuation of all three applicants' detention on remand. 16. On 19 October 2001 the applicants' lawyer complained before the court that although the applicants had been detained on remand for quite some time their statements had still not been taken by the court. He argued that this situation was in breach of the applicants' rights guaranteed under the Convention. Furthermore, in view of the length of their detention and the health problems of the third applicant, he requested the applicants' release pending trial.", "The court dismissed the lawyer's request in view of the state of the evidence and the nature of the offence. It also reiterated its order to transfer all three applicants to Buca Prison. 17. At the hearing of 21 November 2001 the applicants' lawyer maintained that the reason the prison authorities were not transferring the applicants to the Buca prison was because fuel expenses were not covered by the budget. He maintained that if the applicants are released, he would personally ensure the applicants' presence before the court.", "The court decided to send a letter rogatory to Kızıltepe Criminal Court to take the applicants' statements and then to release them. 18. On 6 December 2001 the applicants gave their statements before the Kızıltepe Criminal Court. The first applicant confessed to his guilt, while the others refuted the allegations. The court ordered their release pending trial as requested by the Bornova Criminal Court, in its decision dated 21 November 2001.", "2. The proceedings against the first and third applicants, before the Karşıyaka Criminal Court of First Instance 19. The textile company filed another complaint with the office of the Izmir Public Prosecutor, in relation to the first and the third applicants, regarding the same incident. 20. On 11 April 2001 the Izmir Criminal Court of First Instance filed an indictment against the first and the third applicants for embezzlement.", "On 28 June 2001 the court decided that it lacked jurisdiction to examine the case and sent the case file to the Karşıyaka Criminal Court of First Instance. 21. On 12 November 2001 the Kızıltepe Criminal Court of First Instance took the applicants' statements by way of rogatory letter issued by the Karşıyaka Criminal Court. The applicants alleged that they were not aware of the fact that a second case had been brought against them, at the time they gave these statements 22. At the hearing of 9 October 2002 the Karşıyaka Criminal Court of First Instance acquitted the third applicant due to lack of evidence and found the first applicant guilty as charged and sentenced him to five years and four months' imprisonment.", "Both the applicants and their lawyers were informed of the second case when the decision of 9 October 2002 was notified to them. 23. On 31 October 2002 the applicants appealed against the decision of the Karşıyaka Criminal Court. 24. On 24 April 2003 the first applicant was arrested and subsequently imprisoned in accordance with the decision dated 9 October 2002.", "On 26 January 2004 the Court of Cassation quashed the decision of the first instance court. 25. When the case was resumed before the first instance court, the applicants' lawyer requested to join this case with the one pending before the Bornova Criminal Court, as they concerned the same subject matter. Furthermore, he requested the first applicant's release pending trial. The Karşıyaka Criminal Court refused the lawyer's request to release the applicant in view of the state of the evidence and the nature of the offence.", "3. Joined cases before the Bornova Criminal Court of First Instance 26. On 1 July 2004 the two cases were joined before the Bornova Criminal Court of First Instance. 27. At the hearings held on 2 July, 27 July and 27 August 2004 the court ordered the continuation of the first applicant's detention on remand on account of the state of evidence and the seriousness of the charges, and taking into account the date of his arrest.", "28. On 23 September 2004 the court ordered his release pending trial. 29. On 17 January 2005 the Criminal Court decided to acquit the second and third applicants and convicted the first applicant. It sentenced him to five years and four months' imprisonment.", "30. Following the first applicant's appeal, the case is pending before the Court of Cassation. THE LAW 31. The applicants complained under Article 5 § 3 of the Convention about the length and unlawfulness of their detention on remand. They complained, in particular, that they were deprived of any possibility of effectively arguing in support of their release, as they were not brought promptly before a judge.", "32. The Court considers that the wording “brought promptly” in Article 5 § 3 implies that the right to be brought before an appropriate officer relates to the time when a person is first deprived of his liberty under Article 5 § 1 (c). The obligation on Contracting States under Article 5 § 3 is therefore limited to bringing the detainee promptly before an appropriate officer at that initial stage, although Article 5 § 4 of the Convention may in certain cases require that the person be subsequently brought before a judge for the purpose of effectively contesting the lawfulness of his detention when it lasts for a long time (Ječius v. Lithuania, no. 34578/97, § 84, ECHR 2000‑IX). Thus, it is of the opinion that the latter complaint ought to be considered under Article 5 § 4 of the Convention.", "33. Article 5 §§ 3 and 4 reads as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” I. ADMISSIBILITY 34. The Government submitted that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The Government argued that the applicants could have, pursuant to Article 128 of the Code of Criminal Procedure, challenged the length of their detention in police custody. 35. The Court notes that the remedy invoked by the Government concerns the detention in police custody, while the subject matter of the present application is the length and lawfulness of the applicants' detention on remand.", "It therefore rejects the Government's preliminary objection. 36. The Court further concludes that the application is not inadmissible on any other grounds. It must therefore be declared admissible. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 37. The applicants complained that their detention pending trial exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention. 38. The Government contested that argument. 39.", "The Court reiterates that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of a public interest justifying a departure from the rule in Article 5 of the Convention, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997‑II, p. 388, § 35). 40. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices.", "The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (ibid.). 41. In the instant case, the Court notes that the applicants were placed in detention on remand on 7 July 2001, 1 May 2001 and 25 April 2001, respectively. All three of them were released pending trial on 21 November 2001.", "The first applicant was also detained on remand, within the meaning of Article 5 § 3 of the Convention, between 26 January 2004, the date on which the Court of Cassation quashed his conviction and 23 September 2004, when he was released pending trial once again. Consequently, the period to be taken into consideration for the first applicant lasted approximately one year, whereas the second and third applicants' detention on remand lasted almost seven months. 42. The Bornova Criminal Court considered the applicants' continued detention at the end of each hearing, either of its own motion or at the request of the applicants' lawyer. However, the Court notes from the material in the case file that the Bornova Criminal Court ordered the applicants' continued detention pending trial using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of the evidence”.", "Although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier v. France, judgment of 26 June 1991, Series A no. 207; Tomasi v. France, judgment of 27 August 1992, Series A no. 241‑A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319‑B, § 55, and Demirel v. Turkey, no. 39324/98, § 59, 28 January 2003).", "43. In the light of these considerations, the Court finds that the length of the applicants' detention pending trial violated Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 44. The applicants argued that the review proceedings were not truly adversarial.", "They maintained that as they were not brought before the court which ordered their continued detention on remand and they had not been given any access to the investigation files, they could not properly question the lawfulness of their continued detention on remand. 45. The Government did not submit any observations on the merits of this complaint. 46. In the Court's view, the applicants' complaint under this heading concerns their detention which lasted until 21 November 2001, when they were released pending trial and the proceedings before the Bornova Criminal Court.", "It observes that after that date the first and second applicants were already released pending trial and the third applicant, who was the only one detained at the time, was present before the court to challenge the lawfulness of his arrest. The Court will therefore be dealing only with this period of detention on remand. 47. The Court recalls that Article 5 § 4 of the Convention entitles arrested or detained persons to take proceedings bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145‑B, pp.", "34‑35, § 65). The domestic court dealing with such matters must provide the “guarantees of a judicial procedure”. The proceedings must be adversarial and must always ensure equality of arms between the parties - the prosecutor and the detainee (Grauzinis v. Lithuania, no. 37975/97, § 31, 10 October 2000). 48.", "These requirements are derived from the right to an adversarial trial as laid down in Article 6 of the Convention, which means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. According to the Court's case-law, it follows from the wording of Article 6 – and particularly from the autonomous meaning to be given to the notion of “criminal charge” – that this provision has some application to pre-trial proceedings (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure. While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the other party is aware that observations have been filed and is given an opportunity to comment thereon (see, mutatis mutandis, Brandstetter v. Austria, judgment of 28 August 1991, Series A no.", "211, pp. 27‑28, § 67). 49. In the instant case, the Bornova Criminal Court had jurisdiction to examine the applicants' case. However, following their arrest the applicants were brought before the Kızıltepe Criminal Court which subsequently ordered their detention on remand.", "The Court observes that, until they were released pending trial, this was the only occasion that the applicants were brought before a judicial authority. Yet, even on that occasion the Kızıltepe Criminal Court merely informed the applicants of the charges against them and noted their personal data (paragraph 8 above). 50. The Court notes that the Bornova Criminal Court ordered the prolongation of their detention in the applicants' absence, by examining the case file which did not contain their statements. It further notes that the Government did not explain why the applicants were not transported from the Kızıltepe Prison to the court house where the proceedings were pending.", "51. The Court observes that even at the hearing of 21 November 2001, when the Bornova Criminal Court ordered the Kızıltepe Criminal Court to take the applicants' statements and subsequently release them, it did not specify any reason for their release. Therefore, although the applicants' lawyer was present during some of the hearings where the court reviewed the applicants' detention on remand, in the absence of any reasoning he did not have any possibility to effectively challenge its lawfulness. 52. In view of the above, the Court concludes that the applicants were not given the guarantees appropriate to the kind of deprivation of liberty in question.", "Accordingly there has been a breach of Article 5 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54.", "The applicants maintained that their arrest and detention had a negative effect on their business. Thus, the first applicant claimed 5,000 euros (EUR) in respect of pecuniary damage, while the second and third applicants claimed EUR 10,000. Furthermore they claimed EUR 10,000, EUR 15,000 and EUR 20,000 respectively, for non-pecuniary damage. 55. The Government contended that the claim for pecuniary damages was unsubstantiated.", "Moreover, they claimed that the applicants' claim for non-pecuniary damage were excessive. They submitted that, if the Court were to find a violation, the judgment would in itself constitute sufficient just satisfaction for the purposes of Article 41. 56. The Court considers that the applicants' claim for pecuniary damages is not substantiated; it therefore rejects this claim. On the other hand, it awards the first applicant EUR 2,000 and the second and third applicants each EUR 1,500 in respect of non-pecuniary damage.", "B. Costs and expenses 57. The applicants also claimed EUR 7,000 for costs and expenses incurred before the domestic authorities and the Court. In support of their claim, the applicants submitted the Istanbul Bar Association's recommended minimum fees list for 2006. However, they did not submit any receipt or invoice.", "58. The Government disputed the applicants' claim. 59. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and was 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 applicants, jointly, the global sum of EUR 1,500 covering costs under all heads.", "C. Default interest 60. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros) to the first applicant for non‑pecuniary damage, (ii) EUR 1,500 (one thousand five hundred euros) each to the second and third applicants for non-pecuniary damage, (iii) EUR 1,500 (one thousand five hundred euros) jointly for costs and expenses, (iv) plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF KHATUYEVA v. RUSSIA (Application no. 12463/05) JUDGMENT STRASBOURG 22 April 2010 FINAL 04/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khatuyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 25 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "12463/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Luiza Khatuyeva (“the applicant”), on 28 March 2005. 2. The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin. 3.", "On 15 January 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of 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. 4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969. A native of Chechnya, from 1996 she lived in the settlement for internally displaced persons from Chechnya in the village of Ordzhonikidzevskaya (also known as Sleptsovskaya), in the Ingush Republic of the Russian Federation (Ingushetia). The applicant later left Russia with her children and sought asylum in another country, where she now resides.", "She is the wife of Sultan Khatuyev, who allegedly disappeared in 2004 following his arrest by the security forces. A. Disappearance of Sultan Khatuyev 6. On 2 August 2004 at about 8.00 a.m. an operation was carried out in the Ordzhonikidzevskaya settlement by the security forces with a view to finding members of illegal armed groups. More than one hundred servicemen and numerous vehicles were involved in the operation.", "7. The applicant stated that her home had been searched during this operation by two servicemen who neither introduced themselves nor produced any document. They checked Sultan Khatuyev's passport and ordered him to follow them to their car. In response to the applicant's questions, the servicemen told her that her husband would be taken along with some of their neighbours to the Sunzhensky district department of the Interior (ROVD) for an identity check. Six other persons were apprehended and taken to the Sunzhensky ROVD during the same operation.", "They were all neighbours and knew each other. 8. As soon as the operation was over the applicant went by car to the Sunzhensky ROVD together with R.A., a relative of another apprehended person. They saw the seven apprehended men being taken from the yard into the ROVD building. 9.", "Three of these men were released at approximately midnight. Two of them later stated that they had initially been detained for several hours in a wing on the ground floor and then taken to the second floor for questioning. 10. On 3 August 2004 at approximately 1 a.m. a ROVD officer informed the applicant and the three men who had just been released that the other detainees, including Sultan Khatuyev, would be released in the morning. 11.", "Around 8.00 a.m. on 3 August the applicant went back to the ROVD with relatives of the other detainees. They were told that the four remaining detainees had been taken to the Federal Security Service (FSB) office in Magas. The applicant and the other detainees' relatives immediately went there. While they were not allowed to enter the premises, an officer confirmed that the four people, including Sultan Khatuyev, were being detained at that office. 12.", "In response to the applicant's repeated requests an officer came out of the building at 4.00 p.m. and released two more persons. He also told the applicant that the other two persons, Sultan Khatuyev and U.I., had already been released. According to U.I. 's relatives, he had indeed been released in an extremely poor condition by FSB officers between 1.00 and 2.00 p.m. and left alone at a rubbish dump. The applicant went to the rubbish dump to look for her husband but did not find him or any of his personal belongings.", "13. U.I. later told the applicant that he and Sultan Khatuyev had been detained in two neighbouring cells on the FSB premises and that he had heard Sultan Khatuyev groaning. He told her that he had been beaten by the FSB officers and that, given the sounds coming from the other cell, Sultan Khatuyev had been beaten as well. The lawyer representing the applicant submitted a written statement about his conversation with U.I.", "to that effect; however, he noted in the same statement that U.I. had feared reprisals and refused to sign any testimonies about his detention. According to the lawyer's submissions, U.I. and Sultan Khatuyev had been taken in the same car from the Sunzhenskiy ROVD to the FSB office in Magas. U.I.", "had had a plastic bag over his head but he had heard the voice of the applicant's husband, whom he had known well as they had been neighbours. He also told the lawyer that the car had not stopped anywhere on the way to Magas and that at one point he had heard Sultan Khatuyev screaming in the building. 14. The applicant has had no news of Sultan Khatuyev since 2 August 2004. 15.", "In support of her own statements, the applicant submitted statements by her relatives and a statement by one of the persons who had been detained on 2 August 2004 at the Sunzhenskiy ROVD together with Sultan Khatuyev. 16. The Government did not dispute the circumstances of the applicant's husband's detention on 2 August 2004. B. The search for Sultan Khatuyev and the investigation 1.", "The applicant's account 17. Since 3 August 2004 the applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by NGO Memorial. In her letters to the authorities the applicant referred to her husband's detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicant's requests have been forwarded to various prosecutors' offices.", "The applicant submitted some of the letters to the authorities and the replies to the Court, which are summarised below. 18. On 3 August 2004 the applicant lodged a written complaint with the Sunzhensky ROVD about the abduction of her husband. She was informed by the ROVD officers that they were not aware of his fate after he had been taken to the FSB office in Magas. 19.", "On 4 August 2004 the applicant again went with her relatives to the ROVD office to inquire about her husband and talked to officer A.B., whom she had seen take part in the operation at issue. He gave them no information, but insulted the applicant and her sister-in-law using obscene language. The incident was interrupted by another officer, A.G., who had also taken part in the operation. The latter informed the applicant, after a telephone call to the FSB office in Magas, that Sultan Khatuyev was still being detained there. A.G. promised to find out the reasons for his detention, but failed to provide any further information in response to the applicant's subsequent telephone calls.", "20. On 6 August and 9 August 2004 the applicant complained to the Sunzhensky District Prosecutor's Office (hereafter “the district prosecutor's office”) about the abduction of her husband and demanding an investigation into the matter. 21. By a letter of 9 August 2004 the FSB office of Ingushetia informed the applicant that they had no information about Sultan Khatuyev's apprehension and whereabouts. 22.", "On 12 August 2004 the applicant requested the Minister of the Interior of Ingushetia to identify the servicemen involved in the abduction of her husband. 23. On 19 August 2004 the applicant wrote to the district prosecutor's office and submitted additional details of her husband's disappearance. 24. On 20 August 2004 the District Prosecutor's Office opened a criminal investigation (case file no.", "04600054) into Sultan Khatuyev's kidnapping under Article 126, part 1, of the Criminal Code. The applicant was informed thereof by letters of 31 August and 8 September 2004. 25. In September 2004 the applicant received a reply from the acting Minister of the Interior of Ingushetia. The letter stated that on 2 August 2004 eight persons, including Sultan Khatuyev, had been apprehended during an operation carried out jointly by the FSB Department for Ingushetia and the special forces of the Ingush Ministry of the Interior (OMON) with a view to identifying and arresting persons involved in illegal armed groups.", "The Minister also confirmed that four of those persons had been released, while four others, including Sultan Khatuyev, had been relocated pursuant to the orders of the head of the FSB group Mr M.Ye. The Minister indicated that the investigation to find out Sultan Khatuyev's whereabouts was under way. 26. On various dates in October 2004 the applicant again wrote to the district prosecutor's office. She inquired about the progress of the criminal proceedings, requested to be granted victim status and access to the case file and to question the six witnesses who had been apprehended together with her husband.", "The prosecutor's office replied on 1 November 2004 and confirmed that four persons including Sultan Khatuyev had been taken to the ROVD and subsequently transferred to the FSB office in Magas and that Sultan Khatuyev's whereabouts were still not known. 27. On 4 November 2004 the applicant asked the district prosecutor to bring criminal charges against the persons involved in the abduction of her husband. She again requested access to the criminal case file. She also asked specifically for the other men who had been apprehended on the same day and the officials involved, including the ROVD officers who had arrested her husband and the FSB officer M.Ye., who had ordered his transfer to the Magas FSB Department, to be questioned.", "28. The applicant received no response to these requests. In reply to her subsequent requests the prosecutor's office indicated, by letter of 19 February 2005, that the investigation concerning criminal file no. 04600054 was still ongoing. 29.", "On 20 February 2005 the investigation was discontinued given the failure to identify the persons against whom the charges were to be brought (Article 208, part 1, paragraph 1 of the Code of Criminal Procedure) and the applicant was informed thereof by letter of 5 March 2005. 30. On 5 May 2005 the applicant lodged a complaint with the Sunzhensky District Court (“the district court”) under Article 125 of the Code of Criminal Procedure. She requested the court to declare the inaction of the prosecutor's office unlawful, to quash the prosecutor's decision adjourning the investigation and to order a thorough and effective investigation into Sultan Khatuyev's abduction. 31.", "On 24 May 2005 the district court dismissed the applicant's complaint. The court noted in particular that the investigation authorities had questioned certain officers of the Sunzhensky ROVD, including A.G., and complied with the plan of investigation measures. The court also noted that the necessary measures had been taken to secure the questioning of FSB officer M.Ye., but the latter had failed to appear due to circumstances beyond the investigator's control. 32. On 4 June 2005 the Supreme Court of Ingushetia reviewed the applicant's cassation appeal against this decision.", "The court quashed and remitted the decision of 24 May 2005, with an instruction to the investigation authorities to question Mr M.Ye. 33. The applicant received no further information about the proceedings in the case concerning her husband's abduction. In 2008 she informed the Court that she had been threatened by unnamed representatives of the security forces, who had allegedly told her to stop complaining. They threatened to plant drugs or arms on her teenaged sons or accuse them of being involved with illegal armed groups.", "The applicant and her family left Russia and sought asylum in another country. 34. The applicant submitted that her health had deteriorated significantly since the events of 2 August 2004 and the disappearance of Sultan Khatuyev. Without presenting any documents, she claimed that in 2008 she had been diagnosed with a benign tumour, which she thought was a result of the endured stress. 2.", "Information submitted by the Government 35. With reference to the information provided by the Prosecutor General's Office, the Government submitted that the investigation of the abduction of Sultan Khatuyev had commenced on 20 August 2004. 36. On unspecified dates the investigation questioned the applicant and Sultan Khatuyev's parents. The applicant was granted victim status on 25 August 2004.", "37. The Government stated that two servicemen of the Sunzhenskiy ROVD had been questioned in the course of the investigation. They testified that on 2 August 2004 their office had assisted the FSB and the criminal police of Ingushetia in the security operation in Ordzhonikidzevskaya. One serviceman had taken part in this operation, while the other one had not. The aim of the operation had been to identify members of illegal armed groups and to check that the inhabitants of the settlement of internal migrants from Chechnya were complying with residence rules.", "The participating serviceman had been aware of the detention of four men, the identities and the reasons for detention of whom he had not known. The other serviceman (presumably, this was A.G., questioned on 3 September 2004 – see paragraph 31 above) had learnt of Sultan Khatuyev's detention from the latter's relatives. The witnesses had no other information about Sultan Khatuyev. 38. It also appears from Government's observations that on an unspecified date the investigators questioned U.I., who refused to submit any complaints about the alleged ill-treatment.", "As it appears, no other witnesses were identified or questioned. 39. The Government further cited the report of the border security regiment of the Ministry of the Interior of Ingushetia of 8 November 2004. According to them, 60 servicemen of the regiment had participated in the joint operation on 2 August 2004 aimed at identifying the persons who had taken part in a terrorist attack on 22 June 2004. Several persons had been delivered to the Sunzhenskiy ROVD.", "40. The Government also referred to a report from the Ingushetia Department of the FSB of 15 September 2004, according to which Sultan Khatuyev had been questioned in the service car in order to establish his identity. The FSB officers thus found out that in fact they had been looking for a relative of his, A.B. Khatuyev. In view of this Sultan Khatuyev had been released from the car at the gas station situated at the exit from Ordzhonikidzevskaya, before the road police block “Volga-20”.", "Sultan Khatuyev had rejected the servicemen's offer of a lift home. 41. The Government submitted that in November 2004 the investigating authorities had sent a number of queries to various State bodies. On an unspecified date the Ingushetia department of the FSB stated that their office had not detained Sultan Khatuyev and had no information about his whereabouts. The Ministry of the Interior of Chechnya also replied, on 7 September 2004, that their agents had not detained Sultan.", "Also on unspecified dates the remand centres in the Northern Caucasus informed the investigation that the missing man had never been detained there. 42. As far as the applicant's attempts to obtain judicial review of the prosecutor's decisions are concerned, the Government added that on 28 July 2005 the district court had granted the applicant's action against the prosecutor's office and had obliged the latter to carry out a complete and effective investigation into the circumstances of her husband's abduction. 43. The investigation failed to establish the whereabouts of Sultan Khatuyev.", "The law enforcement authorities of Chechnya had never arrested or detained Sultan Khatuyev on criminal or administrative charges and had not carried out a criminal investigation in his respect. The Government insisted that the incident should be qualified not as detention, but as “apprehension with the aim of identifying personal identity” (“задержан для уточнения личности») and that as soon as his identity had been established, he had been released. 44. According to the information submitted by the Government, between 20 August 2004 and 4 February 2008 the investigation was suspended and resumed on several occasions, and has so far failed to identify those guilty. The latest decision to resume the investigation was dated 4 February 2008.", "45. Despite specific requests by the Court the Government did not disclose any of the documents of criminal case no. 04600054. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. II RELEVANT DOMESTIC LAW 46.", "For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). THE LAW I. THE GOVERNMENT'S OBJECTION REGARDING NON‑ EXHAUSTION OF DOMESTIC REMEDIES 47. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies.", "They submitted that the investigation into the disappearance of Sultan Khatuyev had not yet been completed. They also noted that the applicant had applied to the Court before the domestic authorities had had a chance to review her complaints. 48. The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective from an early stage and that her complaints to that effect, including the application to the district court, had been futile.", "The directions issued by the domestic courts had not been complied with. 49. The Court considers that the Government's objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant's complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II.", "THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties' arguments 50. The applicant maintained that it was beyond reasonable doubt that Sultan Khatuyev had been detained on 2 August 2004 by State agents and delivered to the office of the Ingushetia department of the FSB in Magas. He was last seen alive in the hands of the State agents and the Government had failed to discharge its burden of proof by submitting any explanation as to what had happened to him afterwards. The applicant also asked the Court to draw inferences from the Government's failure to present any documents from the investigation file, either to them or to the Court.", "Since her husband had been missing for a very lengthy period, he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening. 51. The Government submitted that Sultan Khatuyev had not been detained, but only briefly apprehended in the car and then released as soon as it had been established that the FSB had been looking for another man with the same family name. They further contended that the investigation of the incident was in progress, and that there was no evidence that the applicant's husband was dead.", "The Government also raised a number of objections to the applicant's presentation of the facts. They alleged that her recollections of the conversations she had had with officials after the detention of her husband had been inconsistent. They also alleged that the testimonies given by A.G. and U.I. in the course of the investigation contradicted the applicant's presentation of their statements. The Government did not submit the witness statements in question to the Court.", "B. The Court's evaluation of the facts 52. The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of the facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no.", "25 ). 53. The Court notes that despite its requests for a copy of the investigation file into the abduction of Sultan Khatuyev, the Government produced no documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no.", "7615/02, § 123, ECHR 2006- XIII (extracts)). 54. In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government's conduct in respect of the well-foundedness of the applicant's allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant's husband can be presumed dead and whether his death can be attributed to the authorities. 55.", "It clearly follows from the evidence submitted by the parties and uncontested by them that on 2 August 2004 Sultan Khatuyev was detained in Ordzhonikidzevskaya during a security operation and delivered to the ROVD, from which he was taken away in the direction of the Ingushetia department of the FSB. The documents cited by the Government refer to finding persons suspected of involvement in illegal armed groups and responsible for a terrorist act as the aims of the operation, though no formal charges have been ever brought. It does not appear that any records were drawn up in relation to the detention or any other actions carried out in respect of Sultan Khatuyev. He has not been seen since that day and his family has had no news of him. The investigation failed to establish what had happened to him or to charge anyone in connection with the disappearance.", "56. The Government suggested that certain documents in the criminal investigation file proved that Mr Khatuyev had been released. However, since none of these documents have been submitted to the Court, it is reluctant to rely on them in order to absolve the Government from their responsibility to account for the fate of detainees last seen alive within their hands (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II (extracts)). 57.", "The Government also questioned the credibility of the applicant's statements in view of certain discrepancies relating to the description of the days immediately following the detention. The Court notes in this respect that no other elements underlying the applicant's submissions of the facts have been disputed by the Government. The Government did not provide to the Court the witness statements to which they referred in their submissions. In any event, the fact that over a period of several years the applicant's recollection of an extremely traumatic and stressful event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of her statements. 58.", "Furthermore, a number of serious and unresolved contradictions about the exact circumstances of the arrest and alleged release of Sultan Khatuyev arise in the documents cited in the Government's observations. While the Court will address these issues in more detail below under the procedural obligation of Article 2, it notes that the official investigation was unable to come up with a coherent picture of these crucial facts or even to question the persons directly involved in his apprehension. 59. Having regard to the previous cases concerning disappearances in Chechnya and in Ingushetia which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑XIII (extracts); Baysayeva v. Russia, no.", "74237/01, 5 April 2007; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007; Medova v. Russia, no. 25385/04, ECHR 2009‑... (extracts)), the Court finds that in the context of the situation in the region, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Sultan Khatuyev or of any news of him for over five years supports this assumption. 60.", "Accordingly, the Court finds that the evidence available permits it to establish that Sultan Khatuyev must be presumed dead following his unacknowledged detention by State servicemen. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61. The applicant complained under Article 2 of the Convention that her husband had been killed by State agents and that the authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1.", "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties' submissions 62.", "The Government first argued that the complaint was manifestly ill-founded and should be dismissed as such. They further contended that the domestic investigation had obtained no evidence to the effect that Sultan Khatuyev was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible. 63. The applicant argued that Sultan Khatuyev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for many years.", "The applicant also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court's case-law. The applicant pointed out that the district prosecutor's office had not taken some crucial investigative steps. The investigation into Sultan Khatuyev's kidnapping had been opened 18 days after the events and then had been suspended and resumed a number of times – thus delaying the taking of the most basic steps. The relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been ongoing for such a long period of time without producing any known results was further proof of its ineffectiveness.", "She also invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to her or to the Court. B. The Court's assessment 1. Admissibility 64. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint. The complaint under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) The alleged violation of the right to life of Sultan Khatuyev 65. The Court has already found that the applicant's husband must be presumed dead following unacknowledged detention and that the death can be attributed to the State.", "In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Sultan Khatuyev. (b) The alleged inadequacy of the investigation of the kidnapping 66. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-119). 67.", "In the present case, the kidnapping of Sultan Khatuyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 68. The Court notes at the outset that the Government disclosed no documents from the investigation. It therefore has to assess its effectiveness on the basis of the few documents submitted by the applicant and the information about its progress presented by the Government.", "69. The Court notes that the authorities were immediately made aware of the disappearance by the applicant. The investigation in case no. 04600054 was instituted on 20 August 2004, that is, 18 days after Sultan Khatuyev's abduction. Such a postponement per se is liable to affect the investigation of a kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event.", "It also appears that within the following days the applicant, some of her relatives and two ROVD officials were questioned. The applicant was granted victim status in August 2004. However, it appears that after that a number of crucial steps were delayed, or not taken at all. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities' failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Öneryıldız v. Turkey [GC], no.", "48939/99, § 94, ECHR 2004‑XII). 70. A number of essential steps were never taken. Most notably, the Court finds it striking that by 4 June 2005 the investigators had yet failed to question the servicemen who had been directly involved in Mr Khatuyev's apprehension and alleged release (see paragraph 32 above). No documents were sought or obtained about the alleged apprehension and questioning of Mr Khatuyev.", "It does not appear that, apart from Mr U.I., his fellow detainees were questioned. In fact, the presentation of the events in the Government's observations seems to leave more questions than answers. 71. The Court also notes that even though the applicant was granted victim status in the investigation, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Thus, she learnt about her husband's alleged release from the FSB vehicle in Ordzhinikzevskaya from the Government observations submitted to the Court.", "Other essential information, including the dates of adjournments and suspensions of the investigation, has not been communicated to her. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. 72. Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions and that there were lengthy periods of inactivity on the part of the district prosecutor's office when no proceedings were pending. The district court criticised deficiencies in the proceedings and ordered remedial measures, but it does not appear that its instructions were complied with.", "73. Having regard to the limb of the Government's preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still ongoing, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been open for many years without producing any tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection. The Government argued that the applicant could have sought judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies. The Court observes that the applicant did, in fact, make use of that remedy, which eventually led to the resumption of the investigation.", "Nevertheless, the effectiveness of the investigation had already been undermined in its early stages by the authorities' failure to take necessary and urgent investigative measures. Moreover, the district court's instructions to the district prosecutor's office to investigate the crime effectively did not bring any tangible results for the applicant. The investigation was repeatedly suspended and resumed, but it appears that no significant investigative measures were taken to identify those responsible for the kidnapping. In such circumstances, the Court considers that the applicant could not be required to challenge in court every single decision of the district prosecutor's office. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant's failure to exhaust domestic remedies within the context of the criminal investigation.", "74. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Sultan Khatuyev, in breach of Article 2 in its procedural aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 75. The applicant relied on Article 3 of the Convention, submitting that Sultan Khatuyev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention and that as a result of her husband's disappearance and the State's failure to investigate it properly, she had endured mental suffering in breach of Article 3 of the Convention.", "Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 76. The Government disagreed with these allegations and argued that the investigation had not established that the applicant and Sultan Khatuyev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. 77. The applicant maintained her submissions.", "B. The Court's assessment 1. Admissibility (a) The complaint concerning Sultan Khatuyev 78. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “ beyond reasonable doubt ” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, cited above, § 161 in fine).", "79. The Court has found it established that Sultan Khatuyev was detained on 2 August 2004 by federal forces and that no reliable news of him has been received since. It has also found that, in view of all the known circumstances, he can be presumed dead and that the responsibility for his death lies with the State authorities. However, the questions of the exact way in which he died and whether he was subjected to ill-treatment while in detention have not been elucidated. The Court considers that the applicant's reference to her conversation with Mr U.I.", "does not enable it to find beyond all reasonable doubt that Mr Khatuyev was ill-treated in detention. It thus finds that this part of the complaint has not been substantiated. 80. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (b) The complaint concerning the applicant's psychological suffering 81.", "The Court notes that this part of the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 82.", "The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 83. In the present case the Court notes that the applicant is the wife of the disappeared person and witnessed his abduction.", "For more than five years she has not had any news of him. During this period the applicant has made numerous enquiries to various official bodies, both in writing and in person. Despite her attempts, the applicant has never received any plausible explanation or information about what became of Mr Khatuyev following his detention. The responses she received mostly denied State responsibility for the arrest or simply informed her that the investigation was ongoing. The Court's findings under the procedural aspect of Article 2 are also of direct relevance here.", "84. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicant. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 85. The applicant further stated that Sultan Khatuyev had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.", "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties' submissions 86.", "The Government stressed that Sultan Khatuyev had not been detained, but only briefly apprehended in the car and then released as soon as his identity had been established. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention. In their additional observations the Government stated that Mr Khatuyev's detention had in fact been recorded at the Sunzhenskiy ROVD, but submitted no copies of the relevant documents or any other details. 87. The applicant reiterated the complaint.", "B. The Court's assessment 1. Admissibility 88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.", "2. Merits 89. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).", "90. The Court has found that Sultan Khatuyev was apprehended by State servicemen on 2 August 2004. The information submitted by the parties shows that on the same day he had been delivered to the Sunzhenskiy ROVD and than transferred to the representatives of the FSB who put him in a car and went towards the FSB office in Magas. His detention was not acknowledged in a meaningful manner, was not duly logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.", "Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). In fact, the Government's argument points to the heart of the problem, because even though the evidence amply demonstrates that Mr Khatuyev had been deprived of his liberty by State agents, none of the safeguards against arbitrary detention contained in the domestic legal order had been employed. 91. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant's complaints that her husband had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance.", "92. In view of the foregoing, the Court finds that Sultan Khatuyev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 93.", "The applicant alleged that the search carried out at her house on 2 August 2004 was illegal and constituted a violation of her right to respect for her home. It thus disclosed a violation of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 94.", "The Court notes that there is no evidence that the applicant properly raised her complaints alleging a breach of her right to respect for her home before the domestic authorities. But even assuming that in the circumstances of the present case no remedies were available, the events complained of took place on 2 August 2004, whereas the application was lodged on 28 March 2005. The Court thus concludes that this part of the application was lodged outside the six-month limit (see Hazar and Others v. Turkey (dec.), no. 62566/00 et seq., 10 January 2002, and Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006).", "95. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 96. The applicant complained that she had been deprived of effective remedies in respect of the violation of Article 2, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.", "The parties' submissions 97. The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using them. The applicant had had an opportunity to challenge the acts or omissions of the investigating authorities in court and had availed herself of it. They added that participants in criminal proceedings could also claim damages in civil proceedings and referred to cases where victims in criminal proceedings had been awarded damages from state bodies and, in one instance, the prosecutor's office. In sum, the Government submitted that there had been no violation of Article 13.", "98. The applicant reiterated the complaint. 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 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 100.", "The Court reiterates that in circumstances where, as here, a criminal investigation into a disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183). 101. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. VIII. ALLEGED VIOLATIONS OF ARTICLES 34 AND 38 OF THE CONVENTION 102.", "The applicant submitted that she was subjected to threats in relation to her complaint to the Court, as a result of which she was forced to seek asylum abroad. She also argued that the Government's failure to submit the documents requested by the Court, namely the entire criminal investigation file, disclosed a failure to comply with their obligations under Articles 34 and 38 § 1 (a) of the Convention. The Court finds that in the circumstances of the present case the above issues should be examined under Article 34 of the Convention, which provides as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. Threats to the applicant 103.", "The Court reiterates that it is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In the context of the questioning of applicants about their applications under the Convention by authorities exercising a domestic investigative function, this will depend on whether the procedures adopted have involved a form of illicit and unacceptable pressure which may be regarded as hindering the exercise of the right of individual application (see, for example, Aydın v. Turkey, 25 September 1997, §§ 115-117, Reports of Judgments and Decisions 1997-VI, and Salman v. Turkey [GC], no. 21986/93, § 130, ECHR 2000-VII).", "104. Turning to the present case, the Court notes that the applicant has not submitted any details about the alleged pressure put on her by State representatives in relation to her complaint. She failed to indicate the dates and circumstances of such incidents or to specify who had been threatening her. Her statements are extremely vague and unspecific. While the Court sympathises with the applicant, who had been subjected to prolonged stress on account of her husband's disappearance and exasperated by the authorities' failure to provide an adequate response to her grievances, on the basis of her allegations it is unable to come to the conclusion that there has been a breach of Article 34 in the present case.", "B. The failure to disclose documents from the criminal investigation file 105. The Court points out that it has already taken note of the Government's failure to produce a copy of the investigation file and drawn inferences from it. In view of the main objective of Article 34 of the Convention, which is to ensure the effective operation of the right of individual petition, the Court does not find that its provisions have been breached in the present case. IX.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 106. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 107. The applicant claimed compensation for pecuniary damage sustained as a result of her husband's disappearance. On behalf of herself and her two sons, born in 1988 and 1990, the applicant alleged that Mr Khatuyev had been the family's sole breadwinner. He worked as a day labourer on construction sites, and even though no official records of his earnings existed, the applicant submitted that his monthly pay had averaged between 600 and 800 United States dollars (USD).", "The applicant relied on the Law on Minimal Living Costs and the subsequent decrees by the Russian Government which had established the minimum living costs per person at different periods of time. The claim as to her loss of future earnings was based on the Ogden actuarial tables and on the assumption that she and her minor sons would have continued to benefit from her husband's salary. 108. Under this heading the applicant claimed a total of 919,347 Russian roubles (RUB) (20,992 euros (EUR)). 109.", "The Government regarded these claims as based on suppositions and unfounded. They noted that the applicant had not made use of the domestic avenues for obtaining compensation for the loss of a breadwinner. 110. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicant's husband and her loss of the financial support which he could have provided.", "111. Having regard to the applicant's submissions and the absence of any conclusive data about Mr Khatuyev's earnings at the time of his apprehension, the Court awards EUR 10,000 to the applicant in respect of pecuniary damage plus any tax that may be chargeable to her. B. Non-pecuniary damage 112. As regards non-pecuniary damage, the applicant claimed EUR 100,000 for the suffering she had endured as a result of the loss of her husband and the indifference shown by the authorities towards her. 113.", "The Government considered the amount claimed to be exaggerated. 114. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant's relative. The applicant herself has been found to have been the victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations.", "It awards the applicant EUR 60,000, plus any tax that may be chargeable thereon. C. Request for investigation 115. The applicant also requested, referring to Article 41 of the Convention, that “an independent investigation which would comply with the requirements of the Convention be conducted into her husband's abduction”. She relied in this connection on the case of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004-II).", "116. The Government argued that the investigation into the abduction of Mr Khatuyev had been carried out in full compliance with domestic law. 117. Having regard to its previous practice in similar cases, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention (see Kukayev v. Russia, no. 29361/02, § 134, 15 November 2007).", "D. Costs and expenses 118. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicant's legal representation amounted to EUR 2,165 (2,019 pounds sterling (GBP)). They submitted the following breakdown of costs: (a) GBP 817 for eight hours and ten minutes of legal work by United Kingdom-based lawyers at a rate of GBP 100 per hour; (b) GBP 1,027 for translation costs, as certified by invoices; and (c) GBP 175 for administrative and postal expenses. 119.", "The Government disputed the reasonableness of and justification for the amounts claimed under this heading. 120. The Court has to establish first whether the costs and expenses indicated by the applicant's relative were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). 121.", "Having regard to the details of the information and legal representation contracts submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses actually and necessarily incurred by the applicant's representatives. 122. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount claimed of EUR 2,165, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives' bank account in the UK, as identified by the applicant. E. Default interest 123. 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 complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Sultan Khatuyev; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Sultan Khatuyev disappeared; 5.", "Holds that there has been a violation of Article 3 of the Convention in respect of the applicant; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Sultan Khatuyev; 7. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violation of Article 2 of the Convention; 8. Holds that there has been no breach of the provisions of Article 34 of the Convention; 9. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant; (ii) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant; (iii) EUR 2,165 (two thousand one hundred and sixty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives' bank account in the UK; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 22 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident" ]

[ "FIFTH SECTION CASE OF RADOSLAV POPOV v. BULGARIA (Application no. 58971/00) JUDGMENT STRASBOURG 2 November 2006 FINAL 02/02/2007 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 Radoslav Popov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 9 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 58971/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Radoslav Iliev Popov (“the applicant”), on 24 April 2000. 2. The applicant was represented by Mr M. Neikov and Mr K. Bakov, lawyers practising in Plovdiv.", "3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice. 4. On 14 December 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and lives in the village of Nedelevo. A. The criminal proceedings against the applicant 6.", "Two burglaries were committed in the home of an old lady on 13 and 31 May 1998 as a result of which the burglar, through use of force and coercion, stole a total of 10,000 old Bulgarian levs (BGL – approximately 5.13 euros (EUR)). On the latter occasion, the burglar was also armed. 7. A preliminary investigation in respect of the second burglary was opened against an unknown offender on 2 June 1998. 8.", "On 24 September 1998 the applicant was charged with the two burglaries and was detained on remand. He was questioned on the same day and confessed to having committed the burglaries. 9. On 10 November 1998 the Plovdiv District Prosecutor's Office filed an indictment against the applicant with the Plovdiv District Court accusing him of having committed the two burglaries through use of force and coercion, having stolen a total of BGL 10,000 (approximately EUR 5.13) and for having been armed on the second occasion (Articles 198 § 1 and 170 § 2 of the Criminal Code). 10.", "The Plovdiv District Court conducted five hearings between 4 May 1999 and 10 April 2000. 11. In a judgment of 10 April 2000 the Plovdiv District Court found the applicant guilty as charged and imposed a cumulative sentence of four and a half years' imprisonment. The applicant appealed against the judgment on 21 April 2000. 12.", "The Plovdiv Regional Court conducted three hearings on 17 May, 13 June and 14 September 2000. 13. In a judgment of 21 September 2000 the Plovdiv Regional Court partly quashed the lower court's judgment as it found that the applicant had not used force during the burglary of 13 May 1998. It upheld the remainder of the judgment against the applicant. 14.", "No appeal was filed against the judgment of the Plovdiv Regional Court and it entered into force. B. The applicant's detention 15. On 24 September 1998 the applicant was detained on remand upon a decision of an investigator which was confirmed by the Prosecutor's Office later on the same day. The grounds for detaining the applicant were that he may abscond, re-offend or obstruct the investigation but no specific facts or evidence in support of the said assessment were cited or relied on in the decision for his detention.", "On 10 April 2000 the Plovdiv District Court sentenced the applicant to four and a half years' imprisonment. 16. At the trial stage of the proceedings the applicant filed six appeals against his detention, dated 2 and 15 July 1999, 8 and 28 September 1999, 20 December 1999 and 12 January 2000. On each occasion, the applicant argued that he had no criminal record and that there was no risk that he would abscond because he had a permanent address and his wife needed his assistance after the birth of their child. 17.", "None of the applicant's appeals were examined or ruled on by the courts despite of the hearings conducted by the Plovdiv District Court in the meantime. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Grounds for detention 18. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no.", "31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 19. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation).", "The effected amendments and the resulting practice of the Bulgarian courts are summarised in the recent Court judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006). B. The State Responsibility for Damage Act 20.", "The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pre‑trial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2). The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76‑80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004). THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 21. The applicant made several complaints under Article 5 of the Convention. In particular, he complained under Article 5 § 3 of the Convention that when he was arrested on 24 September 1998 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power. In substance, he also complained of the length of the proceedings and the resulting detention on remand during that period. The applicant further complained under Article 5 § 4 of the Convention that the courts failed to rule on the appeals against his detention.", "Lastly, he complained under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in contravention of the provisions of Article 5. The applicant also relied on Article 13 of the Convention in respect of his Convention complaints. The relevant part of Article 5 of the Convention provides: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.", "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Scope of the case 1.", "Article 6 of the Convention 22. The Court observes that on 14 December 2004 it communicated, inter alia, to the respondent Government the applicant's complaint regarding the length of the proceedings, which it considered to have been raised in substance in the context of his complaint under Article 5 § 3 of the Convention. 23. The Court further observes that in the applicant's observations in reply of 2 December 2005 he explicitly indicated that he never intended, nor desired, to raise a complaint under Article 6 of the Convention. Thus, the applicant considered that it was unwarranted for the Court to examine such a complaint.", "24. In view of the explicitly expressed position of the applicant, the Court will examine his complaint regarding the length of the proceedings and the resulting detention during that period only in the context of Article 5 § 3 of the Convention in respect of the said detention. 2. Article 13 of the Convention 25. Regarding the applicant's reliance on Article 13 of the Convention in the context of his Convention complaints, the Court considers that, as it relates to Article 5 § 3 of the Convention, this complaint should be understood as referring to the applicant's inability to effectively challenge his detention under Article 5 § 4 of the Convention and to the alleged lack of an enforceable right to compensation under Article 5 § 5 of the Convention.", "In addition, the Court observes that Article 5 §§ 4 and 5 of the Convention constitute lex specialis in relation to the more general requirements of Article 13 (see Nikolova, cited above, § 69, and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997‑III, p. 927, § 73). 26. Accordingly, the Court examines the complaint that the applicant lacked effective domestic remedies only under Article 5 §§ 4 and 5 of the Convention. B. Admissibility 1. Exhaustion of domestic remedies 27.", "The Government submitted that the applicant had not exhausted the available domestic remedies because he failed to appeal against the judgment of the Plovdiv Regional Court of 21 September 2000. 28. The applicant disagreed and argued that the Government's objection was not relevant to the complaints submitted to the Court. In particular, he noted that his complaints under Article 5 of the Convention related to his detention on remand, which could not have been remedied by an appeal against the judgment of the Plovdiv Regional Court. 29.", "The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports 1996-II, p. 571, § 33). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no.", "47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005). 30. The Court observes that in the present case the applicant's complaints fall to be examined under Article 5 §§ 3-5 of the Convention (see paragraph 21 above) and relate to the period of his detention on remand between 24 September 1998 and 10 April 2000 (see paragraphs 8, 11, 15-17 above). 31.", "Accordingly, the Court finds no indication that an appeal against the judgment of the Plovdiv Regional Court of 21 September 2000 would have dealt with the complaints currently before it. In so far as the subject of such proceedings would have been the applicant's culpability in the context of the criminal proceedings, the Court finds that such an appeal proceedings cannot be considered to have been an effective remedy which the applicant should have exhausted in respect of his complaints under Article 5 §§ 3-5 of the Convention. The Government's objection must therefore be rejected. 2. Compliance with the six-month time-limit under Article 35 § 1 of the Convention 32.", "The Government claimed that the applicant failed to submit his application to the Court within six months after the date on which the final domestic court's decision was taken, but rather had submitted his complaints much sooner, on 24 April 2000, which was just after he had appealed against the judgment of the Plovdiv District Court. 33. The applicant disagreed with the Government. He argued that his complaints fell under Article 5 of the Convention and, as such, were submitted in conformity with the requirements of the Convention because they related to his period of “detention on remand” within the meaning of Article 5 § 3 of the Convention, which ended on 10 April 2000 with the judgment of the Plovdiv District Court. 34.", "The Court reiterates, at the outset, that the object of the six-month time-limit is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time, and past judgments are not continually open to challenge. Further, the rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see Worm v. Austria, judgment of 29 August 1997, Reports 1997‑V, p. 1547, § 32, and Keenan v. the United Kingdom, no. 27229/95, Commission decision of 22 May 1998). 35. The Court further reiterates that Article 35 § 1 of the Convention provides that the Court may only deal with a matter where it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies.", "Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the acts or measures complained of, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003‑I). This approach is especially appropriate in circumstances where it is clear from the outset that no effective remedy was available to the applicant in respect of the act or decision complained of within the relevant domestic law (see Keenan, cited above). 36. In the case of a continuing situation, meanwhile, the time-limit expires six months after the end of the situation concerned (see, among many other authorities, Agrotexim Hellas S.A. and Others v. Greece, no.", "14807/89, Commission decision of 12 February 1992, Decisions and Reports 72, p. 148). Similarly, in respect of a complaint about the absence of a remedy for a continuing situation, such as a period of detention, the time-limit under Article 35 § 1 of the Convention also expires six months after the end of that situation – for example, when an applicant is released from custody (see Ječius v. Lithuania, no. 34578/97, § 44, ECHR 2000‑IX). In any event, however, if an applicant submits his complaints to the Court while he is still in detention, the case cannot be dismissed as being out of time (ibid.). 37.", "Lastly, if it is not clear from the outset that no effective remedy was available to the applicant, then the time-limit expires six months after the date on which the applicant first became or ought to have become aware of the circumstances which rendered the remedy ineffective (see Keenan, cited above). 38. In the present case, the Court observes that the applicant's initial introduction of his complaints dates from 24 April 2000 and that he subsequently submitted a completed application form on 28 June 2000. 39. The Court further observes that the applicant's complaints under Article 5 §§ 3-5 of the Convention relate to certain alleged deficiencies of the relevant provisions of the CCP, in force at the relevant time, as construed by the competent authorities and as applied to him, which gave rise to a continuing situation against which no effective remedies were available at the time.", "40. In respect of the applicant's complaint that he was not brought promptly before a judge following his arrest on 24 September 1998, the Court observes that he appeared before a trial judge for the first hearing in the criminal case against him on 4 May 1999 (see paragraph 10 above). The Court finds that this was the first occasion on which the applicant was personally present before a person clearly acting in a judicial capacity since his detention had been ordered by an investigator on 24 September 1998 (see paragraphs 8 and 15 above). Thus, it considers that on that date the lack of access to a judicial officer who could consider the merits of the detention (see Aquilina v. Malta [GC], no. 25642/94, §§ 47-50, ECHR 1999‑III), a situation which had existed since 24 September 1998, ended for the purposes of Article 35 § 1 of the Convention.", "Accordingly, the time-limit for submitting the related complaint to the Court expired six months after 4 May 1999 (see G.K. v. Poland (dec.), no. 38816/97, 8 December 1998; Bagiński v. Poland (dec.), no. 37444/97, 21 January 2003; Oratowski v. Poland, (dec.), no. 40698/98, 6 February 2003; Al Akidi v. Bulgaria (dec.), no. 35825/97, 19 September 2000; and Hristov v. Bulgaria (dec.), no.", "35436/97, 19 September 2000). The applicant introduced his first letter to the Court on 24 April 2000. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. The Government's objection must therefore be upheld in respect of this complaint. 41.", "In respect of the remainder of the applicant's complaints, the Court finds that the continuing situation ended with the amendment of the relevant provisions of the CCP effective 1 January 2000. Considering that he introduced his complaints on 24 April 2000, the Court finds that the applicant complied with the six-month time-limit under Article 35 § 1 of the Convention. The Government's objection in these respects must therefore be dismissed. 3. Complaints under Article 5 §§ 3-5 of the Convention 42.", "The Court finds that the applicant's complaints (a) that his detention was unjustified and unreasonably lengthy; (b) that the domestic courts failed to rule on the appeals against his detention; and (c) that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in contravention of the provisions of Article 5 are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds. They must therefore be declared admissible. C. Merits 1. Complaint under Article 5 § 3 of the Convention that the applicant's detention on remand was unjustified and unreasonably lengthy 43. The Government did not submit observations on the merits of the complaint.", "44. The Court observes that the applicant's detention on remand lasted from 24 September 1998 to 10 April 2000 (see paragraphs 8, 11, 15-17 above), a period of one year, six months and sixteen days. 45. The Court further observes that following the applicant's arrest on 24 September 1998 the authorities never considered themselves obliged to re-evaluate the need to continue his detention and to justify it on the basis of specific facts and evidence about the possible danger that he might abscond, re-offend or obstruct the investigation. In fact, no specific facts and evidence were cited or relied on by the authorities in ordering his initial detention on remand (see paragraphs 8 and 15 above).", "Accordingly, the authorities appear to have considered his detention mandatory, which makes this complaint similar to those in previous cases against Bulgaria where violations were found (see, for example, Ilijkov, cited above, §§ 67-87 and Shishkov v. Bulgaria, no. 38822/97, §§ 57-67, ECHR 2003‑I). 46. In view of the above, the Court finds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention on remand for a period of over one year and six months. 2.", "Complaint under Article 5 § 4 of the Convention 47. The Government did not submit observations on the merits of the complaint. 48. The Court reiterates that Article 5 § 4 of the Convention guarantees to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention (see Rutten v. the Netherlands, no. 32605/96, § 52, 24 July 2001).", "49. The Court observes that in the present case the domestic courts failed to rule on any one of the six appeals filed by the applicant against his detention on remand despite having conducted hearings in the meantime (see paragraphs 16-17 and 10 above). 50. Accordingly, there has been a violation of Article 5 § 4 of the Convention on account of the applicant having been denied the right to take proceedings to challenge the lawfulness of his detention. 3.", "Complaint under Article 5 § 5 of the Convention 51. The Government did not submit observations on the merits of the complaint. 52. In the context of the complaint under Article 5 § 5 of the Convention and considering its finding of violations of Article 5 §§ 3 and 4 (see paragraphs 46 and 50 above), the Court must establish whether or not Bulgarian law afforded the applicant an enforceable right to compensation for the breaches of Article 5 of the Convention in his case. 53.", "The Court notes that by section 2(1) of the SRDA, a person who has been remanded in custody may seek compensation only if the detention order has been set aside “for lack of lawful grounds”, which refers to unlawfulness under domestic law. As far as it can be deduced from the practice reported under this provision, section 2(1) has only been applied in cases where the criminal proceedings have been terminated on the basis that the charges were unproven or where the accused has been acquitted (see paragraph 20 above and the case-law cited therein). 54. In the present case, the applicant's detention on remand was considered by the domestic courts as being in full compliance with the requirements of domestic law. Therefore, the applicant has no right to compensation under section 2(1) of the SRDA.", "Nor does section 2(2) of the Act apply (see paragraph 20 above and the case-law cited therein). 55. It follows that in the applicant's case the SRDA does not provide for an enforceable right to compensation. Furthermore, it does not appear that such a right is secured under any other provision of Bulgarian law (see paragraph 20 above and the case-law cited therein). 56.", "The Court thus finds that Bulgarian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention (see Dobrev, cited above, §§ 102-06). There has, therefore, also been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 58.", "At the time of submitting his application, the applicant requested to be awarded damages for the alleged violations of the Convention in an amount deemed appropriate by the Court. His preliminary claim was for 10,000 Bulgarian levs (BGL – approximately 5,128 euros (EUR)) in respect of damages plus costs and expenses. However, following communication of the application to the respondent Government the applicant failed to submit a claim for just satisfaction together with his observations in reply of 2 December 2005. 59. The Court reiterates that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers and within the time-limit fixed for the submission of the applicant's observations on the merits, “failing which the Chamber may reject the claim in whole or in part”.", "60. In view of the applicant's failure to comply with the aforesaid requirement, the Court makes no award under Article 41 of the Convention (see Ryabykh v. Russia, no. 52854/99, §§ 66-68, ECHR 2003‑IX). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares admissible the applicant's complaints (a) that his detention was unjustified and unreasonably lengthy; (b) that the domestic courts failed to rule on the appeals against his detention; and (c) that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in contravention of the provisions of Article 5 of the Convention; 2.", "Declares the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention on remand for a period of over one year and six months; 4. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant having been denied the right to take proceedings to challenge the lawfulness of his detention; 5. Holds that there has been a violation of Article 5 § 5 of the Convention on account of the applicant not having had available an enforceable right to compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention. Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF TOKAZOV v. RUSSIA (Application no. 19440/05) JUDGMENT STRASBOURG 13 January 2011 This judgment is final but it may be subject to editorial revision. In the case of Tokazov v. Russia, The European Court of Human Rights (First Section), sitting as a committee composed of: Elisabeth Steiner, President,Anatoly Kovler,George Nicolaou, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 9 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19440/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Mikhaylovich Tokazov (“the applicant”), on 21 April 2005.", "2. The applicant was represented by Ms Y.V. Akhmineyeva, a lawyer practising in Maykop, the Republic of Adygeya. 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 7 October 2008 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in the Krasnodar Region.", "5. In August 1995 tax authorities carried out an inspection of the enterprise owned by the applicant and found some breaches of tax law. In September 1995 criminal proceedings were initiated against him on suspicion of tax offence. The applicant successfully challenged the results of the inspection in a commercial court. In June 1998 the criminal proceedings against him were discontinued for lack of corpus delicti.", "A. Proceedings for compensation for unlawful criminal prosecution 1. First examination of the case 6. On 15 March 2001 the applicant lodged an action with the Maykop Town Court of the Republic of Adygeya (“the Town Court”) against the local branch of the Federal Tax Police Department of Russia (Управление федеральной налоговой полиции Российской Федерации по Республике Адыгея) seeking compensation for unlawful criminal proceedings against him and reimbursement of legal costs incurred before the commercial courts and during the criminal proceedings. 7.", "At the first hearing that took place on 16 April 2001 the applicant motioned for obtainment of the documents contained in his criminal and commercial case-files. The respondent requested that the hearing be adjourned due to its representative’s unavailability. 8. The hearings scheduled for 24 May and 4 October 2001 were postponed at the applicant’s request, first due to the delay in arrival of the commercial case-file and then pending the outcome of another dispute at a commercial court. 9.", "On 20 December 2001 the court granted the applicant’s request for adjournment as he needed to re-calculate the amount of his claims. 10. On 7 March 2002 the court granted the applicant’s motion for an audit expert examination. The examination was completed on 14 August 2002, following which the court scheduled the next hearing for 4 December 2002. 11.", "On 18 February 2003 the Town Court granted the claims in part. The applicant appealed and requested that the appeal hearing be postponed due to his illness. On 22 April 2003 the Supreme Court of the Republic of Adygeya (“the appeal court”) overturned the judgment on appeal for erroneous application of the substantive law, suggested that the Town Court replace the incompetent respondent and remitted the case for fresh examination. 2. Second examination of the case 12.", "The Town Court joined the local branch of the Federal Treasury of Russia to the proceedings. On 30 June 2003 it again granted the applicant’s claims in part. The applicant appealed and again requested that the appeal hearing be postponed due to his illness. 13. On 5 September 2003 the appeal court held that the first-instance court had failed to implement its previous instructions and had erroneously applied substantive law.", "The judgment was set aside, and a new hearing was required. 3. Third examination of the case 14. On 3 November 2003 the Town Court granted the applicant’s claims in part. 15.", "On 5 December 2003 the appeal court ruled that the first-instance court had failed to adequately establish the facts of the case, reversed the judgment and ordered new examination of the case. 4. Fourth examination of the case and the judgment of 31 March 2004 16. On 10 February 2004 the Town Court terminated the proceedings in the part concerning reimbursement of legal costs incurred before the commercial courts and during the criminal proceedings on the ground that those claims could not be examined in civil proceedings. The applicant did not challenge that decision.", "17. On 31 March 2004 the Town Court awarded the applicant 1,982 Russian roubles (RUB) in respect of pecuniary damage and RUB 50,000 in respect of non-pecuniary damage, to be paid by the Ministry of Finance. It dismissed the remainder of the applicant’s claims. 18. On 14 May 2004 the appeal court held that the first-instance court had breached substantive and procedural law.", "It quashed the judgment of 31 March 2004 in the part concerning compensation for pecuniary damage and remitted that part for fresh examination to the first‑instance court. It upheld the judgment in the part awarding compensation for non-pecuniary damage. 5. Fifth examination of the case and the judgment of 20 October 2004 19. On 19 July 2004 the applicant motioned for postponement of the hearing due to his involvement in different proceedings.", "20. On 20 October 2004 the Town Court awarded the applicant RUB 373,578 in respect of pecuniary damage and legal costs, to be paid by the Ministry of Finance. It dismissed the remainder of his claims. 21. On 7 December 2004 the appeal court reduced the award to RUB 284,289.", "B. Indexation of court awards 22. On 2 June 2006 the Town Court index-linked the courts’ awards of 31 March and 20 October 2004 and awarded the applicant RUB 69,729. On 7 July 2006 the Supreme Court upheld this decision. 23.", "On 19 June 2007 the Town Court index-linked the awards of 31 March 2004, 20 October 2004 and 2 June 2006 and awarded the applicant RUB 98,570. On 31 July 2007 the Supreme Court corrected an arithmetical error in the decision of 19 June 2007 and held that the applicant was to be paid RUB 39,357. 24. On 10 April 2008 the Town Court index-linked the awards of 20 October 2004 and 19 June 2007 and awarded the applicant RUB 25,837. On 13 May 2008 the Supreme Court upheld this decision.", "C. Enforcement of the judgments 25. The judgment of 31 March 2004 was enforced on 26 December 2006. 26. The writ of execution for the judgment of 20 October 2004, as upheld on 7 December 2004, was submitted to the Ministry of Finance on 14 February 2005. The executing authority returned the documents on 1 February 2007 to the applicant for correction of certain defects.", "After the applicant failed to collect the documents from the post office, they were remitted to the trial court on 6 June 2007. Following the court’s failure to remedy the defects, the documents were again sent back to it on 19 July 2007 and 7 May 2008. On 26 September 2008 the appeal court corrected an arithmetical error and reduced the award to RUB 284,288. It was enforced on 5 February 2009. 27.", "The writ of execution for the decision of 2 June 2006 was returned to the applicant by the Ministry of Finance on 19 April 2007. After correction of defects, the decision was enforced on 10 July 2007. 28. The decision of 19 June 2007, as upheld on 31 July 2007, was enforced on 3 March 2008. 29.", "The writ of execution for the decision of 10 April 2008, as upheld on 13 May 2008, was returned to the applicant on 11 June 2009. After correction of defects, the decision was enforced on 31 August 2009. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 30. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had taken too long to examine his claims.", "The relevant part of the provision reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 31. The Government submitted that the complaint was manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 32. The Court notes that this complaint does not appear to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 33. The Government argued that the case had been complex in view of the ongoing liquidation of the initial respondent and its subsequent replacement, as well as involvement of a number of third parties. They further contended that the applicant had borne principal responsibility for the length of the proceedings following his alterations of claims, request for an expert examination and motions for adjournment of the hearings.", "34. The applicant maintained his complaint. 35. The Court observes that the proceedings in the applicant’s case commenced on 15 March 2001 and ended on 7 December 2004. They thus lasted approximately three years and nine months, during which period the courts examined the claims five times at two levels of jurisdiction.", "36. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 37. The Court considers that the applicant’s case had not been complex, having involved a straightforward claim for damages.", "38. As to the applicant’s conduct, the Court observes that indeed during the proceedings he asked to postpone or adjourn three hearings at the first instance and motioned for adjournment of two appeal hearings due to his illness, which thwarted the progress of the case to a certain extent. As to the alterations of the claims, the Court is not convinced that the applicant abused his procedural rights and reiterates that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319‑A). 39.", "Turning to the conduct of the authorities, the Court recalls that they examined the case in five rounds of proceedings. While it does not detect any obvious procrastination on the part of the courts in scheduling the hearings and resolving the parties’ motions, it takes cognisance of the fact that the first-instance judgments were set aside on appeal four times for breaches of the law, with the appeal court specifically pointing out that the trial court had repeatedly made the same errors. In this respect the Court reiterates that the Convention and its Protocols must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory. The right to have one’s claim examined within a reasonable time would be devoid of all sense if domestic courts examined a case endlessly, even if at the end the length of proceedings per instance did not appear particularly excessive (see, mutatis mutandis, Svetlana Orlova v. Russia, no. 4487/04, § 47, 30 July 2009).", "40. Although the Court is not in a position to analyse the juridical quality of the domestic courts’ decisions, it considers that multiple repetition of re-examination orders within one set of proceedings may disclose a deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Matica v. Romania, no. 19567/02, § 24, 2 November 2006; and Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008).", "The fact that the domestic courts heard the case several times did not absolve them from complying with the reasonable time requirement of Article 6 § 1 (see Litoselitis v. Greece, no. 62771/00, § 32, 5 February 2004; and Svetlana Orlova, cited above, § 50). The Court therefore arrives at the conclusion that the repeated referrals of the case to the first instance significantly contributed to the length at hand. 41. While the Court acknowledges that the total length of the proceedings was not particularly grave and that the applicant contributed to it to a certain extent, the Court considers that the defects in the authorities’ conduct in the case at hand were serious enough to lead to a breach of the “reasonable time” requirement.", "42. There has accordingly been a violation of Article 6 § 1 of the Convention on account of unreasonable length of proceedings. II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT 43. The applicant also complained that the final judgments in his favour handed down by the courts on 31 March and 20 October 2004, 2 June 2006, 19 June 2007 and 10 April 2008 had not been enforced within a reasonable time.", "He relied on Articles 6 and 13 of the Convention. The Court considers that this complaint should be examined under Article 6 § 1, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 44. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 45. The Government asserted that the impugned judgments had been enforced without undue delays after the authorities had received the duly drafted documents either from the applicant or from the court. 46. The applicant maintained his complaint.", "47. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). To decide if the delay was reasonable, it will look at how complex the enforcement proceedings were, how the applicants and the authorities behaved, and what was the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "48. The Court observes that the awards were of merely monetary nature and did not require any complex enforcement proceedings. 49. It further observes that the judgments in the applicant’s favour were enforced with the following delays from the date when they became final: the judgment of 31 March 2004 was enforced in two years and nine months, the judgment of 20 October 2004 in four years and two months, the judgment of 2 June 2006 in one year and one month, and the judgment of 10 April 2008 in one year and three months. The Court notes that the delays in the enforcement of the three latter judgments had been caused by the court’s errors in drafting of the documents and in calculations, and considers that these cannot in any way be put down as the applicant’s responsibility.", "50. Having regard to its established case-law, the Court considers that the authorities’ failure to comply with the above judgments within a reasonable time breached the requirements of Article 6. There has, accordingly, been a violation of Article 6 § 1 on this account. 51. As to the judgment of 19 June 2007, the Court observes that it was enforced in seven months, which did not breach the standards laid down in its case-law (see Presnyakov v. Russia (dec.), no.", "41145/02, 10 November 2005). Accordingly, it does not discern a violation of the Convention in this part of the complaint. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52. Lastly, the applicant complained that the amount of compensation awarded by the judgments of 31 March and 20 October 2004 for unlawful criminal proceedings against him had not been sufficient to cover his pecuniary damage and to remedy the distress suffered by him.", "53. Having regard to all the materials in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage and an equal amount in respect of non-pecuniary damage. 56. The Government disputed the claimed amounts as unfounded and excessive.", "57. The Court observes that the applicant did not provide any explanation in respect of the claimed amount for pecuniary damage. Taking into additional consideration the fact that the amounts awarded originally had been index-linked at the domestic level, it rejects this claim. 58. On the other hand, the Court accepts that the applicant suffered considerable distress and frustration both on account of the excessive length of the proceedings and the delayed enforcement of the judgments in his favour.", "Deciding on an equitable basis, it awards the applicant EUR 6,200 in respect of non-pecuniary damage. B. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning undue length of the proceedings and delayed enforcement of the judgments of 31 March 2004, 20 October 2004, 2 June 2006 and 10 April 2008 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of excessive length of the proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of delayed enforcement of domestic judgments; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 6,200 (six thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachElisabeth SteinerDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF KOMANICKÝ v. SLOVAKIA (No. 2) (Application no. 56161/00) JUDGMENT STRASBOURG 2 October 2007 FINAL 02/01/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Komanický v. Slovakia (no.", "2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL.", "Mijović,MrJ. Šikuta, judges,and Mrs F. Aracı, Deputy Section Registrar, Having deliberated in private on 11 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 56161/00) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Ioan Kornelij Komanický (“the applicant”), on 17 August 1999. 2.", "The Slovak Government (“the Government”) were represented by their Agent, Ms A. Poláčková, who was subsequently succeeded in that function by Ms M. Pirošíková. 3. On 18 October 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the complaint under Article 6 § 1 of the Convention concerning the length of several sets of civil proceedings and the complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention related to the length of the proceedings in the action of 1991. 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 4. The applicant was born in 1943 and lives in Bardejov. A. Action of 1993 (the Bardejov District Court (Okresný súd) file no. 8C 3/93) and related constitutional complaint 1.", "Action 5. In 1993 the applicant and his wife brought proceedings for determination of ownership in respect of a plot of land. 6. On 18 April 1996 the District Court dismissed the action and, on 19 June 1997, the Prešov Regional Court (Krajský súd) upheld the judgment on appeal (odvolanie). 7.", "On 20 October 1997 the applicant and his wife appealed on points of law (dovolanie). In the course of the proceedings on this appeal procedural matters such as, for instance, the court fees and legal aid, were determined repeatedly at all levels of jurisdiction. The appeal on points of law concerning the merits of the case is still pending. 2. Constitutional complaint 8.", "On 28 May 2004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He complained of unjustified delays in the proceedings on the appeal on points of law and requested a legal-aid lawyer. The Constitutional Court dismissed the latter request on 30 June 2004, finding that, in so far as the applicant had substantiated his financial situation, there was no ground for granting it. 9. On 24 September 2004 the Constitutional Court declared the complaint inadmissible on the ground that the applicant had failed to comply with the statutory requirement to have legal representation.", "B. Action of 14 December 1995 (the Bardejov District Court file no. 11C 36/96) 10. On 14 December 1995 the applicant instituted proceedings seeking modification of a certificate of employment. He argued that the period of his employment was in reality one day longer than as shown in the certificate.", "11. The action was dismissed by the District Court on 18 February 1999 and, on appeal, by the Prešov Regional Court on 3 December 1999. 12. On 28 January 2002 the Supreme Court (Najvyšší súd) quashed the judgment of 3 December 1999 on an appeal by the applicant on points of law and remitted the matter to the Regional Court for a new determination of the appeal against the judgment of 18 February 1999. 13.", "On 25 November 2002 the Regional Court upheld the judgment of 18 February 1999. The applicant appealed again on points of law. 14. On 16 December 2004 the Supreme Court declared the appeal on points of law inadmissible since it met none of the existing statutory admissibility criteria. C. Action of 23 May 1997 (the Bardejov District Court file no.", "11C 810/97) and related constitutional complaint 1. Action 15. On 23 May 1997 the applicant brought an action against his landlord, a housing co-operative, in the District Court. He first claimed that his rent should be reduced and later modified the claim in that he reclaimed a part of the rent paid. A further attempt by the applicant to modify the claim was declared inadmissible.", "16. On 2 October 2001 the District Court granted the action by ordering the defendant to pay an amount of money to the applicant. The applicant appealed, arguing that the District Court had overlooked the modification of his claim. 17. On 28 February 2002 the Prešov Regional Court declared the appeal inadmissible, holding that the applicant lacked grounds for appeal, since his claim had been granted in full.", "The applicant appealed on points of law. 18. On 24 January 2005 the Supreme Court discontinued the proceedings on the appeal on points of law on the ground that, despite a previous request and warning, the applicant had failed to bring it in line with the applicable procedural requirements. 2. Constitutional complaint 19.", "On 15 March 2004 the applicant lodged a constitutional complaint about delays in the proceedings and requested a legal-aid lawyer. The Constitutional Court dismissed the legal-aid request, finding that the applicant was not eligible, in view of his material situation, which was well known to the Constitutional Court in connection with the applicant's other submissions to the Constitutional Court. 20. On 24 September 2004 the Constitutional Court declared the complaint inadmissible on the ground that the applicant had no legal representation. D. Action of 1998 (the Bardejov District Court file no.", "8C 714/98) and related constitutional complaint 1. Action 21. On 18 May 1998 the applicant brought an action against the State, in the person of the Ministry of Justice. He argued that the Ministry had erroneously charged him an administrative fee for an administrative complaint in a previous, unrelated matter and sought damages. 22.", "The action was dismissed by the District Court on 4 August 1999 and, on appeal, by the Prešov Regional Court on 27 March 2000. 23. The applicant lodged an appeal on points of law. In the course of the proceedings on this appeal, procedural matters such as the court fees, legal aid and impartiality of judges were determined repeatedly and at all levels of jurisdiction. The appeal on points of law as regards the merits of the case is still pending.", "2. Constitutional complaint 24. On 14 April 2004 the applicant complained to the Constitutional Court of the length of the proceedings and then requested a legal-aid lawyer. 25. The Constitutional Court examined the applicant's financial situation, taking into account, in particular, the amount of social benefits the applicant and his wife were receiving and the amount of just satisfaction the applicant had been awarded recently on three unrelated constitutional complaints.", "The Constitutional Court concluded, on 30 June 2004, that the granting of legal aid to the applicant was not justified. 26. On 10 September 2004 the Constitutional Court declared the applicant's complaint inadmissible on the ground that he had no legal representation. E. Action of 1 October 1997 (the Bardejov District Court file no. 11C 2130/97) 27.", "On 1 October 1997 the applicant and his wife filed a civil action seeking the division and dissolution of the co-ownership of a plot of land. 28. On 24 April 2003 the Bardejov District Court granted the claim and the judgment became final and binding on 11 June 2003. F. Proceedings concerning the estate of the applicant's mother (the Svidník District Court file no. D 240/93) 29.", "On 11 March 1992 the applicant sent a letter to the Svidník State Notary requesting that the estate of his late mother be determined. He made a similar submission to the District Court on 9 March 1993, following which, on 28 May 1993, the District Court opened the inheritance proceedings and appointed a notary public to deal with the case. 30. Between 8 August 1993 and 23 January 2001 the notary held 12 hearings. A hearing that was held on 3 October 1995 was adjourned at the applicant's request with a view to settling the estate by agreement of the prospective heirs.", "The hearing held on 23 July 1996 was adjourned in order to examine the applicant's claim that he had changed his name. 31. The applicant failed to appear at six of the above hearings. He excused himself for not being able to attend the hearing of 11 March 1996 one day before that hearing, on account of a clash of scheduled court appearances. Three days before the hearing listed for 9 November 1998 the applicant submitted that he could not appear for health reasons.", "The applicant also apologised for not being able to attend the hearings of 22 November 1999 and 6 March 2000 three days before those hearings. 32. In the meantime, on 4 January 1994, the notary requested that the applicant submit documentary evidence, which the applicant did only on 4 November 1994, after having been reminded three times. 33. In the course of 1995 the notary obtained several pieces of documentary evidence defining the extent of the estate.", "34. On 7 February 2001 the notary held another hearing, following which, on the same day, he determined the case by ruling that the estate passed to the applicant and issuing an order for costs against him. The decision was upheld by the District Court on 9 April 2001 and on appeal by the applicant by the Prešov Regional Court on 26 July 2001. 35. The applicant subsequently lodged an application with the courts for enforcement of the inheritance decision of 7 February 2001.", "He sought an order requiring the Land Register Administration to register his title to the inherited property. The application was examined twice, at two levels of jurisdiction, and the judicial proceedings in respect of it were finally discontinued, in 2004, on the ground that the enforcement of the decision fell outside the jurisdiction of the ordinary courts. The application was consequently transmitted to the Svidník Land Register Administration which was the body which should deal with it. The “enforcement” appears to be still pending there and questions such as, for example, identification of the property under a new referencing system, are being determined. G. Appeal on points of law of 1996 1.", "First-instance proceedings and appeal 36. On 11 May 1993 the applicant brought an action for damages in the Bardejov District Court. It was dismissed by the District Court on 20 January 1994 and, on appeal, by the Košice Regional Court on 26 May 1995. 2. Appeal on points of law 37.", "On 19 January 1996 the applicant lodged an appeal on points of law against the Regional Court's judgment. 38. On 16 September 1996 the District Court instructed the applicant to bring his appeal in line with the applicable procedural requirements and to pay the court fees. The applicant replied on 25 September 1996 by asking for an exemption from the obligation to pay the court fees. 39.", "On 2 March, 2 June and 15 October 1997 the District Court repeatedly requested that the applicant make a declaration in respect of his financial standing, with a view to determining the question of the court fees. In the absence of a relevant response, the District Court finally established the applicant's standing on the basis of the information which the applicant had submitted in the context of other proceedings. 40. On 23 February 1999 the District Court exempted the applicant from the obligation to pay the court fees and appointed him a legal-aid lawyer. 41.", "On 9 December 1999 the Supreme Court rejected the appeal, as having been lodged after the expiry of the statutory one-month time-limit. H. Action of 1991 (the Bardejov District Court file nos. 7C 107/91 and 4C 1313/98), related enforcement proceedings and related constitutional complaint 1. Proceedings file no. 7C 107/91 42.", "On 14 February 1991 the applicant and his wife brought an action against an individual in the District Court for protection of their ownership rights in respect of two plots of land. In the course of the proceedings they identified further defendants and extended the action by seeking protection in respect of another plot and claiming that the defendants should be obliged to remove rubbish from the plots in question. 43. On 31 October 1996 the District Court ordered the defendants to refrain from interfering with the plaintiffs' ownership rights in respect of the first two plots and decided that the remaining claim would be dealt with in a separate set of proceedings (see paragraph 47 below). 44.", "On 4 March 1998 the Prešov Regional Court upheld the judgment of 31 October 1996 on appeal. It thus became final on 21 August 1998. 2. Enforcement of the judgment of 31 October 1996 45. In 1998 the applicant and his wife requested that the District Court enforce its judgment of 31 October 1996.", "46. In the course of the enforcement proceedings a fine was imposed on the defendants for their failure to abide by the above final judgment and the fine was upheld on appeal. The applicant then requested, numerous times, but unsuccessfully, that further fines be imposed. 3. Proceedings file no.", "4C 1313/98 47. As regards the claim concerning the third plot, which the District Court decided to determine in a separate set of proceedings (see paragraph 43 above), four hearings were held between 4 February and 18 May 1999. Three of them were adjourned owing to the absence of the defendants' representative, one in order for the parties to submit evidence. 48. On 9 June 1999 the District Court held a hearing following which, on the same day, it ordered the defendants to refrain from interfering with the plaintiffs' ownership rights.", "The court further decided to deal with the remaining claim concerning the prohibition on entering the third plot and the removal of rubbish; in yet another separate set of proceedings. The applicant and his wife appealed. 49. In 1999 the applicant and his wife requested protection of their rights by way of an interim measure. The request was dismissed on 7 April 2000 and, on appeal, on 19 September 2001.", "50. On 19 April 2004 the Regional Court quashed the injunction of 9 June 1999 and remitted this matter to the District Court for reconsideration. 51. On 8 August 2004 the applicant challenged the District Court's judge dealing with the case for bias, on the ground that he was responsible for unjustified delays. On 8 September 2004 the Regional Court dismissed the challenge.", "52. On 10 December 2004 the defendants submitted a contract to the court under which they had sold their plots to third persons. The District Court adjourned the case and invited the plaintiffs to confirm whether they wished to maintain their claim in these circumstances. 53. On 28 December 2004 the applicant informed the court that the plaintiffs maintained their claim.", "The proceedings are still pending. 4. Constitutional complaint 54. On 7 July 2004 the applicant lodged a complaint with the Constitutional Court. He directed the complaint both against the District Court and the Regional Court and challenged unjustified delays in the proceedings files, nos.", "7C 107/91 and 4C 1313/98. 55. On 10 October 2004 the applicant supplemented his complaint in that he also claimed a violation of his right under Article 1 of Protocol No. 1 to enjoy his possessions peacefully, owing to the length of the proceedings. 56.", "On 28 October 2004 the Constitutional Court invited the applicant to specify his complaint in so far as it was directed against the Regional Court. The applicant failed to do so. 57. On 15 December 2004 the Constitutional Court declared admissible the complaint of the length of the proceedings, in so far as it concerned the District Court, and inadmissible as being unsubstantiated, in so far as it concerned the Regional Court. It also found inadmissible as being manifestly ill-founded the complaint under Article 1 of Protocol No.", "1. 58. On 15 March 2005 the Constitutional Court found that the District Court had violated the applicant's right to a hearing without unjustified delay (Article 48 § 2 of the Constitution) and ordered it to proceed with the case expeditiously. The Constitutional Court found that the District Court had been inactive without any justification from 16 November 1995 to 22 July 1996 (a total of nine months) and that there had been several formal errors on the part of the District Court, which had contributed to the total length of the proceedings. The Constitutional Court also found that the applicant's behaviour had significantly contributed to the length of the proceedings, as he had failed to appear at three hearings, had modified his claim several times and had challenged the judge twice (in 1992 and in 2004 respectively).", "It therefore decided not to award the applicant any just satisfaction in respect of non-pecuniary damage. I. Action of 22 December 1995 (the Bardejov District Court file no. 12C 647/95) and related constitutional complaint 1. Action 59.", "On 22 December 1995 the applicant's housing co-operative brought an action against him and his wife claiming arrears of rent. 60. On 14 April 1999 the District Court discontinued the proceedings as the plaintiff had withdrawn the action. The Prešov Regional Court upheld the decision on 30 November 1999 on the applicant's appeal. 61.", "The applicant lodged an appeal on points of law and requested a legal-aid lawyer. The request was dismissed with reference to the applicant's financial situation. 62. On 25 May 2005 the Supreme Court declared the applicant's appeal on points of law inadmissible on the ground that he had no legal representation. 2.", "Constitutional complaint 63. On 26 March 2004 the applicant complained to the Constitutional Court about unjustified delays in the proceedings before the District Court in connection with the processing of his appeal on points of law. 64. On 5 May 2004 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It observed, firstly, that the complaint was directed solely against the proceedings before the District Court, which concerned the appeal on points of law.", "It further observed that, in the circumstances, the applicant's appeal on points of law had no prospect of success and was bound to fail. Finally, the Constitutional Court observed that burdening the courts with inadmissible and unmeritorious appeals, as in the applicant's case, prevented due administration of justice. In view of these considerations the Constitutional Court concluded that, at the time of its assessment, there was no appearance of a violation of the applicant's right to a hearing without unjustified delay. J. Action of 2001 (the Bardejov District Court file no.", "1C 204/01) and related constitutional complaint 1. Action 65. On 5 March 2001 the applicant brought proceedings against his housing co-operative, claiming that the defendant's rent assessment should be declared null and void. 66. In response to the District Court's request to pay the court fees, the applicant asked for an exemption from the obligation to do so.", "Having examined the applicant's financial situation, the District Court rejected the request and discontinued the proceedings on the merits, on 1 June 2001. 67. On 14 June 2001 the applicant paid the court fees and the District Court resumed the proceedings. 68. On 22 June 2004 the District Court dismissed the action.", "The applicant appealed. 69. On 16 September 2004 the District Court discontinued the appellate proceedings as the applicant had failed to pay the court fees for the appeal. The decision became final on 27 October 2004. 2.", "Constitutional complaint 70. On 9 May 2004 the applicant lodged a complaint with the Constitutional Court alleging unjustified delays in the action of 2001. 71. On 14 April 2005 the Constitutional Court found that the District Court had violated the applicant's right to a hearing without unjustified delay. It held that the District Court had been inactive without any justification from 17 July 2001 to 13 March 2002 (a total of eight months) and also from 11 April 2002 to 10 November 2003 (a total of seventeen months).", "It awarded the applicant 20,000 Slovakian korunas[1] (SKK) by way of just satisfaction in respect of non-pecuniary damage and ordered reimbursement of his legal costs. K. Action of 1996 (the Bardejov District Court file no. 8C 60/96) and related constitutional complaint 1. Action 72. On 10 January 1996 the applicant brought an action against his housing co-operative.", "He principally sought an order against the defendant to sell and transfer the flat in which the applicant was living to him, under special legislation of 1991. The applicant also sought universal settlement in respect of all outstanding pecuniary and non‑pecuniary claims between himself and the defendant. 73. On 28 January 1999 the District Court dismissed the applicant's claim for the transfer of the flat and discontinued the proceedings concerning the settlement, as the applicant had failed to specify this part of his claim despite repeated requests. The applicant appealed.", "74. On 14 February 2000 the Prešov Regional Court upheld the District Court's judgment in so far as it concerned the discontinuation of the proceedings and quashed it in so far as it concerned the dismissal of the principal claim. The latter claim was remitted to the District Court for reconsideration. 75. In the course of the subsequent proceedings various procedural issues such as the court fees and legal aid were examined numerous times at all levels of jurisdiction.", "The proceedings are still pending. 2. Constitutional complaint 76. On 3 August 2004 the applicant lodged a constitutional complaint alleging a violation of his rights under Article 6 of the Convention and of Article 1 of Protocol No. 1 in the action of 1996 and requested a legal-aid lawyer.", "77. On 10 September and 10 November 2004, respectively, the Constitutional Court dismissed as unfounded the applicant's legal-aid request and declared his constitutional complaint inadmissible on the ground that he had no legal representation. L. Action of 1999 (the Bardejov District Court file no. 7C 75/99) and the related constitutional complaint 1. Action 78.", "On 3 February 1999 the applicant sued the National Employment Authority before the District Court for an amount of money. The District Court dismissed the claim on 9 September 1999. The applicant appealed and on 10 April 2000 the Prešov Regional Court declared his appeal inadmissible as being lodged out of time. 79. On 7 June 2000 the applicant lodged an appeal on points of law against the Regional Court's decision.", "The Bardejov District Court, which dealt with the appeal on points of law prior to its submission to the Supreme Court, invited the applicant to rectify shortcomings in the appeal and to submit a power of attorney. The applicant requested an exemption from the obligation to pay the court fees and asked for a legal-aid lawyer. His requests were rejected by the courts at two instances, with reference to the applicant's financial situation. 80. On 2 September 2004 the Supreme Court discontinued the proceedings, holding that the applicant had failed to comply with the statutory requirement to have legal representation.", "2. Constitutional complaint 81. In November 2004 the applicant complained to the Constitutional Court about unjustified delays in the proceedings before the District Court in respect of his appeal on points of law of 7 June 2000. 82. On 14 April 2005 the Constitutional Court found that the Bardejov District Court had violated the applicant's constitutional right to have the case decided without unjustified delays.", "The Constitutional Court observed that the District Court had been inactive without any justification from 27 July 2001 until 20 September 2002 (a total of thirteen months) and from 4 November 2002 until 7 January 2004 (a total of fourteen months). The Constitutional Court also found that the applicant's behaviour had significantly contributed to the length of the proceedings, as he had repeatedly sent incomplete applications to the court and the court had had to invite him to rectify the shortcomings in them. It therefore decided not to award the applicant any just satisfaction in respect of non-pecuniary damage. Nevertheless, the Constitutional Court ordered reimbursement of the applicant's legal costs. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 83. The applicant complained that the length of the above court proceedings (or parts of them) had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1. Action of 1993 84. The Government argued that the applicant had failed to exhaust domestic remedies, as required under Article 35 § of the Convention, in that he had failed properly to seek redress by way of a complaint under Article 127 of the Constitution. The applicant's complaint to the Constitutional Court of 28 May 2004 did not count since it had not been made in accordance with the applicable requirements.", "85. The applicant disagreed and argued that he had complied with the requirements of Article 35 § 1 of the Convention as regards exhaustion of domestic remedies. He submitted that the complaint under Article 127 of the Constitution was not a remedy to be exhausted in his case for a variety of reasons. Firstly, an important part of his proceedings had taken place prior to 1 January 2002, whereas the remedy in question had only become available on that date. Secondly, he could not actually use this remedy because his financial situation did not allow him to fulfil the requirement of legal representation.", "Thirdly, and finally, in the applicant's view, complaints under Article 127 of the Constitution had no adequate prospects of success owing to irregularities in the Constitutional Court's decision-making. 86. The Court reiterates that, as a general rule, a complaint under Article 127 of the Constitution is a remedy to be used in respect of length of proceedings (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002‑IX). It is the task of applicants to formulate their constitutional complaints so as to allow the Constitutional Court to examine the overall length of the proceedings (see Obluk v. Slovakia, no.", "69484/01, § 61, 20 June 2006). In so far as the application has been substantiated, the Court has found no reasons of principle why this remedy should not be used in circumstances such as in the present case. 87. As for the applicant's objection concerning mandatory legal representation, the Court observes that the requirement of representation by a lawyer in proceedings before a higher court does not of itself infringe the principles of the Convention (see, for example, Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, p. 27, § 69 and Slezák v. the Czech Republic, no.", "32487/96, Commission decision of 14 January 1998, unreported). 88. It is the applicant's contention that he could not afford a lawyer and he requested a legal-aid counsel. His request was examined by the Constitutional Court and dismissed with reference to his financial standing. In order to assess the situation in its context, it must be noted that the applicant has been involved in an extensive number of judicial proceedings in which questions of the court fees and legal aid were examined repeatedly at all levels of jurisdiction of the ordinary courts and before the Constitutional Court (see, for example, the other proceedings reviewed in this judgment, the decision of 18 October 2005 on partial inadmissibility of the present application, the decisions and a judgment in applications nos.", "32106/96, 56161/00, 13677/03, and many others). 89. The Court considers that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate the competing interests in the present case (see, among many other authorise, mutatis mutandis, Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 26, § 50). In so far as the application has been substantiated, the Constitutional Court's assessment in respect of the applicant's legal-aid request does not appear manifestly unreasonable, arbitrary or wrong.", "90. In view of the above considerations the applicant cannot be considered as having exhausted domestic remedies, for the purposes of Article 35 § 1 of the Convention, in accordance with the applicable procedural requirements (see, for example, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66). It follows that the complaint under Article 6 § 1 of the Convention in respect of the 1993 action must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 2. Actions of 14 December 1995, 23 May 1997, 1998, 1 October 1997 and 1996 91.", "As regards the actions of 14 December 1995, 23 May 1997, 1998, 1 October 1997 and 1996, the Government raised a similar objection of non‑exhaustion of domestic remedies as mentioned above (see paragraph 84 above). 92. The applicant disagreed and advanced similar arguments to those mentioned above (see paragraph 85 above). 93. The Court observes that the proceedings on the applicant's appeal on points of law in the action of 14 December 1995 ended in 2004 and that the applicant did not complain of the overall length of these proceedings under Article 127 of the Constitution.", "94. The Court further observes that the proceedings on the applicant's appeal on points of law in his action of 23 May 1997 ended in 2005 and that the applicant's complaint under Article 127 of the Constitution of their length was declared inadmissible as falling short of the applicable requirements. 95. The Court also observes that the action of 1998 is still pending on the applicant's appeal on points of law and that the applicant's complaint under Article 127 of the Constitution of the length of the proceedings was declared inadmissible as falling short of the applicable requirements. 96.", "Furthermore, the Court observes that the proceedings in the action of 1 October 1997 ended in 2003 and that there is no indication that the applicant complained of their length under Article 127 of the Constitution in accordance with the applicable procedural requirements. 97. Finally, the Court observes that the proceedings in the action of 1996 are still pending and that the applicant's constitutional complaint in respect of their length was inadmissible because he had failed to bring it through a lawyer. 98. For reasons similar to those indicated above (see paragraphs 87-89 above), the Court finds that the dismissals by the Constitutional Court of the applicant's requests for legal aid do not raise any issues under the Convention.", "99. It follows that the complaint under Article 6 § 1 of the Convention of the length of proceedings in the actions of 14 December 1995, 23 May 1997, 1998, 1 October 1997 and 1996 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 3. Proceedings concerning the estate of the applicant's mother (a) Inheritance proceedings 100. The Government considered that the complaint of the length of the proceedings concerning the estate of the applicant's mother was manifestly ill-founded.", "They submitted that the proceedings had commenced on 28 May 1993 and that, apart from some minor delays imputable to the authorities, their length was mainly due to the applicant's procedural behaviour. 101. The applicant disagreed and reiterated the complaint. He emphasised that the proceedings had already commenced with his first letter to the Svidník notary in March 1992 and that their subject matter was particularly important for him. 102.", "The Court observes first of all that the inheritance proceedings were followed by proceedings in which the applicant sought enforcement of the inheritance decree. The former proceedings were judicial in their nature whereas the latter are administrative. The administrative proceedings are governed by a different procedural code, have different parties and involve the determination of administrative and technical questions, concerning the registration of the applicant's title, which are different from the legal questions determined in the inheritance proceedings. The Court finds that there is not a sufficiently direct connection between the inheritance proceedings and the proceedings in which the applicant sought registration of his title to treat them as a single matter for the purposes of Article 6 § 1 of the Convention. They will therefore be examined separately.", "103. As for the inheritance proceedings as such, the Court finds that, for the purposes of Article 6 § 1 of the Convention, they had commenced on 9 March 1993 when the applicant had lodged a formal application for their commencement with the competent court. They ended on 26 July 2001, after having lasted about eight years and four months. The reasonableness of this period must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "104. As for the subject matter of the proceedings, the Court does not find any particular complexity. 105. As to the applicant's conduct in the proceedings under examination, the Court observes that he once requested an adjournment of a hearing with a view to settling the case out of court, and that one hearing was adjourned in order to examine his claim that he had changed his name. The applicant did not appear at hearings six times, once submitting an apology one day before the hearing and three times three days before the hearings in question.", "In 1994 he had to be reminded three times to submit evidence. The Court finds that these actions and omissions caused delays in the proceedings. 106. Furthermore, the Court considers that the applicant's conduct in the present proceedings must be seen in the overall context of his litigious involvement in an extensive number of judicial proceedings at all levels of jurisdiction of the ordinary courts and before the Constitutional Court (see paragraph 88 above). 107.", "As regards the conduct of the authorities, the Court observes that the case was examined by the notary and courts at two levels of jurisdiction. The core of the proceedings took place before the notary, who held 12 hearings. Following his decision the case was transmitted to the courts, which dealt with it relatively quickly, another hearing being held before the first-instance court. 108. The Court discerns no reasons of relevance under Article 6 § 1 of the Convention to support the applicant's contention, in so far as it has been substantiated, that what was at stake for him in the present proceedings called for special diligence within the meaning of that provision.", "109. Having regard to the foregoing considerations, in particular the applicant's procedural conduct both in the present proceedings and in a broader context, the Court concludes that there is no indication that the overall length of the proceedings in the present case was contrary to the requirements laid down in Article 6 § 1 (compare Kandráčová and Others v. Slovakia (dec.), no. 48674/99, 27 January 2004, and Bleyová v. Slovakia (dec.), no. 69353/01, 17 October 2006; and also, for example, Katte Klitsche de la Grange v. Italy, judgment of 27 October 1994, Series A no. 293-B, §§ 49-63; Ciricosta and Viola v. Italy, judgment of 4 December 1995, Series A no.", "337‑A, § 28; Sergi v. Italy (dec.), no. 46998/99, 26 September 2000; and Viscomi v. Italy (dec.), no. 52927/99, 8 February 2001). It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (b) Proceedings for enforcement of the inheritance decree 110.", "Even assuming that the proceedings in question fall within the purview of Article 6 § 1 of the Convention, the complaint of their length is inadmissible because the applicant has failed to raise it by way of an administrative-law action and, as the case may be, a complaint under Article 127 of the Constitution (see Csepyová v. Slovakia (dec.), no. 67199/01, 8 April 2003). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 4. Appeal on points of law of 1996 111.", "The Government argued that the complaint was manifestly ill-founded. 112. The applicant disagreed. 113. The Court observes at the outset that the applicant complained exclusively about the proceedings on his appeal on points of law and not about the proceedings at first instance and appeal.", "Nevertheless, for the assessment of its length, the appeal on points of law cannot be dissociated completely from the proceedings that preceded it (see Pavlík v. Slovakia, no. 74827/01, § 107, 30 January 2007). 114. It is to be noted that an appeal on points of law in Slovakia is an extraordinary remedy, the merits of which fall to be determined by the country's highest body of ordinary jurisdiction, the Supreme Court. The appeal in the present case was lodged on 19 January 1996 and decided upon on 9 December 1999.", "The proceedings in respect of it thus lasted more than three years and ten months. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 5.", "Action of 1991 115. The Government submitted that, as a result of the Constitutional Court's judgment of 15 March 2005, the applicant could no longer be considered a “victim” in the Convention sense of a violation of his right to a hearing within a reasonable time in this action. They pointed out that the applicant had obtained an express acknowledgment of a violation of his right and, as concluded by the Constitutional Court, in the circumstances there was no call for an award of just satisfaction. 116. The applicant contested that argument, submitted that no significant delays were imputable to him and argued that the redress afforded to him by the Constitutional Court could not be considered adequate or sufficient.", "117. The Court reiterates that an applicant's status as a “victim” within the meaning of Article 34 of the Convention depends on whether the domestic authorities have acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, among many other authorities, Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-...). There is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage.", "However, in some cases, the non-pecuniary damage may be only minimal or none at all (see Nardone v. Italy, no. 34368/98, 25 November 2004). The domestic courts will then have to justify their decision by giving sufficient reasons (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, ECHR 2006-...).", "118. In the present case, although the proceedings as such had already commenced on 14 February 1991, the period to be taken into consideration began only on 18 March 1992, when the Convention entered into force in respect of Slovakia. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. It is to be noted that the courts divided the examination of the particular claims in the action of 1991 into two sets of proceedings (file nos. 7C 107/91 and 4C 1313/98) and that, pursuant to the judgment of 9 June 1999, a third set of proceedings was opened (see paragraph 48 above).", "Moreover, the proceedings were accompanied by proceedings for enforcement of the judgment of 31 October 1996, which also enjoyed the protection of Article 6 § 1 of the Convention and should be taken into account (see, for example, Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997‑II, p. 510, § 40, and also Preložník v. Slovakia, no. 54330/00, § 92, 12 December 2006). The Court finds that, in these circumstances, for the purposes of Article 6 § 1 of the Convention, these claims should be treated as a single dispute. This dispute is still pending (see paragraph 53 above). The period under consideration has thus lasted more than fifteen years and three months for three levels of jurisdiction.", "119. On 15 March 2005 the Constitutional Court found that there had been a violation of the applicant's right to a hearing without unjustified delay and ordered that the first-instance court proceed with the case expeditiously. However, apart from those rulings, it granted the applicant no just satisfaction. It considered that an award of just satisfaction was not appropriate, given in particular the applicant's contribution to the length of the proceedings. The Court cannot subscribe to that conclusion, in view of the overall length of the proceedings at that time and the following consideration.", "120. The Court observes that since the Constitutional Court's judgment the action file no. 4C 1313/98 has remained pending before the first-instance court. It is thus uncertain what preventive effect, if any, the Constitutional Court's judgment had. In these circumstances, the Court finds that the redress granted to the applicant by the Constitutional Court, which was mainly of a declaratory nature, cannot be considered sufficient to deprive the applicant of the status of “victim” under the Convention.", "It follows that the Government's objection must be dismissed. 121. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "6. Action of 22 December 1995 122. The Government objected that the applicant had failed to exhaust domestic remedies by bringing the complaint to the Constitutional Court in respect of the proceedings as a whole under Article 127 of the Constitution in accordance with the applicable requirements. 123. The applicant disagreed.", "124. The Court observes, first of all, that, in his constitutional complaint of 26 March 2004, the applicant challenged exclusively and specifically the proceedings before the District Court, which concerned solely his appeal on points of law. The applicant therefore cannot be considered as having exhausted domestic remedies in respect of the rest of the proceedings, in particular the basic proceedings at first-instance, the proceedings before the court of appeal and before the Supreme Court (see Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006, and Pavlík v. Slovakia, no. 74827/01, § 100, 30 January 2007).", "To the extent that the remainder of the complaint has been substantiated, the Court finds no appearance of a violation of the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. It follows that, in so far as domestic remedies have been exhausted, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 7. Actions of 2001 and 1999 125. The Government objected that, in view of the Constitutional Court's judgments of 14 April 2005 (see paragraphs 70 and 81 above), the applicant could no longer be considered a “victim” in the Convention sense of a violation of his right to a hearing within a reasonable time in these two actions.", "126. The applicant contested that argument, submitting that, in respect of both of these actions, the redress afforded to him by the Constitutional Court was not sufficient. 127. The Court observes that the proceedings in the 2001 action commenced on 5 March 2001 and ended on 16 September 2004. They thus lasted about four years and one month for two levels of jurisdiction.", "128. The proceedings in the 1999 action commenced on 3 February 1999 and ended on 2 September 2004. They thus lasted about five years and seven months for three levels of jurisdiction. 129. On 14 April 2005 the Constitutional Court found that there had been a violation of the applicant's right to a hearing without unjustified delay in both actions, and granted the applicant reimbursement of his legal costs.", "As for the former proceedings, it awarded him the equivalent of approximately 575 euros (EUR) in just satisfaction. As for the latter proceedings, it found that there was no call for an award of just satisfaction. In the light of all the material submitted to it, the Court does not find this redress manifestly inadequate or insufficient, having regard to Article 41 of the Convention and the criteria cited above (compare Šedý v. Slovakia, no. 72237/01, §§ 74 and 75, 19 December 2006). 130.", "The Court therefore concludes that, even assuming that the length of these two sets of proceedings would otherwise raise an issue under Article 6 § 1 of the Convention, the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violation of his right to a hearing within a reasonable time. It follows that the complaint of the length of the proceedings in the 2001 action and in the 1999 action is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Merits 131. The Court is now called upon to determine whether the length of the proceedings in the appeal on points of law of 1996 and in the action of 1991 complied with the “reasonable time” requirement under Article 6 § 1 of the Convention.", "132. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those in the present case (see Frydlender, cited above). 133. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, despite the applicant's contribution to the length of the proceedings in question, the Court considers that in the instant case the length of the proceedings in the 1996 appeal on points of law and in the 1991 action was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 134. The applicant further complained that, as a result of the length of the proceedings in the 1991 action, he had been prevented from enjoying his possessions peacefully, as guaranteed by Article 1 of Protocol No.", "1, which provides that: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 135. The Government submitted that the applicant had failed to raise the Article 1 of Protocol No. 1 complaint before the Constitutional Court under Article 127 of the Constitution, and had therefore failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention.", "They further submitted that, in any event, the complaint was manifestly ill-founded. 136. The applicant disagreed and pointed out that, contrary to the Government's suggestion, he had raised the Article 1 of Protocol No. 1 complaint in the supplement to his constitutional complaint. 137.", "The Court observes that on 10 October 2004 the applicant extended his constitutional complaint of 7 July 2004 by also claiming that the protracted length of the proceedings had constituted a violation of his rights under Article 1 of Protocol No. 1, and that this complaint had been found manifestly ill-founded by the Constitutional Court on 15 December 2004. It follows that the complaint cannot be rejected for non-exhaustion of domestic remedies. 138. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 139. Having regard to the finding of a violation of the applicant's right to a hearing within a reasonable time in the proceedings in the 1991 action (see paragraph 133 above), the Court finds that it is not necessary to examine separately the merits of the complaint of the violation of the applicant's rights under Article 1 of Protocol No.", "1 as a consequence of the excessive length of those proceedings (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23; Versini v. France, no. 40096/98, § 35, 10 July 2001; and Šidlová, cited above, § 88). III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION 140.", "The applicant further complained that he had had no effective remedy at his disposal in respect of his complaint about the excessive length of his proceedings. He relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. Actions of 1993, 14 December 1995, 23 May 1997, 1998, 1 October 1997, 1991 22 December 1995, 2001, 1996, 1999 and the enforcement of the inheritance decree of 7 February 2001 141. The Government pointed out that since 1 January 2002 there had been the remedy under Article 127 of the Constitution (see Andrášik and Others, cited above), which had been available to the applicant in respect of the proceedings that had been pending at that time. 142.", "The applicant contested that contention, reiterating substantially the same objections as mentioned above (see paragraph 85 above). 143. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. Its effect is to require the provision of a domestic remedy capable of dealing with the substance of an “arguable complaint” under the Convention and of granting appropriate relief (see, amongst other authorities, Aksoy v. Turkey, judgment of 25 September 1996, Reports 1996-VI, p. 2286, § 95). 144.", "As to the actions of 1993, 14 December 1995, 23 May 1997, 1998, 1 October 1997, 1991, 22 December 1995, 2001, 1996, 1999 and the enforcement of the inheritance decree of 7 February 2001, which were all pending on and after 1 January 2002, the applicant could and, in fact in some cases did, raise his length of proceedings complaint under Article 127 of the Constitution. 145. The Court reiterates further that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I). In the light of the above the Court finds that in respect of the above proceedings the applicant did have at his disposal a remedy compatible with the requirements of Article 13 of the Convention.", "It follows that the relevant part of the applicant is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. Inheritance proceedings 146. The Government considered that there was no issue under Article 13 of the Convention in connection with these proceedings. 147.", "The applicant disagreed and upheld his complaint. 148. The Court has found that the applicant's complaint of the length of the inheritance proceedings was inadmissible (see paragraph 109 above). For similar reasons, the applicant did not have an “arguable claim” and Article 13 of the Convention is therefore inapplicable to it. It follows that that the Article 13 complaint in respect of the length of the inheritance proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "3. Appeal on points of law of 1996 149. The Government considered that there was no issue under Article 13 of the Convention in connection with the inheritance proceedings. 150. The applicant disagreed and upheld his complaint.", "151. The Court notes that this complaint is linked to the one concerning the length of the proceedings in the appeal on points of law, which was examined above, and must therefore likewise be declared admissible. B. Merits 152. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). It has previously found that there were no legal remedies in Slovakia at the relevant time capable of effectively redressing alleged violations of the right to a hearing within a reasonable time (see, for example, Preložník v. Slovakia, no. 54330/00, § 116, 12 December 2006) and sees no reason to reach a different conclusion in the present case. 153. Accordingly, the Court considers that in respect of the proceedings on the applicant's appeal on points of law of 1996 there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 154. Lastly, relying on Article 13 of the Convention, the applicant complained that he had had no effective remedy at his disposal in respect of his complaint under Article 1 of Protocol No. 1 concerning his inability to enjoy his possessions peacefully on account of the length of the proceedings in the 1991 action.", "155. Referring to their contention that the complaint under Article 1 of Protocol No. 1 was in any event manifestly ill-founded (see paragraph 135 above), the Government submitted that there was no “arguable claim” to attract the protection of Article 13 of the Convention. 156. The applicant disagreed and insisted on his complaint.", "157. The Court observes that, in so far as the applicant had an “arguable claim” under Article 1 of Protocol No. 1, he was free to claim compensation in respect of any non-pecuniary damage by way of a complaint under Article 127 of the Constitution and in respect of pecuniary damage by way of an action under section 18 (1) of the State Liability Act of 1969 (see Csepyová, cited above, and Šebeková and Horvatovičová v. Slovakia, no. 73233/01, § 52, 14 February 2006). The Court finds that these remedies, taken together, provide the applicant with legal protection compatible with Article 13 of the Convention.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 158. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 159. The applicant claimed approximately SKK 350,000[2] plus any further amount that the Court would consider appropriate in respect of pecuniary damage.", "He also claimed EUR 1 for the proceedings in the 1998 action and SKK 150,000[3] for each of the remaining proceedings in respect of non-pecuniary damage. 160. The Government contested these claims. 161. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to all the circumstances including the applicant's contribution to the length of the proceedings, it awards him EUR 8,000 under that head. B. Costs and expenses 162. The applicant also claimed SKK 9,904[4] and a further amount which was not specified in detail for postage and various administrative and legal costs.", "163. The Government invited the Court to determine the amount of the award in accordance with its case-law and the “subject value”. 164. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented before the Court by a lawyer, the sum of EUR 280 to cover costs under all heads.", "C. Default interest 165. 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 admissible (i) the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings in the 1996 appeal on points of law and in the 1991 action, (ii) the complaint under Article 1 of Protocol No. 1, and (iii) the complaint under Article 13 of the Convention of the lack of an effective remedy in respect of the excessive length of the proceedings in the 1996 appeal on points of law; 2.", "Declares inadmissible the remainder of the application; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings in the 1996 appeal on points of law and in the 1991 action; 4. Holds that in respect of the proceedings in the 1996 appeal on points of law there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention; 5. Holds that it is not necessary to examine separately the merits of the complaint under Article 1 of Protocol No. 1; 6.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 280 (two hundred and eighty euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 2 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident [1] SKK 20,000 is equivalent to approximately 575 euros (EUR). [2] SKK 350,000 is equivalent to approximately EUR 10,000.", "[3] SKK 150,000 is equivalent to approximately EUR 4,300. [4] SKK 9,904 is equivalent to approximately EUR 280." ]

[ "CASE OF AHMED AND OTHERS v. THE UNITED KINGDOM (65/1997/849/1056) JUDGMENT STRASBOURG 2 September 1998 The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf. List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B-1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare) The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC’s-Gravenhage) SUMMARY[1] Judgment delivered by a Chamber United Kingdom – restrictions on the involvement of senior local government officers in certain types of political activity (Local Government Officers (Political Restrictions) Regulations 1990) I.article 10 of the convention A.Whether there had been an interference Not disputed that applicants as public servants could rely on guarantees in Article 10 and that there had been an interference with their rights under that Article. B.Whether the interference was justified 1.“Prescribed by law” Regulations designed to lay down rules for a large number of local government officers restricting their participation in certain forms of political activity which could impair their impartiality – inevitable that conduct which might lead third parties to question an officer’s impartiality cannot be defined with absolute precision – open to an officer to seek advice if uncertain as to whether a particular action might infringe Regulations – furthermore, scope and application of allegedly vague provisions had to be seen in light of vice which parent Act sought to avoid.", "2.Legitimate aim Interferences which resulted from application of Regulations to applicants pursued legitimate aim: to protect rights of others, council members and electorate, to effective political democracy at the local level. 3.“Necessary in a democratic society” Reiteration of basic principles contained in Court’s judgments on Article 10. Regulations adopted in light of findings of official inquiry into impact of involvement of senior local government officers in political activities on their duty of political impartiality – findings pointed to specific instances of abuse of power by certain officers and potential for increased abuse in view of trend towards confrontational politics in local government – Court considers that Regulations addressed an identified pressing social need: to strengthen tradition of senior officers’ political neutrality – addressing that need through adoption of Regulations restricting participation of senior officers in defined forms of political activity which might call into question their duty of political impartiality well within margin of appreciation of respondent State in this sector. In view of Court, restrictions imposed on applicants not open to challenge on grounds of lack of proportionality – Regulations only applied to carefully defined categories of senior officers like applicants who perform duties in respect of which political impartiality vis-à-vis council members and public is paramount consideration – restrictions only concern speech or writing of a politically partisan nature or activities within political parties which would be likely to link senior officers in eyes of public with a particular party political line – recent government review of continuing need for restrictions concluded that their maintenance in force justified. Conclusion: no violation (six votes to three).", "II.Article 11 of the convention Court’s reasoning in support of its conclusion that no violation of Article 10 equally valid to support a finding of no violation of Article 11: restrictions on applicants’ activities within political parties prescribed by law, pursued legitimate aim and constituted a proportionate response to a pressing need. Conclusion: no violation (six votes to three). III.Article 3 of protocol no. 1 Aim of Regulations was to secure political impartiality of senior officers such as applicants – that aim also legitimate for purposes of restricting applicants’ rights to stand for election – essence of rights under this Article not impaired – for example, restrictions only apply for as long as applicants occupy politically restricted posts. Conclusion: no violation (unanimously).", "COURT’S CASE-LAW REFERRED TO 26.9.1995, Vogt v. Germany; 30.1.1998, United Communist Party of Turkey and Others v. Turkey In the case of Ahmed and Others v. the United Kingdom[2], The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[3], as a Chamber composed of the following judges: MrR. Bernhardt, President,MrL.-E. Pettiti,MrA. Spielmann,MrJ. De Meyer,MrR. Pekkanen,SirJohn Freeland,MrD.", "Gotchev,MrP. Kūris,MrP. van Dijk, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 27 April, 25 May and 28 July 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 9 July 1997 within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention.", "It originated in an application (no. 22954/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by Mr Mobin Ahmed, Mr Dennis Perrin, Mr Ray Bentley and Mr David John Brough, all British citizens, on 21 September 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 10 and 11 of the Convention and Article 3 of Protocol No. 1.", "2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30). 3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 27 August 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann, Mr J.", "De Meyer, Mr D. Gotchev, Mr P. Kūris and Mr P. van Dijk (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently, Mr L.-E. Pettiti and Mr R. Pekkanen replaced Mr Macdonald and Mr Russo who were unable to take part in the further consideration of the case (Rule 22 § 1). 4. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the orders made in consequence, the Registrar received the applicants’ memorial on 22 December 1997 and the Government’s memorial on 15 January 1998.", "A schedule to the applicants’ memorial setting out details of their claims under Article 50 of the Convention was received at the registry on 22 January 1998. An amended schedule of claims was filed with the registry on 27 April 1998. The Government’s responses to the applicants’ claims were filed with the registry on 21 April and 18 May 1998. The applicants filed observations in reply on 29 May 1998. 5.", "On 2 September 1997 the President of the Chamber granted Liberty, a non-governmental organisation based in London, leave to submit written comments on the case (Rule 37 § 2). These were received on 12 January 1998 and subsequently communicated to the Agent of the Government, the representative of the applicants and the Delegate of the Commission for possible observations. No observations were submitted. 6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 April 1998.", "The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)for the GovernmentMrC. Whomersley, Foreign and Commonwealth Office,Agent,MrJ. Morris QC, Attorney-General,MrJ. Eadie, Barrister-at-Law,Counsel,MrI.", "MacLeod, Legal Secretariat to the Law Officers,MrP. Rowsell, Department of the Environment,Transport and the Regions,MrD. Steele, Department of the Environment,Transport and the Regions,Advisers; (b)for the CommissionMrN. Bratza,Delegate; (c)for the applicantsMrJ. Goudie QC,MrA.", "Lynch, Barrister-at-Law,Counsel,MrB. Banks,Solicitor. The Court heard addresses by Mr Bratza, Mr Goudie and Mr Morris. AS TO THE FACTS I.THE CIRCUMSTANCES OF THE CASE A.The applicants 7. Mr Mobin Ahmed, Mr Dennis Perrin, Mr Ray Bentley and Mr David Brough are all British citizens, born in 1941, 1948, 1947 and 1932 respectively.", "They live in London, Yelverton, Edgware and Exeter respectively. At the relevant time they were each permanently employed in different capacities by various local authorities. Their precise status and functions are described in Section C below. The background to their complaints to the Convention institutions is constituted by the enactment and implementation of legislative measures designed to limit the involvement of certain categories of local government officials, such as themselves, in political activities. The history of the enactment of the relevant measures as well as their purport and scope are described in Section B below.", "The impact of the measures on the applicants, all persons considered holders of politically restricted posts within the meaning of the applicable legislation, is described in Section C below. B.The adoption of the Local Government Officers (Political Restrictions) Regulations 1990 1. The political background to the adoption of the Regulations 8. Against the background of the increasing politicisation of local government and attendant problems in respect of the relationship between elected members and local government officers, the Secretaries of State for the Environment, for Scotland and for Wales, appointed on 5 February 1985 a committee (“the Widdicombe Committee”) to inquire, inter alia, into the respective roles of elected members and officers of local government authorities and to make any necessary recommendations for strengthening the democratic process. 9.", "On 9 May 1986, after receiving evidence from 138 local government authorities and over 500 other organisations and individuals, the Widdicombe Committee submitted its report. The Committee firmly endorsed the continuation of the tradition of politically impartial local government officers having regard in particular to the roles of senior officers as managers, advisers and arbitrators in the day-to-day functioning of local government. In his foreword to the final report the Chairman of the Committee wrote: “6. Although most of the problems we have perceived have been ones of uncertain relations, there have been some cases, albeit a few, where power has been abused.” In the Chairman’s view, the recent sharpening of the political intensity of local politics was reflected in the relations between elected council members and local government officers and that the trend towards greater politicisation might be a source of future problems unless recommendations were made in order to provide a framework able to cope with it. With regard to the importance of the impartiality of local government officers, the Widdicombe Committee concluded that: “6.141.", "The overwhelming view in the evidence we have received has been that officers (subject to very limited and closely defined exceptions) should continue to serve the council as a whole. … There has been equally wide agreement that the public service tradition of a permanent corps of politically impartial officers should be retained. … 6.180. Public service in the United Kingdom is founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control. … 6.182.", "Local government in the United Kingdom has traditionally been based on the same public service tradition as central government, but this has been a matter of convention and practice. … 6.186. The issue of principle is therefore straightforward. There must continue to be a system of permanent and politically neutral officers appointed on the basis of merit. The issue which we need to consider is whether new machinery or rules are required to ensure this, and if so on what basis.” 10.", "To ensure that senior officers continued to discharge their functions in a manner which was impartial from both a subjective and an objective point of view, the Widdicombe Committee in paragraph 6.217 of its report recommended that: “(a) the legislation should be amended so that persons who are councillors or who are standing for election as councillors, or who have been councillors within the last year, may not be employed by another authority at the rank of principal officer or above; (b) the Local Authorities’ Conditions of Service Advisory Board should take steps to include in the terms and conditions of officers at the rank of principal officer and above a prohibition on political activity, including: (i)standing for, and holding, public elected office; (ii)holding office in a political party; (iii)speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate; and (iv)canvassing at elections; (c) if the changes recommended at (b) are not made to officers’ terms and conditions, legislation should be introduced to similar effect.” 2. The adoption of the Regulations 11. Following the publication of the recommendations of the Widdicombe Committee, on 16 November 1989 the House of Commons passed the Local Government and Housing Act 1989 (“the Act”), which empowered the Secretary of State for the Environment to make regulations to restrict the political activities of certain categories of local government officers. The Act entered into force on 29 November 1989. 12.", "The Local Government Officers (Political Restrictions) Regulations 1990 (“the Regulations”) were made under section 1(5) of the Act on 4 April 1990. They were laid before Parliament the following day and came into force on 1 May 1990. The Regulations applied to all persons holding a politically restricted post as defined in section 2(1) of the Act. This term covers three broad categories of local government officials: the most senior post-holders in local government (category one); officials remunerated in excess of a prescribed level and whose posts are listed for the purposes of the application of the Regulations (category two); and officials paid less than the prescribed level but who hold a listed post (category three). Each local authority was obliged to draw up a list of posts falling within the second and third categories (section 2(2)).", "A local government officer in the second and third categories could apply to an independent adjudicator to have his or her post removed from the list of posts to which the Regulations applied (section 3). All local government officials employed in these categories at the time of the entry into force of the Regulations were deemed, according to regulation 3(1), to be subject to the measures. A more detailed analysis of the contents of the Act and the Regulations is set out at paragraphs 26–33 below. C.The effect of the Regulations on the applicants 1. Mr Ahmed 13.", "The first applicant, Mr Ahmed, was a solicitor employed by the London Borough of Hackney. Although his salary fell below the level prescribed in section 2(2)(a) of the Act (see paragraphs 12 above and especially 30 below), making him a category three officer, the Council pursuant to section 2(2)(c) of the Act included his post in the list of politically restricted posts because, in its opinion, his post involved giving advice on a regular basis to committees of the Council, namely the Housing Benefits Review Board, the Housing Development Sub-Committee and the Environmental Sub-Committee (see paragraph 30 below). 14. Mr Ahmed was adopted as Labour candidate for election to the London Borough of Enfield in 1990, but was obliged to withdraw his candidature as a result of the Regulations. On 7 March 1990 he applied for removal of his job description from the list of politically restricted posts (see paragraphs 12 above and especially 32 below).", "The Council confirmed that Mr Ahmed had not attended committees during the previous twelve months, but stated that he would be involved in giving advice to committees in future, and would attend on a more regular basis. The Council did not provide therefore a certificate stating that he did not give advice regularly. The adjudicator replied to the Council on 30 March 1990 that Mr Ahmed’s application for exemption could not therefore be granted. 2. Mr Perrin 15.", "Prior to his retirement, the second applicant, Mr Perrin, was Principal Valuer with the Devon County Council (a category three officer). He was responsible for leading, directing and developing the Council’s area valuation staff. His post required him to give regular advice to the Council’s committees, including strategy advice on key estate management issues, and to speak to the media. Accordingly his post was included in the list of politically restricted posts kept by the Council in accordance with section 2(2) of the Act (see paragraph 12 above and especially paragraph 31 below). 16.", "On 19 February 1990 Mr Perrin applied for exemption from political restrictions on the ground that although he advised the Council at meetings and spoke to the media, the advice was “factual valuation information regarding the acquisition, disposal and management of property”. His application for exemption was refused on 20 March 1990. The adjudicator wrote: “I am satisfied that the duties of your post do fall within section 2(3) of the Act in that you do regularly attend committee meetings of the authority to give advice. Your authority do state that this advice does not extend to ‘policy advice’, but the Act itself makes no distinction between types of advice. I am not prepared, therefore, to grant an exemption under section 3(4) of the Act.” 17.", "As a result of the Regulations, Mr Perrin had to give up his position as Vice-Chair and Property Officer of the Exeter Constituency Labour Party, and had to refrain from supporting and assisting Labour candidates in Exeter City Council elections, including his wife, who was a candidate in May 1990 and May 1991. He also reduced his involvement in trade union activities. 3. Mr Bentley 18. The third applicant, Mr Bentley, is a planning manager with Plymouth City Council.", "He resigned from his position as Chairman of Torridge and West Devon Constituency Labour Party because of the Regulations, and was also restricted in canvassing for his wife who stood as the only Labour Councillor for the West Devon Borough Council, and in giving radio interviews in his capacity as Chairman of the Plymouth Health Emergency, a body concerned with National Health policies. 19. The monitoring officer of the Council classified Mr Bentley’s post as one that was politically sensitive (a category one post) and appropriately subject to political restrictions under section 2(3) of the Act (see paragraph 30 below). The reasons for the classification included that Mr Bentley was head of the Council’s corporate policy unit, that he was responsible directly to the head of the Council’s paid service, that his post was responsible for policy analysis and research, that he represented the Council on a transport steering group involving other authorities and organisations, and that, in the twelve months prior to 31 August 1990, he attended three meetings of the Council’s Policy and Resources (Finance sub-) Committee and advised on four separate issues of public transport. The monitoring officer considered that Mr Bentley’s post also fell within section 2(7)(a) and (b) of the Act, and was therefore politically restricted in any event (see paragraph 28 below).", "20. Mr Bentley applied for exemption from political restrictions. On 19 November 1990 the adjudicator underlined that he regarded his duties as limited to considering applications concerning restrictions under section 2(2) of the Act. He stated that although the Council may have identified the post as being politically restricted, it was not “politically restricted because of that fact, but because it is explicitly covered by section 2(1)(c) of the Act. I therefore do not consider it necessary or desirable to address the question of whether this post meets the criteria for inclusion in the list of posts under section 2(2) or for exemption from that list, unless or until it is established that the post is not covered by section 2(1)(c).” 4.", "Mr Brough 21. The fourth applicant, Mr Brough, is employed by the Hillingdon Borough Council as the head of its Committee Services Department (a category one post). The provision of services to the Council’s committees necessarily involves the Committee Services Department in frequent contact with and giving advice to the elected members of the Council. Mr Brough was the officer responsible for those activities. 22.", "As a consequence of the Regulations, Mr Brough can no longer act as Parliamentary Chairman of his party in Harrow East and is prevented from speaking at public meetings on issues such as housing and the health service. Mr Brough did not apply for exemption from the scope of the Regulations. D.Judicial review proceedings challenging the validity of the Regulations 23. The applicants and NALGO (the predecessor of UNISON, the trade union of which the applicants are members and which represents public-sector workers) applied for and were granted leave to apply for judicial review of the Regulations. The application was dismissed on 20 December 1991.", "The judge, Mr Justice Hutchison, considered that he was bound by the recent decision of the House of Lords in the case of R. v. Secretary of State for the Home Department, ex parte Brind and Others regarding the status of Article 10 of the Convention in domestic law. In connection with the test of “Wednesbury” unreasonableness, the judge referred to an affidavit submitted by Mr Simcock, a senior civil servant at the Department of the Environment, in which Mr Simcock explained how the Widdicombe Committee (see paragraph 8 above) had been set up in 1985 to inquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers. Mr Simcock also described the consultation process between the publication of the Widdicombe Report and the making of the Regulations, in which NALGO was involved, and how the Regulations were in some respects less restrictive than the Widdicombe Committee’s proposals. Referring to senior officers, the Widdicombe Committee had said: “... It is part of their job to advise councillors, and to adjudicate on matters of propriety, and in so doing they must command the respect and trust of all political parties.", "There might well be some senior officers who are politically active but who are nevertheless totally able to detach themselves from such activity in carrying out their duties as neutral officers. Nevertheless we believe there will always be a very significant risk that they are viewed with suspicion by councillors of other parties, and that as a consequence the performance of their duties towards the council as a whole will be impaired.” The judge continued: “... I preface my summary by pointing out that some of [the applicants’ complaints] reflect the applicants’ root and branch opposition to the whole concept of restricting the political activities of local government employees. It is said that: (a) There was no pressing social need for the Regulations – local government employees have in the past provided impartial advice and there is public confidence in their ability to do so. (b) The definition of [persons holding politically restricted posts] is unduly wide – a much more restricted category would have served the government’s purpose.", "(c) The restrictions are expressed in broad, subjective and uncertain terms – a vice particularly objectionable where, as here, they seek to restrict fundamental human rights. Thus, in the Schedule references to apparent intention (paragraphs 6 and 7) and to publication in circumstances likely to create an impression (paragraphs 9 and 10) are objectionable, as is paragraph 4 of the Regulations themselves. (d) The consequence of the vice mentioned in the previous paragraph is that employees are likely to be treated inconsistently by different employers, by reason of there being room for undue latitude in interpreting the restrictions. (e) The Regulations go too far in prohibiting conduct undertaken with apparent intention, etc., or likely to create the impression of support, etc. They should, at most, have proscribed actual political activities.", "(f) The width of the language used means that many non-party political activities, including trade unions and charitable activities, are prohibited. (g) The terms are imposed on existing employees, who entered into their contracts of employment on a different basis. (h) The restrictions may have an adverse effect on recruitment and lead to resignations by skilled staff. Some of these points will have to be considered individually when I come to deal with further arguments advanced by the applicants under quite different heads, but in the context of Wednesbury unreasonableness I propose only to say that they do not in my judgment come near to establishing a case of perversity. I have already briefly referred to the genesis of the Act and the Regulations in the Widdicombe Report, and to the consultative processes that followed it.", "Paragraph 51 of the Report contained the recommendation that: ‘... terms and conditions of [persons holding politically restricted posts] [should include] a prohibition on political activity, including ... (iii) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate;’ The Government’s Command Paper in July 1988 (in which, as already mentioned, the view was expressed that the categories of [persons holding politically restricted posts] should be more restricted than the Report proposed) spelt out the essential aim that: ‘it was important that the post-holder should be seen to be politically impartial but that otherwise, local government employees should not be subject to restrictions on their political activity.’ Of the specific arguments mentioned in (a) to (h) above, those in (a), (b), (e), (g) and (h) are, it seems to me, essentially arguments against the whole concept of restricting such activities, and in the circumstances cannot found an attack on Wednesbury grounds. The arguments summarised in (c) and (d) are to the effect that the Regulations are uncertain and incapable of consistent and fair application. As a Wednesbury argument, this contention could not avail the applicants – at least unless the Regulations were void for uncertainty (this would be a distinct ground for challenge) which plainly they are not. Finally, the argument mentioned in (f) is in my view misconceived: the Regulations do not prohibit the kind of activities there mentioned. I shall have more to say on this subject when I deal with the applicants’ specific arguments on vires and legitimate expectation, to the first of which I now turn.” In conclusion, the judge found that the Regulations did not go beyond the policy and purpose of the Act, and rejected an argument that the applicants had a “legitimate expectation” that the Government would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters.", "24. An appeal to the Court of Appeal was dismissed on 26 November 1992. Lord Justice Neill found that the provisions of Article 10 of the Convention did not assist NALGO and the applicants, confirmed that it was not open to the courts below the House of Lords to depart from the traditional Wednesbury grounds in reviewing the decision of a minister who has exercised a discretion vested in him by Parliament, and found that the Regulations were not “Wednesbury unreasonable” or ultra vires. He also agreed with the first-instance judge as to legitimate expectation. The other judges, Lords Justices Russell and Rose, agreed.", "Leave to appeal to the House of Lords was refused. 25. The House of Lords refused leave to appeal to it on 24 March 1993. II.RELEVANT DOMESTIC LAW A.The Local Government and Housing Act 1989 1. Statutory amendment of pre-existing contracts 26.", "Section 1(5) of the Act provides: “The terms of appointment or conditions of employment of every person holding a politically restricted post under a local authority (including persons appointed to such posts before the coming into force of this section) shall be deemed to incorporate such requirements for restricting his political activities as may be prescribed for the purposes of this subsection by regulations made by the Secretary of State.” 27. The term “persons holding a politically restricted post” is defined by section 2(1) of the Act. It consists of three broad categories of local government officer (excluding headmasters and teachers, who are exempt from the operation of the Regulations by reason of section 2(10) of the Act). 2. The categories of officers affected 28.", "The first category consists of officers who hold certain posts specified in section 2(1)(a) to (f) of the Act, namely the head of the authority’s paid service (section 2(1)(a)); the chief officers (section 2(1)(b) and (c)); the deputy chief officers (section 2(1)(d)); the monitoring officer (section 2(1)(e)); and assistants for political groups (section 2(1)(f)). There are an estimated 12,000 officers in this category according to the Government’s memorial. The chief officers are the heads of the various departments within the local authority’s administration. They consist of “statutory” and “non-statutory” chief officers. These terms are defined in section 2(6) and (7) of the Act respectively.", "The “statutory” chief officers are the chief education officer, the chief officer of the fire brigade, the director of social services or director of social work, and the chief financial officer. A “non-statutory” chief officer is defined as, inter alia, a person for whom the head of the authority’s paid service is responsible (section 2(7)(a)), or a person who, largely or exclusively, reports directly to or is directly accountable to the head of the authority’s paid service (section 2(7)(b)). A “deputy” chief officer is a person who, as regards all or most of the duties of his or her post, is required to report directly or is directly accountable to one or more of the statutory or non-statutory chief officers (section 2(8)). By section 2(9), purely secretarial or clerical staff are not non-statutory chief officers or deputy chief officers. 29.", "The second category consists of those local government officers whose annual rate of remuneration exceeds the level specified in section 2(2)(a) and (b) of the Act (“the prescribed level”, which is currently 25,746 pounds sterling per annum or pro rata for part-time posts) and whose posts have not been exempted from the operation of the Regulations. The Government estimate that there are approximately 28,000 officers whose salary exceeded the prescribed level. However, in their view, the number of officers who were actually subject to the Regulations is considerably less than 28,000 since a significant number had either been granted an exemption or would have been entitled to one had they applied. 30. The third category (defined by section 2(2) (c) of the Act) consists of those local government officers whose annual rate of remuneration is less than the prescribed level but whose duties consist in or involve one or both of the duties identified in section 2(3), namely: “(a) giving advice on a regular basis to the authority themselves, to any committee or sub-committee of the authority or to any joint committee on which the authority are represented; (b) speaking on behalf of the authority on a regular basis to journalists or broadcasters.” According to the Government’s memorial, there are an estimated 7,000 officers in this category.", "3. The list requirement 31. Each authority is obliged to prepare a list of persons falling within the second and third categories (section 2(2)). Any officer whose post is included on this list is entitled to be removed from the list on the grounds that his or her duties do not include duties of the kind set out in section 2(3). 4.", "The independent adjudicator and exemptions 32. Section 3 of the Act provides for the appointment of a person to consider applications for exemption from political restriction. If the person appointed (who is called the adjudicator) finds that the duties of a listed post (that is, those posts falling within the second and third categories) do not fall within section 2(3), he or she is required to direct that the post is not to be regarded as a politically restricted post. The authority must then remove the post from the list maintained under section 2(2). According to the Government, as at January 1997, 1,374 applications had been made for exemption of which 1,176 have been granted.", "B.The Schedule to the 1990 Regulations 33. The Schedule (Part I) to the Regulations prohibits the participation of persons holding politically restricted posts (including persons appointed to such posts before the coming into force of the Regulations) in elections for the House of Commons, the European Parliament or any local authority either as a candidate (paragraph 1), an election agent (paragraph 3) or a canvasser (paragraph 5). It does not prohibit membership of a political party, but does prohibit the holding of an office within a political party if that would involve participating in the general management of that party or one of its branches (paragraph 4(a)) or representing the party in dealing with others (paragraph 4(b)). Speaking to the public or to a section of the public or publishing any written or artistic work with “the apparent intention of affecting public support for a political party” is also prohibited by paragraphs 6 and 7 of Part II of the Schedule. Under paragraph 8, nothing in paragraphs 6 and 7 shall be construed as precluding the appointee to a politically restricted post from engaging in the activities mentioned in those two paragraphs to such an extent as is necessary for the proper performance of his duties.", "In accordance with regulation 4 when determining whether a person has breached the terms and conditions set out in paragraphs 6 and 7 regard shall be had to: “(a) whether the appointee referred to a political party or to persons identified with a political party, or whether anything said by him or the relevant work promotes or opposes a point of view identifiable as the view of one political party and not of another; and (b) where the appointee spoke or the work was published as part of a campaign, the effect which the campaign appears to be designed to achieve.” C.Recent developments 34. The Government informed the Court in their memorial that a review was then being conducted of the detail of the legislation governing political restrictions on local government officers. The aim of the review was to ensure that the detail of the restrictions imposed was essential for the maintenance of political impartiality of senior local government officials. At the hearing the Government informed the Court that the review had shown that the maintenance in force of the restrictions set out in the Regulations continued to be justified. PROCEEDINGS BEFORE THE COMMISSION 35.", "Mr Ahmed, Mr Perrin, Mr Bentley, Mr Brough and UNISON, a trade union representing public-sector workers, applied to the Commission on 21 September 1993. They alleged that the Local Government Officers (Political Restrictions) Regulations 1990 operate to their detriment in a way which denies their rights to freedom of expression (Article 10 of the Convention) and of assembly (Article 11), and their rights to participate fully in the electoral process (Article 3 of Protocol No.1). 36. The Commission declared the application (no. 22954/93) admissible on 12 September 1995, with the exception of the complaint brought by UNISON.", "In its report of 29 May 1997 (Article 31), it expressed the opinion that there had been a violation of Article 10 of the Convention (thirteen votes to four); that it was not necessary to consider whether there had been a violation of Article 11 of the Convention (thirteen votes to four); and that there had been no violation of Article 3 of Protocol No.1 (unanimously). The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment[4]. FINAL SUBMISSIONS TO THE COURT 37. The applicants in their memorial and at the hearing requested the Court to find that the facts of the case disclose a breach of their rights under Articles 10 and 11 of the Convention and Article 3 of Protocol No. 1 and to award them just satisfaction under Article 50 of the Convention.", "38. The Government in reply requested the Court in their memorial and at the hearing to decide and declare that the facts disclose no breach of the applicants’ rights under any of the Articles invoked. AS TO THE LAW I.alleged violation of article 10 of the convention 39. The applicants maintained that the introduction and application of the Local Government Officers (Political Restrictions) Regulations (see paragraphs 26–33 above) constituted an unjustified interference with their rights to freedom of expression, having regard to the impact which the impugned measures had on the pursuit by them of normal political activities. They relied on Article 10 of the Convention, which provides: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 40.", "The Commission agreed with the applicants’ arguments. The Government did not dispute that the applicants could rely on the guarantees contained in Article 10; nor did they deny that the application of the Regulations interfered with the exercise of their rights under that Article. They contended however that the interferences which resulted from the application of the Regulations to the applicants were justified under the second paragraph of Article 10. A.As to the applicability of Article 10 and the existence of an interference 41. The Court notes that the guarantees contained in Article 10 of the Convention extend to the applicants irrespective of their status as public servants employed by local government authorities (see, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no.", "323, p. 22, § 43; and see paragraph 56 below). This has not been disputed by those appearing before the Court. Nor has it been disputed that the Regulations interfered with the exercise by the applicants of their rights to freedom of expression by curtailing in various ways their involvement in certain forms of political activities. The Court for its part also considers that there have been interferences with the applicants’ rights to freedom of expression and it accepts in this respect the Commission’s summary of the situation which resulted for each of the applicants by virtue of the fact that the nature of his duties brought him within the ambit of the parent legislation and hence the implementing Regulations: Mr Ahmed was unable to stand for elected office; Mr Perrin and Mr Bentley had to resign their respective positions and could no longer canvas for their wives in local elections; Mr Brough could no longer act as Parliamentary Chairman of his political party. All of these activities involved the exercise by the applicants of their rights to freedom of expression in various ways and in particular their rights to impart information and ideas to third parties in the political context.", "B.As to whether the interferences were justified 42. The Court observes that the above-mentioned interferences give rise to a breach of Article 10 unless it can be shown that they were “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and were “necessary in a democratic society” to attain them. 1. “Prescribed by law” 43. The applicants submitted that the Regulations were imprecise in their wording, making it impossible to foresee with reasonable certainty the consequences which a given action may entail for them.", "They criticised in particular what they claimed was the vague or purely subjective wording of paragraphs 6 (“section of the public”) and 7 (“apparent intention”) of the Schedule to the Regulations (see paragraph 33 above) as well as the potential for inconsistent application of the restrictions by local authority employers. In their view, such expressions made it extremely difficult to predict whether the views which they espoused in speech or in writing might be interpreted by their employers or by an individual member of the public as tending to affect public support for a particular party. Further, the lack of certainty in predicting how the Regulations might apply in concrete situations had also to be seen as a deterrent to the exercise of the right to freedom of expression since local government officers would inevitably be fearful of acting in a manner which might transgress the Regulations and of incurring penalties as a result. 44. The Government denied that the expressions used in paragraphs 6 and 7 of the Schedule to the Regulations were ambiguous or highly subjective.", "Their meaning and scope could readily be assessed either from the plain meaning of the words or on the basis of an objective assessment, having regard in particular to the guidance offered by regulation 4 to the interpretation of those paragraphs (see paragraph 33 above). If doubt existed as to the interpretation and application of the paragraphs or of any other provisions in the Regulations and accompanying Schedule in a specific context, advice could be sought. 45. The Commission noted that the Regulations were framed in rather broad terms and that paragraphs 6 and 7 of the Schedule thereto introduced elements of vagueness and uncertainty. Nevertheless, it agreed with the Government that since the Regulations were intended to lay down rules of general application and to cover a large number of local government officers and contexts it was inevitable that the measures were couched in relatively broad terms.", "Read as a whole and having regard in particular to the terms of regulation 4, the Regulations satisfied in the Commission’s opinion the test of foreseeability for the purposes of the “prescribed by law” requirement of paragraph 2 of Article 10. 46. The Court notes that the impugned Regulations were designed to lay down a framework of rules restricting the participation of a substantial number of local government officers within the categories defined in the parent legislation in certain kinds of political activities which might impair the duty of impartiality which they owed to their local authorities. It is inevitable that conduct which may call into question an officer’s impartiality in the eyes of third parties cannot be defined with absolute precision. For this reason, paragraphs 6 and 7 of the Schedule to the Regulations define types of conduct which have the potential to undermine an officer’s impartiality.", "Even accepting that it may be difficult on occasions for an officer to assess whether a given action may or may not fall foul of the Regulations, it is nevertheless open to him or her to seek advice beforehand either from the employer or from the union or other source. It must also be stressed that the scope and application of paragraphs 6 and 7 of the Schedule, like the Regulations as a whole, have to be considered in the light of the vice which the parent legislation sought to avoid. To that end, regulation 4 (see paragraph 33 above) must be considered a helpful aid to gauging the acceptability of a particular course of action from the standpoint of paragraphs 6 and 7 of the Schedule to the Regulations. 47. As to the applicants’ contention that the decision to entrust the interpretation and implementation of the Regulations to each local government employer only serves to promote inconsistencies in the application of the restrictions, the Court notes that the applicants have not adduced any evidence to show that this has been the case.", "In any event, an officer who has been disciplined for having breached the Regulations could appeal to an industrial tribunal whose decisions over time would undoubtedly help to promote a harmonised approach to the interpretation of the Regulations. 48. Having regard to these considerations, the Court finds that the interferences were “prescribed by law”. 2. Legitimate aim 49.", "The applicants repudiated the Government’s view that the interference with their rights could be justified on account of the need to protect the rights of others to effective political democracy. While that aim had been considered legitimate by the Court in its Vogt judgment (cited above), it could not be invoked in the instant case given that the applicants’ involvement in normal political activities did not represent any threat to the constitutional or democratic order of the respondent State. The Government’s reliance on this aim ignored the background against which the measures challenged in the Vogt case had been adopted and the reasons which led the Court to conclude that those measures pursued a legitimate aim in the particular context of post-war Germany. 50. The Government defended their view that the Regulations were essential to the proper functioning of the democratic system of local government in the United Kingdom.", "They stressed that, in line with the conclusions and recommendations of the Widdicombe Committee (see paragraphs 9 and 10 above), the restrictions contained in the Regulations were intended to strengthen the tradition of political neutrality on the part of specific categories of local government officers by prohibiting them from participating in forms of political activity which could compromise the duty of loyalty and impartiality which they owed to the democratically elected members of local authorities. 51. The Commission did not take any final position on whether the restrictions imposed by the Regulations pursued a legitimate aim and if so which one. It was prepared to assume for the purposes of its examination of the merits of the applicants’ complaints that the Regulations were designed to preserve the existence of an effective political democracy and that that aim was compatible with the aim of protecting the rights of others within the meaning of paragraph 2 of Article 10. 52.", "The Court does not accept the applicants’ argument that the protection of effective democracy can only be invoked as a justification for limitations on the rights guaranteed under Article 10 in circumstances where there is a threat to the stability of the constitutional or political order. To limit this notion to that context would be to overlook both the interests served by democratic institutions such as local authorities and the need to make provision to secure their proper functioning where this is considered necessary to safeguard those interests. The Court recalls in this respect that democracy is a fundamental feature of the European public order. That is apparent from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights (see, mutatis mutandis, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 21–22, § 45).", "For the Court this notion of effective political democracy is just as applicable to the local level as it is to the national level bearing in mind the extent of decision-making entrusted to local authorities and the proximity of the local electorate to the policies which their local politicians adopt. It also notes in this respect that the Preamble to the Council of Europe’s European Charter of Local Self-Government (European Treaty Series no. 122) proclaims that “local authorities are one of the main foundations of any democratic regime”. 53. The Court observes that the local government system of the respondent State has long rested on a bond of trust between elected members and a permanent corps of local government officers who both advise them on policy and assume responsibility for the implementation of the policies adopted.", "That relationship of trust stems from the right of council members to expect that they are being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members’ own advisers; it is also to be noted that members of the public are equally entitled to expect that in their own dealings with local government departments they will be advised by politically neutral officers who are detached from the political fray. The aim pursued by the Regulations was to underpin that tradition and to ensure that the effectiveness of the system of local political democracy was not diminished through the corrosion of the political neutrality of certain categories of officers. 54. For the above reasons, the Court concludes that the interferences which resulted from the application of the Regulations to the applicants pursued a legitimate aim within the meaning of paragraph 2 of Article 10, namely to protect the rights of others, council members and the electorate alike, to effective political democracy at the local level.", "3. “Necessary in a democratic society” (a)General principles 55. The Court recalls that in its above-mentioned Vogt judgment (pp. 25–26, § 52) it articulated as follows the basic principles laid down in its judgments concerning Article 10: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.", "Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established. (ii) The adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.", "This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it is “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts. 56. In the same judgment the Court declared that these principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention (p. 26, § 53) (b)Application of the above principles to the instant case 57.", "The applicants contended that there was no pressing social need for the restrictions imposed by the Regulations. In their view the Widdicombe Committee had concluded that there was no serious evidence of the political impartiality of senior local government officers having been compromised as a result of their engagement in political activities. Accordingly, there was no need to introduce statutory restrictions to curb activities which had never been seen to constitute a problem. They further submitted that even if it were possible to concede that there was a pressing social need at stake, the restrictions amounted to a disproportionate interference with their rights under Article 10 in view of the fact that they applied to a large number of officers and precluded involvement in a wide range of activities and not solely political ones. They repeated in this context their criticism of the way in which paragraphs 6 and 7 of the Schedule were framed (see paragraph 43 above) and how they may be at risk of sanction for expressing views on trade union concerns as well as on social, economic, and other controversial issues, including local ones, which may be considered by a member of the public as endorsement of a party political line on a particular topic.", "The applicants maintained that the categories of posts covered by the Regulations were too broadly conceived and absorbed large numbers of local government employees including officers like Mr Perrin who provide local authority committees with purely professional or technical advice having no political content whatsoever. For this reason the Government’s insistence on the fact that the restrictions were imposed using tasks-based criteria could not be sustained. Further, the severity of the restrictions was not mitigated by the role of the adjudicator (see paragraph 32 above). In the first place, category one officers such as Mr Bentley and Mr Brough were not entitled to exemption. Secondly, whether or not the adjudicator exempted an officer in the second and third categories was to a large extent determined by the opinion of the local authority employer who has put the officer’s post on the list of politically restricted posts, as was shown by Mr Ahmed’s experience (see paragraph 14 above).", "58. For these reasons in particular, the applicants requested the Court to find, like the Commission, a breach of Article 10 of the Convention. 59. The Government disagreed with the applicants’ views on the effects of the Regulations. They contended that the restrictions were entirely in line with the conclusions of the Widdicombe Committee which had backed the need to strengthen the political neutrality of senior officers in the light of specific instances of abuses by officers of their positions and the risks to the preservation of that neutrality attendant on the increased divisions in local government affairs along party political lines (see paragraphs 9 and 10 above).", "Against that background, the introduction of the Regulations had to be considered a proportionate response to a real need which had been properly identified and addressed in accordance with the respondent State’s margin of appreciation in this sector. The Government stressed that the proportionality of the restrictions had to be assessed in the light of the following considerations: firstly, they only applied to at most 2% of an estimated 2,300,000 officers; secondly, the categories of officers subject to the restrictions were clearly defined in accordance with the duties which they performed and where both the fact and appearance of political impartiality were of paramount importance; thirdly, the duties-based approach meant that the restrictions were applied as narrowly as possible and exemptions given on as wide a basis as possible. The Government did not deny that the political impartiality of the applicants had never been called into question as a result of their participation in political activities. However, they reiterated that the applicants’ actual and objective impartiality were critical to the performance of the duties assigned to them and this fact in itself justified the imposition of restrictions. 60.", "The Commission agreed with the applicants that the Regulations imposed far-reaching, inflexible and disproportionate restrictions on senior officers such as the applicants, even allowing for the duties and responsibilities which they owed to their respective local authorities and the margin of appreciation of the respondent State in the sector at issue. In the Commission’s view, there had never been any suggestion that the applicants’ professionalism and impartiality had been compromised by their pursuit of political activities. However, the Regulations never allowed for exemption on that account since they were introduced across-the-board to all those officers in the categories caught by the Regulations by means of unilateral amendment of their contracts. 61. The Court’s task is to ascertain in view of the above-mentioned principles (see paragraphs 55 and 56 above) whether the restrictions imposed on the applicants corresponded to a “pressing social need” and whether they were “proportionate” to the aim of protecting the rights of others to effective political democracy at the local level (see paragraph 54 above).", "In so doing it must also have regard to the fact that whenever the right to freedom of expression of public servants such as the applicants is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the authorities of the respondent State a certain margin of appreciation in determining whether the impugned interference is proportionate to the aim as stated (see, mutatis mutandis, the above-mentioned Vogt judgment, p. 26, § 53). 62. It is to be observed at the outset that the Widdicombe Committee reported back to the government at the time that it had found specific instances of abuse of power by certain local government officers. The Committee was concerned both about the impact which the increase in confrontational politics in local government affairs would have on the maintenance of the long-standing tradition of political neutrality of senior officers whose advice and guidance were relied on by the members elected to local councils as well as about the increased potential for more widespread abuse by senior officers of their key positions in a changed political context. Those concerns emerged from the Committee’s detailed analysis of the state of local government at the time and its wide-ranging rounds of consultations with interested parties (see paragraph 23 above).", "There was a consensus among those consulted on the need for action to strengthen the tradition of political neutrality either through legislation or modification of the terms and conditions of officers’ contracts of employment (see paragraphs 8–10 above). In the Court’s view, the Widdicombe Committee had identified a pressing social need for action in this area. The adoption of the Regulations restricting the participation of certain categories of local government officers, distinguished by the sensitivity of their duties, in forms of political activity can be considered a valid response by the legislature to addressing that need and one which was within the respondent State’s margin of appreciation. It is to be observed in this regard that the organisation of local democracy and the arrangements for securing the functioning, funding and accountability of local authorities are matters which can vary from State to State having regard to national traditions. Such is no doubt also the case with respect to the regulation of the political activities of local government officers where these are perceived to present a risk to the effective operation of local democracy, especially so where, as in the respondent State, the system is historically based on the role of a permanent corps of politically neutral advisers, managers and arbitrators above factional politics and loyal to the council as a whole.", "63. As to whether the aim of the legislature in enacting the Regulations was pursued with minimum impairment of the applicants’ rights under Article 10 the Court notes that the measures were directed at the need to preserve the impartiality of carefully defined categories of officers whose duties involve the provision of advice to a local authority council or to its operational committees or who represent the council in dealings with the media. In the Court’s view, the parent legislation has attempted to define the officers affected by the restrictions in as focused a manner as possible and to allow through the exemption procedure optimum opportunity for an officer in either the second or third categories to seek exemption from the restrictions which, by the nature of the duties performed, are presumed to attach to the post-holder (cf. the above-mentioned Vogt judgment, p. 28, § 59). It is to be observed also that the functions-based approach retained in the Regulations resulted in fewer officers being subject to restrictions than would have been the case had the measures been modelled on the Widdicombe Committee’s proposal to apply them to principal officers and above as a general class and irrespective of the duties performed (see paragraph 10 above).", "It is also to be recalled that the requirement of political neutrality owed by the officers such as the applicants to the council members extends also to the members of the local electorate given that they have cast their votes to enable the political complexion of the council to reflect their view of what policies are best suited to their area (see paragraph 53 above). Hence, it is equally in their interests that officers with influence in the day-to-day running of local government business do not engage in activities which may be wrongly interpreted not only by council members but also by the public as impairing that process. For this reason, the restrictions imposed by the Schedule to the Regulations can reasonably constitute a justified response to the maintenance of the impartiality of officers such as the applicants. It is also to be noted that paragraphs 6 and 7 of the Schedule to the Regulations were not designed to silence all comment on political matters, whether controversial or not. The Court reiterates in this respect that the vice which they are intended to avoid is comment of a partisan nature which judged reasonably can be considered as espousing or opposing a party political view (see paragraph 33 above).", "The same conclusion can be drawn in respect of the restrictions which are imposed on the activities of officers by reason of their membership of political parties. As with speech and writing of a partisan nature, paragraph 4 of Part I of the Schedule (see paragraph 33 above) is directed at precluding participation in only those types of activity which, on account of their visibility, would be likely to link a politically restricted post-holder in the eyes of the public or council members with a particular party political line. There is no restriction on the applicants’ rights to join a political party or to engage in activities within that party other than the limited restrictions identified by paragraph 4 of the Schedule. For the Court, the reasons advanced by the respondent State to justify the restrictions contained in Parts I and II of the Schedule may be considered both relevant and sufficient. Further, those restrictions apply in such a way as to make an appropriate distinction between the duties and responsibilities which the applicants owed to their local authorities and the pursuit by them of their own personal activities (cf.", "the above-mentioned Vogt judgment, p. 28, § 59). The Court also notes in this context that the current government since coming to office have conducted a review of the restrictions introduced when they were in opposition. That review has shown that the maintenance in force of the restrictions continues to be justified (see paragraph 34 above). 64. Nor does the Court consider that the decision to apply the restrictions by means of modification of existing contracts or other legal relationships is fatal to their proportionality.", "In its view, the authorities of the respondent State cannot be accused of having infringed freedom of expression for avoiding a process of bargaining between the officers concerned and their employers over the introduction of the restrictions; nor can they be criticised for not confining the application of the restrictions to future appointees to politically restricted posts. In neither case would the goal of uniform application of the restrictions to all officers entrusted with similar duties be attained. 65. Having regard to the need which the Regulations sought to address and to the margin of appreciation which the respondent State enjoys in this area, the restrictions imposed on the applicants cannot be said to be a disproportionate interference with their rights under Article 10 of the Convention. The Court concludes therefore that there has been no violation of Article 10 of the Convention by reason of the existence of the legislation and its impact on the applicants’ rights under that Article in the circumstances of this case.", "ii.alleged violation of article 11 of the convention 66. The applicants submitted that the restrictions imposed by the Regulations on their holding of office and being active in political parties of which they are members seriously impeded the exercise of their rights to freedom of association in violation of Article 11 of the Convention, which provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.", "This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 67. The applicants maintained that the right guaranteed to an individual under Article 11 to join a political party must be taken to include the right to be active in an organisational and administrative capacity in that party and to be an officer-holder. However the restrictions contained in the impugned Regulations precluded this (see paragraph 33 above). They relied on the same reasons which they had adduced under their Article 10 complaints to contest the validity of the Regulations from the standpoint of Article 11. 68.", "The Government replied essentially that the reasons which they had advanced to justify the restrictions on the applicants’ Article 10 rights were an equally valid response to the applicants’ allegations under Article 11. 69. The Commission considered that the applicants’ complaints under Article 10 lay at the heart of their case. Having found a violation of that Article, it concluded that it was unnecessary to examine separately the merits of their complaints under Article 11. 70.", "The Court notes that it has found the interferences with the applicants’ rights under Article 10 to be justified from the standpoint of the requirements of the second paragraph of that Article. Notwithstanding its autonomous role and particular sphere of application, Article 11 must in the present case also be considered in the light of Article 10 having regard to the fact that the freedom to hold opinions and to receive and impart information and ideas is one of the objectives of freedom of assembly and association as enshrined in Article 11 (see, mutatis mutandis, the above-mentioned Vogt judgment, p. 30, § 64). In the Court’s view, the conclusions which it reached regarding the foreseeability of the impugned measures, the legitimacy of the aim pursued by them and their necessity hold true for the purposes of the requirements of the second paragraph of Article 11. It would also reiterate that paragraph 4 of the Schedule to the Regulations (see paragraphs 33 and 63 above) is limited to restricting the extent of the applicants’ participation in an administrative and representative capacity in a political party of which they are members. The Regulations do not restrict the applicants’ right to join any political party of their choosing.", "71. The Court finds accordingly that there has been no violation of the applicants’ rights under Article 11 of the Convention. iii.alleged violation of article 3 of protocol no. 1 72. The applicants further alleged that the Regulations amounted to a breach of Article 3 of Protocol No.", "1, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 73. The applicants referred in particular to the impact which the restrictions contained in paragraphs 1 to 3 and 5 to 7 of the Schedule to the Regulations had on their rights to stand for election at local, national and European levels and to take part in electoral campaigns (see paragraph 33 above). In their view, these restrictions were such as to impair the very essence of the free expression of the opinion of the people in the choice of legislature by limiting without justification the electorate’s choice of candidates. 74. The Commission, with whom the Government agreed, found that there had been no violation of the above-mentioned Article.", "It considered that in view of the limitations inherent in Article 3 of Protocol No. 1 and the aim pursued by the restrictions it could not be said that the essence of the applicants’ rights to stand for election had been impaired or that the respondent State had exceeded its margin of appreciation in imposing such restrictions. In particular there was nothing to prevent any of the applicants from resigning his position so as to stand as a candidate in an election. 75. The Court recalls that Article 3 of Protocol No.", "1 implies subjective rights to vote and to stand for election. As important as those rights are, they are not, however, absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. The Court considers that the restrictions imposed on the applicants’ right to contest seats at elections must be seen in the context of the aim pursued by the legislature in enacting the Regulations, namely, to secure their political impartiality.", "That aim must be considered legitimate for the purposes of restricting the exercise of the applicants’ subjective right to stand for election under Article 3 of Protocol No. 1; nor can it be maintained that the restrictions limit the very essence of their rights under that provision having regard to the fact that they only operate for as long as the applicants occupy politically restricted posts; furthermore, any of the applicants wishing to run for elected office is at liberty to resign from his post. 76. Without taking a stand on whether local authority elections or elections to the European Parliament are covered by Article 3 of Protocol No. 1, as was also disputed by the Government, the Court concludes that there has been no breach of that provision in this case.", "for these reasons, the court 1.Holds by six votes to three that there has been no violation of Article 10 of the Convention; 2.Holds by six votes to three that there has been no violation of Article 11 of the Convention; 3.Holds unanimously that there has been no violation of Article 3 of Protocol No. 1. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 2 September 1998. Signed: Rudolf Bernhardt President Signed: Herbert Petzold Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr De Meyer; (b) joint dissenting opinion of Mr Spielmann, Mr Pekkanen and Mr van Dijk. Initialled: R. B.Initialled: H. P. concurring opinion of judge de meyer (Translation) It is not only legitimate, but also necessary, especially in a democratic society, to ensure as far as possible the loyalty of officers in public service towards the authority to which they are accountable and at the same time the freedom of the electorate in its choice of representatives.", "The people are entitled to count on the objectiveness, impartiality and political neutrality of their servants, those being essential requirements of a position of trust. They are likewise entitled not to be exposed to a risk that their servants may, during elections or in other circumstances, benefit personally or politically from their position. Members of staff in the public service must not therefore be allowed to be members of assemblies elected by the people or to stand as candidates for such assemblies, or permitted to take part in any manner whatsoever in the activity of the parties. Common sense dictates that such interests are incompatible with the public service. People who wish to work in public service must renounce “politics”, that being a restriction on their freedom of expression, freedom of association and electoral rights that is inherent in their position[5].", "AHMED AND OTHERS JUDGMENT1 Joint DISSENTING OPINION OF JUDGES SPIELMANn, PEKKANEN AND VAN DIJK 1. To our regret we are not able to join the majority in their conclusion that Article 10 has not been violated in the present case. We agree that the interference with the applicants’ right to freedom of expression was prescribed by law. We can also accept, be it with some hesitation, that the United Kingdom authorities, by enacting and implementing the impugned Regulations, pursued a legitimate aim, namely the protection of the rights of others, although we would highlight the risk of that notion being stretched so far as to lose almost all distinct meaning if it is held to cover “rights” such as that to effective political democracy at the local level. We cannot persuade ourselves, however, that the interference was “necessary in a democratic society”, given, on the one hand, the scope of its effects and, on the other hand, the aims pursued.", "2. The starting-point for the weighing of the different aspects and elements of the case has to be – as is also recalled in the judgment (paragraph 55) – that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment, and that, consequently, precisely to strengthen democratic society, the necessity to limit that freedom “must be convincingly established” (see the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25 § 52). This holds good even more so in the case of restrictions on freedom of expression which have a preventive character: “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 60).", "3. The above principles also apply in relation to civil servants; “as a general rule the guarantees of the Convention extend to civil servants” (see the Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104, p. 26, § 49; the aforementioned Vogt judgment, p. 26, § 53). There is no reason, and indeed no room, for an inherent limitation in respect of the civil service. Article 10 does, of course, refer in its second paragraph to “duties and responsibilities”, but that does not mean that this provision contains an implied limitation for certain individuals or groups; it is primarily up to those exercising their right to freedom of expression to fulfil those duties and responsibilities.", "Only if they fail to do so in one or more concrete cases, or if there is the imminent danger of such a failure, would there be grounds for introducing legislative or administrative measures to ensure the proper fulfilment of these duties and responsibilities; but even then only to the extent “necessary in a democratic society”. We cannot read in the second paragraph of Article 10 any specific ground of limitation for civil servants nor can we see any justification for such a specific ground if applied in a general, categorical way. In that respect there is a clear difference between, on the one hand, Article 10 and, on the other hand, Article 11 of the Convention; only the latter Article provides expressly for the possibility to restrict the right concerned for members of the administration of the State. 4. Was the interference of the applicants’ right of freedom of expression “necessary in a democratic society”?", "To answer this question we will successively address the two component aspects: was there a pressing social need for the interference, and was the scope of the interference proportionate to the aim pursued? 5. Was there a pressing social need for the Regulations in issue and for their application to the applicants? According to the Widdicombe Committee there was a need for regulation. The Committee referred to a tradition of a corps of politically neutral officers and to an increased risk of senior officers’ abusing their positions for political reasons.", "At the same time, however, the Committee indicated that no serious problems had arisen in the past and that there had been no cases of disciplinary action being taken. Nor had there been any complaints from citizens or local administrations. The mere fact that the Committee noticed a change of atmosphere in recent years in the direction of stronger party affiliation of civil servants, especially at the local government level, does not in itself mean that the same standard of political neutrality in public service could not be maintained without recourse to such restrictive regulations as those in issue. In particular, it has not convincingly been argued by the Government why civil servants would not, as a rule, be responsible enough to decide for themselves the sort of political action their position permits and does not permit, subject to ex post facto disciplinary supervision. In that respect, it seems relevant for the assessment of the necessity in a democratic society test that in other member States of the Council of Europe, which claim to be strong democracies as well, a regulation with similar far-going restrictions to the freedom of expression of civil servants has not been considered necessary.", "There, the primary responsibility and discretion is placed on the civil servants themselves, with possibilities for corrective but not preventive restraint. We are inclined to agree with the Canadian Supreme Court, quoted by Liberty in its submission to the Court, which held that public servants cannot be silent members of society and that as a general rule all members of society should be permitted to participate in public discussion of public issues. Therefore, in view of the fact that (1) the United Kingdom has a long history without such comprehensive and far-reaching restrictions, which apparently had not given rise to any major problems; (2) this was recognised by the Widdicombe Committee, which also reported that there had been no need to use the instrument of disciplinary measures; and (3) other democratic societies appear to function without such general and far-reaching restrictions, we come to the conclusion that the existence of a pressing social need for the introduction of such general limitations such as those in issue, and more particularly their application to the applicants, has not sufficiently been demonstrated by the British Government. Indeed, strengthening democracy at the expense of freedom of expression may be justified in extreme circumstances only, since logically such a measure would seem to be counterproductive. 6.", "Even if there is a pressing social need for the interference concerned, the latter must be proportionate to the legitimate aim pursued. Are the Regulations themselves and the way in which they have been applied proportionate to the aim of strengthening democracy? The Regulations are said to affect only 2% of civil servants. However, that still is a considerable number; in a qualitative sense also the civil servants concerned represent an important segment of the local civil service. For them, the situations in which they have to abstain from political activities, according to the Schedule, are potentially very broad; in fact, almost all political opinions and activities may in some way or another be associated with a political party.", "This means that the civil servants concerned may feel under what could be called permanent self-censorship in order not to endanger their positions. In addition, the following aspects weigh in their favour: (a) the Regulations do not make a clear distinction between service and private life (see the above-mentioned Vogt judgment, p. 28, § 59); what the majority states in that respect in paragraph 63 of the judgment would not seem to be well-founded; (b) possibilities for exemptions exist only for officers of the second and third categories, and even then only to a limited extent; (c) the Regulations prohibit the civil servants concerned from standing for Parliament or for the European Parliament unless they first give up their positions in the local administration, and we have not found any indication that leave of absence is granted until the outcome of the elections is known. This particular interference can hardly be deemed instrumental in strengthening democracy, since a healthy democracy has need of the best and most experienced parliamentarians; (d) there has been no suggestion that the applicants fell short of their responsibilities and duties as civil servants, or have shown any lack of impartiality; and (e) the authorities could have used other, less restrictive ways and means to act against abuses of positions or against threats to the impartiality of civil servants. This leads us to the conclusion that the proportionality requirement has not been met either. 7.", "For all the above-stated reasons we are of the opinion that the interference complained of was not necessary in a democratic society and, consequently, was not justified under the second paragraph of Article 10. In our opinion, this conclusion compels itself in the present case in an even more forceful way than in the Vogt case, where the Court found a violation of Article 10. In the latter case the restraint imposed on the applicant was not of a preventive but of a corrective character; moreover specific political activities were involved which affiliated the applicant to a political party having as its aim the undermining of the constitutional system of the State concerned. 8. Since we conclude that Article 10 has been violated in the present case, we agree with the majority of the Commission that the complaint under Article 11 did not give rise to any separate issue.", "9. With respect to Article 3 of Protocol No. 1, we share the unanimous opinion that the rights to vote and to stand for elections laid down therein are not absolute rights, and that the restrictions contained in the Regulations as applied to the applicants did not limit the very essence of these rights. [1]. This summary by the registry does not bind the Court.", "[2]Notes by the Registrar . The case is numbered 65/1997/849/1056. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [3].", "Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [4]. Note by the Registrar.", "For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry. [5]1. The Court’s slightly too detailed reasoning in the instant case is unsatisfactory, particularly in two respects. Firstly, the Court found it necessary to refer once more to the States’ “margin of appreciation”; that seems in particular to imply that it considers equally acceptable a system permitting the situations prohibited by the system the applicants complained of. Such relativism is rather worrying, even though it can be explained by the excessive permissiveness of many States with regard to such situations.", "Secondly, the Court appears to attach too much importance to the fact that only a limited number of people were affected by the measures in issue, which suggests that a more general prohibition would have been less acceptable. It is regrettable that the Court did not more clearly acknowledge the merit of the principle applied in the present case by the United Kingdom." ]

[ "FOURTH SECTION CASE OF ANTCZAK v. POLAND (Application no. 3360/09) JUDGMENT STRASBOURG 9 November 2010 This judgment is final but it may be subject to editorial revision. In the case of Antczak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Ján Šikuta, President,Lech Garlicki,Vincent Anthony de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 18 October 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3360/09) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Sebastian Antczak (“the applicant”), on 5 December 2008.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs. 3. On 23 November 2009 the Court decided to give notice of the application to the Government. In accordance with Protocol no.", "14, the application was allocated to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1978 and lives in Piotrków Trybunalski. 5.", "On 4 November 2005 the applicant was arrested by the police. 6. On 5 November 2005 the Zgierz District Court decided to detain the applicant on remand in view of the reasonable suspicion that he had committed an offence of illegal possession of weapons and ammunition. 7. The applicant's pre-trial detention was extended on 22 November 2005 and on 31 January, 21 March, 20 June, 1 August, 25 October and 20 December 2006.", "The courts relied on the severity of the possible sentence, which created a risk of the applicant's going into hiding or interfering with the proper course of the proceedings, and the necessity of gathering evidence in this particularly complex case. The court relied heavily on the complexity of the proceedings which involved many co‑accused who had allegedly participated in an organised, armed gang. 8. On 25 April and 27 June 2007 the Łódź Court of Appeal further extended the pre-trial detention of the applicant and other co-accused. In the meantime additional charges were brought against the applicant.", "9. On 6 September 2007 the applicant and 21 other co‑accused were indicted before the Łódź Regional Court. The applicant was charged with illegal possession of weapons and ammunition, abetting to murder and robbery committed while acting in an organised criminal gang. The prosecutor requested the court to hear evidence from 24 witnesses. 10.", "On account of the complexity of the case the first hearing was scheduled for 8 April 2008. 11. Between 11 April 2008 and 8 January 2010 the court held thirty three hearings. No hearing was held between 10 June and 10 November 2009 due to the absence of either the accused or the defence lawyers. 12.", "The applicant's detention was further extended on 11 September 2007, 23 May and 17 December 2008, 22 April, 23 September and 22 December 2009. 13. During this detention the applicant served several sentences of imprisonment imposed in different sets of criminal proceedings. In particular between 13 December 2005 and 13 December 2007 he served a sentence of imprisonment imposed by the Zgierz District Court on 10 May 2005. Between 13 December 2007 and 16 April 2009 he served a sentence of imprisonment imposed by the Zgierz District Court on 25 July 2001.", "Since 16 April 2009 he has been serving a prison sentence imposed on 6 February 2003. The release date is planned for 11 December 2011. A. The other set of criminal proceedings - bill of indictment of 10 March 2009 14. The applicant is also involved in a second set of criminal proceedings.", "15. On 10 March 2009 the applicant and 27 co-accused were indicted before the Łódź Regional Court on multiple charges related to burglaries, thefts, extortions, kidnappings, robberies, drug dealing and stolen cars, committed while acting in an organised, armed criminal gang. This set of proceedings is pending before the first-instance court. B. Proceedings under the 2004 Act 16.", "On 28 January 2010 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He complained about the length of the investigation and the length of the court proceedings. 17. On 10 March 2010 the Lódź Court of Appeal considered the length of the proceedings to be reasonable and dismissed the applicant's complaint. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 18. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”reasonable time by [a] ... tribunal...” 20. The Government contested that argument. 21.", "The period to be taken into consideration began on 4 November 2005 and has not yet ended. It has thus lasted nearly five years for one level of jurisdiction. A. Admissibility 22. The Government submitted that the applicant exhausted the domestic remedies only one year after he had lodged his application with the Court. For this reason they were of the opinion that he had failed to exhaust the available domestic remedies before bringing his case to the Court.", "23. The Court notes that the applicant made use of the remedy provided for by the 2004 Act and lodged a complaint about the unreasonable length of the proceedings. The Lódz Court of Appeal dismissed his complaint. 24. The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of the complaints about the excessive length of judicial proceedings in Poland.", "Accordingly, the Court finds that the applicant exhausted domestic remedies in respect of his complaint under Article 6 § 1 of the Convention (see, Majewski v. Poland, no. 52690/99, §§ 31, 32; 11 October 2005. 25. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The Government 26. The Government submitted that the case had been extremely complex.", "It concerned an organised criminal gang. The applicant was charged with several offences. In addition, the prosecution asked the court to hear evidence from a great number of witnesses. Hearings had been scheduled without any delay, at regular intervals. There were sometimes even five or six hearings in one month.", "In view of the severity of charges against the applicant and the conduct of the authorities the Government were of the opinion that the length of the proceedings was compatible with the standards laid down in Article 6 § 1 of the Convention. 2. The applicant 27. The applicant disagreed and argued that the proceedings in his case have lasted exceptionally long. 3.", "The Court's assessment. 28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 29.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the Court notes that the first hearing was held seven months after the bill of indictment had been lodged with the trial court (see, paragraphs 9 and10 above). 31.", "Having regard to its case-law on the subject and the fact that the proceedings are still pending before the court of first-instance, the Court considers that in the instant case the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 32. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 33.", "The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 34. The Government disputed this argument with reference to the facts of the case. 35.", "The Court observes that the applicant's detention started on 4 November 2005, when he was arrested on suspicion of illegal possession of weapons and ammunition and is still pending. However, it appears from the documents submitted at a later stage that since 13 December 2005 the applicant has been continuously serving three terms of imprisonment imposed in different sets of criminal proceedings. Consequently, the Court considers that after 13 December 2005 the applicant was deprived of his liberty “after conviction by a competent court” and that this period of his detention is covered by Article 5 § 1 (a) of the Convention and falls outside the scope of Article 5 § 3 of the Convention. Accordingly, the period of the applicant's detention to be considered under Article 5 § 3, amounts to one month and nine days. 36.", "The Court observes that the applicant was charged with multiple offences committed while acting in an organised criminal gang. In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant's detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 38. The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 39. The Government contested these claims. 40.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,500 in respect of non‑pecuniary damage. B. Costs and expenses 41. The applicant did not make any claim for costs and expenses involved in the proceedings.", "C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of the settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 9 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıJán Šikuta Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF TANKO TODOROV v. BULGARIA (Application no. 51562/99) JUDGMENT STRASBOURG 9 November 2006 FINAL 09/02/2007 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 Tanko Todorov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrR. Maruste,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges, and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 16 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 51562/99) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Tanko Zaprianov Todorov, a Bulgarian national who was born in 1976 and lives in the village of Chalakovi (“the applicant”), on 16 July 1999. 2. The applicant was represented by Ms E. Nedeva, a lawyer practising in Plovdiv.", "3. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Ms M. Kotzeva, of the Ministry of Justice. 4. The applicant alleged that his detention was excessively lengthy and unjustified. He also claimed that the courts did not examine all factors relevant to the lawfulness of his detention, that his appeal of 2 September 1999 was not decided speedily and that the Supreme Court of Cassation denied him the right to challenge the lawfulness of his detention before a court with its refusal of 24 September 2001 to initiate cassation proceedings.", "5. By a decision of 29 September 2005 the Court declared the application partly admissible. 6. The parties did not file further written observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The criminal proceedings 7. On the night of 2 December 1997 a customer of a bar was brutally beaten up after leaving with a friend to go home. The friend who accompanied him witnessed the start of the attack from a distance. The victim later died from his injuries.", "8. A preliminary investigation into the murder was opened on the following day. 9. On 11 December 1997 the applicant, who had also been in the bar on the night in question, was arrested and questioned by the police. He signed a statement confessing to having beaten the victim, which he subsequently retracted claiming that it was extracted from him under duress.", "10. On 12 December 1997 the applicant was charged with murder and detained on remand. Immediately thereafter, the applicant was questioned by an investigator. In the presence of a State-appointed attorney and after having been informed of his right not to give testimony the applicant reiterated the statement he had given on the previous day and made a full confession. 11.", "During the preliminary investigation various witnesses were questioned, DNA tests were performed on the applicant's clothes and a crime scene experiment was conducted. Various experts' opinions were also obtained, such as to assess the applicant's physical and mental state, as well as his eyesight. A medical examination of the victim was also conducted. In addition, an agronomical expertise was commissioned to determine what the foliage cover of the trees was at the time of the murder and whether that could have impaired the witness's line of sight. A meteorological expertise was also obtained to assess whether the weather could have had a similar hampering effect.", "12. On an unspecified date, the Prosecutor's Office filed an indictment for murder against the applicant with the Plovdiv Regional Court. 13. Subsequently, the Plovdiv Regional Court remitted the case back to the investigation stage on at least two occasions. 14.", "Revised indictments were entered against the applicant on 13 January and 14 October 1999. The final indictment against the applicant was for murder with extreme viciousness. The prosecution claimed that the applicant had beaten up the victim after he had refused to lend him money to pay his bill in the bar. 15. The Plovdiv Regional Court conducted six hearings between 30 January and 3 December 2001.", "16. In a judgment of 3 December 2001 the Plovdiv Regional Court, acting as the court of first instance, acquitted the applicant. According to the minutes, it then ordered his release, but imposed a restriction on him not to leave his place of residence without the permission of the Prosecutor's Office. The court considered that it was unclear whether the applicant's confession was given voluntarily. Assessing it in the light of the other evidence and witnesses' statements, the court found that the prosecution had failed to prove its case against the applicant.", "17. The Prosecutor's Office appealed against the judgment on 18 December 2001. 18. It is unclear how many hearings were conducted before the Plovdiv Court of Appeals. 19.", "In a judgment of 20 September 2004 the Plovdiv Court of Appeals quashed the lower-court's judgment and examined the case on the merits. It found the applicant guilty of murder with extreme viciousness, sentenced him to seventeen years' imprisonment and ordered that he pay damages to the victim's family. In reaching its decision, the Plovdiv Court of Appeals found that the first-instance court had given too much weight to the applicant's assertions that his confession had been extracted under duress, which it considered to be unsubstantiated. In addition, it found the applicant's version of the events on the night of the murder to be in contradiction with the other evidence in the case and to be in conflict with his actions on the next day when he tried to hide the clothes he had worn on the previous night and, subsequently, when he presented the police with other garments for examination. 20.", "On an unspecified date the applicant filed a cassation appeal against the judgment. 21. It is unclear whether and when the applicant's appeal was examined by the Supreme Court of Cassation. B. The applicant's detention and his appeals against it 22.", "The applicant was arrested by the police on 11 December 1997 and questioned. 23. On the next day, 12 December 1997, he was detained on remand by order of an investigator, which was confirmed by the Prosecutor's Office later on the same day. The applicant was assisted by a State-appointed attorney. The grounds for detaining him on remand, as stated in the decision of the investigator, were that “there is a danger that the charged may abscond or re-offend”.", "24. The applicant's detention was confirmed by a prosecutor on 11 May 1998 without citing any grounds. 25. At the latest, the trial stage of the criminal proceedings against the applicant began on 14 October 1999. 26.", "The applicant made several unsuccessful appeals against his detention. Information was provided only about some of them. 27. The applicant's appeals dating from 18 June, 2 September and some time at the beginning of November 1999 were dismissed by the Plovdiv Regional Court on 13 July, 15 September and 5 November 1999, respectively. Separately, an appeal dated 16 September 1999 was rejected on the next day by a judge-rapporteur of the Plovdiv Regional Court because he found that it had been filed only one day after the court had ruled on a previous appeal and considered that there was a lack of new circumstances justifying a new right of appeal.", "28. In each of his appeals, the applicant petitioned for his release and argued that there was no risk that he would abscond, re-offend or obstruct the investigation, because he had a permanent address, had no prior criminal record, was the main breadwinner in the family, the financial and living conditions of his wife and children had worsened, the two-year maximum period of pre-trial detention under Section 152 § 4 of the Code of Criminal Procedure (“CCP”) was being violated and, in any case, that there was insufficient evidence that he had perpetrated the offence. 29. In its decisions to dismiss the applicant's appeals the Plovdiv Regional Court found that there was a risk that the applicant might abscond, re-offend or obstruct the investigation essentially because he was charged with a serious intentional offence. In respect of the claimed violation of the two-year maximum period of pre-trial detention the court found that it had not been exceeded because that period concerned only detention pending the investigation stage of the proceedings and was not applicable to detention at the trial stage.", "30. The Plovdiv Regional Court explicitly refused to examine the specific evidence in the case as to whether there was a reasonable suspicion against the applicant. In its decision of 13 July 1999 it stated that “[t]he court does not find it necessary to consider the evidence in substance....” 31. Similarly in its decision of 15 September 1999 it considered that “[t]he court cannot go into the specifics of the case and examine the collected evidence in the context of the [present] proceedings....” 32. On an unspecified date in 2000 the applicant filed another appeal against his detention under the rules introduced on 1 January 2000.", "33. On 11 May 2000 the Plovdiv Court of Appeals dismissed the appeal, with reasoning similar to that contained in the previous decisions of the Plovdiv Regional Court. 34. On 29 August 2001 the applicant appealed before the Supreme Court of Cassation against the aforementioned decision of the Plovdiv Court of Appeals of 11 May 2000. The basis for the appeal was paragraph 19 of the Amendments to the CCP promulgated on 27 April 2001.", "35. On 24 September 2001 the Supreme Court of Cassation refused to initiate cassation proceedings. It found that it was not competent to review the lawfulness of a detention at the trial stage. 36. The applicant was released on 3 December 2001 by virtue of the judgment of the Plovdiv Regional Court.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Grounds for detention 37. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no.", "33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 38. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no.", "55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006). B. Scope of judicial control on pre-trial detention 39. On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no.", "41171/98, 30 September 2004). 40. In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts' task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 1‑02 Supreme Court of Cassation). C. Extraordinary right of appeal under the Amendments of the CCP of 27 April 2001 41.", "The relevant paragraph 19 provided the following: “Decisions of the appellate courts regarding the [grounds for] detention in pending cases, which have entered into force, can be appealed or challenged before the Supreme Court of Cassation within six months of entry into force of the present [amendments].” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 42. The applicant complained that his detention was excessively lengthy and unjustified. Article 5 § 3 of the Convention provides, insofar as relevant: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 43.", "The Government stated that the applicant's pre-trial detention was based on the reasonable suspicion that he had committed the murder of 2 December 1997. They further contended that the authorities had acted as diligently as possible in the present case and that the length of the detention was the result of a number of objective factors. In particular, the case was extremely complex and required the examination of numerous witnesses, commissioning of various experts' opinions, performing DNA tests and conducting a crime-scene experiment. Thus, the Government considered that there were no unreasonable delays attributable to the authorities. 44.", "The applicant replied that the authorities never examined carefully the question whether or not there was a real danger of him absconding or committing offences if released but that they had applied the defective automatic approach according to which persons accused of serious intentional offences must be detained. He recalled that he had had no prior criminal record and that his family's financial and living conditions required consideration. The applicant also considered that the period of detention was excessive irrespective of whether the case was at the stage of the preliminary investigation or pending before the courts. 45. The Court observes, at the outset, that the applicant was detained on remand falling under Article 5 § 1 (c) of the Convention from 11 December 1997 to 3 December 2001, a period of three years, eleven months and twenty-three days (see paragraphs 9, 16, 22 and 36 above).", "46. The Court notes that the complaint is similar to those in previous cases against Bulgaria where violations were found (see, for example, Ilijkov, cited above, §§ 67-87, and Shishkov v. Bulgaria, no. 38822/97, §§ 57-67, ECHR 2003‑I). Likewise, in their decisions to extend the applicant's detention the authorities failed to assess specific facts and evidence about the possible danger of the applicant absconding, re-offending or obstructing the investigation. In some decisions they referred to the serious intentional offence with which he was charged (see paragraph 29 above), while in others no grounds were cited at all (see paragraph 24 above).", "Moreover, they refused to examine the specific evidence in the case as to whether there was a reasonable suspicion against the applicant (see paragraphs 30 and 31 above). 47. Consequently, in so far as the authorities did not consider it necessary to justify the continuation of the applicant's detention on each and every occasion and to rely on specific facts and evidence in that respect, it appears that they applied the defective approach according to which remand in custody was imposed and maintained automatically whenever the charges concerned a serious offence, without analysis in concreto. 48. Accordingly, the Court finds that the authorities failed to justify the applicant's continued detention on remand for a period of almost four years.", "Thus, there has been a violation of Article 5 § 3 of the Convention in that respect. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 49. The applicant complained that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, he maintained that some of his appeal were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.", "Finally, the applicant complained that the Supreme Court of Cassation failed to rule on his appeal against his detention of 29 August 2001. Article 5 § 4 of the Convention provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 50. The Government stated that the courts had periodically examined all aspects of the lawfulness of the applicant's detention and had done so in observance of the presumption of innocence, the justification of the detention and other relevant factors, such as his personality. In addition, it contended that the applicant's appeals were decided speedily. 51.", "The applicant replied that the courts had not examined carefully whether there had been a danger of him absconding or re-offending if released and had refused to examine all aspects relevant to the lawfulness of his detention. He referred to previous cases against Bulgaria, where the Court found a violation when the domestic courts primarily relied on the seriousness of the offence to justify a continuation of the period of detention and disregarded the detainees' arguments concerning the alleged lack of danger of absconding, re-offending or hampering the investigation (see Nikolova and Ilijkov, both cited above). The applicant also argued that the courts had failed to speedily examine his appeals of 18 June and 2 September 1999. Finally, the applicant maintained that the courts failed to rule on his appeals of 16 September 1999 and 29 August 2001. 52.", "The Court reiterates that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the lawfulness, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Nikolova, cited above, § 58). 53. The Court notes that this complaint is very similar to those in previous cases against Bulgaria where violations were found (see Nikolova, §§ 54-66, and Ilijkov, §§ 88-106, both cited above). In particular, the courts considered that certain aspects of the lawfulness and the justification of the applicant's detention were beyond their jurisdiction (see Nikolova, cited above, § 61).", "In particular, the courts repeatedly failed to address the applicant's arguments and to assess specific facts and evidence about the possible danger of the applicant absconding, re-offending or obstructing the investigation, but simply relied on the seriousness of the charge against him to justify his continuing detention (see paragraph 29 above). In addition, they explicitly refused to examine the reasonableness of the suspicion grounding the arrest of the applicant, as noted in the decisions of the Plovdiv Regional Court of 13 July and 15 September 1999 (see paragraphs 30 and 31 above). 54. In view of the above, the Court finds that the applicant was denied the right to have the continued lawfulness of his detention reviewed effectively by a court. Thus, there has been a violation of Article 5 § 4 of the Convention in that respect.", "55. In view of this finding, the Court does not deem it necessary to inquire whether these defective judicial reviews were provided speedily nor whether all of them resulted in a final judicial decision (see, mutatis mutandis, Nikolova, § 65, and Ilijkov, § 106, both cited above). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 57. The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage. He claimed that he had felt anguish having been unjustifiably deprived of his liberty for a considerable period of time and without the possibility to effectively challenge his detention in court. 58. The applicant also claimed EUR 1,660 in respect of pecuniary damage as a result of loss of employment income during the period of his detention when he was allegedly unable to work.", "He based the amount of his claim on the statutory minimum monthly salary in force over the given period and claimed that if had he been at liberty, he could have worked and therefore derived the stated income. 59. The Government challenged the applicant's claims for damage. They argued that they were arbitrarily determined, excessive and that they did not correspond to the awards made by the Court in previous similar cases. Moreover, the Government considered the applicant's claim in respect of pecuniary damage to be unsubstantiated.", "60. The Court finds that the applicant's claim in respect of pecuniary damage is hypothetical and unsubstantiated in so far as he did not present any documents or evidence to show that he had been employed prior to his detention or that he had offers of employment for any period thereafter. Accordingly, the Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, noting its finding of violations of Article 5 §§ 3 and 4 of the Convention (see paragraphs 48 and 54 above) and deciding on an equitable basis, it awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 61. The applicant claimed EUR 5,930 for 145 hours of legal work by his lawyer before the domestic courts, at an hourly rate ranging from EUR 30 to EUR 75 depending on the type of work involved. He also sought EUR 4,875 for 90.5 hours of legal work by his lawyer before the Court, at the hourly rate of EUR 50 or EUR 75 depending on the work involved. Lastly, the applicant claimed EUR 169 for translation, phone, photocopying, postal and office expenses of his lawyer. The total amount thus sought was EUR 10,974.", "He submitted a legal fees agreement between him and his lawyer, invoices for translation costs and postal receipts. The applicant requested that the costs and expenses incurred should be paid directly to his lawyer, Ms E. Nedeva. 62. The Government stated that the number of hours claimed was excessive, that the hourly rate for the work performed by the applicant's lawyer was determined arbitrarily and that the claimed expenses were excessive and that they did not correspond to previous such awarded by the Court in similar cases. 63.", "The Court reiterates that according to its case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the instant case, it considers that the number of hours claimed, both for the work before the domestic courts and before the Court, seems excessive and that a reduction is necessary on that basis. Having regard to all relevant factors and noting that the applicant was paid EUR 701 in legal aid by the Council of Europe, the Court considers it reasonable to award the sum of EUR 500 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention; 2. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant having been denied the right to have the continued lawfulness of his detention reviewed effectively by a court; 3. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement: (i) EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros) in respect of costs and expenses, payable into the bank account of the applicant's lawyer in Bulgaria, Ms E. Nedeva; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 9 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "SECOND SECTION CASE OF R.Sz. v. HUNGARY (Application no. 41838/11) JUDGMENT STRASBOURG 2 July 2013 FINAL 04/11/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of R.Sz.", "v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,András Sajó,Işıl Karakaş,Nebojša Vučinić,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 11 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41838/11) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr R.Sz. (“the applicant”), on 5 July 2011. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr A. Grád, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3. The applicant complained under Article 1 of Protocol No.", "1 – read alone and in conjunction with Article 13 of the Convention – that the imposition of a 98% tax on part of his severance pay constituted an unjustified deprivation of property, with no remedy available. He also invoked Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. 4. On 21 February 2012 the application was communicated to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1973 and lives in Budapest. 6.", "The applicant had been employed by a State-owned limited company for about eleven years. On 1 July 2010 his employment was terminated by mutual agreement, with effect from 5 October 2010. 7. According to his labour contract, the applicant became entitled, amongst other benefits, to severance pay in the amount of four months’ salary – which was in excess by one month’s salary of that provided by the Labour Code – and to salary for the three months of his notice period. The benefits were reduced by taxes payable at that time[1] and paid to the applicant on 2 July 2010.", "The applicant’s benefits were subsequently taxed at 98% in their part exceeding 3,500,000 Hungarian forints (HUF)[2]. The exceeding part was HUF 8,130,939[3], the tax thus amounting to HUF 7,968,320[4]. The amount payable was HUF 4,054,085[5], regard being had to the fact that the benefits had already been taxed HUF 3,914,235[6] on payment, on 2 July 2010. The tax, whose due date was apparently 10 May 2011, was paid on 23 February 2011, that is, according to the rules of the second version (of 30 December 2010 – see paragraph 12) of the legislation outlined below; however, the third version (of 14 May 2011 – see paragraphs 16-17) did not change the applicant’s situation. II.", "RELEVANT DOMESTIC LAW 8. On 22 July 2010 Parliament adopted Act no. XC of 2010 on the Adoption and Modification of Certain Economic and Financial Laws (“the Act”). The Act, which was published in the Official Gazette on 13 August 2010, introduced inter alia a new tax on certain payments for employees of the public sector – including those of State-owned enterprises such as the applicant’s employer – whose employment was terminated. Consequently, severance pay and other payments related to the termination of employment (such as salary for the notice period) exceeding HUF 2 million became subject to a 98% tax.", "However, income tax and social security contributions already paid could be deducted from the tax. Notwithstanding the limit of HUF 2 million, the statutory provisions on the sum of severance pay were not modified. The bill preceding the Act justified the tax with reference to public morals and the unfavourable budgetary situation of the country. 9. The Act entered into force on 1 October 2010; however, the tax was to be applied to the relevant revenues as from 1 January 2010.", "Simultaneously, the Constitution was also amended establishing retroactive tax liability in respect of the given tax year concerning “any remuneration against good morals” paid in the public sector. 10. The Act was challenged before the Constitutional Court within the framework of an abstract ex post facto control. This court found the relevant provisions unconstitutional in decision no. 184/2010.", "(X.28.) AB on 26 October 2010. According to the Constitutional Court, revenues earned solely on the basis of relevant statutory provisions (that is, the overwhelming majority of the revenues concerned by the disputed legislation) could not be regarded as being against good morals, and therefore not even the constitutional amendment justified a retroactive 98% tax. The Constitutional Court pointed out that it reviewed the rate or amount of taxes only exceptionally; however, it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated, i.e. was disproportionate and unjustified.", "Considering also the “fifty-percent rule” (Halbteilungsgrundsatz) set out by the German Federal Constitutional Court – according to which the overall tax load on assets must be limited to 50-60% of the yield on those assets – the court found that the 98% tax was excessive and punitive, yet it equally applied to severance pay earned in a fully untainted manner. The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established. The Constitutional Court annulled the relevant provisions retroactively, that is, from the day of the Act’s entry into force. It relied on the above arguments, rather than on considerations about the protection of property, to which its scrutiny did not extend in the case. 11.", "The Constitutional Court’s decision contained in particular the following considerations: “5.2. ... [The Act] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria, that is, to those ... received from any source specified in the Act and exceeding the [relevant] amount .... The Act does not apply only to budgetary institutions but to other, State-owned employers as well. The use of private resources depends on the citizens’ relatively free choices and autonomous decisions. However, decisions concerning public funds are different.", "[The impugned legislation] relates to public funds, and determines – at least indirectly – the use of public resources. 5.3. ... Depending on the circumstances, [the] 98% tax may apply to payments which derive from the obligatory application of cogent legal provisions. ...", "In these cases, the special tax does not function as a regulatory instrument, given its inescapable factual basis. Nor does it aim to prevent abusive payments; its purpose is rather to levy almost the entire income [in question] for the central budget. ... The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified. ...", "The material case concerns a substantial punitive tax which also applies to payments which are received, by virtue of law and within the limits of the proper exercise of rights, upon the termination of employment in the public sector. The Act would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation. It would deprive the taxable persons of incomes originating in unconditional statutory entitlements. ... To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax. The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law.", "However, imposing a tax or other similar duty is no constitutional means to achieve such purpose. Several constitutional instruments are at the disposal of the legislator to accomplish its objective. It may reduce or even abolish some State allowances falling under the scope of the Act for the future, or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit. Nonetheless, the discretion of the legislator only prevails in the framework of international and European community law.” 12. Upon a new bill introduced on the same day as the date of the Constitutional Court’s decision, on 16 November 2010 Parliament re-enacted the 98% tax with certain modifications, according to which this tax applied from 1 January 2005; however, for the majority of those affected (excluding some senior officials) it only applied to revenues above HUF 3.5 million.", "The new legislation was published in the Official Gazette of 16 November and entered into force on 30 December 2010. 13. At the same time, Parliament again amended the Constitution, allowing retroactive taxation going back five years. Furthermore, the Constitutional Court’s powers were limited: the amended articles of the Constitution contained a restriction on the Constitutional Court’s right to review legislation on budgetary and tax issues. This restriction – which has also been maintained in the new Basic Law in force from 1 January 2012 – allows for constitutional review only in respect of violations of the right to life and human dignity, the protection of personal data, freedom of thought, conscience and religion, and the rights related to Hungarian citizenship.", "14. Upon a petition for an abstract ex post facto control, on 6 May 2011 the Constitutional Court annulled – notwithstanding its limited powers – the five-year retroactive application of the 98% tax in decision no. 37/2011 (V.10.) AB, relying on the right to human dignity. However, the reasoning of the decision underlined that only the taxation of revenues gathered before the 2010 tax year constituted a violation of the right to human dignity.", "The Constitutional Court did not find unconstitutional as such the Act’s presumption that the relevant revenues infringed good morals; however, it ruled that this presumption should be susceptible to a legal challenge. In view of its limited jurisdiction, it did not consider the substantive aspects of the tax. 15. The Constitutional Court’s decision contained in particular the following considerations: “1. ...", "The Constitutional Court has held that the retroactive effect of the Act does not only apply to incomes earned contra bonos mores, but also to incomes originating in unconditional statutory entitlements. Payments of statutory amounts [which have not been abolished] cannot be regarded as being contra bonos mores. As regards the prospective provisions of the Act, the Constitutional Court has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector, and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements. However, in this case the legislator interpreted the “special rate” as an entire withdrawal of the income, by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden. 2.", "In pursuit of decision [no. 184/2010 (X.28. )AB], Parliament amended the rules on the Constitutional Court’s competence as well as the provision of the Basic Law determining the distribution of public burden, and re-enacted the special tax. ... 2.2. ... [The new legislation] contains no reference to the notion “contra bonos mores”, and allows for retroactive law-making with regard to the fifth tax year in arrears as well as for [any] imposition falling short of [the total] deprivation of income.", "... 4.1.1. ... The legal relations falling under the scope of the special tax are typically regulated by the so-called “legal status” Acts [i.e. the Acts concerning the legal status of civil servants]. [In this context, the] salary is specified by the so-called “pay scale”, which is independent from the parties and obligatory for them.", "[Moreover,] the personal scope of the special tax also includes employers and employees, mainly those who belong under the Labour Code, who can significantly influence the amount of the allowance received upon the termination of employment. ... In this respect, the special tax is a tax whose purpose is not to generate [State] revenue. It is, in this connection, a regulatory instrument. ... Certain taxes may serve not only the purpose of increasing State revenue, but also function as regulatory instruments.", "Secondarily, but not insignificantly, [this] taxation can be also seen as part of the State’s economic policy. In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion. ... 4.1.4. ... The special tax is not a general income tax applicable to all types of income, but rather a particular tax levied on non-repetitive, non-regular payments which relate to certain factual circumstances (i.e.", "the termination of a legal relation) and which exceed a certain limit. ... Such a tax with ex nunc effect cannot be considered to violate the right to protection of human dignity or to constitute an improper interference by the State with individual autonomy. Taking into account its base, the incomes not belonging in that base and their amounts, the special tax cannot be considered as completely dispossessing the tax subjects. ...", "The individual’s acquisition of the income subject to the special tax is restricted by a public-law limitation originating in that tax ... 4.2.4. ... In case of misuse of public resources, the limitation on payments might even have retroactive effect, [under] section 70/I (2) of the Constitution. The Constitutional Court has already emphasised in its decision [no. 184/2010 (X.28.", ")AB] that a retroactive special tax may be imposed on unfairly high payments, on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated over years; the Act aiming at preventing abuses and endorsing society’s sense of justice is not unconstitutional in itself, but must remain within the framework of the amended Constitution. 4.2.5. However, to impose tax on incomes [lawfully] acquired during the tax year ... cannot be considered as the implementation of the new paragraph (2) of section 70/I of the Constitution, but rather interference by a public authority with individual autonomy going to such lengths that cannot have constitutional justification, and therefore violates the taxpayers’ human dignity. ... The special tax does not provide for a fair and just assessment of individual circumstances; its retroactive rules apply to everyone [with two exceptions mentioned above] without differentiation.", "Nor does it take into account objective circumstances concerning a wide range of taxpayers, such as the economic crisis or emergency situations, which may disadvantageously influence the individuals’ circumstances. ...” 16. On 9 May 2011 Parliament again re-enacted the retroactive application of the 98% tax. The amendment to Act no. XC of 2010 was published in the Official Gazette on 13 May and entered into force on 14 May 2011.", "It provided that only relevant revenues earned after 1 January 2010 should be subject to the tax. The amended legislation did not contain any remedy available to those affected. 17. The Act, as in force as of 14 May 2011, provides (in sections 8-12/B) that the special tax rules are applicable to incomes received on 1 January 2010 or after. Incomes shall be subject to a 98% special tax where the private individual has worked at an economic operator or an organisation operating from public money, the payment is effected on account of the termination of the private individual’s work relationship, and the amount of the income exceeds HUF 3,5 (in certain cases 2) million.", "Incomes received between 1 January 2010 and 29 December 2010 were declared by private individuals by means of self-assessment, in tax returns submitted until 25 February or 10 May 2011 (depending on the taxpayer group). The tax was payable by the same dates. Members of Parliament, vice mayors and Members of the European Parliament declared their income earned in 2010 and subject to the special tax in a different manner, in a separate tax return submitted by 31 July 2011. They paid the special tax by the same date. Those who retired immediately on dismissal were exempted from the tax.", "Persons subjected to the payment of the special tax declared their taxable incomes earned between 1 January 2011 and 13 May 2011 by way of tax returns submitted by 25 February or 20 May 2012 (depending on the taxpayer group), and paid the tax by the same dates. In all other cases, the special tax is deducted by the payment issuer as withholding tax, and the deduction is indicated in the private individual’s tax return for the given revenue year. Any charges paid by or deducted from the private individual including, in particular, personal income tax or individual contributions shall be regarded as tax advances paid on the special tax. III. RELEVANT LAW OF THE EUROPEAN UNION 18.", "The Charter of Fundamental Rights of the European Union provides as follows: Article 34 - Social security and social assistance “1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.” The European Court of Justice held in Case C-499/08 Andersen v Region Syddanmark, [2010] ECR I-09343 as follows: “29. The aim pursued by the severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78.” European Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (2009/384/EC) provides as follows: “1. Excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.... 5. Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective.", "Therefore, there is a need to establish principles on sound remuneration policies.” In the case Michel Bourgès-Maunoury, Marie-Louise Heintz v Direction des services fiscaux d’Eure-et-Loir concerning the compatibility with European Union primary law of a national provision on the procedure for calculating a wealth tax, Advocate General Cruz Villalón reiterated that the principle that rules governing tax law and the exercise of fiscal power must not have confiscatory effects is a “well-known and widely-recognised idea” (Case C‑558/10, Michel Bourgès-Maunoury, Marie-Louise Heintz v Direction des services fiscaux d’Eure-et-Loir 12 Dec 2011, OJ C-46, 12, Opinion of AG Villalón). IV. COMPARATIVE LAW Germany – Federal Constitutional Court 19. In a judgment of 22 June 1995, the Federal Constitutional Court held that, according to Article 14 of the Basic Law, the use of property served the purpose of private gain and the public good. In that sense, property tax, combined with other taxes, might take no more than 50% of the income from property (Halbteilungsgrundsatz).", "The overall tax burden should moreover not run counter to the principle of equality demanding the division of burden depending on the contributing capacity (BVerfG, 2 BvL 37/91, 22.6.1995). In its subsequent decision of 18 January 2006 (BVerfG, 2 BvR 2194/99, 18.01.2006), the Federal Constitutional Court found that even though tax load fell within the ambit of Article 14 of the Basic Law, that is, the protection of property, the overall burden through business and personal income tax, in the particular circumstances, did not infringe the complainant’s right to property. In the instant case the overall tax burden in business and personal income tax combined amounted to 57.58%. The Federal Constitutional Court noted in this regard that it was permissible to charge high income with higher tax burden, as long as the taxable person, after deduction of the relevant tax, disposed of a remaining income representing his private performance. France – Conseil constitutionnel 20.", "In decision no. 2007-555 DC (16 August 2007; Act pertaining to work, employment and purchasing power), the Conseil constitutionnel held as follows[7]: “24o The requirement deriving from Article 13 of the declaration of 1789 would not be complied with if taxation were to be of a confiscatory nature or subjected a certain category of taxpayers to an excessive burden in comparison with their ability to pay taxes. The principle of the capping of the proportion of a tax household’s income allocated to paying direct taxes, far from infringing the principle of equality before public burden sharing, is intended to avoid a patent infringement of this same principle;” Switzerland – Federal Supreme Court 21. The Federal Supreme Court held that a taxation scheme that is confiscatory in its effects and not limited in time would infringe the essence of the right to property (Decisions of the Federal Supreme Court, BGE 106 Ia 342, 349; BGE 128 II 112, 126). To date, the Federal Supreme Court has not found that any taxation scheme was confiscatory.", "Decision no. BGE 128 II 112, 126 contains the following passage: “10 bb) ... In taxation matters, however, it [the guarantee of property, as set out in Article 26 of the Federal Constitution] does not go beyond the prohibition of confiscatory taxation. Therefore, a tax to be levied may not damage the very essence of private property. It is the task of the legislative branch to preserve the substance of the taxpayer’s assets and to allow him the chance to create new ones.", "In fact, a tax rate expressed in percentages is not the only decisive criterion in order to determine whether a taxation scheme has a confiscatory effect. It is necessary to examine the burden of the imposition for a rather long period and by not taking into account extraordinary circumstances. In order to accomplish this, all specific facts must be taken into consideration: the length and the gravity of the interference as well as the accumulation with other taxes or charges and the possibility to shift the tax to another person ...”. Decision of the Federal Supreme Court no. 2P.139/2004 contains the following passage: “4.2 The Federal Supreme Court has held that it is not compatible with Article 26 of the Federal Constitution if an annuity for life, inherited by bequest, of initially CHF 2200 per month is – regardless of the ability to pay other taxes of the person in receipt of the pension –taxed at 55 % in total, in terms of inheritance and income taxes as well as other expenses, which (taking into account of the tax sum due for over CHF 200,000) were necessary for their financing (Decision P.1704/1984, published in: ASA 56 p. 439 et seq.).", "In that specific case the specific circumstances were relevant because the heir could not secure her own existence after paying the taxes for the annuity for life.” United States – Supreme Court 22. In United States v. Lovett, 328 U.S. 303, 315 (1946) the Supreme Court dealt with the following problem: According to the provisions of the Urgent Deficiency Appropriation Act, after 15 November 1943 no salary or compensation was to be paid to certain individuals, who were then government employees, out of any moneys then or thereafter appropriated, except for services as jurors or members of armed forces unless they were prior to that date again appointed to jobs by the President with advice and consent of the Senate. In the background of the statute challenged lay the House of Representatives’ feeling that in the late 1930s many ‘subversives’ were occupying influential positions in the Government and elsewhere and that their influence must not remained unchallenged. In 1943 the respondents, Lovett, Watson and Dodd, were and had been for several years working for the Government. The Government agencies which had lawfully employed them were fully satisfied with the quality of their work and wished to keep them employed in their jobs.", "The Supreme Court held that the purpose of the provision challenged was not merely to cut off the plaintiffs’ compensation through regular disbursing channels, but permanently to bar them from government service and it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency. The Supreme Court reiterated that the Constitution barred such legislative acts by providing that “no Bill of Attainder or ex post facto Law shall be passed”. It found that the relevant provision was designed to apply to particular individuals and operated as a legislative decree of perpetual exclusion from a chosen vocation. It ruled that this permanent proscription from any opportunity to serve the Government was punishment of those individuals without a judicial trial and thus carried the usual characteristics of bills of attainder. The Supreme Court found that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are ‘bills of attainder’ prohibited by the Constitution”.", "The subject matter of the case Armstrong v. United States, 364 U.S. 40, 49 (1960) was as follows: The plaintiffs (Armstrong and al.) furnished various materials to Rice for use in construction of boats. Upon Rice’s default, the Government exercised its option as to ten of the boat hulls still under construction and removed these properties to out-of-state naval shipyards for use in the completion of the boats. When the transfer occurred, the plaintiffs had not been paid for their materials and they were not paid afterwards, either. Petitioners therefore contended that they had liens.", "The Supreme Court held “that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable ‘takings’ and what destructions are ‘consequential’ and therefore not compensable... The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here.” In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) the Supreme Court held that the Coal Industry Retiree Health Benefit Act 1992 amounted to an unconstitutional regulatory taking of property.", "It held that the economic impact of the Act was substantial as to Petitioner, in that it required Eastern Enterprises to contribute large sums of money to a pension fund for employees employed in the 1950s and 1960s solely because those payments could not be allocated to other coal companies that were currently operating in the coal industry. The retroactive effect of the Act imposed a substantial economic injury on Eastern Enterprises that could not have been anticipated. Moreover, the challenged statute interfered with Eastern Enterprises’ expectations in that in 1987 the company sold off its remaining holdings in coal operations and completely quit this industry. The statute’s requirement for Eastern Enterprises to undertake the obligation at issue clearly interfered with the expectations of Eastern when it sold off its interest in coal operations. Lastly, the nature of the government action was unusual because it retroactively applied a substantial economic burden on Eastern Enterprises.", "For the Supreme Court, the character of the government action was substantial and invasive. The balance of the factors resulted in the finding of an unconstitutional taking requiring just compensation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION 23.", "The applicant complained that the levying of tax at a rate of 98% on part of his severance pay had amounted to a deprivation of property which was unjustified. He relied on Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government contested that argument.", "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 parties’ submissions a. The Government 25. The Government did not dispute that the contested deprivation of revenue had amounted to an interference with the applicant’s right to property. However, in their view, this interference was prescribed by law and pursued the legitimate aims of satisfying society’s sense of justice and of protecting the public purse.", "These aims of general interest were also recognised by the European Union which had initiated legislative steps (see paragraph 18 above) against excessive severance payments, as their amount often per se violated society’s sense of justice and the remuneration policy applied in the financial sector to executive officers had contributed to the international financial crisis of the past years. 26. The Government were further of the opinion that, in order to achieve the above aims of general interest, taxation can, in a democratic society, be regarded as the most suitable regulatory means. In so far as the impugned tax could be seen as modifying the contents of the applicant’s existing employment contract, they submitted that respect for contracts already concluded required that their modification or cancellation take place according to the laws, even if they contained seemingly lawful commitments at the expense of the State budget violating the society’s sense of justice. 27.", "The Government pointed out that by introducing the special tax the lawmaker had intended to strike a fair balance between the aim pursued and the limitation on the individual’s rights – by paying, at the same time, due attention to the circumstance that, in the midst of a deep world-wide economic crisis, additional burdens should be borne not only by the State but also by other market participants including senior civil servants and senior managers of State-owned enterprises, capable of influencing their own benefits. In the Government’s view, a wide margin of appreciation should be left to the national authorities in this respect. Significantly high tax rates were not unknown under the various tax regimes. The Government also emphasised that severance not exceeding HUF 3.5 million did not fall under the impugned Act (in this part, it was subject to the general personal income tax rate of 16%); therefore the sharing of burdens should be regarded as fair and just. In this connection the Government submitted that this sum was approximately equivalent to sixteen months’ average salary in Hungary in 2010.", "28. The deprivation of revenue had not imposed an excessive individual burden on the applicant, either. He had not been deprived of an existing possession or income, therefore the payment of the tax had not entailed unbearable hardships for him. The rate of the tax had not been excessive and – having regard to average Hungarian revenues, the social and economic situation and the amount of benefits received by the applicant – had not imposed a disproportionate burden on the applicant or endangered his subsistence. b.", "The applicant 29. The applicant submitted that he had received the severance pay lawfully – under the work agreement with his employer – but had had to pay back virtually the entire amount half a year later, retroactively, pursuant to the newly enacted Act. In his view, society itself had no “sense of social justice”; therefore such an aim could not be justified as one of public interest. Nor could the economic crisis serve as a basis for deprivation of private property in a democracy. The purpose of the impugned tax was furthermore questionable bearing in mind that a more favourable deadline was applicable for Members of Parliament and others.", "A 98% tax burden was so disproportionate that it should be considered as a disguised deprivation of property in violation of the Convention. Consequently, the intervention could not be considered either as “prescribed by the law” or “pursuing a general interest”. 30. Moreover, the applicant argued that he had received the severance pay significantly earlier than the end of his employment. By the time his employment had terminated he had already spent most of the money, unaware that he would have to retroactively pay back 98% thereof.", "Therefore the measure in question constituted a disproportionate and excessive burden for him. 2. The Court’s assessment a. Whether there was an interference with the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 31.", "In its judgment of 23 September 1982 in the case of Sporrong and Lönnroth v. Sweden, the Court analysed Article 1 as comprising “three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (Series A no. 52, § 61). The Court further observed that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable (ibid.). The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no.", "98). Moreover, an interference, including one resulting from a measure to secure payment of taxes, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must be a reasonable relationship of proportionality between the means employed and the aims pursued. The question to be answered is whether, in the applicant’s specific circumstances, the application of the tax law imposed an unreasonable burden on him or fundamentally undermined his financial situation – and thereby failed to strike a fair balance between the various interests involved (see M.A. and 34 Others v. Finland (dec.), no.", "27793/95, 10 June 2003; Imbert de Trémiolles v. France (dec.), nos. 25834/05 and 27815/05 (joined), 4 January 2008; Spampinato v. Italy (dec.), no. 69872/01, 29 March 2007; and Wasa Liv Ömsesidigt, Försäkringsbolaget Valands Pensionsstiftelse v. Sweden, no. 13013/87, Commission decision of 14 December 1988, Decisions and Reports 58, p. 186). 32.", "The Court recalls that in certain circumstances loss of ownership of property resulting from a legislative measure or from an order of a court will not be equated with a “deprivation” of possessions: in the cases of AGOSI v. the United Kingdom (24 October 1986, Series A no. 108) and Air Canada v. the United Kingdom (5 May 1995, Series A no. 316-A), the forfeiture or other loss of ownership was treated as a “control of use” of property within the meaning of the second paragraph of Article 1 Protocol No. 1. In Gasus Dosier- und Fördertechnik GmbH v. the Netherlands (23 February 1995, Series A no.", "306-B), impoundment was considered as a measure securing the payment of taxes within the meaning of the second paragraph of Article 1 in fine, while in Beyeler v. Italy ([GC], no. 33202/96, ECHR 2000‑I), the interference with the applicant’s property rights was examined under the first sentence of that Article. The Court does not consider it necessary to rule on whether the second sentence of the first paragraph of Article 1 applies in this case. The complexity of the factual and legal position prevents the impugned measure from being classified in a precise category. The Court recalls that the situation envisaged in the second sentence of the first paragraph of Article 1 is only a particular instance of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence (see, for example, Lithgow and Others v. the United Kingdom, 8 July 1986, § 106, Series A no.", "102). The Court therefore considers that it should examine the situation complained of in the light of that general rule (cf. Beyeler, cited above, § 106). 33. In the Court’s view, the classification of a general measure taken in furtherance of a social policy of redistribution as a “control of use” of property rather than a “deprivation” of possessions is not decisive in so far as the principles governing the question of justification are substantially the same, requiring both a legitimate aim and the preservation of a fair balance between the aim served and the individual property rights in question.", "Furthermore, a legislative amendment which removes a legitimate expectation may amount in its own right to an interference with “possessions” (see, mutatis mutandis, Maurice v. France [GC], no. 11810/03, §§ 67-71 and 79, ECHR 2005–IX; Draon v. France [GC], no. 1513/03, §§ 70-72, 6 October 2005; and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010). 34.", "In the present case, the Court notes that the parties agree that the impugned taxation represents an interference with the applicant’s right to peaceful enjoyment of possessions. The Court will examine the issue under the first paragraph of Article 1 of Protocol No. 1, subject to the specific rule concerning the payment of taxes contained in Article 1 in fine. b. Lawfulness of the interference i. General principles 35.", "The Court reiterates that Article 1 of Protocol No. 1 requires that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: indeed, the second sentence of the first paragraph of that Article authorises the deprivation of possessions “subject to the conditions provided for by law”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC] (merits), no. 25701/94, § 79, ECHR 2000–XII, and Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004‑V).", "36. However, the existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness. In addition, the legal basis must have a certain quality, namely it must be compatible with the rule of law and must provide guarantees against arbitrariness. 37. It follows that, in addition to being in accordance with the domestic law of the Contracting State, including its Constitution, the legal norms upon which the deprivation of property is based should be sufficiently accessible, precise and foreseeable in their application (see Guiso-Gallisay v. Italy, no.", "58858/00, §§ 82-83, 8 December 2005). The Court would add that similar considerations apply to interferences with the peaceful enjoyment of possessions. As to the notion of “foreseeability”, its scope depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see, mutatis mutandis, Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, § 109, 20 January 2009).", "In particular, a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR–2012). Similarly, the applicable law must provide minimum procedural safeguards commensurate with the importance of the principle at stake (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 88, 14 September 2010; Vistiņš and Perepjolkins v. Latvia [GC], no.", "71243/01, §§ 96-98, 25 October 2012). 38. The Court would, moreover, reiterate the finding in its settled case-law that the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In matters of general social and economic policy, on which opinions within a democratic society may reasonably differ widely, the domestic policy-maker should be afforded a particularly broad margin of appreciation (see, for example, Stec and Others v. the United Kingdom [GC], no. 65731/01, § 52, ECHR 2006–VI).", "39. In so far as the tax sphere is concerned, the Court’s well-established position is that States may be afforded some degree of additional deference and latitude in the exercise of their fiscal functions under the lawfulness test (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, §§ 75 to 83, Reports of Judgments and Decisions 1997–VII; OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 559, 20 September 2011). 40. Moreover, since in the present case the interference with the applicant’s peaceful enjoyment of possessions was incarnated by a tax measure, it is convenient to point out that retroactive taxation can be applicable essentially to remedy technical deficiencies of the law, in particular where the measure is ultimately justified by public-interest considerations.", "There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime (see National etc., cited above, §§ 80 to 83). However, no such deficiency of the law has been demonstrated in the circumstances of the present case. Therefore, the Court considers that particular caution is called for when assessing whether or not the impugned measure was “lawful” for the purposes of Article 1 of Protocol No. 1. ii. Application of the above-mentioned principles to the present case 41.", "The Court notes that the taxation of the severance pay in question was due after the enactment of the final version of the impugned legislation. In the applicant’s particular case, the tax was actually paid prior to that date, under the intermediary rules (see paragraph 7 above). In any case, the taxation complained of can be argued to have certain retroactive features. In particular, the taxed benefits themselves were generated on the applicant’s dismissal on 1 July 2010 and were paid on 2 July 2010 (see paragraphs 6 and 7 above) – which preceded the entry into force of the final amendment of the Act on 14 May 2011 (see paragraph 16 above). 42.", "The Court cannot overlook the legislative process leading to the enactment of the law affecting the applicant. It observes that the Constitutional Court found, in its first decision (see paragraph 11 above), the measure unconstitutional for being confiscatory (especially in regard to statutorily provided severance pay to civil servants who could not be considered to have received it in violation of good morals or otherwise illegally). In its second decision (see paragraphs 14 and 15 above) the Constitutional Court held that for the current tax year (that is, for 2010), the tax was not unconstitutional in regard to severance payments which were made before the entry into force of the Act, since it did not violate human dignity – which was the only basis for constitutional evaluation of a tax law after the reduction of the competences of the Constitutional Court. This did not, however, change the finding of substantive unconstitutionality of essentially identical provisions of the original Tax Act – only that the Constitutional Court could not review the slightly amended provisions of the Amendment. The modified Tax Act was enacted on 9 May 2011, published on 13 May 2011 and entered into force the next day, 14 May 2011, being applicable to severance and related payments earned after 1 January 2010 (see paragraph 16 above).", "However, the applicant had received the severance payment in question more than ten months earlier. 43. The Court also notes that the rules under which the applicant paid the tax in question were subsequently annulled by the Constitutional Court and the missing legislation was substituted for only on 14 May 2011 (see paragraphs 14 and 16 above), which in the Court’s eyes raises some doubts as to the presence of a proper legal basis. Moreover, the Court considers that the decisions of the Constitutional Court as such raise certain issues as to the constitutionality – and therefore the legality – of the impugned Act. The Court nevertheless finds that the final amendment of the Act can be accepted as providing a legal basis for the measure in question, taking into account the degree of additional deference and latitude afforded in this field (see paragraph 39 above).", "It considers that it is not necessary to take a position on the legality of the impugned tax measures, which concerned the applicant’s employment and severance pay, both having occurred long before the entry force of the Act, since this issue is taken into consideration under the proportionality test (see paragraphs 54 to 62 below). c. Public interest 44. The applicant challenged the legitimacy of the aim pursued by the impugned measure. In this connection, the Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property or interfering with the peaceful enjoyment of possessions.", "Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. Furthermore, the notion of “public interest” is necessarily extensive (see Vistiņš and Perepjolkins, cited above, § 106). 45. The Court further reiterates that the levying of taxes constitutes in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1 and that such interference may be justified under the second paragraph of that Article, which expressly provides for an exception in respect of the payment of taxes or other contributions.", "However, this issue is nonetheless within the Court’s control (see paragraphs 31 and 34 above). 46. Moreover, it is naturally in the first place for the national authorities to decide what kind of taxes or contributions are to be collected. The decisions in this area will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the States parties, the domestic authorities being better placed than the Court in this connection. The power of appreciation of the States parties in such matters is therefore a wide one (see Gasus Dosier- und Fördertechnik GmbH, cited above, § 60, and National etc., cited above, §§ 80-82).", "47. However, as regards the Government’s implied reference to European Commission Recommendation 2009/384/EC (see paragraphs 18 and 25 above), the Court finds that this consideration is immaterial in regard to the applicant. The measures envisioned in the Recommendation, which will be applicable in the future to restrict excessive payments in the financial sector, were conceived because “excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.” The Recommendation suggests national regulation that provides for performance-based components of remuneration based on longer-term performance and contains no reference to social justice expectations. For the Court, excessive risk-taking in the financial sector is irrelevant in the applicant’s particular case. 48.", "Nevertheless, given the above margin of appreciation regarding the determination of what is “in the public interest”, granted to general measures interfering with the peaceful enjoyment of possessions, the Court accepts that the “sense of social justice of the population”, in combination with the interest to protect the public purse and to distribute the public burden satisfies the Convention requirement of a legitimate aim, notwithstanding its broadness. The Court has no convincing evidence on which to conclude that the reasons referred to by the Government were manifestly devoid of any reasonable basis (compare and contrast Tkachevy v. Russia, no. 35430/05, § 50, 14 February 2012). However, serious doubts remain as to the relevance of these considerations in regard to the applicant who only received a contractually stipulated compensation and could not have been made responsible for the fiscal problems which the State intended to remedy. While the Court recognises that the impugned measure was intended to protect the public purse against excessive severance payments, it is not convinced that this goal was primarily served by taxation.", "As the Constitutional Court noticed, there was a possibility to change severance rules and reduce the amounts which were contrary to public interest, but the authorities did not opt for this course of action. However, it is not necessary for the Court to decide at this juncture on the adequacy of a measure that formally serves a social goal, since this measure is in any event subject to the proportionality test. d. Proportionality i. General principles 49. Even if it has taken place subject to the conditions provided for by law – implying the absence of arbitrariness – and in the public interest, an interference with the right to the peaceful enjoyment of possessions must always strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.", "In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the impugned measure (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 93, ECHR 2006‑V, and also paragraph 31 above). 50. In determining whether this requirement is met, the Court reiterates that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos.", "25088/94, 28331/95 and 28443/95, § 75, ECHR 1999-III, and Herrmann v. Germany [GC], no. 9300/07, § 74, 26 June 2012). Nevertheless, the Court cannot abdicate its power of review and must therefore determine whether the requisite balance was maintained in a manner consonant with the applicant’s right to the peaceful enjoyment of possessions, within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005‑VI).", "In the determination of the proportionality of the measure, the Court did in the past also consider the personal situation of the applicants, including their good faith (see Vistiņš and Perepjolkins, cited above, § 120). 51. In order to assess the conformity of the State’s conduct with the requirements of Article 1 of Protocol No. 1, the Court must conduct an overall examination of the various interests at issue, having regard to the fact that the Convention is intended to guarantee rights that are “practical and effective”, not theoretical or illusory. It must go beneath appearances and look into the reality of the situation at issue, taking account of all the relevant circumstances, including the conduct of the parties to the proceedings, the means employed by the State and the implementation of those means.", "Where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, and in an appropriate and consistent manner (see Fener Rum Erkek Lisesi Vakfı v. Turkey, no. 34478/97, § 46, 9 January 2007, and Bistrović v. Croatia, no. 25774/05, § 35, 31 May 2007). 52. In the context of tax collection, the Court considers that the suitability of methods is a consideration in the establishment of proportionality of a measure of interference (see, in the context of exercise of the State’s right of pre-emption, Hentrich v. France, 22 September 1994, § 48, Series A no.", "296 A). 53. Although Article 1 of Protocol No. 1 contains no explicit procedural requirements, in order to assess the proportionality of the interference the Court looks at the degree of protection from arbitrariness that is afforded by the proceedings in the case (see Hentrich, cited above, § 46). In particular, the Court examines whether the proceedings concerning the interference with an applicant’s right to the peaceful enjoyment of possessions were attended by basic procedural safeguards.", "It has already held that an interference cannot be legitimate in the absence of adversarial proceedings that comply with the principle of equality of arms, enabling argument to be presented on the issues relevant for the outcome of a case (see Hentrich, cited above, § 42; and Jokela v. Finland, no. 28856/95, § 45, ECHR 2002–IV). A comprehensive view must be taken of the applicable procedures (see AGOSI, cited above, § 55; Hentrich, cited above, § 49; and Jokela, cited above, § 45). ii. Application of the above-mentioned principles in the present case 54.", "As it transpires from its case-law, in the area of social and economic legislation including in the area of taxation as a means of such policies States enjoy a wide margin of appreciation, which in the interests of social justice and economic well-being may legitimately lead them, in the Court’s view, to adjust, cap or even reduce the amount of severance normally payable to the qualifying population. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality. In particular, as regards the existence of a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”, the Court notes at the outset that the Constitutional Court’s first decision can be understood to characterise the tax in question as amounting to a confiscatory measure. Moreover, tax rates exceeding 50% have been found unconstitutional in Germany, a Member State of the Council of Europe (see paragraph 19 above). However, in several European countries – such as Sweden, Belgium, the Netherlands, Portugal and Italy – personal income tax rates reached about 75% in the past – although those rates were usually applicable only to the highest income brackets, related to revenues clearly exceeding the amount that is contemplated in the context of the present case.", "It is also to be noted that the OECD average of top combined statutory personal income tax rates was 65.7% in 1981, 50.6% in 1990, 46.5% in 2000 and 41.7% in 2010[8]. 55. The applicable threshold in the present case was HUF 3.5 million, the amounts of severance pay falling below this limit being subject to the general personal income tax rates (a maximum of 32% in the period, see paragraph 7 above). By contrast, a tax rate of 98% was applied to that part of severance pay which exceeded the threshold. 56.", "In the instant case, the Court takes into consideration in the proportionality analysis that the tax rate applied exceeds considerably the rate applicable to all other revenues, without determining in abstracto whether or not the tax burden was, quantitatively speaking, confiscatory in nature. For the Court, given the margin of appreciation granted to States in matters of taxation, the applicable tax rate cannot be decisive in itself, especially in circumstances like those of the present case. 57. The Court observes that the applicant, who was entitled to severance pay according to his labour contract and whose acting in good faith has never been called into question, was subjected to the impugned measure notwithstanding the fact that the severance pay served the specific and recognised social goal of labour reintegration. 58.", "Moreover, to the extent that the Government may be understood to argue that certain senior managers of State-owned enterprises were capable of influencing their own benefits, which phenomenon could only be countered by targeted taxation (see paragraph 27 above), the Court is satisfied that – although the benefits in question were stipulated in the labour contract between the applicant and his employer – there is nothing in the case file to corroborate such an assumption of abuse in the case of the applicant, who in any event was not an executive of that enterprise. In particular, the Court notes that the applicant, having been in the service of the employer for about eleven years, was statutorily entitled to three months’ severance pay under the Labour Code (see paragraph 7 above), and acquired only one additional month’s amount under the labour contract. 59. As regards the personal burden which the applicant sustained on account of the impugned measure, the Court notes that he had to suffer a substantial deprivation of income in a period of presumable considerable personal difficulty, namely subsequent to the loss of employment. The Court would observe in this context that Article 34 of the Charter of Fundamental Rights of the European Union (see paragraph 18 above) endorses benefits providing protection in the case of loss of employment, and that according to the European Court of Justice, the aim pursued by severance pay – that is, helping dismissed employees find new employment – belongs within legitimate employment policy goals (see paragraph 18 above).", "Moreover, the Court cannot overlook the fact that the applicant received the benefits in question, reduced by the then applicable taxes, several months before the change in the revenue rules, and might have disposed of it already, unaware that subsequently he would have to surrender this money, almost in its entirety, in the levying of an additional tax. For the Court, this element – that is, the absence of a transitional period within which to adjust himself to the new scheme – is likely to have exposed the applicant to substantial personal hardships. In this connection the Court recalls that taxation at a considerably higher tax rate than that in force when the revenue in question was generated could arguably be regarded as an unreasonable interference with expectations protected by Article 1 of Protocol No. 1 (see M.A. and 34 Others, cited above).", "The tax complained of was not intended to remedy technical deficiencies of the pre-existing law, nor had the applicant enjoyed the benefit of a windfall in a changeover to a new tax-payment regime (compare and contrast, National etc., cited above, §§ 75 to 83). 60. Against this background, the Court finds that the measure complained of entailed an excessive and individual burden on the applicant’s side. This is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out as having been paid, directly or indirectly, out of the public purse. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden.", "61. The Court concludes that the specific measure in question, as applied to the applicant, even if meant to serve social justice, cannot be justified by the legitimate public interest relied on by the Government. It affected the applicant being in good-faith standing and deprived him of the larger part of an acquired right (statutorily guaranteed to a large extent), serving the special social interest of labour-market reintegration. In the Court’s opinion, those who act in good faith on the basis of law or contracts should not be frustrated in their expectations without specific and compelling reasons. Therefore the measure cannot be held to be reasonably proportionate to the aim sought to be realised.", "62. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No.", "1 63. The applicant also complained that he did not have any effective remedy at his disposal in respect of the alleged violation of his rights under Article 1 of Protocol No. 1. He relied on Article 13 of the Convention. 64.", "The Government contested that argument in general terms. 65. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 66. Having regard to the finding relating to Article 1 of Protocol No.", "1 (see paragraph 62 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 67. The applicant further complained that those retiring immediately on dismissal were exempted from the tax in question and, moreover, that certain categories of tax subjects (including the applicant) had to declare and pay the tax earlier than ex-Members of Parliament and others.", "Moreover, he also complained about the differentiation between taxing amounts of severance pay over HUF 3.5 million and taxing others under that threshold, asserting that this was discriminatory for those with long and/or senior employments giving rise to substantial severance pay. He relied on Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... property ... or other status.” 68. The Government contested these arguments in general terms.", "69. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see, for example, Chassagnou and Others, cited above, § 89). 70. In the circumstances of the present case, the Court is of the view that the inequality of treatment of which the applicant claimed to be a victim has been sufficiently taken into account in the above assessment that has led to the finding of a violation of Article 1 of Protocol No.", "1 taken separately (see paragraph 62 above). Accordingly, it finds that – while this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention (see, mutatis mutandis, Church of Scientology Moscow v. Russia, no. 18147/02, § 101, 5 April 2007). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72. The applicant claimed altogether 27,100 euros (EUR) in respect of pecuniary damage (that is, the tax amount complained of plus accrued interests) and non-pecuniary damage combined. 73. The Government found these claims excessive.", "74. Having regard to the fact that, in the absence of the 98% tax rate, the applicant’s severance would have been in all likelihood subject to the general personal income taxation, the Court awards the applicant EUR 25,000 in respect of pecuniary and non-pecuniary damage combined. The Court notes in this respect that there is no element in the case file or the parties’ submissions substantiating that the applicant had actually been in a position to influence his benefits due on dismissal (see paragraph 7 above). B. Costs and expenses 75.", "The applicant also claimed 1,000,000[9] Hungarian forints (HUF) for the costs and expenses incurred before the Court, billable by his lawyer. 76. The Government did not express a view on the matter. 77. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum of claimed, that is, EUR 3,400. C. Default interest 78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 read in conjunction with Article 13 of the Convention; 4. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No.", "1 read in conjunction with Article 14 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii) EUR 3,400 (three thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Raimondi, Jočienė and Lorenzen is annexed to this judgment.", "G.R.A. S.H.N. CONCURRING OPINION OF JUDGES RAIMONDI, JOČIENE AND LORENZEN We reiterate our concurring opinion expressed in the case of N.K.M. v. Hungary (no. 66529/11, 14 May 2013).", "[1] At 17% up until HUF 5 million and at 32% above this sum. [2] Approximately 11,900 euros (EUR) [3] Approximately EUR 27,600 [4] Approximately EUR 27,000 [5] Approximately EUR 13,700 [6] Approximately EUR 13,300 [7] See also: n° 2005-530 DC du 29 décembre 2005; n° 2011-638 DC du 28 juillet 2011 and n° 2012-662 DC du 29 décembre 2012 [8] See: Taxing Wages 2011 (OECD 2012) Special Feature: Trends in personal income tax and employee social security contribution schedules, p. 32, Figure S.2., www.oecd.org/tax/tax-policy/50131824.pdf [9] Approximately EUR 3,400" ]

[ "FOURTH SECTION CASE OF S.Z. v. BULGARIA (Application no. 29263/12) JUDGMENT (Extracts) STRASBOURG 3 March 2015 FINAL 3 June 2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of S.Z.", "v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Krzysztof Wojtyczek,Nona Tsotsoria, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 10 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29263/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms S.Z. (“the applicant”), on 3 May 2012. The President of the Section decided, of his own motion, not to disclose the identity of the applicant (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr Y. Grozev and Ms N.O. Dobreva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms Ani Panova, of the Ministry of Justice. 3.", "The applicant complained that the criminal proceedings for false imprisonment and rape perpetrated against her had been ineffective and excessively long. 4. On 16 January 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1977 and lives in Sofia. 6. On 19 September 1999 the applicant, then a 22-year-old student, left Sofia for Blagoevgrad in a vehicle with two young men, B.Z. and S.P., and another young woman whom she frequented at the time and whose acquaintance she had made through one of her close friends, H.I. During the journey the two men told her that they intended to “sell” her as a prostitute to people with whom they were in contact in Blagoevgrad, and then to “take her back” after receiving the money.", "The applicant refused, but was threatened by B.Z. On their arrival at Blagoevgrad the group met a number of people in various cafés in the town; those people were apparently involved in prostitution rings abroad and discussed with B.Z. and S.P. sending the applicant to Greece, Italy or Macedonia to work as a prostitute and her alleged experience in the trade. The applicant was told that three of the men they had met were police officers.", "The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for about 48 hours, following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police. 7. During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital. She subsequently received psychological counselling. 8.", "A criminal investigation was instituted by the Blagoevgrad District Public Prosecutor’s Office for abduction and false imprisonment; abduction for the purposes of coercing into prostitution; and rape. The applicant identified some of her assailants and two police officers whom the group had met prior to holding her against her will. She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western Europe. 9. In an order of 19 October 1999 the Blagoevgrad military prosecutor considered that there was insufficient evidence to prosecute the two police officers, Z.B.", "and Y.G., who had been charged with abduction, and discontinued the proceedings against them. The prosecutor observed, in particular, that after initially identifying the police officers, the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment. The prosecutor’s order was amenable to appeal, but the applicant does not appear to have lodged one. 10. During 1999 and 2000 several people involved were questioned, and an expert medical report was drawn up.", "The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial. However, on 12 April 2001 the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of H.I. and another individual, G.M. Subsequently the case was returned three more times for further investigation. In an order of 2 November 2001, the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back.", "He also noted a number of irregularities in the charges against the various defendants, such as wrong dates, inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained. The prosecutor also noted that the investigation had been carried out in the absence of one of the defendants without a duty lawyer being appointed and that some of the charges had to be amended, to take account, inter alia, of the fact that the applicant had attempted to commit suicide, which was an aggravating circumstance. In an order of 16 October 2002, the prosecutor noted that no measures had been carried out in accordance with his previous decision. In a further order of 12 March 2004, he observed that the instructions given had not been followed in their entirety, and in particular that the charges had not been amended. 11.", "The investigation was closed again and sent to the prosecutor on l3 November 2005. On 23 December 2005 the prosecutor decided to discontinue the proceedings against H.I. and G.M., who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively, on the grounds that the offences had not been made out. On appeal by the applicant, that decision was set aside by the court on 29 March 2006. 12.", "The investigation was closed in May 2007 and the applicant was served with the investigation file. She then requested that one of the men she had identified from a photo, Y.Y.G., also be charged with rape. Her request was rejected on 7 June 2007 by the district prosecutor, who considered that there was insufficient evidence against him, the applicant’s statement being the only basis for implicating him in the attack. On 26 June 2007 part of the investigation, which concerned the offences of which the applicant accused Y.Y.G. and K.M., was severed from the main proceedings and fresh proceedings brought against persons unknown.", "On 12 September 2007 the Blagoevgrad appellate prosecutor’s office upheld the decision not to charge Y.Y.G., noting that if new evidence were to emerge, the investigators could bring further charges in the proceedings against persons unknown. On 15 February 2008 those proceedings were stayed, on the ground that the perpetrators had not been identified. 13. On an unspecified date in 2007 seven defendants were committed for trial in the Blagoevgrad District Court on charges of false imprisonment, rape, incitement to prostitution or abduction for the purposes of coercing into prostitution. 14.", "On 5 December 2007 the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages. The court granted the application at a hearing held on 9 May 2008. 15. The Blagoevgrad District Court held 22 hearings. About ten of these were adjourned, mainly because the defendants or witnesses had not been properly summoned.", "The trial took place in the absence of one of the defendants, S.P., whom the authorities had been unable to find. 16. In a judgment of 27 March 2012, the court convicted L.D. and M.K. of gang rape, aggravated by the fact that the victim had attempted to commit suicide, and false imprisonment with aggravated circumstances.", "They were sentenced to six years’ imprisonment. B.Z. and S.P. were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to six and four years’ imprisonment respectively. S.D.", "was convicted of false imprisonment and sentenced to a fine of 3,000 levs (BGN). The court found that the offence of incitement to prostitution for which G.M. was being prosecuted was time-barred in accordance with the absolute limitation period and discontinued the proceedings against him. Lastly, it found H.I. not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as H.I.", "had not been present at the material time. The five defendants who had been convicted were ordered to pay the applicant damages, and the claim against the other two defendants was rejected. 17. The five defendants who had been convicted appealed. The applicant appealed only against the part of the judgment concerning S.D., requesting the imposition of a heavier sentence and an increase in the amount awarded in damages.", "18. Seven hearings before the Blagoevgrad Regional Court were adjourned on account of the absence of one of the accused or their lawyers. The first hearing on the merits took place on 8 November 2013. As two of the defendants, S.P. and G.M.", "had not appeared, the court decided to examine the case in their absence. 19. In a final judgment of 11 February 2014, the court set aside S.D.’s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time-barred. It amended the judgment concerning the other defendants: the classification of the offence of which L.D. and M.K.", "had been convicted was slightly amended and their sentence reduced to five years’ imprisonment. The sentence imposed on B.Z. was reduced to three years’ imprisonment and S.P.’s four-year prison sentence was upheld. 20. The court also reduced the amounts awarded to the applicant in non-pecuniary damages.", "It awarded the applicant a total amount of BGN 39,000, which was the equivalent of approximately 20,000 euros (EUR), ordering L.D. and M.K. to pay the applicant BGN 15,000 each, and B.Z, S.P. and S.D. to pay her BGN 4,000, BGN 3,000 and BGN 2,000 respectively.", "21. During the judicial proceedings the applicant, who was living in Sofia, had to travel to Blagoevgrad on numerous occasions to attend hearings. She was called to the witness stand seven times. According to a medical opinion produced by the applicant, each summons to appear before the court had adversely affected her psychological condition. ... III.", "RELEVANT INTERNATIONAL SOURCES A. Council of Europe Convention on Action against Trafficking in Human Beings 22. This Convention, which came into force on 1 February 2008 and was ratified by Bulgaria, provides in so far as relevant: Article 4 – Definitions “For the purposes of this Convention: a ‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;” Article 18 – Criminalisation of trafficking in human beings “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.” Article 30 – Court proceedings “In accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 6, each Party shall adopt such legislative or other measures as may be necessary to ensure in the course of judicial proceedings: a the protection of victims’ private life and, where appropriate, identity; b victims’ safety and protection from intimidation, in accordance with the conditions under its internal law ...” 23. With regard more specifically to court proceedings, the explanatory report to the convention provides as follows: “299.", "Court proceedings in human-trafficking cases – as often with any serious form of crime – may have unfortunate consequences for the victims: ... 309. Use of audio and video technology for taking evidence and conducting hearings may, as far as possible, avoid repetition of hearings and of some face-to-face contact, thus making court proceedings less traumatic. In recent years, a number of countries have developed the use of technology in court proceedings, if necessary adapting the procedural rules on taking evidence and hearing victims. This is particularly the case with victims of sexual assault. ... 310.", "In addition to the possible use of audio and video technology for avoiding traumatic or repeat testimony, it should be pointed out that victims can be influenced by the mental pressure of being brought face to face with the accused in the courtroom. To give them proper protection it is sometimes advisable to avoid their being present in court at the same time as the accused and to allow them to testify in another room. Whether it is the accused or the victim who is moved from the courtroom, video links or other video technology can be used to enable the parties to follow the proceedings. Such measures are necessary to spare them any unnecessary stress or disturbance when they give their evidence; the trial therefore has to be organised in such a way as to avoid, as far as possible, any unwelcome influence that might hinder establishing the truth or deter victims and witnesses from making statements.” B. Guidelines of the Committee of Ministers of the Council of Europe 24.", "The Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, adopted on 30 March 2011, remind the member States of the need to implement measures to eradicate impunity for such violations, be they perpetrated by State officials or authorities or by individuals. This document reads, inter alia, as follows: “When it occurs, impunity is caused or facilitated notably by the lack of diligent reaction of institutions or state agents to serious human rights violations. In these circumstances, faults might be observed within state institutions as well as at each stage of the judicial or administrative proceedings. States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system. ... Combating impunity requires that there be an effective investigation in cases of serious human rights violations.", "This duty has an absolute character.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. Relying on Articles 3, 8 and 6 § 1 of the Convention, the applicant complained that the criminal proceedings brought against her attackers had been ineffective. She complained in particular of excessive delays in the investigation and trial, the lack of investigation into the possible involvement of the two police officers and the failure to charge two of her assailants. Having regard to the nature of the complaints lodged by the applicant, the Court considers that these should be examined exclusively under Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B.", "Merits 1) The parties’ submissions 26. The applicant submitted that the criminal proceedings against her assailants had lacked the effectiveness required by Article 3 of the Convention. She alleged that the authorities had not prosecuted some of the people involved, including two police officers, Z.B. and Y.G., and two other individuals, Y.Y.G. and K.M., whom she had identified at the start of the investigation.", "She complained that the authorities had not made the necessary efforts to investigate the link between the two police officers and the prostitution ring into which attempts had been made to coerce her or to search for the other two individuals. The applicant maintained that the authorities had not displayed diligence in the conduct of the proceedings, which had been unduly prolonged; the dual effect of this was that she had endured further psychological suffering and the proceedings in respect of some of the perpetrators had become time-barred. 27. The Government considered that the criminal proceedings had been very complex on account of the nature of the facts and the involvement of several individuals. In their submission, the authorities had endeavoured to clarify the circumstances of the case, which had been difficult on account of the conflicting evidence of the persons involved, inconsistent explanations by the applicant and difficulties in locating certain suspects.", "They acknowledged that delays had occurred in the proceedings and that there had been omissions in the investigation, but considered that the authorities had done everything in their power to remedy that, particularly when the prosecutor had on several occasions sent the case back for further investigation. The proceedings had thus resulted in some of the perpetrators being punished and the applicant being awarded compensation. 2) The Court’s assessment a) Applicability of Article 3 of the Convention 28. It is not disputed in the instant case that the acts of rape and violence perpetrated against the applicant fall within the scope of Article 3 of the Convention (see M.C. v. Bulgaria, no.", "39272/98, § 148, ECHR 2003‑XII, and M.N. v. Bulgaria, no. 3832/06, § 34, 27 November 2012). b) General principles emerging from the Court’s case-law 29. The Court reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires them to take steps to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment inflicted by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI, and M.C.", "v. Bulgaria, cited above, § 149). 30. Such protection necessitates in particular establishing a legislative framework to shield individuals adequately from treatment incompatible with Article 3, particularly through the enactment of criminal-law provisions and their effective application in practice (see, inter alia, with regard to non-consensual sexual acts, M.C. v. Bulgaria, cited above, §§ 150-53, and M.N. v. Bulgaria, cited above, §§ 36-37).", "31. Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and punish those responsible. These obligations apply whatever the status of the persons charged, including private individuals (see Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007, and M.C. v. Bulgaria, cited above, § 153).", "Where, as in the present case, the preliminary investigations have led to prosecution in the national courts, the procedural obligations under Article 3 of the Convention extend to the proceedings as a whole, including the trial stage (see W. v. Slovenia, cited above, § 65). 32. In order to be effective, the investigation must be sufficiently thorough and objective. The authorities must take reasonable measures available to them to obtain evidence relating to the offence in question (see, in the context of criminal proceedings for rape, M.C. v. Bulgaria, § 151; M.N.", "v. Bulgaria, §§ 38-39; and W. v. Slovenia, § 64, all cited above, and P.M. v. Bulgaria, no. 49669/07, §§ 63-67, 24 January 2012). 33. The obligation to conduct an effective investigation is an obligation not of result but of means. Whilst this requirement does not impose an obligation for all prosecutions to result in conviction, or indeed in a particular sentence, the national courts must not under any circumstances be prepared to allow physical or psychological suffering to go unpunished.", "Time-barring of the criminal proceedings as a result of lack of action by the relevant authorities has accordingly led the Court to conclude that there was a failure to comply with the State’s positive obligations (see M.N. v. Bulgaria, cited above, §§ 46 and 49). 34. A requirement of promptness and reasonable expedition is also implicit in this context. In this connection the Court has considered it an essential requirement that investigations be promptly instituted and carried out.", "Irrespective of the outcome of the proceedings, the protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of the specific cases submitted to the authorities (see W. v. Slovenia, cited above, § 64, and Ebcin v. Turkey, no. 19506/05, § 40, 1 February 2011). c) Application of these principles to the present case 35. In the instant case criminal proceedings were instituted following a complaint filed by the applicant and some of the perpetrators were committed for trial. The Court notes, however, that the criminal proceedings – the preliminary investigation and the first and second-instance proceedings – lasted fourteen years in total, which at first sight appears excessive having regard to the authorities’ obligation to proceed promptly in such cases.", "The Government referred to the complexity of the case to explain the length, but the Court is not convinced that the complexity of the present case can justify proceedings of that length particularly as the main suspects had been identified by the applicant at the very beginning of the proceedings. 36. The preliminary investigation, which extended over a period of eight years, appears to have been considerably delayed. Apart from a number of periods of inactivity, the Court observes that the investigation was closed four times but the prosecutor decided to send the case back for further investigation on the grounds that the necessary investigative measures had not been carried out or that procedural irregularities had been committed, often despite instructions given by the prosecutor in the preceding committal decisions (see paragraph 10 above). These circumstances reveal a lack of diligence by the authorities and undeniably had the effect of delaying the investigation phase of the proceedings.", "They also incur the risk of causing the criminal proceedings to become time-barred. It turns out that prosecution of the less serious offences was indeed terminated on account of expiry of the absolute limitation period, which applies even where a criminal trial is under way (see paragraphs 16 and 19). 37. The lack of diligence of the authorities carrying out the investigation is also reflected in the failure to investigate certain aspects of the case, such as the involvement of the two police officers Z.B. and Y.G., and of two other individuals, K.M.", "and Y.Y.G., whom the applicant had identified as having been involved in the attack. Admittedly, it is not, in theory, the Court’s task to call into question the lines of inquiry pursued by the investigators or the findings of fact made by them, unless they manifestly fail to take into account relevant elements or are arbitrary (see Georgiev v. Bulgaria (dec.), no. 34137/03, 11 January 2011, see also Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 76, 27 September 2007). The Court also observes, with regard to the proceedings brought against the two police officers, that the applicant did not challenge the order of 19 October 1999 discontinuing the proceedings, although she could have appealed to a court against the prosecutor’s decision to discontinue the proceedings.", "It is a cause for concern, however, that given the nature of the offences in the present case and despite the applicant’s allegations that her assailants were members of a network trafficking in women with a view to their prostitution abroad, the authorities did not consider it necessary to examine the possible involvement of an organised criminal network and confined themselves to prosecuting the individuals directly responsible for the abduction and assault of the applicant. With regard to the involvement of the other two individuals, there is no evidence that following the prosecutor’s decision to sever the investigation in their regard the authorities displayed diligence and carried out concrete measures with a view to finding the individuals in question or gathering additional evidence. 38. The Court notes, lastly, that the judicial stage of the proceedings also lasted a considerable time which does not appear to be entirely justified by its complexity. Many hearings were adjourned without an examination of the merits of the case, on the grounds that some of the accused had not been properly summoned or had failed to appear.", "Even if the courts did take certain measures in that regard, such as examining the case in the absence of certain defendants, the proceedings were nonetheless considerably delayed. 39. The excessive length of the proceedings undeniably had negative repercussions on the applicant, who, clearly psychologically very vulnerable as a result of the attack, was left in a state of uncertainty regarding the possibility of securing the trial and punishment of her assailants and had to return to court repeatedly and relive the events during the many examinations by the court (see W. v. Slovenia, cited above, § 69). 40. In the light of the foregoing, the proceedings cannot be deemed to have satisfied the requirements of Article 3 of the Convention.", "Accordingly, the Court rejects the Government’s preliminary objection concerning the premature nature of the application and holds that there has been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Application of Article 46 41. The applicant submitted that her case had revealed a certain number of recurring problems regarding the ineffectiveness of criminal proceedings, in particular in cases of human trafficking.", "She asked the Court to indicate to the respondent Government, in terms of the individual and general measures they should adopt in execution of the judgment, for the purposes of Article 46 of the Convention, to appoint an independent expert to review the criminal proceedings in the present case and hear all those involved in the investigation. That expert’s report should be made public in order to bring to light the flaws in those proceedings and take the necessary measures to remedy these. 42. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. In respect of a judgment in which the Court finds a breach of the Convention or the Protocols thereto it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention.", "However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 254-55, ECHR 2012). 43. In the present case the Court has found an infringement of the procedural obligation, deriving from Article 3 of the Convention, on the respondent State to carry out an effective investigation of the allegations of ill-treatment suffered by the applicant, having regard, more specifically, to the excessive delays during the criminal proceedings and the lack of an investigation into certain aspects of the facts (see paragraphs 48-53 above). The Court observes that it has already found, on many occasions, violations of the obligation to carry out an effective investigation in applications concerning Bulgaria.", "It has concluded, accordingly, that there was a violation of the procedural obligations under Article 2 or Article 3 of the Convention in more than 45 judgments (see, inter alia, with regard to violence perpetrated by individuals, Angelova and Iliev v. Bulgaria, no. 55523/00, 26 July 2007, and the above-cited judgments Nikolay Dimitrov v. Bulgaria; M.N. v. Bulgaria; and P.M. v. Bulgaria; and, with regard to death or ill-treatment attributable to the authorities, Velikova v. Bulgaria, no. 41488/98, ECHR 2000‑VI; Angelova v. Bulgaria, no. 38361/97, ECHR 2002‑IV, and Dimitrov and Others v. Bulgaria, no.", "77938/11, 1 July 2014) Moreover, a number of applications concerning the obligation to carry out an effective investigation into cases of rape have recently been struck out of the list of cases following a friendly settlement reached between the parties or a unilateral declaration by the Government acknowledging a violation of Article 3 (see S.M. v. Bulgaria (dec.), no. 78421/11, 25 June 2013; A.S. v. Bulgaria (dec.), no. 78390/11, 25 June 2013; and S.L. and Others v. Bulgaria (dec.), no.", "8981/10, 14 May 2013). 44. In the majority of those cases the Court found that there had been substantial delays at the preliminary-investigation stage and that no thorough and objective investigation had been carried out. In certain situations it found that the delays had led to termination of the proceedings on the grounds that they were time-barred, where the suspects, despite having been identified, had not been formally charged (see Stoev and Others v. Bulgaria, no. 41717/09, § 48, 11 March 2014, and M.N.", "v. Bulgaria, cited above, § 49) or that, despite committal for trial of the presumed perpetrators and a trial being held, the “absolute” limitation period had expired (see Angelova and Iliev, § 103, and P.M. v. Bulgaria, § 66, cited above). Apart from repeated findings of failure to carry out necessary investigative measures, in certain cases the Court noted that the competent authorities had not taken account of certain evidence (see Dimitrova and Others v. Bulgaria, no. 44862/04, § 79-82, 27 January 2011; Nikolay Dimitrov, cited above, § 76; and Dimitrov and Others, cited above, § 145), had not sought to ascertain certain factual circumstances or the involvement of certain individuals in the criminal offence (see Dimitrova and Others, cited above, §§ 83-84, and Abdu v. Bulgaria, no. 26827/08, § 49, 11 March 2014) or that the prosecutor had persistently refused to comply with the court’s instructions regarding the preliminary investigation (see Biser Kostov v. Bulgaria, no. 32662/06, § 82, 10 January 2012).", "45. This non-exhaustive list of the various flaws found in a large number of cases reveals the existence of a systemic problem concerning the ineffectiveness of investigations in Bulgaria. The Court is aware, however, of the complexity of the structural problem found to exist and of the difficulty in identifying the exact causes of the shortcomings found or pinpointing the specific measures that should be implemented in order to improve the quality of investigations. In these circumstances the Court does not consider itself to be in a position to indicate which individual and general measures should be implemented for the purposes of executing the present judgment. It considers that the national authorities, in cooperation with the Committee of Ministers, are the best placed to identify the various causes of the systemic problem relating to the ineffectiveness of investigations and to decide which general measures are required – in practical terms – to prevent similar future violations, with a view to combating impunity and upholding the rule of law and the trust of the public and victims in the justice system (see Kaverzin v. Ukraine, no.", "23893/03, § 181, 15 May 2012). ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 3. Holds that there has been a violation of Article 3 of the Convention ...; ... Done in French, and notified in writing on 3 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosGuido RaimondiRegistrarPresident" ]

[ "THIRD SECTION CASE OF ALI v. ROMANIA (No. 2) (Application no. 30595/09) JUDGMENT STRASBOURG 15 October 2013 FINAL 15/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ali v. Romania (no.", "2), The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Corneliu Bîrsan,Luis López Guerra,Nona Tsotsoria,Johannes Silvis,Valeriu Griţco, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30595/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr Ahmad Ali (“the applicant”), on 27 May 2009. He was represented before the Court by Ms C. Boghina, a lawyer practising in Bucharest. 2.", "The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. 3. The applicant alleged in particular that the conditions under which he had been transferred from Rahova Prison to Jilava Prison on 2 December 2008, and the material conditions of his detention in Jilava Prison had breached his rights guaranteed by Article 3 of the Convention. 4. On 14 March 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962. 6. On 21 February 2002, the Bucharest County Court convicted the applicant of drug trafficking and sentenced him to thirteen years’ imprisonment.", "The judgment was upheld by the Supreme Court of Justice, which dismissed an appeal by the applicant on 15 May 2003. 7. The applicant started serving his sentence in Rahova Prison. On 2 December 2008 he was transferred to Jilava Prison. He remained in prison until his release on probation on 6 July 2010.", "1. The transfer from Rahova Prison to Jilava Prison 8. The circumstances of the applicant’s transfer from Rahova Prison to Jilava Prison are in dispute between the parties. (a) The applicant’s account 9. On 2 December 2008, the applicant, with seventy other detainees, was transferred from Rahova Prison to Jilava Prison.", "The applicant was informed about his transfer only that morning and he was allowed only ten minutes to take some personal belongings. 10. The detainees were kept in the reception area of Rahova Prison from 8.30 a.m. until 3.30 p.m. without water or food. The transfer to Jilava Prison took until 9.30 p.m. There they were again kept in the reception area of the prison without water or food until 3.30 p.m. the next day, when they were sent to their new cells.", "The applicant stated that they were kept without water or food for a day and a half. 11. Because he was transferred under these conditions, the applicant could not take with him his clothes, personal papers, books and other objects for personal use, among which were his Koran and prayer mat. The money from his account was transferred from Rahova Prison to Jilava Prison only six weeks later, leaving the applicant without the means to buy water, toiletries or telephone cards. (b) The Government’s account 12.", "The applicant was transferred from Rahova Prison to Jilava Prison with sixty‑one other inmates on 2 December 2008. They were kept in the reception area of Rahova Prison between 10.35 a.m. and 4.45 p.m. 13. The Government alleged that the reception area of Rahova Prison had toilets where the applicant could also get drinking water. They also submitted that the detainees had received food while waiting to be transferred. 14.", "The luggage of all the transferred detainees was subjected to inventory and sealed. 15. The applicant’s money was sent on 5 December 2008 and received at Jilava Prison on 10 December 2008. 2. The conditions of detention in Jilava Prison 16.", "The applicant and the Government disagreed as to most aspects of the conditions of detention. (a) The applicant’s account 17. The applicant alleged that the cells occupied by him were overcrowded. There were four tiers of bunk beds, the bottom level being used for the detainees’ personal possessions. However, the applicant did not indicate the number of detainees in the cell.", "18. The applicant also complained of unsatisfactory sanitary conditions and poor quality of food. He claimed that the temperature in the cells in winter was too low. He also alleged that there were rats and parasites in the cells. The toilet fittings were defective.", "The prison had no designated eating area, and the detainees were forced to eat in their cells, where there was no furniture other than the beds. The water seemed to be infested with worms and had a strange colour and taste. Also, the detainees did not have water between 10 p.m. and 6 a.m. The smell in the cells was appalling, and difficult to bear in summer due to the lack of hygiene. (b) The Government 19.", "The applicant was detained in Jilava Prison between 2 December 2008 and 6 July 2010. 20. Between 2 and 8 December 2008 the applicant was detained in cell no. 509, measuring 42.39 sq. m, which he shared with twenty other inmates.", "21. Between 8 December 2008 and 28 January 2010 the applicant was detained in cell no. 113, measuring 24.86 sq. m, which he shared with seven or eight other inmates. 22.", "Between 28 January and 6 July 2010 the applicant was detained in cell no. 111, measuring 24.86 sq. m. The cell was occupied by between four and eight detainees. 23. As regards cleanliness and hygiene, the Government submitted that every year the prison authorities signed contracts for rodent and pest control with companies specialising in this work.", "Disinfection of the cells was carried out at least once every three months. Moreover, the quality of the drinking water was tested regularly by the prison authorities, with the aid of a specialised laboratory. Furthermore, the food was fresh and of good quality. 24. Since 2008 significant rehabilitation work had been carried out by the prison authorities.", "The heating system, the sewerage and the water supply systems had been repaired. Some sections of the prison and detention rooms had also been modernised. II. RELEVANT DOMESTIC LAW 25. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no.", "275/2006, and from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) on prison conditions are given in the case of Iacov Stanciu v. Romania, (no. 35972/05, 24 July 2012). 26. The relevant parts of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the conditions of detention in Jilava Prison read as follows: “... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bed bugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses.", "No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3034.81 sq. m, while the population was 1460, meaning 2.08 sq.", "m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 27. The applicant complained about the conditions under which he had been transferred from Rahova to Jilava Prison, and about the material conditions of his detention in Jilava Prison, in particular about overcrowding and poor hygiene. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "Complaint concerning the material conditions of detention 1. Admissibility (a) The parties’ submissions 28. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained before the domestic authorities under Law no. 275/2006 about the material conditions of his detention in Jilava Prison. They argued that the remedy under Law no.", "275/2006 was effective. 29. The applicant disagreed. (b) The Court’s assessment 30. The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, overcrowding and poor hygiene.", "In this regard, it notes that in previous applications lodged against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal action suggested by the Government does not constitute an effective remedy (see Lăutaru v. Romania, no. 13099/04, § 84, 18 October 2011, and Radu Pop v. Romania, no. 14337/04, § 80, 17 July 2012). 31. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Jilava Prison.", "32. Noting further that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds, the Court concludes that it must therefore be declared admissible. 2. Merits (a) The parties’ submissions 33. The applicant submitted that the conditions of his detention in Jilava Prison were inappropriate.", "He alleged that he was put into overcrowded cells which were infested with insects and in a poor state of hygiene. He also contended that he received bad food and the water seemed to be infested with worms and had a strange colour and taste. 34. The Government, referring to their description of the detention conditions submitted before the Court, contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention, and that the applicant’s complaint was groundless. (b) The Court’s assessment 35.", "The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure of detention do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 36. A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no.", "53254/99, § 39, 7 April 2005). 37. The Court observes that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in certain circumstances the respondent Government alone have access to information capable of corroborating or refuting the allegations. A failure on the Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009, and Lăutaru, cited above, § 96).", "38. The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees and unsatisfactory levels of hygiene (see, in particular, Ciorap v. Moldova, no. 12066/02, § 70, 19 June 2007; Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002‑VI ; Petrea v. Romania, no. 4792/03, § 84, 29 April 2008).", "39. The applicant’s submissions about the overcrowded and unhygienic conditions correspond to the general findings by the CPT in respect of Romanian prisons and to the findings of the report of the Romanian Helsinki Committee in respect of Jilava. 40. The Court has already noted in Viorel Burzo v. Romania, (nos. 75109/01 and 12639/02, § 100, 30 June 2009) that the water in Jilava Prison was not drinkable, an aspect that raised a serious issue under Article 3 of the Convention.", "Moreover, the Court has already found violations of Article 3 of the Convention in similar cases in which the applicant cited the physical conditions of detention in Jilava Prison (see Jiga v. Romania, no. 14352/04, §§ 65-66, 16 March 2010, and Grozavu v. Romania, no. 24419/04, § 44, 2 November 2010). 41. The Court concludes that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3.", "42. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Jilava Prison. B. Complaint concerning the conditions under which the applicant was transferred from Rahova Prison to Jilava Prison Admissibility (a) The parties’ submissions 43. The Government raised a preliminary objection of non‑exhaustion of domestic remedies, in so far as the applicant had not complained before the domestic authorities under Law no.", "275/2006 of the conditions under which he was transferred from Rahova Prison to Jilava Prison. They also contended that the applicant’s allegations were unsubstantiated and at variance with the information submitted by the National Prisons Administration. 44. The applicant disagreed, contending that Law no. 275/2006 could not be considered an effective remedy.", "He also alleged that being deprived of personal and religious items, being transferred in substandard conditions, being deprived of water and food for a day and a half, tiredness and the absence of any information about either his destination or the reason for his transfer, caused him physical and psychological distress which amounted to inhuman and degrading treatment. He also claimed that the fact he was not informed that he was being transferred to another prison at least twenty-four hours in advance caused him unnecessary suffering which amounted to ill-treatment. Because he did not know early enough that he was being transferred he left Rahova Prison without personal documents and objects necessary for his religious observance. They were never found or sent to him. He contended that he had had great difficulty in replacing those items, because as a Syrian national he did not have close friends or relatives to help him in this respect.", "(b) The Court’s assessment 45. The Court finds that it is not necessary to examine the Government’s preliminary objections concerning the non-exhaustion of domestic remedies in respect of the conditions in which the applicant was transferred from Rahova Prison to Jilava Prison, because it considers that the applicant’s complaint is in any event inadmissible, for the following reason. 46. Having regard to the parties’ submissions, the Court is not convinced that the conditions under which the applicant was transported from Rahova Prison to Jilava Prison subjected him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and takes the view that his health and well-being were in fact secured. 47.", "It follows that this part of his complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48. As regards the applicant’s complaint under Article 9 of the Convention concerning his freedom of religion, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 50. The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage.", "51. The Government considered that the request for non‑pecuniary compensation was excessive and that a conclusion of a violation of the Convention would suffice to compensate for the non-pecuniary damage allegedly incurred. 52. The Court considers that the applicant suffered distress as a result of the conditions of his detention. It therefore awards him EUR 3,000 in respect of non-pecuniary damage.", "B. Costs and expenses 53. The applicant did not submit a claim for the costs and expenses incurred in the proceedings before the domestic courts and before the Court. C. Default interest rate 54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the conditions of detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of conditions of his detention in Jilava Prison; 3. Holds (a) that the respondent State is to pay to the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, which is to be to be converted into the respondent State’s national currency at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF DELIUCHIN v. MOLDOVA (Application no. 14925/03) JUDGMENT STRASBOURG 23 October 2007 FINAL 23/01/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Deliuchin v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 2 October 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14925/03) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Teodora Deliuchin (“the applicant”), on 17 December 2002. The applicant was represented by Mr V. Nagacevschi, from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. 2.", "The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr V. Pârlog. 3. The applicant complained that the failure to enforce the final judgment of 22 August 2002 in her favour had violated her right to have her civil rights determined by a court within a reasonable time, as guaranteed by Article 6 of the Convention, and her right to peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. 4.", "The application was allocated to the Fourth Section of the Court. On 15 February 2006 the President of that Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1946 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1997 a criminal investigation was initiated in respect of the applicant.", "She was detained in the remand centre of the Ministry of Internal Affairs between 18 June and 15 July 1998. She was again detained between 30 September and 31 October 1998 in the remand centre of the Ministry of Justice. The applicant allegedly complained to the prison authorities about the harsh conditions of detention in the remand centre of the Ministry of Internal Affairs. 8. By its final judgment of 20 May 1999 the Court of Appeal acquitted her of all the charges against her.", "9. The applicant initiated civil proceedings claiming damages for unlawful detention and related acts on the part of the prosecution and the courts. 10. On 26 December 2001 the Ciocana District Court found in her favour and awarded her 12,258 Moldovan lei (MDL, equal to 1,065 euros (EUR) at the time) in compensation for the pecuniary damage suffered and MDL 100,000 (EUR 8,688) for non-pecuniary damage. 11.", "On 19 March 2002 the Chişinău Regional Court upheld that judgment. 12. On 22 August 2002 the Court of Appeal partly quashed that judgment, reducing the compensation for non-pecuniary damage to MDL 10,000 (EUR 752). It upheld the award of compensation for the pecuniary damage suffered. That judgment was final and enforceable.", "13. The Prosecutor General requested the annulment of all previous judgments and the reduction of the award for non-pecuniary damage, as part of an extraordinary procedure. On 19 March 2003 the Supreme Court of Justice rejected that request. 14. On 21 November 2003 the Ministry of Finance transferred the amount corresponding to the compensation due to the Decisions Enforcement Department.", "According to that department, the applicant received the money on 26 February 2004. The applicant had submitted the enforcement warrant to the department on 23 October 2002. II. RELEVANT DOMESTIC LAW 15. The relevant domestic law has been set out in Prodan v. Moldova (no.", "49806/99, ECHR 2004‑III (extracts)). THE LAW 16. The applicant complained that the failure to enforce the final judgment of 22 August 2002 had violated her rights as guaranteed by Article 6 § 1 of the Convention. The relevant part of Article 6 reads as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... within a reasonable time by a tribunal ....” 17.", "She also complained that the failure to enforce the judgment had also violated her rights under Article 1 of Protocol No. 1 to the Convention. That Article reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. ADMISSIBILITY A.", "The complaints under Articles 3, 6, 8 and 13 of the Convention 18. In her initial application, the applicant also submitted complaints under Articles 3, 6 (access to justice regarding her complaint under Article 3), 8 and 13 of the Convention. However, in her observations on the admissibility and merits she asked the Court not to proceed with the examination of these complaints. The Court finds no reason to examine them. B.", "The Government's preliminary objection 19. The Government submitted that since the award made on 22 August 2002 in the applicant's favour had been paid on 21 November 2003 the applicant could no longer claim to be a victim of a violation of her rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. 20. The applicant disagreed, stating that she retained her victim status.", "21. The Court notes that it has already dismissed a similar objection raised by the respondent Government because “the payment ... did not involve any acknowledgement of the violations alleged” (see, for example, Prodan, cited above, § 47). Moreover, no compensation for delayed enforcement was paid. 22. In these circumstances, the Court considers that the applicant may claim to be a victim of a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No.", "1 to the Convention. 23. The Court considers that the applicant's complaints under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible.", "In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 24. The applicant complained that the non-enforcement of the judgment of 22 August 2002 in her favour had violated her rights under Article 6 § 1 and Article 1 of Protocol No.", "1 to the Convention. 25. The Government submitted that the applicant's rights had not been violated in view of the fact that she had received the entire amount awarded to her within a reasonable time. Moreover, a major part of the delay in enforcing the judgment was due to the annulment proceedings initiated by the Prosecutor General (see paragraph 13 above). 26.", "The Court reiterates that “a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed (see Koltsov v. Russia, no. 41304/02, § 16, 24 February 2005; Petrushko v. Russia, no. 36494/02, § 18, 24 February 2005; and Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). It therefore concludes that the enforcement proceedings should have begun immediately after the judgment became final on 22 August 2002.", "27. The Court also considers that the date on which the applicant received the compensation due is the only relevant date for determining the end of the enforcement proceedings, and not any previous date on which one State authority transferred funds to another for the purpose o enforcement. It therefore considers that the judgment of 22 August 2002 was enforced on 26 February 2004 (see paragraph 14 above). 28. The judgment therefore remained unenforced for approximately eighteen months.", "The Court recalls that it has found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in numerous cases concerning delays in enforcing final judgments (see, among other authorities, Prodan, cited above, and Luntre and Others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004). Having examined the material submitted to it, the Court notes that the file does not contain any element which would allow it to reach a different conclusion in the present case. In particular, it finds irrelevant, for the purposes of determining the reasonableness of the length of the enforcement proceedings, the fact that an extraordinary remedy was being pursued to challenge the final judgment.", "Such remedies, apart from in truly exceptional circumstances which do not appear to apply to the present case, are in themselves contrary to the Convention (see Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999‑VII, and Roşca v. Moldova, no. 6267/02, 22 March 2005). 29. Accordingly, the Court finds, for the reasons given in the cases cited above, that the failure to enforce the judgment of 22 August 2002 within a reasonable time constitutes a violation of Article 6 § 1 and Article 1 of Protocol No.", "1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 31. The applicant claimed EUR 303 for pecuniary damage, relying on the base rates of the National Bank of Moldova.", "32. The Government contested these calculations and considered that it had not been proved that the applicant had suffered pecuniary damage. 33. The Court considers that the applicant suffered pecuniary damage as a result of the failure to enforce the judgment of 11 April 2001 within a reasonable time. On the basis of the materials in the file, the Court accepts the applicant's claim in full.", "B. Non-pecuniary damage 34. The applicant also claimed EUR 1,500 for non-pecuniary damage. She referred to her advanced age (for Moldova) and to her suffering resulting from the belated enforcement of the final judgment in her favour. 35. The Government considered that the amount claimed was excessive, unsubstantiated and lacked a causal link with the alleged violation.", "36. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the non-enforcement of the judgment in her favour within a reasonable time, in particular given the nature of the award, which provided compensation for unlawful detention. However, the amount claimed is excessive. Ruling on an equitable basis, the Court awards the applicant EUR 800 for non-pecuniary damage. C. Costs and expenses 37.", "The applicant claimed EUR 300 for costs and expenses. Her lawyer expressly reduced his fees to account for the complaints withdrawn by the applicant. 38. The Government considered that the amount claimed was excessive and had not actually been incurred. 39.", "Having regard to the materials in the file and to its case-law on the matter at issue, the Court accepts this claim in full. D. Default interest 40. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 303 (three hundred and three euros) in respect of pecuniary damage, EUR 800 (eight hundred euros) for non-pecuniary damage and EUR 300 (three hundred euros) for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 23 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas Bratza RegistrarPresident" ]

[ "THIRD SECTION CASE OF V.D. AND OTHERS v. RUSSIA (Application no. 72931/10) JUDGMENT STRASBOURG 9 April 2019 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 V.D.", "and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Branko Lubarda,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Georgios A. Serghides,Jolien Schukking, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 19 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 72931/10) 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 eight Russian nationals (listed in the appendix) (“the applicants”), on 6 December 2010. The first applicant also lodged the present application on behalf of R., a Russian national born in 2000.", "2. The first applicant represented herself and the remaining seven applicants. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr V. Galperin, his successor in that office. 3. The applicants alleged, in particular, that the annulment of the first applicant’s guardianship over R. and his transfer to his biological parents’ care and the refusal to allow them access to R. had violated their right to respect for their family life, as guaranteed by Article 8 of the Convention.", "4. On 26 September 2012 the application was communicated to the Government. 5. On 19 March 2019 the Chamber, of its own motion, granted anonymity to the application (Rule 47 § 4 of the Rule of Court). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants live in Astrakhan. 7. The first applicant has been or is a guardian (a foster parent) of the second to eighth applicants. R. was a minor, who remained in the first applicant’s care from 20 July 2001 until 26 July 2010.", "8. At birth R. was diagnosed with several serious health conditions. He spent the first eight months of his life in hospital. As his condition remained very serious and unstable, his natural parents considered themselves unfit to attend to his needs and agreed for their son to be put into the care of the first applicant, who had qualifications in medicine and was an experienced paediatrician. 9.", "On 20 July 2001 the first applicant took R. from hospital and brought him at her place of residence. 10. On 23 November 2001 the Trusovskiy District Council in Astrakhan appointed the first applicant to act as R.’s guardian. The decision stated that R.’s parents were unable to ensure proper care of their child, who had serious congenital diseases, and that therefore they gave their consent in writing to the first applicant’s guardianship over R., and to his transfer into her care. 11.", "Eventually, at various dates in the period from 2003 to 2009 the first applicant also was appointed guardian to the second to eighth applicants. 12. Between 2001 and 2007, the first applicant and R.’s parents maintained good relations. 13. In 2007 R.’s state of health became more stable, and his parents expressed their wish to take him back into their care.", "The first applicant refused to return the boy. A. Proceedings concerning deprivation of parental authority 14. On an unspecified date the first applicant brought a claim against R.’s parents in an attempt to have them deprived of their parental authority over him. She argued that they had left R. in the children’s hospital shortly after his birth; that they had not expressed any interest in his life, health and development; that they had not visited him; and that financial support they had given had been inadequate given the child’s special needs.", "According to the first applicant, R.’s parents were now interested in the boy only with a view to improving their living conditions, as having a disabled child in their care could entitle them to better social housing. The first applicant thus insisted that R.’s parents had evaded their parental duties and thus should be divested of their parental authority over R. 15. In the proceedings before the first-instance court, the Ministry of Education and Science of Astrakhan Region (hereinafter “the childcare authority”) provided an expert report on the issue, in which they considered that R.’s parents “[did] not show any interest in his life or health condition, they [did] not participate in his upbringing, they [did] not provide any financial maintenance and [had] chosen not to fulfil their parental duties”. The report concluded that they should be deprived of their parental authority. 16.", "On 11 November 2008 the Trusovskiy District Court of Astrakhan (“the District Court”) dismissed the first applicant’s claim. In particular, it rejected as unfounded the first applicant’s argument that R.’s parents had abandoned him in the children’s hospital; it observed in this connection that no evidence had been submitted to it – in the form of a written statement by R.’s parents or certificates from any health institutions – to show that R.’s parents had ever formally renounced their parental authority over the boy. The court further observed that the decision to transfer their son under the first applicant’s guardianship had been taken by the child’s parents at a very difficult time of their lives, when they had faced a very stressful situation of being unable, on their own, to attend to their son’s needs. 17. The District Court also rejected the first applicant’s allegation concerning R.’s parents’ unwillingness or failure to visit their son in the absence of any obstacles.", "In the latter connection, the court observed that the first applicant had had a negative attitude towards R.’s parents’ unexpected visits, and she had never informed them of the child’s absence from his place of residence (for outings and trips abroad). Also, R.’s parents had been unable to obtain information about R.’s heath from the relevant healthcare institutions, as the latter had refused give them any such information at the first applicant’s written request. 18. The court also referred to statements of a number of witnesses which confirmed that R.’s parents had helped the first applicant with his maintenance, both financially and by providing various services requested by the first applicant; in particular, they had had maintenance and repair work in the first applicant’s housing done; they had ensured private transport for R.’s visits to medical appointments; they had supplied medicine and food for R.’s special diet; they had taken his clothes for cleaning and brought him clean clothes. 19.", "The court further considered the deprivation of parental authority to be an extraordinary measure that could only be applied on the grounds established in Article 69 of the Russian Family Code (see paragraph 68 below). In the circumstances of the case, the court did not discern any grounds justifying such a measure. At the same time, the court urged R.’s parents “to change their attitude towards [R.’s] upbringing” and imposed on the competent childcare authority an obligation to monitor their compliance with their parental obligations”. It also noted that the financial support provided by R.’s biological parents was insufficient and ordered that they pay the first applicant one quarter of their monthly income as child maintenance. 20.", "On 12 March 2009 the Astrakhan Regional Court (“the Regional Court”) upheld the first-instance judgment on appeal. B. First set of proceedings concerning the determination of R.’s place of residence 21. On 26 February 2009 the District Court dismissed an application by R.’s parents to have their son returned to them. 22.", "It established, in particular, that the first applicant had been taking good care of R.; that she had actively involved relevant specialist healthcare professionals to ensure that he had received the necessary medical treatment and constant care; she had created all conditions necessary for his life and development, taking into account his special needs. The court also noted that for the period when R. had remained in the first applicant’s care, there had been improvements in his state of his health and progress in his physical and psychological development. It furthermore referred to the evidence confirming that the first applicant’s foster children lived in good living conditions; that they played as a group; that their leisure activities were well organised, and included group nature outings. 23. The District Court also established, with reference to the available written evidence and witness statements, that, until that moment, R.’s parents had not maintained contact with R., and had never enquired as to his health.", "24. It further observed, with reference to the opinions of healthcare professionals and representatives of the childcare authority who had monitored R., that an abrupt change of surroundings, separation from the people he knew and immediate transfer to his biological parents could seriously traumatise the boy, endanger and harm his psychological state and thus aggravate his conditions. The boy would need a lengthy adaptation period to get used to his natural parents. 25. The court thus concluded that it would be in the child’s best interests to continue living with the first applicant for the time being.", "26. The judgment became final on 13 March 2009. C. Proceedings concerning R.’s parents’ access to him 27. On an unspecified date, R.’s parents brought a claim against the first applicant. They complained that she had been obstructing their contact with R. and requested that the court grant them access to the boy, and determine the manner in which they could exercise their contact rights.", "28. By a judgment of 7 May 2009 the District Court determined R.’s parents’ rights of contact with the boy. It established that they should have access to him each Friday from 4.30 to 5.30 pm at the first applicant’s home, and each Sunday from 2 to 4 pm at their home in the first applicant’s presence. 29. On 10 June 2009 the Regional Court upheld the first-instance judgment on appeal.", "30. The case file reveals that R.’s parents complied with the established order of their contact with R. D. Second set of proceedings concerning the determination of R.’s place of residence 31. On an unspecified date R.’s parents brought another claim against the first applicant and the childcare authority before the District Court. They asked for their son’s return and termination of the first applicant’s guardianship over him. 32.", "In the ensuing proceedings both parties were represented by lawyers. 33. In the context of those proceedings, two reports were drawn up by psychologists of the childcare authority. They reflected the results of monitoring by psychologists of contact sessions between R. and his parents. 34.", "The first report dated 29 December 2009 described two contact sessions that had taken place at various times on 25-27 December 2009. It stated, in particular, that R.’s parents had established good psychological contact with the child, and that they had showed a caring and loving attitude towards the boy. The report furthermore stated that, in view of R.’s special condition and the considerable delay in his physical and psychological development, his interaction with the adults was very limited; however, the parents managed to establish tactile and emotional contact with him. Overall, in so far as his conditions made it possible to ascertain, the child felt psychologically comfortable and calm in the presence of his parents. At the same time, the experts pointed out that the child was very fragile and that, for his psychological comfort, he constantly needed the presence of the first applicant.", "The experts also stated that R.’s parents had insufficient understanding of their son’s emotional state and interests, the particularities of his psychological condition and his capabilities. The report concluded that it was necessary to continue the process of the child’s adaptation to his parents and to that end the duration of the contact sessions between R. and his parents should be extended. 35. The second report dated 4 May 2010 described two contact sessions that had taken place on 29 and 30 April 2010. It noted the child’s very serious condition, which greatly limited his interaction with the outside world.", "It further stated, in particular, that R.’s parents had successfully established psychological contact with their son; that they understood adequately his psychological particularities, emotional state, needs and capabilities. According to the report, when with his parents, R. felt calm and comfortable. In the course of their interaction, R.’s parents had created a warm and beneficial environment propitious for the child’s development. 36. In the proceedings before the court, the childcare authority expressed a generally favourable opinion regarding R.’s return to his biological parents, but pointed out that, in view of R.’s state of health, his integration into his family should be gradual.", "In particular, the duration of his contact sessions with the parents, which to then had taken place twice a week in daytime, could be extended and could include night-time contact. 37. On 4 May 2010 the District Court allowed R.’s parents’ claims. 38. It examined in detail the circumstances of R.’s transfer to the first applicant’s care and the relations between the first applicant, R.’s parents and R. from that time forward.", "It pointed out, in particular, that R.’s parents had surrendered their son to the first applicant’s care given his very serious condition and her experience as a paediatrician; at that time they had considered themselves incapable of ensuring the specialist care he needed. 39. It rejected as untenable on the facts the first applicant’s argument that R.’s parents had abandoned their son in the hospital without valid reasons. It noted in this connection: “Neither the statements made by [R.’s] parents nor relevant medical documents [to confirm that argument] were presented to the court. The [defendants] denied this fact.", "They submitted that they had not abandoned their child. On the contrary, they wanted him to get better and to return to his family. It follows from the material in the case file that [R.] was given into the care of the guardian after his parents’ futile attempts to provide him with due medical care and in the child’s [best] interests ... [R.’s parents] did not intend to abandon their child ... Even though he was under the [first applicant’s] guardianship, [his] family took an interest in his life and health, they provided ... financial support.” 40. The District Court further referred to statements of various witnesses.", "In particular, eleven witnesses described the first applicant as a kind, caring and empathetic person, who helped other families with children with disabilities. They also stated that she had taken good care of R., that as a paediatrician she had attended to his needs, and that his condition had visibly improved owing to her efforts. The witnesses furthermore stated that the first applicant went with her foster children on trips, within the country and abroad. With respect to those statements the District Court noted that they confirmed only the first applicant’s good and caring attitude towards R. and the fact that she had duly performed her obligations towards him. However, in the court’s view, those statements did not show that R.’s parents were unable to take good care of the boy, nor that in view of R.’s physical and psychological condition he should continue living with the first applicant.", "41. The court also referred to statements of Ms Z., a paediatrician, who submitted that she had known and been treating R. since he had been eight months old when he had been given into the first applicant’s care. The child had suffered from a serious congenital illness and had spent considerable time in hospital. At that time, his condition was stable, yet serious owing to his diagnosis – a central nervous system disorder and mobility impairments. The child needed constant appropriate care and supervision rather than mere medical treatment.", "The child had grown in ten years, had changed emotionally. He reacted to the people around him. However, he could not take care of himself. He could not eat, drink or walk on his own. He was in need of constant care.", "Ms Z. also added that she had accompanied the first applicant when she had taken R. to Austria for medical treatment. The boy had had a different reaction when the first applicant had held him in her arms and when Ms Z. had held him in her arms. 42. Ms M., one of the psychologists who had drawn up the reports of 29 December 2009 and 4 May 2010 (see paragraphs 34 and 35 above), submitted that it had been established in the course of monitoring that R.’s parents had learnt to identify and adequately understand specific psychological and physical particularities of their son. They showed genuine interest in the child and surrounded him with truly parental attention, love and care.", "They regularly consulted psychologists concerning the psychological condition of a child with developmental difficulties, asking about the requisite material and toys for, and how they should build communication, with such a child. 43. The District Court went on as follows: “Accordingly, as a result of monitoring of the contact sessions, it has been established that [R.’s] parents communicated with [him] in a calm, sincere and benevolent manner. They successfully established psychological contact with him. They understood adequately his psychological particularities, emotional state, needs and capabilities.", "When with his parents, [R.] felt calm and comfortable. In the course of their interaction, they created a warm and beneficial environment favourable for the child’s development. According to the report on the plaintiffs’ living conditions ... in a two-room flat, the conditions were found satisfactory and corresponding to the family’s needs and favourable for children’s upbringing and living. [R.’s] parents provided the conditions necessary for [his] living and upbringing. ...", "The adduced materials reveal that [R.’s] parents are a stable ... family. They are well-to-do and make an adequate living. They have permanent employment [and a] stable income. They provided positive personal references from their employers and from their place of residence. They do not have a history of psychiatric diseases or criminal records.", "Accordingly, they meet all the conditions and can raise the child and provide him with due care.” 44. The court dismissed the first applicant’s argument that R.’s parents were seeking to cancel her guardianship in order to obtain better social housing. According to the court, this allegation had been refuted in the course of the proceedings by the explanations provided by R.’s parents, and by the evidence proving that their minor children, including R., owned shares in their flat. 45. It further rejected the argument advanced by the childcare authority that the child should be gradually integrated into his parents’ family (see paragraph 36 above).", "In the court’s view, such gradual integration would have a negative impact on the child’s psychological state. Furthermore, it would interfere with his right to live and be brought up in his family. The court further stated that R.’s parents were his natural parents; they showed due care and love for him, and had by that time established psychological contact with him on the basis of contact sessions that had taken place over a considerable period of time, in particular in their flat. The child understood that his mother and father were his parents, in so far as his psychological development allowed it. The court also pointed out that the childcare authority had admitted that the reunification of R. with his family ultimately served his interest.", "46. The District Court thus considered that “no convincing evidence [had been] submitted to show that [R.’s] parents [had been] unable to bring up their child with due care and attention”, and concluded as follows: “Regard being had to the above, the court holds that the plaintiffs’ claim should be granted and they should be reunited with their child in order for them to continue exercising their parental rights in respect of the child’s education and development. ... the court holds that the [administrative] decision ... [of] 23 November 2001 ... should be terminated as no longer needed.” 47. The first applicant appealed against the first-instance judgment. 48.", "On 23 June 2010 the Regional Court examined the first applicant’s appeal submissions, where she and her lawyer made their case in person. 49. It then upheld the judgment of 4 May 2010 on appeal. It considered that the District Court had thoroughly examined the case and accurately established the relevant circumstances; that on the basis of various pieces of written evidence, the report of 4 May 2010 regarding the effects of R.’s parents’ contact with him and a report on their living conditions being amongst their number, as well as on the basis of numerous witness statements, the first-instance court had taken a justified and well-reasoned decision that R.’s transfer to his biological family had been in his best interests. 50.", "On 26 July 2010 R. was transferred to his parents. E. Proceedings concerning the applicants’ access to R. 51. On an unspecified date the first applicant brought an action against R.’s parents on behalf of herself and on behalf of the other applicants in an attempt to gain access to R. She averred, in particular, that for the nine years during which R. had remained in her care, she and her foster children – the other applicants – had formed a family with a special bond existing between them; she further complained that, after R.’s transfer to his parents, there had been no contact between R. and the applicants, as R.’s parents had obstructed their attempts to maintain contact. 52. On 19 April 2011 the Sovetskiy District Court of Astrakhan (“the District Court”) dismissed the applicants’ claim.", "53. It observed, in particular, that Article 64 of the Russian Family Code (see paragraph 65 below) vested the authority to represent and protect a child’s interests in his or her natural parents, unless the latter’s interests stood in conflict with their child’s. The District Court stated, with reference to the available evidence and witness statements, that after R.’s transfer to his biological parents, they had established all the requisite conditions for the boy’s life and education, and had been fully able to attend to his needs. In particular, R. had undergone all the necessary medical examinations; and his parents had complied with healthcare professionals’ recommendations as regards his care and medical assistance. The court concluded that R.’s parents were acting in his interests.", "54. The District Court further noted that R.’s parents as well as the childcare authority objected to the applicants’ communication with R. It also observed that it was impossible to find out R.’s opinion on the matter in view of his medical conditions. 55. The District Court went on to observe that the first applicant was not a member of R.’s family or a relative, within the meaning of Article 67 of the Russian Family Code (see paragraph 66 below), nor did she have any legal ties with him after her guardianship over the boy had been terminated by a court decision, with the result that she did not pertain to the category of individuals entitled to seek access to the child under the Russian Family Code. In the court’s view, statements of a number of witnesses confirming R.’s attachment to the first applicant and her taking good care of him “were not grounds for including the first applicant in the category of individuals entitled under the relevant legal provision to claim access to the child”.", "56. The first applicant appealed arguing, in particular, that the first‑instance court had erred, in the absence of a forensic expert examination of the matter, in its finding that the second applicant had been incapable of having and forming attachments to her and the other applicants; she complained that her request to have such an expert examination ordered had been rejected by the District Court. The applicant also argued that the first-instance court should have applied Article 67 of the Russian Family Code by analogy, as the relationship between the applicants and R. had been similar to that between biological family members. 57. On 8 June 2011 the Regional Court upheld the judgment of 19 April 2011 on appeal.", "It noted, in particular: “When dismissing the [first applicant’s] claims, the [first-instance] court considered that, as set forth in Article 67 of the Family Code of the Russian Federation, the right of access to a child is granted to grandfathers, grandmothers, brothers, sisters and other relatives, while [the first applicant] is, as a matter of law, not regarded as a member of the family or a relative of a minor or any other person whose relationship with him is governed by family law (appointed guardians, custodians, de facto guardians) given that her guardianship has been terminated. The [Regional Court] upholds the above finding of the first-instance court. By virtue of the Family Code of the Russian Federation, the right of access to a child is granted to a grandmother, a grandfather, brothers and sisters, [and] the child’s close relatives who take part in his upbringing and education. Accordingly, the legislation protects [the relevant rights] of close relatives. The right of access to a child is not guaranteed to other individuals.” 58.", "As regards the first applicant’s argument that the first-instance court should have applied Article 67 of the Russian Family Code by analogy and should have considered her as R.’s family member given the nature of ties between them, the appellate court noted as follows: “When resolving the dispute, the court did not apply the law by analogy. ... [T]he members of the family, as a matter of law, are understood only as the individuals directly indicated in the Family Code of the Russian Federation. The resolution of a dispute by analogy would otherwise contradict the essence of the family relationship.” 59. The court also rejected the applicant’s argument that the first‑instance court had failed to determine the degree of R.’s attachment to the applicants; it stated in this connection that the argument in question “lacked a legal basis”. 60.", "The Regional Court also endorsed the District Court’s findings that R.’s parents had provided the requisite care to R.; and that they had carried out necessary medical and rehabilitation measures. It “[discerned] no evidence that R.’s rights or interests [had been] infringed” and dismissed the first applicant’s argument to that end as unsubstantiated. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Russian Family Code 1. Legal provision concerning protection of children’s rights 61.", "Article 54 provides that every child, that is to say a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as possible, a right to know his or her parents, a right to their care, a right to live together with them, except where it is contrary to his or her interests. 62. Article 55 entitles a child to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives. 63. By virtue of Article 57, a child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings.", "The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests. 2. Legal provisions concerning parents’ rights and obligations 64. Article 63 provides that the parents’ right to bring up their children has precedence over such a right of any other person. 65.", "Article 64 establishes that children’s rights and interests must be protected by their parents. The parents are entitled to act as legal representatives of their children and to protect their rights and interests in the children’s relations with any individuals or legal entities, including before the courts. The second part of the Article provides that parents have no right to represent their children if a competent childcare authority establishes the existence of a conflict between the parents’ interests and those of their children. If this is the case, the childcare authority has an obligation to appoint a representative for the protection of the children’s rights and interests. 66.", "By virtue of Article 67, grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, a childcare authority may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authority’s order, the relative concerned or the childcare authority may apply to a court for a contact order. The court must take a decision in the child’s interests and must take the child’s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law.", "67. Article 68 vests in the parents a right to seek the return of their child from any person who retains the child not on the basis of law or not in accordance with a court decision. In the event of a dispute, the parents are entitled to lodge a court claim for protection of their rights. When examining that claim, the court, with due regard to the child’s opinion, is entitled to reject the claim if it finds that the child’s transfer to the parents is contrary to the child’s interests. 68.", "Article 69 establishes that a parent may be deprived of parental authority if he or she avoids parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse. 3. Legal provisions governing guardianship 69. Article 148.1 provides, in particular, that the rights and obligations of a legal guardian are set in place by the Federal Law “On Guardianship” (see paragraph 70 below). It further provides that, unless it is provided otherwise in a federal law, the parents or persons replacing them forfeit their rights and obligations to represent and protect the child’s rights and lawful interests from the moment when a guardian receives such rights and obligations.", "It also establishes that a legal guardian is not entitled to obstruct a child’s contact with his or her parents and other relatives, except where it is contrary to the child’s interests. B. Federal Law “On Guardianship” 70. Federal Law no. 48-FZ “On Guardianship” of 24 April 2008 (Федеральный закон от 24 апреля 2008 № 48-ФЗ «Об опеке и попечительстве») provides in it section 15(2) that guardians are legal representatives of the children placed in their care and are entitled to act on their behalf for the protection of their rights and lawful interests without any formal authorisation.", "C. Ruling of the Supreme Court of Russia 71. In its ruling no. 10 on the application by the courts of legislation when resolving disputes concerning upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “... 6. In accordance with the law, the parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child not on the basis of law nor pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code). At the same time, a court is entitled, with due regard to the child’s opinion, to reject a parent’s claim if it finds that the child’s transfer to the parent is contrary to the child’s interests ...", "When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring the child up; the nature of the relations between the parent and the child, the child’s attachment to the individuals with whom he or she is living at that time, and other particular circumstances relevant for securing adequate conditions of the child’s living and upbringing by his or her parents as well as by the individuals with whom the minor is actually living and being brought up by ... 7. When examining parents’ claims for the return of their children from individuals with whom [the children] remain on the basis of the law or in accordance with a court decision (guardians, foster parents ...), it is necessary to find out whether the circumstances, which were the grounds for the transfer of a child to those individuals ..., have changed by the time the case is being examined, and whether the children’s return to their parents would be in their interests”. THE LAW I. PRELIMINARY ISSUE 72. The first applicant lodged the present application on behalf of R., alleging a violation of his rights under Articles 3 and 8 of the Convention, and under Article 14 taken in conjunction with Article 8 of the Convention.", "She argued that the conditions governing the individual applications under the Convention were not necessarily the same as the national criteria relating to locus standi (referring to A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013), and that a restrictive or purely technical approach to the issue of locus standi must be avoided (S.P., D.P. and A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported).", "In that connection, the first applicant insisted that she and R. had developed emotional ties that were equivalent to those between a mother and her child. The first applicant stressed that, unlike in the case cited by the Government, she had been taking care of R. for a very prolonged period, and more specifically during the first nine years of his life; during that period she had remained the only significant adult in his life. Moreover, during that period, she had had a formal legal link to R., having been his guardian. The first applicant further insisted that there was no conflict of interest between her and R., and that R.’s biological parents were not in a position to protect effectively his interests in the present case, given the issues it raised. The first applicant compared the situation in the present case with cases brought on children’s behalf by their natural parents deprived of the parental authority over those children, and argued that there was a danger that otherwise R.’s interests would never be brought to the Court’s attention.", "73. The Government contested the first applicant’s standing to represent R. before the Court, with reference to the cases of Moretti and Benedetti v. Italy (no. 16318/07, 27 April 2010) and Giusto and Others v. Italy ((dec.), no. 38972/06, ECHR 2007-V). They pointed out that, once her guardianship over the child had been terminated, the first applicant had lost any entitlement under domestic law to act as his legal representative.", "R.’s biological parents had full parental authority over him and were his legal representatives. They had never authorised the first applicant to represent R. before the Court. Therefore the part of the application lodged by the first applicant on R.’s behalf was incompatible ratione personae with the relevant provisions of the Convention. 74. The Court reiterates that the position of children under Article 34 of the Convention calls for careful consideration, as children must generally rely on other individuals to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (see A.K.", "and L. v. Croatia, cited above, § 47, and P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). It is necessary to avoid a restrictive and purely technical approach in this area; in particular, consideration must be given to the links between the child in question and his or her “representatives”, to the subject-matter and the purpose of the application and to the possibility of a conflict of interests (see S.P., D.P. and A.T. v. the United Kingdom (dec.), cited above; Giusto and Others (dec.), cited above; and Moretti and Benedetti, cited above, § 32).", "75. In the present case, the Court observes at the outset that the first applicant is not biologically related to R. Her situation is therefore different from the cases where the Court acknowledged natural parents’ standing to act on behalf of their children in whose respect they had been deprived of their parental authority; in the latter connection, the Court has held that it was in principle in the interest of children to preserve ties with their biological parents (see A.K. and L. v. Croatia, cited above, §§ 48-49, with further references). The Court further observes that the first applicant is no longer R.’s guardian, as her guardianship was definitively withdrawn by the court decision of 4 May 2010, as upheld on appeal on 23 June 2010 (see paragraphs 46 and 49 above), with the result that she no longer has legal status to act on his behalf in the context of judicial or other proceedings at the domestic level. Furthermore, R. has been transferred to, and is now living with, his parents, who have full parental authority over him, which includes, among other things, the representation of the minor’s interests.", "They have never authorised the first applicant to represent R. before the Court. Lastly, in view of R.’s serious medical conditions, he is clearly not in a position to express himself on the issue. 76. In such circumstances, the Court is bound to conclude that the first applicant does not have standing to act before the Court on R.’s behalf. This part of the application must therefore be dismissed as incompatible ratione personae with the Convention provisions, in accordance with Article 35 §§ 3 and 4 thereof.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 77. The applicants complained that the decisions of the national authorities to return R. to his biological parents, terminate her guardianship and to refuse them contact with him had amounted to a breach of Article 8 of the Convention, which, in its relevant part, reads as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1.", "The first applicant’s standing to lodge the present application on behalf of the second, third and eighth applicants (a) Submissions by the parties 78. In the initial set of their observations of 22 January 2013, the Government disputed the first applicant’s standing to lodge the present application on the second applicant’s behalf. They pointed out that the second applicant, who, according to the Government, had been born on 15 April 1994 (as indicated in the Government’s initial observations), or on 15 April 1995 (as indicated in the Government’s additional observations of 29 April 2013) had reached the age of majority, when, by virtue of the relevant domestic law, the first applicant had ceased to be her guardian, had lost any legal link with her and had thus no authority to act on her behalf either at the domestic or international level. In their additional observations of 29 April 2013, the Government raised the same objection in respect of the third and eighth applicants. They argued, in particular, that the first applicant was no longer authorised to act on behalf of the eighth applicant, who, in the Government’s submission, had been born on 29 April 1993; and as of 4 May 2013 had no longer been authorised to act on behalf of the third applicant, who had been born on 4 May 1995.", "79. The applicants submitted that the second applicant (born on 1 April 1994) had turned 18 years old on 1 April 2012, and had thus gained full legal capacity to participate in the proceedings before the Court. The second applicant had submitted a power of attorney authorising the first applicant to represent her interests before the Court. (b) The Court’s assessment 80. The Court observes that the question of the first applicant’s standing to lodge the present application on behalf of the second, third and eight applicants is directly linked to its competence ratione personae to examine that part of the application.", "It has to satisfy itself that it has jurisdiction in any case brought before it, and it is therefore obliged to examine the question of its jurisdiction at each stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III; Uslu v. Turkey (no. 2), no. 23815/04, § 18, 20 January 2009; Boucke v. Montenegro, no. 26945/06, § 63, 21 February 2012; and Buzadji v. the Republic of Moldova [GC], no.", "23755/07, § 70, 5 July 2016). 81. It further notes that, on 6 December 2010, the date when the present application was lodged, the second, third and eighth applicants were minors and the first applicant was their guardian thus having full authority to represent their interests and to act on their behalf. 82. Furthermore, in reply to the Government’s initial observations of 22 January 2013, the second applicant, who had come of age on 1 April 2012, confirmed her intention to pursue the application and signed a power of attorney authorising the first applicant to represent her in the proceedings before the Court.", "83. As regards the third and eighth applicants, on 29 April 2013 – the date of the submission by the Government of their additional observations and comments on the applicants’ claims for just satisfaction – the third applicant (born on 4 May 1995) was still a minor. Moreover, whilst the Government argued, without submitting any documentary evidence, that the eighth applicant had been born on 29 April 1993, the Court observes that, the documents enclosed by the applicants with their application form reveal that his actual date of birth is 29 April 2003. It is thus clear that, on when the parties completed the exchange of their observations in the present case, the third and eighth applicants were minors, and thus were not required to confirm their interest in pursuing the present application or to authorise formally the first applicant to represent their interests before the Court, as the first applicant, as their guardian (her legal status has not been disputed by the Government on any other grounds), had standing to act on their behalf before the Court. 84.", "Against that background, the Court is satisfied that the first applicant had standing to represent the second, third and eighth applicants in the present case. It concludes that, in so far as the application was lodged by the first applicant on their behalf, it is compatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. 2. Exhaustion of domestic remedies 85. In their additional observations of 29 April 2013, the Government briefly submitted that, the court claim for access to R. had been lodged by the first applicant on her behalf only.", "86. In so far as this argument may be understood as an objection as to the admissibility for failure to exhaust available domestic remedies of this part of the application in respect of the second to eighth applicants, the Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Buzadji, cited above, § 64). It notes that the Government did not raise this objection in their initial observations of 22 January 2013 on the admissibility and merits of the application; nor did it provide any explanation for that delay, or refer to any exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner. 87. They are therefore unable to rely on a failure to exhaust domestic remedies at this stage of the proceedings (see Topal v. Republic of Moldova, no.", "12257/06, § 27, 3 July 2018, and the authorities cited therein). 3. Existence of a “family life” between the applicants and R. (a) Submissions by the parties 88. The Government argued that the “family life”, within the meaning of Article 8 of the Convention, between the applicants and R. had only existed as long as the first applicant had officially remained R.’s guardian. They furthermore stressed that during that period R. had not lost ties with his natural parents, who, as the domestic courts had established, had not failed in their parental duties, and had provided financial support to him.", "In such circumstances, in the Government’s opinion, the applicant’s complaints in respect of any infringement of their “family life” were incompatible ratione materiae with Article 8 of the Convention. 89. According to the applicants, the ties between them and R. had amounted to “family life”, within the meaning of Article 8 of the Convention, which, in the applicants’ view, had expressly been acknowledged by the Government. (b) The Court’s assessment 90. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no.", "25358/12, § 140, 24 January 2017). The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII). 91. The Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months had amounted to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them.", "The Court took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child’s parents (see Moretti and Benedetti, cited above, §§ 49-50, and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012). 92. In the present case, the existence of family ties between the applicants and R. prior to his transfer to his natural parents was not in dispute between the parties. Indeed, although there was no biological link between the applicants and R., the latter remained in the first applicant’s constant care from the age of eight months for the first nine years of his life.", "It has never been disputed, either before the domestic authorities or before the Court, that during that period the first applicant fully assumed the role of a parent vis-à-vis that child. The other applicants, when still minors, were taken by the first applicant into her care at various times, and lived as family with R. for periods ranging from one to seven years (see paragraph 11 above) before R. was eventually transferred to his biological parents. Close personal ties between the applicants and the fact that the first applicant had assumed the role of R.’s parent were acknowledged by domestic courts in various sets of proceedings (see paragraphs 22 and 40 above). 93. In such circumstances, the Court is satisfied that the relationship between the applicants and R. constituted “family life” within the meaning of Article 8 § 1 of the Convention (compare Antkowiak v. Poland (dec.), no.", "27025/17, 22 May 2018). It follows that Article 8 of the Convention is applicable. 4. Conclusion 94. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Termination of the first applicant’s guardianship over R. and his transfer into his natural parents’ care (a) Submissions by the parties i.", "The applicants 95. The applicants argued that the termination of the first applicant’s guardianship over R. and his transfer into his biological parents’ care had constituted a disproportionate interference with their right to respect for their family life secured by Article 8 of the Convention. 96. They admitted that life in a family environment was a basic need of every child; however, they disagreed with the respondent Government that R. could realise that right only when living with his natural parents. They pointed out that, as the Government had acknowledged, their life with R. had constituted a “family life”, and argued that a question as to what form of family life would better serve a child’s interest should be resolved on the facts of a particular case, with due regard to the particular history of that child’s relations with his or her biological parents as well as to the ties between that child and his or her de facto family.", "97. They insisted that continuing living with them would have been in R.’s best interests, given, in particular, the circumstances of his life prior to the courts’ decision to terminate the first applicant’s guardianship and to transfer him to his natural parents’ care. By taking that decision, the domestic courts, in the applicants’ view, had failed to assess adequately all relevant circumstances and factors, and to base their decision on “relevant and sufficient” reasons. 98. In the above connection, the applicants argued, in particular, that, shortly after his birth, R.’s parents had actually abandoned him at the children’s hospital and had never come to see him there.", "Moreover, the very fact that a guardian had had to be appointed had been indicative that R. had been abandoned by his parents, as under national law guardianship had been possible only in respect of children left without parental care. 99. The applicants further disputed the Government’s arguments that R.’s parents had consented to the first applicant’s guardianship over their son and to his transfer into her care, as they had been unable to attend to his needs; and that the guardianship had been intended as a temporary measure until his condition had improved. In the latter connection, they submitted that in the administrative decision of 23 November 2001 (see paragraph 10 above) there had been no indication that the guardianship had been of a temporary nature; nor had time-limits or conditions in which the guardianship should be terminated been mentioned. The applicants also contended that R.’s parents could have remained living with R. and tried to organise necessary specialist care for him at home, with the assistance of healthcare professionals or by acquiring the necessary skills themselves, but instead they had chosen to live separately from the boy.", "In its judgment of 11 November 2008 – albeit at first instance – the District Court had found no grounds to deprive R.’s parents of their parental authority over R., it had pointed out to the necessity for them to change their attitude to R.’s upbringing (see paragraph 19 above), thereby implicitly acknowledging that R.’s parents had not fulfilled their parental obligations in a satisfactory manner. 100. The applicants went on to argue that R.’s parents had not maintained personal contact with him and had not expressed interest in regard to him during the first eight years of his life, this fact having been acknowledged in a judgment of 26 February 2009 (see paragraph 23 above). 101. They insisted that, in any event, when the decision to terminate the guardianship had been taken, the ties between R. and the applicants had been much stronger than his relations with his natural parents.", "Indeed, by that point in time, the boy had never lived with his parents, whereas it had been the first applicant who for the first nine years of his life had taken care of him on a daily basis, and had thus been the only significant adult for him. In the applicants’ view, the domestic courts had failed to have regard to R.’s best interests and, in particular, to the specific needs he had because of his medical conditions. 102. The applicants also expressed doubts that the measures taken with a view to ensuring R.’s adaptation to his biological parents and his integration into his family prior to his transfer into their care had been adequate, as they had been limited to several dozen short meetings with the parents. The applicants referred to the opinion of the childcare authority, who had considered those measures insufficient and had recommended to increase R.’s contact with the parents gradually instead of transferring him immediately into their care (see paragraphs 34 and 36 above).", "103. In such circumstances, termination of R.’s family life with the applicants and his transfer to the biological parents had, in the applicants’ view, mainly served their interests rather than those of the child. ii. The Government 104. According to the Government, termination of the first applicant’s guardianship over R. and his transfer to his natural parents’ care had met the requirements of Article 8 of the Convention.", "They argued, in particular, that the impugned measure had had a basis in national law, and more specifically in several Articles of the Russian Family Code, which had enshrined the right of each child to know, maintain contact with, live and be in the care of his or her parents; as well as the precedence of the parents’ right to bring up their children (see paragraphs 61, 64 and 67 above). 105. They further stressed that the impugned measure had been taken in the child’s best interests and had been necessary to ensure the respect for his parents’ rights secured by Article 8 of the Convention. In this connection, they pointed out, in particular, that R.’s biological parents had never formally renounced their parental authority over him; and that their parental authority had never been restricted, or withdrawn, by the competent authorities. The Government pointed out that, in various sets of proceedings, the domestic courts had established that R.’s parents had never abandoned their child; they had enquired about his life and health, supported him financially, and brought him necessary medicine and food for a special diet and clothes; and they had also responded to the first applicant’s requests regarding R. (see paragraphs 18 and 39 above).", "The Government thus argued that the family life between R. and his parents and other close relatives had never ceased to exist; his parents and other close relatives had always shown their deep attachment to him and had always considered him to be a member of their family. 106. The Government further submitted that it had been at a very difficult period of their life that R.’s parents had consented to their son’s transfer into the first applicant’s care; they had done so in view of his very serious medical condition, which at that moment had been critical. They, themselves, had been incapable at that period of providing the professional care that their child had needed, whereas the first applicant – a paediatrician – had been able to attend to his needs. The Government stressed that the guardianship had had to remain in place until R.’s condition had improved.", "In fact, in 2007, when R.’s state of health had stabilised, his parents had expressed their intention to take him home. They argued, more generally, that by its very nature, guardianship was a temporary measure which was to be ended as soon as the circumstances allowed it. 107. The Government also insisted that the domestic courts had carefully examined the circumstances of the instant case, had assessed the adduced written evidence and witness statements, and had based their relevant decision to terminate the first applicant’s guardianship over R. and to surrender him to his parents’ care on “relevant and sufficient” reasons. In particular, they had examined R.’s family situation, had taken into account various factors, had balanced the interests of various parties to the conflict and had taken a decision in the best interests of the child.", "108. More specifically, the domestic courts had been mindful of the fact that the applicants and R. had lived together for a very lengthy period, and had assessed, with reference to witness statements and written evidence, including the report of 4 May 2010 (see paragraph 35 above), the question of whether the boy’s removal from the applicants’ family could negatively affect his physical or psychological state. Moreover, R.’s transfer to his parents had only been ordered after a one-year period of adaptation during which R.’s parents and brother had re-stablished their family bonds with R. The domestic courts had satisfied themselves that R.’s parents had acquired the necessary skills to take care of R., that they had been able to understand his psychological and emotional state, his aptitudes and needs. 109. The Government thus argued that the impugned measure had not breached the applicants’ right to respect for their family life, as in the present case reunification with his natural parents had served the best interests of the child.", "(b) The Court’s assessment 110. The Court has found in paragraph 93 above that the relationship that existed between the applicants and R. when the authorities intervened constituted “family life”, within the meaning of Article 8 of the Convention. The annulment of the first applicant’s guardianship over R. and his transfer to his biological parents resulted in severance of that relationship and thus constituted an interference with the applicants’ right to respect for their family life, as guaranteed by Article 8 of the Convention (compare Ageyevy v. Russia, no. 7075/10, §§ 120 and 137, 18 April 2013, and Antkowiak (dec.), cited above, § 63). Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no.", "10592/12, § 74, 22 October 2015). 111. The Court accepts the Government’s argument that the impugned measures had a basis in national law, and more specifically, in Articles 54, 63 and 68 of the Russian Family Code (see paragraphs 61, 64 and 67 above). It is furthermore satisfied that those measures were intended to protect “the rights and freedoms of the others”, and specifically those of R. and his biological parents. It remains to be determined whether the interference at issue was necessary in a democratic society.", "112. In addressing this question, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “relevant and sufficient” for the purposes of Article 8 § 2 of the Convention. It cannot satisfactorily assess this latter element without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see, for instance, Schneider v. Germany, no. 17080/07, § 93, 15 September 2011). 113.", "It must further be borne in mind that the national authorities have the benefit of direct contact with all the individuals concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and contact issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their discretionary powers (see, among other authorities, Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004). 114. There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no.", "41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child’s best interests may, depending on their nature and seriousness, override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, for instance, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 95, 29 March 2016).", "The parents’ interests nevertheless remain a factor when balancing the various interests at stake. Child interests dictate that the child’s ties with his or her family be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see, as a recent authority, Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017). Article 8 of the Convention thus imposes on every State the obligation to aim at reuniting natural parents with his or her child (see Görgülü, cited above, § 45).", "115. In the present case, the domestic authorities were faced with a difficult choice between allowing the applicants, who at that time were R.’s de facto family, to continue their relationship with him or taking measures to bring about the boy’s reunion with his biological family (compare Antkowiak (dec.), cited above, § 70). To that end, they were called upon to assess and fairly balance the competing interests of R.’s parents and those of the applicants. They also had to bear in mind that, in view of his special physical and psychological conditions, R. was a particularly vulnerable child. The domestic authorities were therefore required to show particular vigilance in assessing his interests and to afford him increased protection with due regard to his state of health.", "116. In the above connection, the following considerations appear to be relevant. The Court notes, firstly, that, as pointed out by the applicants (see paragraph 101 above), R. spent the first nine years of his life in the first applicant’s care, a period during which she remained the boy’s primary carer, having fully assumed the role of his parent. The Court considers that, albeit undoubtedly a considerable period of time, this factor alone could not have ruled out the possibility of R.’s reunification with his biological family. Indeed, effective respect for family life requires that future relations between parent and child be determined in the light of all the relevant considerations and not by the mere passage of time (see Ribić v. Croatia, no.", "27148/12, § 92, 2 April 2015). 117. It further notes that it is true that R.’s parents acquiesced to the appointment of the first applicant as R.’s guardian. At the same time, as pointed out by the Government, they never formally renounced their parental authority over their son; neither were they restricted in, nor deprived of that authority (see paragraphs 16 and 39 above). Moreover, the domestic courts established that, although during the first eight years of R.’s life his parents had not maintained contact with him, they had nevertheless supported him financially and had accommodated the first applicant’s requests regarding medicine, food for a special diet for the boy, and the like (see paragraph 18 above).", "Moreover, in 2009, they re-established their relationship with R. when the District Court determined their contact rights regarding him (see paragraphs 28-30 above). They therefore remained present in their son’s life, with the result that, even in the absence of any explicit time-limits or conditions for ending the first applicant’s guardianship in the text of the administrative decision of 23 November 2001, she could not have realistically assumed that R. would have remained in her care permanently. It thus rejects the first applicant’s argument to that end (see paragraph 99 above). The Court reiterates in that connection that care orders are by their very nature meant to be temporary measures, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Ageyevy, cited above, § 143, and S.S. v. Slovenia, no. 40938/16, §§ 85 and 101, 30 October 2018).", "118. Furthermore, the case file reveals that the domestic courts carefully assessed R.’s best interests, with due regard to his state of health and his needs. In various sets of court proceedings, they noted, in particular, the first applicant’s attachment and genuinely caring attitude towards the child; her proactive approach in taking care of him and addressing his health issues, which had ensured progress in his physical and psychological development and overall improvement of his conditions (see paragraphs 22 and 40 above). As regards the biological parents, initially the authorities had doubts about whether they were fit and capable of securing R.’s needs. In particular, the authorities pointed to the lack of personal contact between them and R. and urged them to take a more responsible attitude regarding their parental obligations (see paragraphs 15, 19 and 23 above).", "In that connection, the courts rejected R.’s parents first claim for the boy’s transfer to their care, noting that such an immediate transfer could traumatise him and compromise his health, and that an adaptation period was necessary for R. to get used to his natural parents (see paragraph 24 above). In the proceedings concerning R.’s parents’ second claim for his transfer, however, the courts found that R.’s parents were fit to raise him. It is noteworthy that by that time the contact arrangements between R. and his parents had been in place for a year. When taking that decision, the domestic courts satisfied themselves, with due regard to written evidence, including psychological reports, and witness statements, that R.’s parents had re-established their relations with the child; that they could adequately understand his psychological particularities, emotional state, needs and capabilities; that they had appropriate living conditions for the child; and that the latter felt calm and comfortable with them (see paragraphs 35, 42 and 43 above). 119.", "Against that background, and with due regard to the fact that the domestic authorities had the benefit of contact with all those concerned, the Court considers that, when ordering R.’s transfer to his biological parents and the termination of the first applicant’s guardianship over him, the domestic authorities acted within their margin appreciation and in compliance with their obligation under Article 8 of the Convention to aim for the reunification of the child with his parents. It further considers that they provided “relevant and sufficient” reasons for the measure complained of. Whilst the Court acknowledges the emotional hardship that the said decision must have caused the applicants, their rights could not override the best interests of the child (compare Antkowiak (dec.), cited above, § 72). 120. Lastly, in so far as the decision-making process was concerned, the Court observes that the first applicant, acting on behalf of herself and on the other applicants’ behalf, was fully involved in the relevant proceedings and legally represented at both levels of jurisdiction (see paragraphs 32 and 48 above).", "She was able to state her case, to present her arguments and submit evidence; numerous witnesses on her behalf were called and examined at the first-instance court (see paragraphs 40 above). The relevant court decisions reveal that her arguments were addressed and received reasoned replies. In such circumstances, the Court is satisfied that the decision‑making process was fair and provided the applicants with sufficient safeguards of their rights under Article 8 of the Convention. 121. In the light of the foregoing, the Court concludes that the decision to terminate the first applicant’s guardianship over R. and to transfer him to his biological family corresponded to his best interests, was taken within the authorities’ margin of appreciation and was based on “relevant and sufficient” reasons.", "The interference with the applicants’ family life was thus “necessary in a democratic society”. 122. There has accordingly been no violation of Article 8 of the Convention. 2. The applicants’ access to R. (a) Submissions by the parties 123.", "The applicants complained that the refusal of any access and any contact with R. had led to a total severance of their family ties with him and had been grossly disproportionate to any legitimate aims the authorities might have pursued. In their submission, the decision of the domestic courts to refuse them any contact rights with R. had been the result of a formalistic approach of those courts to the concept of family and of their failure to take into account the emotional ties between the applicants and R. It had also been rooted in the inadequacy of the domestic legislation which had afforded no protection to de facto family ties existing in the absence of biological kinship or and legal arrangements, such as guardianship. The applicants also argued that the domestic courts’ refusal to order a comprehensive medical examination with a view to obtaining R.’s opinion on the matter, and their failure to adduce any evidence regarding R.’s best interests in the question of contact rights with the applicants had rendered their relevant decisions arbitrary. 124. The Government argued that the domestic courts had been justified in their decision not to grant the applicants access to R. They pointed out that Article 67 of the Russian Family Code had established an exhaustive list of individuals entitled to have access to a child (see paragraph 66 above).", "Since the applicants had had neither blood ties with R., nor – after the first applicant’s guardianship had been cancelled – legal ties with him, there had been no grounds in national law to grant them access to R. The Government also pointed out that – as had been established by the domestic courts – R.’s medical condition had made it impossible to ascertain whether he had had any attachment to the applicants, and that therefore their argument to that end had been without foundation. They insisted therefore that, by refusing the applicants contact with R., the domestic authorities had not breached their right to respect for their family life under Article 8 of the Convention. (b) The Court’s assessment 125. The Court reiterates that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained (see Kocherov and Sergeyeva, cited above, § 98, and the authorities cited therein). Moreover, even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life.", "These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see, for instance, Kacper Nowakowski, cited above, § 71, 10 January 2017). 126. The Court has also held that, in view of the great variety of family situations possibly concerned, a fair balancing of the rights of all individuals involved necessitates an examination of the particular circumstances of each case (see Schneider, cited above, § 100). Accordingly, Article 8 of the Convention can be interpreted as imposing on member States an obligation to examine on a case-by-case basis whether it is in the child’s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (see Nazarenko v. Russia, no. 39438/13, § 66, ECHR 2015 (extracts)).", "127. In the present case, the domestic courts rejected the first applicant’s claims in respect of access to R., with reference to the absence of any legal link between her and the child after her guardianship had been terminated; they also pointed out to the lack of biological kinship between them, which pursuant to Article 67 of the Russian Family Code ruled out any possibility for the first applicant to seek access to the child (see paragraphs 55, 57 and 58 above). 128. In the Nazarenko case, cited above, which concerned a situation where the applicant lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, after it had been established that he was not her biological father, the Court has already expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who are entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child.", "As a result, a person, who is not related to the child but who has taken care of him or her for a long period of time and has formed a close personal bond with him or her, is entirely and automatically excluded from the child’s life and cannot obtain contact rights in any circumstances, irrespective of the child’s best interests (see Nazarenko, cited above, §§ 65 and 67). The Court has found that the complete and automatic exclusion of the applicant from the child’s life after his parental status in respect of her was terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the child’s best interests – amounted to a failure to respect the applicant’s family life (ibid., § 68). 129. The Court discerns nothing in the reasoning of the domestic courts regarding the applicants’ claim for access to R. which would enable it to reach a different conclusion in the present case. The texts of the court decisions reveal that the courts made no attempt to assess the particular circumstances of the present case, and, in particular, to take into consideration the relationship that existed between the applicants and R. prior to the termination of the first applicant’s guardianship over him; to give any consideration to the question of whether, and why contact between the applicants and R. might or might not be in R.’s best interests; to give any consideration to the question of whether and why the interests of R.’s natural parents might or might not override those of the applicants.", "In fact, in its final and binding decision, the appellate court limited itself to holding that the right to seek access to a child could in no circumstances be guaranteed to any individuals other than those listed in Article 67 of the Russian Family Code (see paragraphs 57 and 58 above). The Court cannot accept such reasoning as “relevant and sufficient” to deny the applicants access to R. Whilst it is not for the Court to speculate whether granting the applicants access to R. was in the child’s best interests, it cannot accept that the relevant court decisions were not based on the assessment of the individual circumstances of the present case and automatically rules out any possibility for the family ties between the applicants and R. to be maintained. 130. In the light of the foregoing considerations, the Court is bound to conclude that the domestic authorities failed in their obligation to fairly balance the rights of all individuals involved with due regard to particular circumstances of the present case, which amounted to a failure to respect the applicants’ family life (compare Nazarenko, cited above, §§ 66 and 68). 131.", "There has accordingly been a violation of Article 8 of the Convention on that account. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 133.", "The applicants submitted that they had been deeply attached to R. and that they had suffered distress and anxiety since his transfer to his parents in view of their inability to maintain any contact with him. They claimed non-pecuniary damage in that connection, and in particular, 20,000 euros (EUR) to be awarded to the first applicant, EUR 10,000 to be awarded to each of the second and third applicants and EUR 5,000 to be awarded to each of the fourth to eighth applicants. 134. The Government contested that claim as excessive and unreasonable. 135.", "The Court notes that it has found a violation of the applicants’ right to respect for their family life on account of the authorities’ failure to provide a possibility for the family ties between the applicants and R. to be maintained. It considers that the applicants suffered non-pecuniary damage in that connection, which cannot be compensated by a mere finding of a violation. Accordingly, the Court awards the applicants jointly EUR 16,000 in respect of non-pecuniary damage. B. Costs and expenses 136.", "The applicants also claimed 5,000 Russian roubles (RUB – approximately EUR 200) for the costs and expenses incurred before the domestic courts in the proceedings for contact rights. 137. The Government did not contest the indicated amount of the costs, or the fact that those had actually been paid; however, they argued that the applicants had been ordered to pay that amount in accordance with the relevant provisions of law on civil procedure, given the fact that they had lost the civil dispute. The Government therefore insisted that the applicants’ claim for reimbursement should be rejected. 138.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly sum of EUR 200 for costs and expenses in the relevant domestic proceedings. C. Default interest 139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. IV.", "APPLICATION OF ARTICLE 46 OF THE CONVENTION 140. With reference to Article 46 of the Convention, the applicants requested that, without prejudice to any other measures that the respondent Government, subject to the supervision of the Committee of Ministers, may deem appropriate, individual measures be applied which would ensure restitutio in integrum in their case. In particular, they referred to the case of M.D. and Others v. Malta (no. 64791/10, 17 July 2012, §§ 85-90, with further references) and requested that the Court order the respondent Government to undertake all necessary and appropriate measures in order to restore and protect personal contact between R. and the applicants.", "141. The Government argued that, by requesting individual measures, the applicants were encroaching on the competence of the Committee of Ministers. 142. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos.", "39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no.", "330‑B). 143. Having regard to the established principles cited above and to the particular circumstances of the case, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares that the first applicant has no standing to act on R.’s behalf; 2.", "Declares the complaints under Article 8 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been no violation of Article 8 of the Convention on account of R.’s transfer to his biological parents and termination of the first applicant’s guardianship over him; 4. Holds that there has been a violation of Article 8 of the Convention on account of the respondent State’s failure to provide a possibility for the family ties between the applicants and R. to be maintained; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 16,000 (sixteen thousand euros) jointly to the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 200 (two hundred euros) jointly to the applicants, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 9 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsVincent A. De Gaetano RegistrarPresident APPENDIX" ]

[ "SECOND SECTION CASE OF NURHAN YILMAZ v. TURKEY (Application no. 21164/03) JUDGMENT STRASBOURG 11 December 2007 FINAL 11/03/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nurhan Yılmaz v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrI.", "Cabral Barreto,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsA. Mularoni,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 20 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21164/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Nurhan Yılmaz (“the applicant”), on 9 June 2003. 2. The applicant was represented by Mrs Ö. Mungan, a lawyer practising in Mardin.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 25 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1978 and lives in Izmir. 5. The applicant was the representative of the Izmir branch of a political journal, namely the “Bread and Justice” (Ekmek ve Adalet) magazine. 6.", "In April and May 2002, the Istanbul State Security Court declared several issues of this journal illegal and ordered their confiscation. 7. On 21 May 2002 police officers conducted a search in the branch building, where they found some books, cassettes, magazines and compact discs, which they believed to be illegal. 8. On an unspecified date, the Izmir public prosecutor took a statement from the applicant and, on 15 July 2002, he filed an indictment with the Izmir Magistrates' Court accusing the applicant of “not obeying the official authorities' order” under Article 526 § 1 of the Criminal Code.", "9. On 6 September 2002 the Izmir Magistrates' Court, without holding a hearing, issued a penal order pursuant to Article 386 of the Code of Criminal Procedure, and sentenced the applicant to three months' imprisonment and a fine. The imprisonment measure was then commuted to a fine and the applicant was sentenced to a total fine of 381,682,144 Turkish liras (“TRL”)[1]. 10. On 21 November 2002 the applicant challenged this decision before the Izmir Criminal Court.", "On 3 December 2002 that court dismissed the applicant's appeal without a hearing. The applicant was notified of this final decision on 12 December 2002. 11. Because the applicant failed to pay her fine, on 21 January 2003, the Karşıyaka public prosecutor transformed the fine into a sentence of imprisonment. The applicant was imprisoned in April 2004 and was later released on probation due to good conduct.", "II. RELEVANT DOMESTIC LAW 12. A full description of the relevant domestic law may be found in the judgment in the case of Mevlüt Kaya v. Turkey (no. 1383/02, §§ 11-13, 12 April 2007). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION 13. The applicant complained that she had been unable to defend herself in person or through legal assistance, as there had been no public hearing in her case. She relied on Article 6 §§ 1 and 3 (c) of the Convention, which in so far as relevant reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” 14.", "The Government contended that the procedure followed by the judicial authorities had complied with the relevant provisions of the Code of Criminal Procedure. It was a simplified procedure for minor crimes, aimed at diminishing the work load of the courts. Additionally, they noted that the Magistrates' Court did not consider it necessary to hold a hearing as it regarded the applicant's statement taken by the public prosecutor and the documents contained in the case file to be sufficient to decide the case. 15. The Government further maintained that, following the coming into force of the new Criminal Code and the Code of Criminal Procedure, the penal order procedure no longer exists in Turkish law.", "A. Admissibility 16. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The general principles 17. The Court reiterates that it is a fundamental principle enshrined in Article 6 § 1 that court hearings should be held in public. This public character protects litigants against an administration of justice without public scrutiny; it is also one of the means whereby people's confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see, among others, Stefanelli v. San-Marino, no.", "35396/97, § 19, ECHR 2000‑II). 18. It recalls that, read as a whole, Article 6 guarantees the right of an accused to participate effectively in the criminal trial. In general this includes not only the right to be present, but also the right to receive legal assistance, if necessary, and to follow the proceedings effectively. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c) and (e) of Article 6 § 3 (see, among others, Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no.", "282-A, pp. 10–11, § 26). 19. Furthermore, Article 6 § 1 does not guarantee a right of appeal, but where the domestic law so provides, the appeal proceedings are to be treated as an extension of the trial process and, accordingly, must also comply with Article 6 (Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, § 25).", "2. Application of these principles to the present case 20. The Court considers that, in the instant case, it is more appropriate to deal with the applicant's complaints under Article 6 § 1 globally due to the overlapping nature of the issues, the sub-paragraphs of Article 6 § 3 being specific aspects of the general fairness guarantee of the first paragraph. 21. At the outset, the Court notes that, in a judgment given on 30 June 2004, the Constitutional Court unanimously declared Article 390 § 3 of the former Criminal Code unconstitutional and a nullity, holding that depriving individuals of a public hearing was in violation of the right to a fair trial.", "Furthermore, with the new Criminal Code and the Code of Criminal Procedure which came into force on 1 June 2005, penal orders ceased to exist (paragraphs 12 and 15 above). 22. However, the Court notes that, in accordance with the relevant domestic law prevailing at the material time, no public hearing was held at any stage in the criminal proceedings against the applicant, who was without legal assistance. Consequently, the Court considers that the applicant was unable to follow these proceedings effectively. 23.", "In view of the above, the Court concludes that the procedure followed by the judicial authorities prevented the applicant from exercising her defence rights properly and thus rendered the criminal proceedings unfair. 24. Accordingly, there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 25.", "The applicant alleged that the confiscation of the various books, cassettes, magazines and compact discs, following the police search (paragraph 7 above), constituted a breach of Article 1 of Protocol No. 1. 26. The Court notes that this property was owned by the journal, not the applicant, and that she did not lodge the present application to the Court as the journal's representative. Therefore, there has been no interference with any of her property rights, within the meaning of Article 1 of Protocol No.", "1, and she cannot claim a breach of such rights on the journal's behalf. 27. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. The applicant claimed YTL 100 (approximately 65 euros [“EUR”]) in pecuniary damage for those items confiscated by the police and not returned to her. She further claimed EUR 10,000 in respect of non-pecuniary damage. 30.", "The Government contended that the applicant's claims were excessive and unsubstantiated. 31. The Court does not discern any casual link between the violation found in respect of Article 6 § 1 and the pecuniary damage alleged. However, in the light of the severity of the sanctions ultimately imposed on the applicant without being heard by the trial court and without legal assistance, it finds that the applicant must have suffered some non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,000 under this head[2].", "B. Costs and expenses 32. The applicant also requested EUR 3,387 for the costs and expenses. 33. The Government argued that the applicant failed to substantiate this claim.", "34. According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicant has not substantiated that has actually incurred the costs so claimed. Accordingly, it makes no award under this head. C. Default interest 35.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 6 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, which sum is to be converted into the currency of the respondent State at the rate applicable at the date of settlement, and free of any taxes or charges that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 11 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. TulkensRegistrarPresident [1]1. Approximately 236 euros (“EUR”) at the material time [2]2.", "The Court’s usual practice is not to award just satisfaction on those types of cases. However, in the present case, the fact that the applicant was imprisoned cannot be overlooked. Therefore, in the particular circumstances of this case, it finds it appropriate to award just satisfaction." ]

[ "SECOND SECTION CASE OF TRESKAVICA v. CROATIA (Application no. 32036/13) JUDGMENT STRASBOURG 12 January 2016 FINAL 12/04/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Treskavica v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Nebojša Vučinić,Helen Keller,Ksenija Turković,Egidijus Kūris,Robert Spano,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 8 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "32036/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Croatian nationals, Ms Draginja Treskavica (“the first applicant”), Ms Nataša Treskavica (“the second applicant”) and Ms Valentina Treskavica (“the third applicant”), on 18 April 2013. 2. The applicants were represented by Mr H. Alajbeg, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicants alleged, in particular, that the investigation into the death of their respective husband and father, J.T., had not been effective and had not taken into account that he had been killed only because of his Serbian ethnic origin. 4. On 10 April 2014 the complaints under the procedural aspect of Articles 2 and 14 of the Convention as well as the complaints under Article 6 § 1 and Article 13 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1943, 1975 and 1969, respectively, and live in London, the United Kingdom. A. Background to the case 6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina.", "The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.", "7. On 5 November 1997 Croatia ratified the Convention. B. The killing of the applicants’ relative and the subsequent inquiry 8. The documents submitted by the parties reveal the following facts.", "9. The applicants lived in Knin, within the territory of Krajina. During Operation Storm the town of Knin was shelled by the Croatian army. During the shelling the applicants hid in the basement of their building. J.T.", "was found dead near a petrol station in Knin after one of the shelling attacks. It appears that he was buried at a cemetery in Knin. 10. On 25 April 2001, during the exhumations at the “New Cemetery” (Novo groblje) in Knin, the first applicant approached the police and said that her husband, J.T., had been buried at that cemetery. The Šibenik-Knin Police Department, Knin Police Station (Policijska uprava šibensko-kninska, Policijska postaja Knin), then interviewed the first applicant about the circumstances of the death of her husband.", "She stated that her husband had died on 5 August 1995 near a petrol station in Knin. Given that Knin had been under artillery attack, the first applicant assumed that her husband had been killed by a shell. She further stated that she had seen her husband’s dead body lying on the pavement near the above-mentioned petrol station. She gave a detailed description of his appearance and of the clothes he had been wearing. Members of the Croatian army appeared at the crime scene and took the first applicant to a UNPROFOR (United Nations Protection Force) camp in Knin.", "She had obtained no further knowledge of the whereabouts of her husband’s body. She assumed that he was buried at a cemetery in Knin. 11. A number of remains were exhumed during May and June 2001 at the cemetery in Knin. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Šibenik (Županijsko državno odvjetništvo u Šibeniku).", "After they were exhumed, the remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) but J.T.’s remains were not identified at that time. On 20 June 2001 the International Criminal Tribunal for the former Yugoslavia issued an autopsy report which concluded that the probable cause of the death for the remains which were only in 2010 identified as being those of J.T., was a gunshot to the neck. 12. On 26 November 2001 the Knin Police Station submitted to the Šibenik-Knin Criminal Police Department (Odjel kriminalističke policije, Policijska uprava šibensko-kninska) its official notes of the interviews which it had conducted with the families of the people killed during and after Operation Storm. The above-mentioned interview with the first applicant was also submitted.", "13. On 28 November 2003 the Institute for Forensic Medicine in Zagreb extracted a genotype from J.T.’s remains and compared it with DNA samples from its database. However, they failed to find a match and could not establish the identity of the remains. 14. After the applicants on 26 February 2007 filed with the State Attorney’s Office a claim for damages in connection with the killing of J.T.", "(see paragraph 25 below), the Knin police opened an inquiry into the circumstances of his death. 15. On 5 December 2007 the Knin Police Station interviewed M.T., who stated that the first applicant had told her about the events in Knin during Operation Storm and the death of her husband, J.T. She had no further useful information. 16.", "On 13 February 2008 the Šibenik-Knin Criminal Police Department interviewed Lj.M. She described the events of 5 August 1995 as follows. During the artillery attack on Knin she and her family had hidden in a basement. After the attack they had left the basement. The Croatian army had led the civilians to a furniture shop, from where they had been taken to the barracks known as “southern camp” (južni logor).", "The first and the second applicants had also been in this group of civilians. As they had been passing through Knin, the witness had seen the dead body of J.T. He had been dressed in civilian clothes and had had no visible injuries. Lj.M indicated that she had no recollection of seeing J.T. wearing the military uniform of the Republic of Serbian Krajina (RSK: Republika Srpska Krajina).", "Lj.M’s statement was confirmed by her mother-in-law, Z.M. 17. On 19 February 2008 the Šibenik-Knin Criminal Police Department interviewed I.M., a neighbour of the Treskavica family. She stated that J.T. had not been a member of the army or the police of the Republic of Serbian Krajina and that she had never seen him wearing a military uniform.", "During Operation Storm her family and the Treskavica family had been hiding in the basement of their residential building. J.T. had occasionally come to the basement, but he had not been present all the time. The last time that I.M. had seen him alive had been on 5 August 1995, between 10 and 11 a.m. After they had all left the basement, she had seen the dead body of J.T.", "lying on the street. She had no further information. 18. On 20 February 2008 the Šibenik-Knin Criminal Police Department informed the County State Attorney’s Office in Šibenik that the case had not yet been registered and that it had failed to determine whether J.T. had been a member of the army or the police of the Republic of Serbian Krajina.", "The police indicated that they had conducted interviews with Lj.M. and I.M. However, it was not possible to conduct an interview with the first applicant, since she resided in England. The police indicated that J.T. had most likely been buried at the cemetery in Knin.", "His remains had been exhumed and transferred to the Institute for Forensic Medicine in Zagreb, where they were still being identified. 19. On 13 November 2009 P.T., J.T.’s brother, provided information about J.T.’s ante-mortem physical features to the Red Cross of Serbia (Crveni Krst Srbije) in order that his post-mortem remains might be identified. On the same day P.T. requested that a search be undertaken for the post-mortem remains of J.T.", "20. On 14 February 2010 family members provided blood. After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 16 April 2010, which stated that the post-mortem remains were those of J.T. 21. On 24 May 2010 the family of J.T.", "was invited to the final identification of the post-mortem remains. On 16 June 2010 the first applicant confirmed the preliminary identification of the remains. 22. On 8 July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours. J.T.", "was listed as one of those missing persons. 23. On 19 July 2010 the remains of J.T. were buried at the local cemetery in Knin, in accordance with the wishes of the applicants. 24.", "On 10 August 2010 the Knin Police Station issued an official note about the inquiry into J.T.’s disappearance. After interviewing the first applicant, the police determined that J.T. had died on 5 August 1995 and had been buried on 19 July 2010 at the cemetery in Markovac. On 6 September 2010 the Knin Police Station notified the Šibenik-Knin Criminal Police Department of those findings. 25.", "On 7 July 2014 the Ministry of War Veterans (Ministarstvo branitelja) replied to a request of the War Crimes Department of the Ministry of the Interior (Ministarstvo unutarnjih poslova, Služba ratnih zločina) concerning the case of J.T. The Ministry of the Interior notified the police of the exhumation and identification of J.T.’s remains. C. Civil proceedings 26. On 26 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of J.T. The request was refused.", "27. On 14 June 2007 the applicants brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking damages in respect of the death of J.T. under the 2003 Liability Act. 28. On 17 December 2008 the municipal court dismissed the claim on the ground that there was “no evidence that J.T.’s death had been a result of terror or violence aimed at gravely disturbing public order.” That judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012.", "29. The applicants’ subsequent constitutional complaint was dismissed on 3 October 2012 by the Constitutional Court (Ustavni sud Republike Hrvatske). II. RELEVANT DOMESTIC LAW 30. The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no.", "117/2003 of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows: Section 1 “(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ... (2) A terrorist act within the meaning of this Act is in particular an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.” Section 2 “The Republic of Croatia shall be liable for damage referred to in section 1 of this Act ...” Section 3 “The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.” Section 7 “The victim shall have the right to compensation for damage resulting from death, bodily injury or impairment of health” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 31. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of J.T. and to bring the perpetrators to justice. They also claimed that J.T.", "had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2, 13 and 14 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under the procedural aspect of Article 2 of the Convention which, in so far as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law. ... 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 1. The parties’ submissions 32. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or State Attorney’s Office employees who had been in charge of the investigation into the death of J.T. Such a complaint could have led to the institution of disciplinary proceedings.", "As regards protection against unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State. They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012). 33.", "The Government further argued that the applicants had not complied with the six-month time-limit. They maintained that the applicants had addressed themselves to the State authorities in connection with the death of J.T. only twice: in 2001, when the bodies at the Knin cemetery had been exhumed (see paragraph 9 above); and in February 2007 in connection with their claim for damages (see paragraph 25 above). However, on neither occasion had they lodged a criminal complaint or a request for the identification of J.T.’s body. In their appeal of 24 December 2008 against the first-instance judgment, the applicants had expressed the view that the relevant authorities had done nothing to identify the perpetrators of J.T.’s death.", "Therefore, they had at that time already formed the opinion that the investigation was ineffective. Nevertheless, they had lodged their application with the Court only in 2013. 34. The applicants replied that they had not been in a position to take any action before 2010, when the body of J.T. had been identified.", "2. The Court’s assessment (a) Exhaustion of domestic remedies 35. The Court has already addressed the same objections regarding the exhaustion of domestic remedies in other cases against Croatia and rejected them (see Jelić v. Croatia, no. 57856/11, §§ 59-67, 12 June 2014). The Court sees no reason to depart from that view in the present case.", "36. It follows that the Government’s objection must be dismissed. (b) Compliance with the six-month rule 37. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable period of time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no.", "38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002). 38. Where no remedies are available or are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002).", "However, special considerations may apply in exceptional cases in which an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render such a remedy ineffective; in such a case it is appropriate to take the start of the six-month period as the date on which he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). 39. In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no.", "13635/04, 28 June 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no.", "54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia, no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec)., no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no.", "75504/12; and Grubić v. Croatia (dec.), no. 56094/12, 9 June 2015). 40. Consequently, where a death has occurred, the victim’s relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009).", "On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on applicants to ensure that their claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid. § 160). 41. The Court has refrained from indicating any specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run; the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the above-cited Varnava and Others judgment the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition might require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events in question.", "This is particularly pertinent in cases of unlawful death, where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus, the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162). 42. In the present case, the Court notes that the investigation commenced in February 2007 (see paragraph 14 above). The remains belonging to J.T. were identified in April 2010 and the applicants were informed of it in May 2010.", "The applicants lodged their application with the Court on 18 August 2013, nineteen years after the date of J.T.’s death. The investigation was formally pending at the time at which the application was lodged (contrast with Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015). 43.", "The Court further observes that between February 2007 and May 2010 there were no significant periods of inactivity in the investigation (see paragraphs 14-21 above). The investigation has, however, remained at a standstill since May 2010 (see paragraphs 22-25 above). 44. The question therefore arises whether the applicants should have concluded in the period after May 2010 and before August 2013 (when the present application was lodged with the Court) that the ineffectiveness of the investigation required them to lodge their application with the Court before the latter date. The Court notes that this period of inactivity in the investigation amounts to some three years and three months.", "45. The Court notes that the applicants lodged their application with the Court at the conclusion of the civil proceedings in which they had sought damages in connection with the death of their respective husband and father, J.T. However, the Court notes that these proceedings are not, in the circumstances of the present case, relevant to the State’s procedural obligation under Article 2 of the Convention, and therefore do not affect the running of the six-month period (compare to Narin v. Turkey, no. 18907/02, § 48, 15 December 2009; Orić, cited above, § 33; Gojević-Zrnić and Mančić, cited above, § 26; and Grubić, cited above, § 21). 46.", "As to the present case, the Court observes that it concerns the investigation into the killing of J.T., which was classified as a war crime. The Government argued that the Croatian authorities had been confronted by a high death toll (both civilian and military) and that it was not possible to immediately open investigations in respect of each of the deceased (see paragraph 55 below). The large number of victims certainly affected the progress of each individual investigation. Indeed, it took fifteen years for J.T.’s remains to be exhumed and identified. 47.", "The Court further reiterates that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Hackett v. the United Kingdom (dec.), no. 34698/04, 10 May 2005; Brecknell v. the United Kingdom, no. 32457/04, §§ 66-67, 27 November 2007; Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009; Gasyak and Others v. Turkey, no. 27872/03, § 60, 13 October 2009; and Harrison and Others v. the United Kingdom (dec.), no 44301/13, § 51, 25 March 2014).", "It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Nonetheless, given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell, cited above, § 70). As to the present case, the Court notes that in May 2010 the body of J.T. was finally identified. This certainly amounted to important fresh evidence.", "Further, the Court notes that in July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours; J.T. was listed as one of those missing persons (see paragraph 22 above). 48. In such circumstances, where the State authorities were occupied with a large number of individual investigations into the deaths of numerous persons who had been killed during the war in Croatia and where the progress of some of those individual investigations was rather slow, and where a new fact – namely the identification of the victim – could have arguably led to the discovery of further leads, it cannot be said that the period of some three years and three months of no apparent progress in the investigation appears to constitute an excessive delay in respect of lodging the present application with the Court. 49.", "It follows that the applicants complied with the six-month time-limit. (c) Conclusion as to admissibility 50. The Court finds that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 51. The applicants argued that the Government and the authorities which had discovered the body of J.T. had buried him in a mass grave at the Knin cemetery, without trying to elucidate the circumstances surrounding his death.", "The autopsy had only been carried out fourteen years later. 52. The applicants further stated that even after the war had ended, the authorities had failed to take action to reveal the circumstances surrounding the death of J.T. 53. The Government argued that there had been no violation of the procedural aspect of Article 2 in the present case.", "They maintained that the relevant domestic authorities had taken all reasonable measures that were available, given the circumstances of the case. 54. After Operation Storm, the Croatian authorities had been confronted by a high death toll, both civilian and military. It was not possible to immediately open investigations in respect of all the deceased and determine which of them had died during combat operations (as direct and/or collateral casualties) and which had died as a result of criminal offences. The Government also stated that it had not been possible simultaneously to carry out autopsies on all bodies to determine the cause of each death.", "They pointed out that even today, despite the more advanced technical and financial resources available, the simultaneous exhumation, identification, autopsy and reburial of such a large number of victims was still not possible. 55. The death of J.T. had occurred in circumstances the complexity of which had significantly delayed the opening of the investigation procedure. Several circumstances had hampered the promptness and expeditiousness of the authorities and presented obstacles to the progress of the investigation.", "Firstly, most of the witnesses either had had no knowledge of what had happened to those killed or had not been willing to testify. Secondly, the local police stations had become fully operational only at the beginning of 1996. At that stage, the primary task of the police had been to maintain the security of the territory and to protect people and property. Thirdly, there had been a lack of qualified staff, equipment and vehicles to cover the area and to respond to the high number of criminal offences committed after Operation Storm. Fourthly, the presence of weapons, mines and other explosive devices on the ground had further prevented prompt investigation.", "56. With regard to the identification of the remains of J.T., the Government stated that a preliminary identification had been almost impossible in 1995. No documents had been found on the body that could have been used to identify him. An identification and DNA analysis could not have been carried out without a comparable DNA sample provided by a close relative. Only on 14 February 2010 had the applicants provided DNA samples.", "57. Furthermore, the Government stated that before the first applicant had addressed the police officers in 2001, the Croatian authorities had had no knowledge of the death of J.T. Moreover, when the first applicant had addressed the police officers, she had not described J.T.’s death as the result of a criminal offence, but as a war casualty. 58. The Government pointed out that the investigating bodies had exhumed J.T.’s body and carried out an autopsy on the remains.", "Furthermore, the relevant authorities had immediately started collecting data and investigating the circumstances of his death. They had also conducted interviews with persons who might have had useful information about the circumstances surrounding his death. 2. The Court’s assessment (a) General principles 59. The Court has already ruled that the obligation to protect life under Article 2 of the Convention, read in conjunction with a State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by either State officials or private individuals (see, for example, Branko Tomašić and Others v. Croatia, no.", "46598/06, § 62, 15 January 2009). 60. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999‑III). In particular, the authorities must take the steps reasonably available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injuries and an objective analysis of clinical findings, including the cause of death (for an example of a case concerning autopsies, see Salman v. Turkey [GC], no.", "21986/93, § 106, ECHR 2000-VII; for an example of a case concerning witnesses, see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; and for an example of a case concerning forensic evidence, see Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling short of this standard. 61.", "There must be a degree of public scrutiny of the investigation or its results sufficient to ensure accountability in practice, as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001). 62.", "Even where events took place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly discovered evidence comes to light (Brecknell, cited above, §§ 73‑75; Hackett, cited above; Gasyak and Others, cited above). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (e.g.", "Brecknell, cited above, §§ 79-81). The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations; Emin and Others v. Cyprus (dec.), no. 59623/08 et al., 3 April 2012; and Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 et al., § 21, 11 March 2014; and Nikolić v. Croatia, no.", "5096/12, § 42, 29 January 2015). (b) Application of these principles to the present case 63. As regards the present case, the Court notes that the relevant authorities learned of J.T.’s death only in April 2001, when the first applicant notified the Knin police of it. However, only in 2007 – when the applicants addressed the State Attorney’s Office with their claim for damages against the State – did the authorities learn that the applicants deemed that his death might have been the result of a criminal offence. The police opened an inquiry, but given that almost twelve years had elapsed, the prospect of establishing the truth had significantly diminished.", "Furthermore, it appears that J.T. was killed during the shelling of Knin in August 1995 by the Croatian army and that the majority of persons who remained in Knin had been hiding in shelters such as basements of buildings, as had the applicants. According to the statement of the applicants’ neighbour I.M., J.T. had come to the shelter in the basement of their building only on occasions. Given these circumstances, it appears that there were no direct eyewitnesses to the killing of J.T.", "64. At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, Shanaghan, cited above, § 90 and the judgments referred to therein). The Court notes that the police took statements from the first applicant (see paragraphs 10 and 24 above) and other witnesses (see paragraphs 15-17 above). None of them had any relevant knowledge of the circumstances in which J.T. had been shot in the neck.", "No other leads have been discovered. 65. The Court further notes that following the identification of J.T.’s remains in 2010, the Šibenik-Knin Criminal Police Department asked the Knin Police Station for an inquiry into the disappearance of a number of persons, including J.T., and for interviews to be conducted with their families and neighbours. However, given that the possible witnesses to J.T.’s killing had already been interviewed and those interviews had yielded no results, the Court accepts that the identification of J.T.’s remains does not appear as a factor which would have prompted the witnesses interviewed to reveal any new relevant evidence. 66.", "As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of J.T., the Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued.", "The fact that the investigation did not succeed in identifying the perpetrators of J.T.’s death does not necessarily mean that the investigation was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin, cited above, § 27). 67. In conclusion, the Court finds that the national authorities complied with their procedural obligation under Article 2 of the Convention. It follows that there has been no violation of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 68. The applicants further complained, relying on Article 13 of the Convention, that the civil proceedings could not be considered an effective remedy in their attempt to obtain damages from the State. The Court, being master of the characterisation to be given in law to the facts of the case, considers that the complaint concerns the applicants’ right of access to a court, as guaranteed under Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.", "The parties’ submissions 69. The applicants argued that the ineffectiveness of the civil proceedings had been due to the fact that their claim for damages had been dismissed on the ground that they had not proved that their relative had been killed by members of the Croatian army or that his death had not been “war-related”. 70. The Government argued that the applicants had been able to bring their civil claim at several judicial instances before a regular civil court, where their claim had been decided on the merits. B.", "The Court’s assessment 71. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. That provision embodies the “right to a court”, of which one aspect is the right of access – that is to say, the right to institute proceedings before a court in civil matters. The “right to a court” is not absolute. By its very nature it calls for regulation by the State.", "Contracting States enjoy a certain degree of discretion in that respect but the ultimate decision as to the observance of the Convention’s requirements rests with the Court (see Golder v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18, and Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V). 72. Furthermore, it is in the first place for the national authorities, and notably the courts, to interpret domestic law.", "The Court’s role is limited to that of verifying compatibility with the Convention of the effects of such interpretation. Furthermore, the Court must make its assessment in each case in the light of the particular features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 36, ECHR 2000 I). 73. Croatian law undoubtedly afforded the applicants the possibility of bringing judicial proceedings.", "They availed themselves of that possibility by bringing a civil action against the State in the Knin Municipal Court (see paragraph 26 above), seeking compensation for the damage they had allegedly sustained on account of the death of J.T. After their claim was dismissed by the first-instance court, they appealed to the Šibenik County Court, and subsequently to the Supreme Court. 74. The national courts examined the applicants’ claim on the merits and found that the circumstances of the death of their relative remained unknown. They concluded that the applicants had failed to prove that J.T.’s death had been the “result of an act of terror or violence aimed at gravely disturbing public order”, as required under the 2003 Liability Act (see paragraph 30 above).", "On those grounds the applicants’ claim was dismissed. 75. It appears that the applicants are essentially dissatisfied with the outcome of the case and the burden of proof placed on them. 76. However, under Article 19 of the Convention, the duty of the Court is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention.", "In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004). 77. Therefore, the Court will not in principle intervene unless decisions reached by domestic courts appear arbitrary or manifestly unreasonable, and provided that the proceedings as a whole were fair, as required by Article 6 § 1 (see Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007, and Anđelković v. Serbia, no.", "1401/08, § 24, 9 April 2013). 78. In the Court’s view, it is a normal feature of civil proceedings that the plaintiff must prove his or her claim. Since the national courts found that the applicants had not satisfied the burden of proof, their conclusions when dismissing the applicants’ claim do not appear arbitrary or manifestly unreasonable. 79.", "It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 2 admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 2 of the Convention. Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithIşıl KarakaşRegistrarPresident" ]

[ "SECOND SECTION CASE OF ZYTS v. UKRAINE (Application no. 29570/02) JUDGMENT STRASBOURG 4 October 2005 FINAL 04/01/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zyts v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrV.", "Butkevych,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 13 September 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 29570/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Volodymyr Vasylyovych Zyts (“the applicant”), on 10 July 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. 3.", "On 2 July 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1959 and lives in the city of Novovolynsk, the Volyn region, Ukraine.", "5. On 2 August 2000 the applicant suffered an industrial injury and lost 80% of his capacity to work. 6. On 30 January 2002 the Novovolynsk City Court ordered the Novovolynska State Mine (the “Mine”) to pay the applicant UAH 65,767.80[1] in compensation for the applicant's occupational disability. By the same decision, the court ordered the Novovolynsk Department of the Social Security Fund to pay the applicant a lump sum of UAH 2,301.30[2] and a monthly allowance of UAH 615.05[3] for a period of one year in compensation for loss of earnings.", "7. On 22 March 2002 the Novovolynsk City Bailiffs' Service instituted enforcement proceedings against the Mine. 8. On 18 April 2002 the Bailiff's Service informed the applicant that the judgment was not enforced due to a large number of enforcement proceedings against the Mine and its lack of funds. The Bailiffs also informed her that the procedure for the forced sale of assets belonging to the debtor was blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001.", "9. In 2002 the applicant lodged a complaint with the Novovolynsk City Court about the inactivity of the Head of the Bailiffs' Service in respect of the enforcement of the judgment at issue. On 26 November 2002 the court found for the applicant, declared the Bailiffs' Service's inactivity unlawful and ordered its Head to carry out supervision of the enforcement of the judgment by the Bailiffs' Service. 10. On 27 December 2002, 24 March, 15 August and 19 December 2003 the applicant was paid a total of UAH 3,200[4] in the course of the enforcement of the award against the Mine.", "11. On 28 January 2004 the sum of UAH 58,917.80[5] was transferred to the applicant's bank account, out of which the applicant's bank deducted a fee of UAH 589.04[6]. 12. On 26 March, 28 April and 17 June 2004 the applicant received UAH 2,550[7], UAH 900[8] and UAH 200[9], respectively. 13.", "On 17 June 2004 the Bailiffs' Service discontinued the enforcement proceedings on the ground that the judgment of the Novovolynsk City Court of 30 January 2002 in the part concerning the award against the Mine had been enforced in full. 14. The applicant did not challenge the decision of the Bailiffs' Service of 17 June 2004 before the domestic courts. II. RELEVANT DOMESTIC LAW 15.", "The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW I. ADMISSIBILITY 16. The applicant complained about the State authorities' failure to enforce the judgment of the Novovolynsk City Court of 30 January 2002 in the part concerning the award against the Mine in full and in due time. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No.", "1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” 17.", "The Court notes that the Government have not raised any objection as to the admissibility of the above complaints. 18. The Court further notes that the above complaints consist of two parts: one concerns the non-enforcement of the judgment, and the other concerns the length of the enforcement proceedings in respect of that judgment. Each aspect should be examined separately. A.", "The applicant's complaint about the non-enforcement of the judgment 19. The applicant argued that the judgment had not been enforced in full, as the Bailiffs' Service had still to pay him the amount of the bank fee paid by the applicant for the transfer of a part of the judgment award to his bank account. 20. The Court observes that on 17 June 2004 the Bailiffs' Service established that the amounts due under the judgment at issue had been paid to the applicant in full. The applicant did not contest this decision at the national level.", "He therefore cannot be regarded as having exhausted all domestic remedies available to him under Ukrainian law. It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. B. The applicant's complaint about the length of the enforcement proceedings 21. The Court, in the light of its established case-law, considers that the applicant's complaint under Article 6 § 1 of the Convention about the State authorities' failure to enforce the judgment given in the applicant's favour in due time raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "It finds no ground for declaring this part of the application inadmissible. For the same reasons, the applicant's complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 cannot be declared inadmissible. C. Other complaints 22. The applicant further complained about a violation of Article 17 of the Convention and Article 2 of Protocol No.", "1, as he could not afford the expenses for his children's education due to the non-enforcement of the judgment in his favour. 23. The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. II. MERITS A.", "The applicant's complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 24. In their observations, the Government put forward arguments similar to those in the cases of Romashov v. Ukraine and Voytenko v. Ukraine, contending that there was no violation of Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (see, the Romashov judgment, cited above, § 37; and Voytenko v. Ukraine, no. 18966/02, § 37, 29 June 2004).", "25. The applicant disagreed. 26. The Court notes that the judgment of the Novovolynsk City Court of 30 January 2002 remained unenforced for more than two years and two months. It also notes that, notwithstanding the fact that the debts were paid to the applicant in instalments, a substantial amount of the award against the Mine was fully paid to the applicant only after the communication of the application to the respondent Government.", "27. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see, for instance, Sharko v. Ukraine, no. 72686/01, §§ 40-42, 19 April 2005, and Voytenko v. Ukraine, cited above, §§ 53-55). 28.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. B. The applicant's complaint under Article 13 of the Convention 29.", "The Government's objections under this heading were similar to those dismissed by the Court in the case of Romashov v. Ukraine (see the Romashov judgment, cited above, §§ 28-33). The Court considers that these objections must therefore be rejected. Accordingly, there has also been a breach of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 31. The applicant claimed a total sum of EUR 4,000 in respect of pecuniary damage and in relation to his legal, translation and postal expenses. He also claimed EUR 5,000 in respect of non-pecuniary damage. He stated that he had suffered pecuniary loss and distress as a result of the failure of the domestic authorities to enforce the judgment in due time.", "32. The Government contended that the applicant had not substantiated the amount claimed in respect of pecuniary and non-pecuniary damage and submitted that the finding of a violation would constitute sufficient just satisfaction. The Government also maintained that the applicant's postal expenses were justified. 33. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant a global sum of EUR 1,500 in respect of pecuniary and non-pecuniary damage, costs and expenses.", "B. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicant's complaint under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No.", "1 about the delay in enforcement of the judgment of the Novovolynsk City Court of 30 January 2002 in the part concerning the award against the Mine admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds that there has been a violation of Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of pecuniary and non-pecuniary damage, costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 4 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident [1]1. Around 10,860 euros – “EUR”.", "[2]. Around EUR 380. [3]. Around EUR 102. [4].", "Around EUR 530. [5]. Around EUR 9,730. [6]. Around EUR 98.", "[7]. Around EUR 422. [8]. Around EUR 149. [9].", "Around EUR 34." ]

[ "Case of Sutherland v. the United Kingdom (Application no. 25186/94) Judgment (Striking out) Strasbourg, 27 March 2001 CASE OF SUTHERLAND v. THE UNITED KINGDOM (Application no. 25186/94) JUDGMENT (Striking out) STRASBOURG 27 March 2001 In the case of Sutherland v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrJ.-P. Costa,MrL.", "Ferrari Bravo,MrL. Loucaides,MrW. Fuhrmann,MrK. Jungwiert,MrM. Fischbach,MrsN.", "VajićMrJ. Hedigan,MrsW. Thomassen,MrM. Pellonpää,MrsM. Tsatsa-Nikolovska,MrT.", "Panţîru,MrE. Levits,MrK. Traja, judgesSirJohn Freeland, ad hoc judge,and also of Mr M. de Salvia, Registrar, Delivers the following judgment, which was adopted on 21 March 2001: PROCEDURE 1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the European Commission of Human Rights (“the Commission”) on 15 September 1997 (Article 5 § 5 of Protocol No.", "11 and former Articles 47 and 48 of the Convention). 2. The case originated in an application (no. 25186/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under former Article 25 of the Convention by a British national, Mr Euan Sutherland (“the applicant”), on 8 June 1994. 3.", "The applicant complained that the fixing of the minimum age for lawful homosexual activities between men at 18, rather than 16 as for women, violated his right to respect for private life under Article 8 of the Convention and was discriminatory in breach of that Article taken in conjunction with Article 14. 4. The Commission declared the application admissible on 21 May 1996. In its report of 1 July 1997 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 8, taken in conjunction with Article 14, of the Convention (14 votes to 4). 5.", "Before the Court the applicant was represented by Mr S. Grosz, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Eaton of the Foreign and Commonwealth Office. Following his retirement the latter was replaced by Mr C.A. Whomersley of the same Office. 6.", "On 13 October 1997 the Government and the applicant submitted an agreement to the effect that the Government would in the summer of 1998 propose a Bill to Parliament for a reduction of the age of consent for homosexual acts from 18 to 16. Once legislation had been passed and the Government had agreed to pay the applicant reasonable costs, the parties would apply to the Court inviting it to approve a friendly settlement. The parties agreed that they would make the necessary applications to the Court for extensions of the time for lodging memorials. The Government undertook not to contest the applicant’s application pending consideration of the issue by Parliament. 7.", "On 8 April 1998 Mr R. Bernhardt, President of the former Court, directed that the Government and the applicant should each have until 21 September 1998 to file a memorial, whilst reserving the question of the further procedure. Subsequently, he granted an extension of the said time-limit to 1 December 1998. 8. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court.", "The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and former Rule 24 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Sir John Freeland to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 9. Subsequently, pending completion of the national Parliamentary process described in paragraphs 14-15 below, Mr Wildhaber, President of the new Court, and the Grand Chamber granted several successive requests for extension of the time-limit for the submission of memorials, the last from July 2000 until the end of the Parliamentary Session that year.", "10. By letters received by the Court on 15 January, 23 January and 5 February 2001 the applicant’s representative and the Agent of the Government submitted formal declarations requesting the Court to strike the case out of its list of cases and informing it that the Government had paid the applicant’s costs. THE FACTS 11. The applicant is a British national, born in 1977 and resident in London. At about the age of 12 he became aware that he was sexually attracted to boys.", "When he was 14 he tried going out with a girl but the experience confirmed for him that he could only find a fulfilling relationship with another man. He had his first homosexual encounter when he was 16, with another person of his age who also was homosexual. They had sexual relations but were both worried about the fact that under the law as applicable at the time it was a criminal offence. In 1990 455 prosecutions had given rise to 342 convictions. In 1991 213 prosecutions gave rise to 169 convictions.", "The applicant was never prosecuted. 12. The relevant law included the following provisions. Under section 12(1) of the Sexual Offences Act 1956 it was an offence for a person to commit buggery with another person. Under section 13 it was an offence for a man to commit an act of “gross indecency” with another man, whether in public or private.", "Notwithstanding these provisions, under section 1 of the Sexual Offences Act 1967 such acts should not be an offence provided that the parties had consented thereto and had attained the age of 21. In contrast, the age of consent with respect to women was 16. Thus, while under section 14(1) of the 1956 Act, it was an offence for a person to commit an indecent assault on a woman, section 14(2) provided that a girl under the age of 16 could not give any consent which would prevent an act being an assault for the purposes of the section. 13. On 21 February 1994 the House of Commons, by 307 votes to 280, rejected an amendment to reduce the minimum age of consent for male homosexual acts to 16 but, by 427 votes to 162, accepted an amendment to reduce the minimum age to 18.", "14. Following the Commission’s report of 1 July 1997, concluding that the applicant was the victim of a violation of Article 8 of the Convention, taken in conjunction with Article 14, the Government proposed in June 1998 a Crime and Disorder Bill to Parliament for a further reduction of the age of consent for homosexual acts between men from 18 to 16. The provisions on the equalisation of the age of consent were accepted by a great majority of the House of Commons but were rejected by the House of Lords. Subsequently, a Sexual Offences (Amendment) Bill was introduced on 16 December 1998 and, again, the equalisation of the age of consent was endorsed on 25 January 1999 by the House of Commons, but was rejected on 14 April 1999 by the House of Lords. 15.", "In order to ensure that the equalisation of the age of consent would become law even if the House of Lords were to reject it, the Bill was reintroduced before the House of Commons under the Parliament Act 1911. Under the Act the Bill could not pass the House of Commons until after 25 January 2000, the anniversary of the second successful reading in this House. On 28 January 2000 the Bill was re-introduced before the House of Commons. After being passed by 263 votes to 102, it was introduced into the House of Lords on 29 February 2000, where, on 11 April 2000, the Bill received its Second Reading unopposed, while some Lordships expressed that they would propose amendments. As a result of such proposals the Bill was effectively adopted, under the Parliament Act, not until the end of the Parliamentary Session in 2000.", "The Sexual Offences (Amendment) Act 2000 equalising the age of consent received Royal Assent on 30 November 2000 and was brought into force on 8 January 2001. THE LAW 16. On 15 December 2000 the representative of the applicant informed the Registrar that the Sexual Offences (Amendment) Act 2000 had received the Royal Assent and that, as soon as the Commencement Order had been made, the parties would ask the Court to strike the case out of its list of cases. 17. On 15 January 2001 the Court received from the applicant’s representative a declaration which stated: “The Commencement Order has now been made and the relevant provisions of the Sexual Offences (Amendment) Act came into force on 8th January 2001 We confirm that in the circumstances the Court may strike the case from its list.” 18.", "On 23 January 2001 the Court received the following declaration from the Government: “I refer to my predecessor’s letter of 25 July [2000] ... seeking a further postponement of the proceedings in the above case until the end of the then current United Kingdom Parliamentary Session. This request was granted in your letter of 11 September 2000. I now attach a copy of the Sexual Offences (Amendment) Act 2000, which received the Royal Assent on 30 November 2000 and was brought into force on 8 January 2001. In these circumstances, the Government consider that the issues raised in the above application have now been resolved, and accordingly the Government request that the Court strike the application out in accordance with Article 37 § 1 of the Convention.” 19. By letter of 1 February 2001, received by the Court on 5 February, the applicant’s representative informed the Court that the Government had paid the applicant’s costs.", "20. The Court takes note of the request made by each party to strike the case out if its list in the light of the entry into force on 8 January 2001 of the Sexual Offences (Amendment) Act 2000. By equalising the age of consent for homosexual acts between consenting males to 16, the new provisions removed the risk or threat of prosecution that previously existed under the national law of the respondent State and which had prompted the applicant’s bringing an application under the Convention. It is further noted that the Government have reimbursed the legal costs incurred by the applicant in pursuing his case. Against this background, the Court is satisfied that the matter has been resolved for the purposes of Article 37 § 1 b of the Convention.", "In addition, it discerns no reason of ordre public (public order) for continuing the proceedings (Article 37 § 1 in fine of the Convention). 21. Accordingly, the case should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the case out of the list. Done in English and in French, and notified in writing on 27 March 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Luzius WildhaberPresidentMichele de SalviaRegistrar" ]

[ "FOURTH SECTION CASE OF TIBERNEAC v. MOLDOVA (Application no. 18893/04) JUDGMENT STRASBOURG 16 October 2007 FINAL 31/03/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tiberneac v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrS. Pavlovschi,MrL. Garlicki,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 25 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18893/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mrs Olga Ţiberneac (“the applicant”), on 27 April 2004. 2. The applicant was represented by Mr Victor Marcu, a lawyer practising in Edineţ.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr Vitalie Pârlog. 3. The applicant complained that the failure to enforce a final judgment in her favour violated her right to have her civil rights determined by a court as guaranteed by Article 6 of the Convention and her right to peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention. 4.", "The application was allocated to the Fourth Section of the Court. On 15 February 2006 the President of that Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. The President also decided to give priority to the case under Rule 41 of the Rules of Court in view of the applicant's advanced age and poor state of health. 5.", "The applicant and the Government each filed observations on the admissibility and merits of the case (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant who was born in 1923 and lives in Terebna. 7.", "In 1949 the applicant and her parents had been persecuted by the communist authorities. Their property was confiscated and they were exiled to Siberia. In 1989 they were rehabilitated. 8. On an unspecified date in 2003 the applicant brought an action against the Edineţ Department of Finances, seeking compensation for the confiscated property.", "9. On 24 December 2003 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay her 63,885 Moldovan lei (MDL) (the equivalent of 3,901 euros (EUR) at the time). The judgment was not appealed against and after fifteen days it became final and enforceable. 10. On 23 February 2004 a Bailiff received the enforcement warrant.", "11. The judgment has not been enforced to date. II. RELEVANT DOMESTIC LAW 12. The relevant domestic law was set out in Prodan v. Moldova, no.", "49806/99, § 31, ECHR 2004‑III (extracts). THE LAW 13. The applicant complained that the failure to enforce the final judgment of 24 December 2003 had violated her rights as guaranteed under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. Article 6 § 1 of the Convention, insofar as relevant, reads as follows: “1.", "In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... within a reasonable time by a tribunal ....” Article 1 of Protocol No. 1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. ADMISSIBILITY OF THE COMPLAINTS 14. The Court considers that the applicant's complaints under Article 6 § 1 and under Article 1 of Protocol No.", "1 to the Convention raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 15. The applicant maintained that the failure of the authorities to enforce the judgment of 24 December 2003 had violated Article 6 § 1 of the Convention. 16. She also contended that that non-enforcement had violated her right to property as guaranteed by Article 1 of Protocol No. 1 to the Convention.", "17. In their observations on the admissibility and merits of the case the Government submitted that the Edineţ Local Council had taken all reasonable steps to ensure the enforcement of the judgment in favour of the applicant. Since the Bailiff had received the enforcement warrant only on 23 February 2004, the judgment could not be enforced in view of the numerous other judgments in favour of politically repressed persons and the lack of funds to enforce them. 18. The Court recalls that it is not open to a State authority to cite lack of funds as an excuse for not honouring a final judgment debt.", "Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V) and the “property” right which a final judgment debt generates in favour of an applicant (see Roşca v. Moldova, no. 6267/02, § 31, 22 March 2005). In the instant case, the applicant should not have been prevented over a period of more than three years from benefiting from the success of her litigation.", "19. The issues raised under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention are identical to those found to give rise to violations of those Articles in Prodan v. Moldova (cited above, §§ 56 and 62) and Sîrbu and Others v. Moldova (nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, §§ 27 and 33, 15 June 2004). There is no reason to depart from those findings in the present case.", "20. There has, accordingly, been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage and costs and expenses 22. In her initial application, the applicant claimed the payment of MDL 63,885 representing the award which had not been enforced. She also claimed EUR 10,000 in compensation for non-pecuniary damage. 23.", "The Court notes that the applicant submitted her observations on the merits of the case and her just satisfaction claims outside the time-limit set and that no extension of time was requested by her lawyer. The Court therefore makes no award. 24. However, in view of its finding that the authorities have not taken the necessary steps to ensure the enforcement of the judgment in the applicant's favour and given that the judgment has still not been enforced, the Court finds that the applicant is still entitled to recover the judgment debt awarded in the domestic proceedings (EUR 3,901). B.", "Default interest 25. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,901 (three thousand nine hundred and one euros) in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF TIMAR AND OTHERS v. ROMANIA (Applications nos. 26856/06 and 7 others – see appended list) JUDGMENTThis judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 16 April 2019 STRASBOURG 28 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Timar and Others 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 7 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in eight applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Romanian nationals, two Romanian companies and a Romanian Calvinist parish on the various dates indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.", "2. When Mr Horea Mircea Timar, the applicant in application no. 26856/06, died on 20 April 2013, his heirs, Mrs Gabriela Timar (wife) and Ms Mihaela Timar (daughter), expressed the wish to pursue the proceedings on his behalf. For practical reasons, Mr Horea Mircea Timar will continue to be referred to in this judgment as “the applicant”, although Mrs Gabriela Timar and Ms Mihaela Timar are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants lost their court cases, which had been examined in civil proceedings held in their absence.", "The notices of the court proceedings had been served on them solely by means of posting them on a gate or fence (hereinafter “by public notice” – citarea prin afişare). They all argued in their subsequent appeals, whether appeals on points of law (when the notices were served during the first-instance proceedings or the appeal hearings) or appeals seeking the quashing of the final decision (contestaţie în anulare) (when the notices were served during the proceedings at the court of last instance), that they had not been aware of the date of the court proceedings as they had never received the relevant summonses from the courts. Their complaints to that effect were dismissed by the courts on the grounds that service by public notice was provided for by law. Consequently, their appeals were dismissed without examination of the merits of the cases. II.", "RELEVANT DOMESTIC LAW 5. The relevant domestic law in force at the time on the service of judicial documents by means of public notice is summed up in the Court’s judgment in the case of S.C. Raisa M. Shipping S.R.L. v. Romania (no. 37576/05, § 18, 8 January 2013). THE LAW I. JOINDER OF THE APPLICATIONS 6.", "In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications and to consider them in a single judgment, given that they concern similar facts and raise identical issues under the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LACK OF ACCESS TO COURT 7. The applicants complained that their right of access to court had been breached in so far as they had not received the summonses and had therefore been unable to participate in the court proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 8.", "The Government raised several preliminary objections. The Court will examine them in relation to the different applications to which they pertain. 1. Abuse of the right of petition (application no. 61815/09) 9.", "The Government claimed that the applicant had abused his right of individual petition. In their view, he should have been aware of the course of the proceedings against him, in so far as the court documents had been served by means of public notice at the address of a former business partner. Moreover, he should have been aware of the bankruptcy proceedings instituted against his former company. 10. The applicant contested those arguments.", "11. The Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). However, it is uncontested in the current case that in the civil proceedings instituted against him, the applicant had been summoned only by public notice. The complaint brought before the Court concerns this aspect alone, and the circumstances indicated by the Government are not sufficient to establish beyond reasonable doubt that the applicant was aware of the date of the relevant court proceedings.", "12. The Government’s objection should therefore be dismissed. 2. Objection of non-exhaustion of domestic remedies (applications nos. 26856/06, 58287/10 and 63120/10) 13.", "The Government argued that the applicants in applications nos. 26856/06 and 58287/10 had failed to exhaust domestic remedies in so far as they had not availed themselves of the possibility of bringing criminal proceedings against the court officer (agentul procedural) responsible for the service procedure (înscrierea în fals). However, the Court has already examined a similar objection and dismissed it on the grounds that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see S.C. Raisa M. Shipping S.R.L. v. Romania, no. 37576/05, §§ 24-25, 8 January 2013).", "14. Furthermore, the Government argued that the applicant company in application no. 63120/10 should have appealed against the court order under the special law governing commercial transactions, and not under the Code of Civil Procedure. The Court notes, however, that the applicant company argued its case on both grounds, and they were both dismissed by the domestic courts. 15.", "For these reasons, the Court dismisses this objection in respect of all three applications. 3. Other reasons for inadmissibility 16. The Court notes that the complaints concerning access to court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 17. The Government submitted that the right of access to court was not absolute, but may be subject to limitations. They argued that service of court documents by means of public notice was provided for by the domestic law as an alternative to direct notification and as a means of preventing the abuse of procedural rights by the parties.", "Moreover, the courts examined systematically the legality of the service procedure. The Government pointed out that domestic law allowed for proceedings to take place in the absence of a party provided that the notification of judicial proceedings had been done correctly. 18. The applicants maintained their complaints. 19.", "The Court reiterates that it cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see Avotiņš v. Latvia [GC], no. 17502/07, § 99, 23 May 2016). It further reiterates that the right of access to a court, the principle of adversarial proceedings, and the principle of equality of arms enshrined in Article 6 § 1 of the Convention are also applicable in the specific sphere of service of judicial documents on the parties (see S.C. Raisa M. Shipping S.R.L., cited above, § 29, and, as a recent example, Avotiņš, cited above, § 119). 20. In S.C. Raisa M. Shipping S.R.L.", "v. Romania the Court found a violation of Article 6 § 1 of the Convention because the applicant company had been summoned to appear in court in proceedings on the merits of its case only by means of public notice. The Court considered that, while the domestic law in force at that time provided for summoning by means of public notice (Article 92 § 4 of the Code of Civil Procedure), the way in which the Romanian courts applied the law was too formalistic. The courts were not diligent in ensuring that defendants had been informed of the date of the hearings, and were thus failing in their obligation to ensure effective participation in the proceedings (see S.C. Raisa M. Shipping S.R.L., cited above, §§ 32-35). 21. In the present applications, the Court has not found any fact or argument capable of persuading it to depart from its existing case-law.", "The applicants were summoned only by means of notices posted at their premises and alleged that they had not received the notifications. They were thus unaware of the dates of the hearings and could not be present in court. Despite the absence of the applicants from the proceedings, the domestic courts made no other attempt to ensure that they were informed of the dates of the hearings and could take part in the proceedings in which their civil rights were at stake, in particular by postponing the hearings and repeating the service of summonses. 22. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the applicants’ lack of access to court.", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 23. In applications nos. 26856/06 and 36942/11 an additional complaint was raised, concerning an alleged violation of the rights guaranteed by Article 1 of Protocol No.", "1 to the Convention. 24. Having regard to the finding that the applicants’ right of access to court has been breached (see paragraph 22 above), the Court considers that there is no need to give a separate ruling on the admissibility and merits of the complaint raised under Article 1 of Protocol No. 1 (see S.C. Raisa M. Shipping S.R.L., cited above, § 38; and S.C. Carbochim S.A. Cluj-Napoca and S.C. Fenega Import-Export S.R.L. v. Romania, nos.", "45621/05, 46691/07, 27314/08 and 1150/09, § 30, 6 December 2016). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 25. Lastly, the Court notes that the applicants raised other complaints under Article 6 of the Convention. 26.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 27. Accordingly, these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 29. The applicants claimed the following amounts in respect of pecuniary and non-pecuniary damage: (a) application no. 26856/06: 500,000 euros (EUR) in respect of pecuniary damage. (b) application no. 26449/08: - EUR 7,500 in respect of pecuniary damage; and - EUR 50,000 in respect of non-pecuniary damage.", "(c) application no. 61815/09: - EUR 1,379,940 in respect of pecuniary damage; and - EUR 10,000 in respect of non-pecuniary damage. (d) application no. 30395/10: - EUR 7,804 in respect of pecuniary damage; and - EUR 10,000 in respect of non-pecuniary damage. (e) application no.", "50999/10: EUR 10,000 in respect of non-pecuniary damage. (f) application no. 58287/10: - EUR 60,000 in respect of pecuniary damage; and - EUR 40,000 in respect of non-pecuniary damage. (g) applications nos. 63120/10 and 36942/11: no request made under this head.", "30. The Government contested the amounts sought. They considered that the applicants had failed to submit justifications for their claims or to prove any causal link between the alleged violations and the loss allegedly incurred. They further argued that the amounts sought in respect of non‑pecuniary damage were excessive and that the finding of a violation should constitute sufficient just satisfaction. 31.", "The Court notes that the applicants have failed to show the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claims in respect of pecuniary damage. On the other hand, having regard to all the circumstances of the present cases, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants the following sums in respect of non-pecuniary damage, plus any tax that may be chargeable thereon: (a) EUR 3,600 in application no. 26449/08; (b) EUR 3,600 in application no. 61815/09; (c) EUR 3,600 in application no.", "30395/10; (d) EUR 3,600 in application no. 50999/10; (e) EUR 3,600 in application no. 58287/10. 32. The Court further notes that Article 509 § 10 of the New Civil Procedure Code allows for the reopening of domestic proceedings in order to remedy the breaches found by it.", "Given the nature of the applicants’ complaints and the reasons for which it has found a violation of Article 6 § 1 of the Convention, the Court considers that in the present cases the most appropriate form of redress would be to reopen the proceedings complained of in due course, should the applicants so request (see, for a similar solution under the provisions of the former Code of Civil Procedure, S.C. Raisa M. Shipping S.R.L., cited above, § 44). B. Costs and expenses 33. The applicants also claimed the following amounts for the costs and expenses incurred before the domestic courts and for those incurred before the Court: (a) in application no. 30395/10: 1,000 Romanian lei (RON), representing legal fees, attested by a bill issued to the applicant by his representative; (b) in application no.", "50999/10: the applicant sought reimbursement of costs and expenses without quantifying them; (c) in application no. 58287/10: RON 7,000 or EUR 1,500; the applicant company submitted a bill attesting to the payment of RON 3,000 to its lawyer; (d) in application no. 36942/11: RON 4,821 representing the lawyer’s fee, costs before the domestic courts, and costs for translations incurred before the Court; the applicant parish submitted relevant proof of payment. 34. The Government argued that the applicants had failed to prove that they had actually incurred the costs claimed.", "They further considered that some of the costs claimed were not relevant for the violation alleged before the Court. 35. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the following amounts, covering costs under all heads: (a) EUR 220 in application no. 30395/10; (b) EUR 700 in application no. 58287/10; (c) EUR 1,000 in application no.", "36942/11. C. Default interest 36. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the complaints concerning access to court admissible; 3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 1 of Protocol No. 1 to the Convention raised in applications nos. 26856/06 and 36942/11; 4. Declares the remainder of the applications inadmissible; 5.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the applicants’ lack of access to a court stemming from the service procedure; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 26449/08 in respect of non-pecuniary damage; (ii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 61815/09 in respect of non-pecuniary damage; (iii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 30395/10 in respect of non-pecuniary damage; (iv) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no.", "50999/10 in respect of non-pecuniary damage; (v) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 58287/10 in respect of non-pecuniary damage; (vi) EUR 220 (two hundred and twenty euros), plus any tax that may be chargeable to the applicant, in application no. 30395/10 in respect of costs and expenses; (vii) EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant company, in application no. 58287/10 in respect of costs and expenses; (viii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant parish, in application no. 36942/11 in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident 1TIMAR AND OTHERS v. ROMANIA JUDGMENT APPENDIXList of 8 applications No. Application number (a) Date of introduction and (b) Date of communication Applicants’ names, dates of birth (for individuals) and addresses Representatives (a) Circumstances of the case (b) Incidents in the service procedure and (c) Domestic remedy used 1. 26856/06 (a) 23/06/2006 (b) 14/01/2011 Horea Mircea Timar 1956 Târgoviște, Dâmbovița --- (a) Complaint concerning an alleged patent infringement; (b) The applicant was informed of the appeal proceedings by means of public notice with an indication to pay court fees; the applicant did not participate in the proceedings and his appeal was dismissed for failure to pay the court fees; (c) The applicant appealed on points of law on the grounds that that the service procedure had been illegal (dismissed on 24 January 2006).", "2. 26449/08 (a) 15/05/2008 (b) 27/06/2012 Maria Laurus 1933 Milişăuţi Gară, Suceava --- (a) Claim for the annulment of a building permit issued by the Milișăuți Municipality in favour of third parties; (b) The applicant was informed of the appeal proceedings by means of public notice with an indication to pay court fees; she did not participate in the proceedings and the appeal was dismissed for failure to pay the court fees; (c) The applicant sought the quashing of the final decision on the grounds that the service procedure had been illegal (dismissed on 14 November 2007, available on 13 December 2007). 3. 61815/09 (a) 29/08/2009 (b) 27/06/2012 Gheorghe Enescu 1957 Breaza, Prahova --- (a) Civil proceedings lodged by a liquidator seeking to hold the applicant financially liable for a bankrupt company of which he had been administrator and sole shareholder; (b) The applicant was informed of the court proceedings by means of public notice; he did not participate in the proceedings; (c) The applicant lodged an appeal on points of law, complaining that the service procedure had been illegal (dismissed on 18 May 2009) and sought the quashing of the final decision (dismissed on 5 August 2009). 4.", "30395/10 (a) 18/05/2010 (b) 27/06/2012 Petrică Bănăţeanu Olteniţa, Călărași V. Topârceanu (a) Civil proceedings concerning division of property after divorce; (b) The applicant was informed of the appeal proceedings, with an indication to pay court fees, by means of public notice; the applicant was not present and the appeal was dismissed for failure to pay the court fees; (c) The applicant sought the quashing of the final decision (dismissed on 26 November 2009). 5. 50999/10 (a) 25/08/2010 (b) 4/01/2011 Rodica Simona Berbente 1978 Cluj-Napoca, Cluj M.L. Negru (a) Civil proceedings seeking to hold the applicant financially liable for a bankrupt company of which she had been administrator and shareholder before bankruptcy; (b) The applicant was informed of the court proceedings (both first-instance and appeal) by means of public notice; she did not participate in the proceedings; (c) The applicant sought the quashing of the final decision on the grounds that the service procedure had been illegal (dismissed on 25 May 2010). 6.", "58287/10 (a) 14/09/2010 (b) 27/06/2012 S.C. Magdadia Trans S.R.L. Constanţa V.F. Grădina (a) Court order (ordonanţă) requiring the applicant company to pay damages to its business partner (decision of 1 September 2009); (b) The applicant company was informed of the court proceedings and the court order by means of public notice; it became aware of the court order when enforcement proceedings commenced against it; (c) The applicant company sought the quashing of the court order based on the special law governing commercial transactions, on the grounds that the service procedure had been illegal (dismissed on 15 March 2010). 7. 63120/10 (a) 14/10/2010 (b) 27/06/2012 S.C. Eurorent Group S.R.L.", "Timişoara, Timiș A. Julean (a) Court order (ordonanţă) requiring the applicant company to pay damages to its business partner (decision of 9 April 2009); (b) The applicant company was informed of the court proceedings and of the court order by means of public notice; it became aware of the court order when enforcement proceedings commenced against it; (c) The applicant company sought the quashing of the court order based on the special law governing commercial transactions and on the Code of Civil Procedure, on the grounds that the service procedure had been illegal (dismissed on 14 July 2010). 8. 36942/11 (a) 09/06/2011 (b) 27/06/2012 Haţeg Calvinist Parish Haţeg, Hunedoara M. Bodis (a) Civil action lodged against the applicant parish whereby a third party sought to have his property title deed for two barracks built on the applicant parish’s land entered in the Land Register (allowed on 7 January 2010); (b) The applicant parish was informed of the court proceedings and of the first-instance judgment by means of public notice; (c) The applicant parish sought an extension of the time-limit for lodging an appeal, on the grounds that the service procedure had been defective (dismissed on 10 December 2010)." ]

[ "FIRST SECTION CASE OF ABRAMYAN v. RUSSIA (Application no. 10709/02) JUDGMENT STRASBOURG 9 October 2008 FINAL 09/01/2009 This judgment may be subject to editorial revision. In the case of Abramyan v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 18 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10709/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Edgar Nikolayevich Abramyan (“the applicant”), on 18 January 2001.", "2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his right to a fair trial had been violated by the reclassification of charges against him by his trial court and the examination of his case on appeal in his and his counsel’s absence. 4.", "By a decision of 31 August 2006 the Court declared the application partly admissible. 5. The Government, but not the applicant, filed further written observations (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1974 and lives in Pyatigorsk, Stavropol region. 7. On 16 June 2000 criminal proceedings were brought against the applicant, a police investigator. The investigating authority charged him with taking a bribe involving a large sum of money, aggravated by extortion, under Article 290 § 4 (c) and (d) of the Criminal Code, together with a number of other offences. 8.", "The applicant and his lawyer were present at the hearings before the Stavropol Regional Court. 9. On 2 October 2000 the Stavropol Regional Court delivered a judgment. In respect of the legal characterisation of the acts the applicant was found to have committed, it held as follows: “... the court finds the classification of the acts of Abramyan E.N. by the preliminary investigation authorities to have been erroneous and classifies his acts under Articles 30 § 3 and 159 § 3 (b) of the UK RF [Criminal Code of the Russian Federation].", "It was established that Abramyan, through the abuse of official authority and with a view to misappropriating another’s property, misled witness [L.], claiming that he would forward her case to a court. He then fraudulently obtained two thousand US dollars from [L.], via [D.], having kept from [D.] and [L.] the fact that the proceedings had already been terminated. Taking into account the amount that was stolen and the fact that Abramyan had no real opportunity to dispose of the money, having been arrested at the scene, the court regards his acts as attempted misappropriation, through the abuse of official authority, of another’s property, involving a large sum of money, since he committed all the acts necessary in order to misappropriate another’s property and failed to complete the crime due to circumstances beyond his control.” 10. The court convicted the applicant under Articles 30 § 3 and 159 § 3 (b) of the Criminal Code, acquitted him on the remaining charges and sentenced him to seven years’ imprisonment and imposed a confiscation order. 11.", "According to the record of the hearing, after pronouncing the judgment the presiding judge explained to the applicant the procedure and time-limit for appealing against the judgment. He explained that convicted persons could participate in the examination of their case by an appeal body. 12. The applicant appealed against the judgment. In particular, he complained that the court’s classification of his actions had been erroneous.", "In his appeal against the judgment the applicant did not request that he be summoned to the hearing before the appeal court or that he be informed of the date of the hearing. Nor did he or his lawyer lodge a separate request to that effect. 13. On 27 December 2000 the Supreme Court of the Russian Federation held an appeal hearing at which neither the applicant nor his counsel were present. The Supreme Court heard a prosecutor K. who argued that the judgment should be upheld.", "It examined the applicant’s points of appeal, reviewed the judgment and found that the trial court had correctly established the facts based on the evidence examined by it and had given the correct legal classification of the acts which the applicant had been found to have committed. The Supreme Court upheld the judgment. 14. On an unspecified date in 2003 the applicant was released on parole. II.", "RELEVANT DOMESTIC LAW A. The right to be present at an appeal hearing 15. Under Article 335 of the Code of Criminal Procedure of 1960 (“the CCP”), in force at the material time, the public prosecutor would state his or her opinion at an appeal hearing as to whether a judgment was lawful and well‑founded. Defence counsel could participate in the hearing. A decision about the defendant’s participation at the hearing was taken by the appeal court.", "A defendant who appeared before the court was always entitled to give evidence. 16. In Decision no. 27-P of 10 December 1998, the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCP incompatible with the Constitution on the grounds that this provision enabled appeal courts to take a final decision where a defendant’s request to attend the appeal hearing had been rejected and where a defendant had not been given an opportunity to study the materials of the hearing and communicate in writing his or her opinion on the issues raised before the appeal court. 17.", "Article 336 of the CCP provided that persons who had submitted appeals were to be apprised of the appeal hearing if it was held before courts lower than the Supreme Court of Russia. If an appeal was to be examined by the Supreme Court, an appellant would be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal. Notification of the time of the hearing on appeal was to be displayed at the court not later than three days before the hearing. 18. In Decision no.", "200-O of 17 October 2001, the Constitutional Court held that the provisions of Article 336 of the CCP could not serve as a basis for failing to inform persons entitled to appeal against judgments about the date of examination of their appeals by a court of any level. 19. Article 338 of the CCP required that, at the beginning of an appeal hearing, the presiding judge should verify who was present and the court should decide whether to proceed with the hearing. B. The appeal court’s jurisdiction 20.", "The appeal courts considered, on the basis of the materials in the case file and newly submitted materials, whether a first-instance judgment was lawful and well-founded. They were not bound by the grounds of the appeal and exercised a full review of the case (Article 332 of the CCP). 21. Under Articles 339-341 of the CCP appeal courts could decide to dismiss the appeal and uphold the judgment, to quash the judgment and remit the case for a new investigation or for a fresh trial, to terminate the criminal proceedings or to vary the judgment. It could reduce the sentence or amend the legal classification to the defendant’s advantage.", "If it found the sentence or legal classification to be too lenient, it could quash the judgment only if an appeal on such grounds had been filed by the prosecutor or the victim. Acquittals could be quashed on appeal at the request of the prosecutor, the victim or the acquitted person. 22. Article 342 of the CCP Grounds for quashing or varying judgments [on appeal] “The grounds for quashing or varying a judgment on appeal shall be as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) improper application of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” C. Offence reclassification 23. Article 254 of the CCP required the court to examine the case on the basis of the charges brought against the defendant.", "The charge could be amended by the court provided that such amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court had to remit the case for additional investigation. It did not have powers to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment related only to the deletion of certain counts or aggravating circumstances. D. Bribe-taking and fraud 24.", "An official who – personally or through an intermediary – receives a bribe in the form of money, shares or other property or benefits for acts (or omissions) in the interest of the bribe-giver, provided that such acts are within the competence of the official or the official can facilitate the performance of such acts by virtue of his position, commits a criminal offence (Article 290 § 1). The same acts, if they are aggravated by extortion (Article 290 § 4 (c)) or involve a large sum of money (Article 290 § 4 (d)), are punishable by seven to twelve years’ imprisonment, which may be accompanied by a confiscation order. 25. Article 159 § 1 provides that fraud, that is theft of others’ property or acquisition of rights to others’ property by way of deception or abuse of confidence, is a criminal offence. Article 159 § 3 (b) specifies that a fraud involving a large sum of money is punishable by five to ten years’ imprisonment, which may be accompanied by a confiscation order.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 26. The applicant complained under Article 6 of the Convention about the judicial authorities’ failure to inform him of the date and place of the appeal hearing and the resultant violation of the principle of equality of arms. He also complained that the reclassification of the offence by the trial court from accepting a bribe to fraud had prevented him from exercising his defence rights properly. Article 6 in its relevant parts provides: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; ...” A. The parties’ submissions 27. The Government submitted that under Article 336 of the CCP the Supreme Court of the Russian Federation had given notice of the date of an appeal hearing only to those participants in proceedings who had made a request to that effect when lodging their appeal. Since the applicant had made no such request, the Supreme Court, in examining the applicant’s appeal in his absence and in the absence of his lawyer, had acted in full compliance with the legislation on criminal procedure.", "The Constitutional Court’s decision of 17 October 2001 had been adopted after the applicant’s appeal proceedings. Therefore, the applicant’s right to a fair trial guaranteed by Article 6 § 1 had not been violated. 28. The Government further submitted that under Article 254 of the CCP a trial court could examine criminal cases only in respect of the charges on which a defendant had been brought to trial. Amendment of the charges by the trial court was allowed only if it had not been to the detriment of the accused and had not violated his right to defend himself.", "The factual scope of the applicant’s criminal acts had remained unchanged; only their legal qualification had been altered. Since Article 159 of the Criminal Code had concerned a less serious offence than Article 290, the trial court had improved the applicant’s position without changing the essence of the charge in its factual aspect. No new circumstances had been established by the trial court going beyond the initial charge. The applicant had therefore been informed, throughout the trial, of the charge against him. He had had ample opportunity to prepare his defence.", "Furthermore, the Stavropol Regional Court had re-qualified the charge in the applicant’s presence, which distinguished this case from the cases of Vanyan (see Vanyan v. Russia, no. 53203/99, 15 December 2005) and Aldoshkina (see Aldoshkina v. Russia, no. 66041/01, 12 October 2006). Hence, his rights under Article 6 § 3 (a) and (b) had not been violated. 29.", "The applicant noted that he had been deprived of the possibility to decide on his own or his lawyer’s participation in the examination of his appeal. The appeal court had examined issues of both law and fact. His right to defend himself had been violated. 30. He further submitted that the corpus delicti of the offence under Article 159 of the Criminal Code differed from that of the offence under Article 290.", "The taking of a bribe represented malfeasance in office, whereas fraud was a crime against property. The trial court had convicted him of a crime with which he had never been charged. His rights to a defence had been violated because he had been unaware of the charge against him. B. The Court’s assessment 1.", "Appeal hearing in the absence of defence 31. The Court observes that the present case raises the same issue as the case of Stadukhin which concerned holding the appeal hearing before the Supreme Court in the absence of the defence (see Stadukhin v. Russia, no. 6857/02, 18 October 2007). The question whether or not the applicant had requested to be informed of the appeal hearing, which was a pre‑requisite for the Supreme Court’s notification at the material time, was disputed between the parties in that case. The Court recalls that it held that even assuming that the applicant had failed to request explicitly that he be apprised of the appeal hearing, it had been incumbent on the judicial authorities to do so in order for the proceedings to be fair.", "It found a violation of the rights of the defence and the principle of equality of arms having noted that the Supreme Court, which had to exercise a full review of the case, had heard a representative of the prosecution (§§ 31-37). 32. In the present case the Court equally considers that in order for the proceedings to be fair the judicial authorities had to ensure that the applicant be informed of the hearing before the Supreme Court for the examination of his case on appeal despite his failure to request them to do so. The Court does not consider it necessary to decide whether the absence of the applicant and his counsel, taken separately, would render the proceedings before the appeal court unfair. Neither of them was present before the Supreme Court, and it is against this background that the Court will determine the complaint in issue.", "33. Having made the above observations, the Court sees nothing to distinguish the present case from the case of Stadukhin. Accordingly, it finds that there has been a violation of Article 6 § 1 on the grounds of the examination of the case by the Supreme Court in the absence of the applicant and his counsel. 2. Reclassification of the offence 34.", "The Court recalls that the provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). The Court recalls further that the scope of Article 6 § 3 (a) must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention.", "In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair (see Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999-II; Mattocia v. Italy, no. 23969/94, § 58, ECHR 2000-IX; and I.H. and Others v. Austria, no. 42780/98, § 34, 20 April 2006).", "35. The fairness of proceedings must be assessed with regard to the proceedings as a whole (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001‑II). Furthermore, the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence guaranteed by sub-paragraph (b) of Article 6 § 3 (see Pélissier and Sassi, cited above, § 54, and Dallos, cited above, ibid.). 36.", "In the present case the applicant learned about the new legal classification of the charges against him when the trial court pronounced its judgment at the end of the hearing. There is no indication that at any time before the pronouncement of the judgment he was made aware that he risked conviction under Articles 30 § 3 and 159 § 3 (b) of the Criminal Code. However, the constituent elements of fraud and bribe-taking differed significantly (see paragraphs 24 and 25 above). The offence of fraud presupposed that another person’s property was obtained by way of deception or abuse of confidence, the perpetrator being aware that the victim was divesting himself of the asset as a result of the deceitful conduct. The objective element of bribe-taking consisted in accepting valuable assets in exchange for acts or omissions within the perpetrator’s professional competence and its subjective element required that the bribe-taker be aware that he was obtaining the asset in return for the requested acts or omissions for the benefit of the bribe-giver.", "The applicant had no opportunity to react to that change in the proceedings before the trial court which, given the difference between the two offences, had certainly impaired his ability to defend himself. 37. The Court recalls further that it found no violation in the Dallos case, which concerned the reclassification by an appeal court of a charge upon which the applicant had been convicted, since the Supreme Court had entirely reviewed the case at an oral hearing having heard the prosecution and the applicant’s defence counsel. The Court was satisfied that the applicant had had the opportunity to advance before the Supreme Court his defence in respect of the reformulated charge and that any defects in the proceedings before the Regional Court had been cured before the Supreme Court (see Dallos, cited above, §§ 48-53). The Court came to the same finding in the case of Sipavičius, in which the applicant had been unaware of a reformulated charge until the public pronouncement of his judgment as in the case at hand, and in which the Court of Appeal had heard the parties at an oral hearing and reviewed the applicant’s complaints about the reclassification of the charge from both the procedural and substantive point of view and the applicant had had a further opportunity to advance his defence before the Supreme Court (see Sipavičius v. Lithuania, no.", "49093/99, §§ 29-34, 21 February 2002). 38. In the present case the applicant indicated his disagreement with the legal classification of the charges against him by the trial court in his appeal against the judgment. The Supreme Court, which had the power to exercise a full review of the case, examined and dismissed the applicant’s appeal at an oral hearing having heard the submissions by the prosecution (see paragraphs 13, 20, 21 and 22 above). However, the applicant and his counsel were not present at the hearing before it which deprived the applicant of the possibility to exercise his defence rights in respect of the reclassified charge in a practical and effective manner.", "In these circumstances the Court considers that the violation of the applicant’s right to defend himself by the Stavropol Regional Court was not cured by the Supreme Court. 39. Therefore, the applicant’s right to a fair trial and, in particular, the rights to be informed in detail of the nature and cause of the accusation against him and to have adequate time and facilities for the preparation of his defence were infringed. 40. Accordingly, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (a) and (b) on this ground.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The applicant claimed 130,321.85 Russian roubles (RUB), which his family had allegedly spent in order to support him during his imprisonment, in respect of pecuniary damage.", "He also claimed 35,000 euros (EUR) in respect of non-pecuniary damage which he had allegedly suffered in view of the unfair proceedings in his case. 43. The Government submitted that the damage claimed was excessive and did not relate to the issues raised in the present application. Alternatively, a finding of a violation of the Convention would be adequate just satisfaction. 44.", "The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore dismisses this claim. As regards non-pecuniary damage, it accepts that the applicant has suffered non-pecuniary damage which would not be adequately compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 45.", "The applicant claimed RUB 10,000 for his legal representation in the proceedings before the trial court in his criminal case. He also claimed RUB 1,177.65 in respect of his postal expenses in the proceedings before the Court. 46. The Government submitted that the claim for legal costs was not supported by any documents. 47.", "The Court reiterates that to be entitled to an award of costs and expenses the injured party must have incurred them in order to seek, through the domestic legal order, prevention or redress of a violation, to have the same established by the Court or to obtain reparation therefore. It notes that the legal costs claimed were not incurred for the purpose of prevention or redress of the violations of the Convention found in this case: they therefore should be dismissed. Furthermore, the Court has to be satisfied that the costs and expenses were actually incurred, were necessarily incurred and were also reasonable as to quantum. It considers that postal expenses relating to the applicant’s correspondence with the Court meet the above criteria. The Court awards the applicant EUR 35 in respect of his postal expenses, plus any tax that may be chargeable on that amount.", "C. Default interest 48. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the examination of the applicant’s case on appeal in the absence of the applicant and his counsel; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention on account of the recharacterisation of the offence by the trial court; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 35 (thirty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos Rozakis Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF DAVYDOV AND OTHERS v. RUSSIA (Application no. 75947/11) JUDGMENT STRASBOURG 30 May 2017 FINAL 13/11/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Contents PROCEDURE THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "General overview of the case B. Organisation of the elections of 4 December 2011 C. Nature of each applicant’s complaint 1. The first applicant 2. The second applicant 3. The third applicant 4. The fourth applicant 5.", "The fifth applicant 6. The sixth applicant 7. The seventh and eighth applicants 8. The ninth applicant 9. The tenth applicant 10.", "The eleventh applicant D. Complaints to the City Electoral Commission and the judicial review thereof (second, third and fourth applicants) E. Attempts to start a criminal investigation into the alleged falsification 1. The first applicant (LA elections in precinct no. 646) 2. Complaint by the second applicant (LA elections and Duma elections in precinct no. 652) 3.", "The third and fourth applicants (LA and Duma elections in precincts nos. 651 and 654) 4. The sixth applicant (LA elections in precinct no. 637) F. Judicial review proceedings before the Supreme Court and the Constitutional Court 1. Applications to the Supreme Court for judicial review 2.", "Proceedings before the Constitutional Court G. Judicial review proceedings before the St Petersburg City Court 1. The first five applicants (LA and Duma elections in the Kolpino district as a whole) 2. The sixth applicant (LA elections in precinct no. 637) 3. Complaint lodged by the St Petersburg branch of SR (LA elections in St Petersburg City as a whole) H. Judicial review proceedings before the district courts 1.", "The sixth applicant (LA elections in precinct no. 637) 2. The seventh applicant complaint (LA elections in Kolpino district as a whole) 3. The SR complaint about lawfulness of elections in electoral division no. 19 4.", "The SR complaint about lawfulness of elections in two “closed” electoral precincts 5. The SR complaint about the results in electoral division no. 17 6. The SR complaint about the results of the elections in electoral division no. 15 7.", "The SR complaint about the results in electoral division no. 33 I. Information on recounts at electoral commissions 1. Factual and statistical information submitted by the applicants 2. Factual and statistical information submitted by the Government J.", "Inquiry into the validity of documents submitted by the applicants II. RELEVANT DOMESTIC LAW AND PRACTICE A. General legislative framework governing the elections of December 2011 in St Petersburg B. Regulation of specific questions 1. Rights of observers and members of electoral commissions during federal elections 2.", "Formal requirements as regards protocols and other documents drawn up by electoral commissions; making of copies 3. Proceedings at the Territorial Electoral Commissions 4. Recounts 5. Appeals procedure C. Criminal law provisions D. Examples of relevant court practice submitted by the parties 1. Examples submitted by the applicants 2.", "Examples submitted by the Government III. RELEVANT INTERNATIONAL DOCUMENTS A. Code of Good Practice in Electoral Matters B. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Final Report on the elections to the State Duma, 4 December 2011 (Warsaw, 12 January 2012) THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 TO THE CONVENTION AND ARTICLE 13 OF THE CONVENTION A. Procedural issues and admissibility 1. Requests to withdraw applications 2. The Government’s question as to representation 3. The Government’s preliminary objection as to the Court’s competence ratione materiae 4.", "The Government’s preliminary objection as to exhaustion of domestic remedies 5. The Government’s preliminary objection as to the well-foundedness of the complaint and abuse of the right of petition 6. Conclusion as to admissibility B. Merits 1. The parties’ submissions 2.", "The Court’s assessment II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION III. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest In the case of Davydov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Luis López Guerra,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 9 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 75947/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Russian nationals (for personal details see Appendix). 2. The applicants were represented by Ms K. Moskalenko and Ms Ye. Napara, lawyers practising in Russia.", "The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants alleged that the organisation and conduct of the election process in several polling stations in St Petersburg in December 2011 did not comply with the requirements of Article 3 of Protocol No. 1 to the Convention and that they had had no effective domestic remedies against the violations alleged. 4.", "On 18 March 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. General overview of the case 5. The facts of the case, as submitted by the applicants, may be summarised as follows.", "6. All the applicants are Russian nationals living in St Petersburg. On 4 December 2011 they took part in elections which, on that date, took place simultaneously at city level and federal level: the election of deputies to the Legislative Assembly of St Petersburg (the legislative body of the City of St Petersburg, a constituent entity of the Russian Federation, hereinafter referred to as “the LA”) and the election of deputies to the State Duma of the Russian Federation (the lower chamber of the Russian parliament, hereinafter referred to as “the Duma”). 7. The applicants participated in the elections in different capacities: all of them were registered voters; in addition, some of them stood as candidates for the LA, while others were members of electoral commissions or observers.", "8. The applicants alleged that the electoral commissions had falsified the results of the elections by systematically assigning more votes to the ruling Yedinaya Rossiya (ER) party and its candidates, and stripping the opposition parties and candidates of their votes. The allegations raised by the first to seventh applicants concern the results of voting in the Kolpino district of St Petersburg (electoral divisions (избирательный округ) nos. 18 and 19 of St Petersburg). Other applicants complained about the results in other electoral divisions in St Petersburg (see Appendix).", "9. After the announcement of the preliminary election results, some applicants complained to the St Petersburg City Electoral Commission alleging falsification of the results. Some of the applicants lodged criminal complaints and sued the respective electoral commissions in courts. For more details about their contesting the results of the elections, see sections D to H below. B. Organisation of the elections of 4 December 2011 10.", "Elections at both levels (federal and city) were based on proportional representation by party list. That is, the electorate voted not for individual candidates but for lists of candidates proposed by political parties. The following parties took part in the elections: 11. ER was the ruling party which already had an absolute majority in both legislatures. The other parties could be characterised as “opposition”, albeit to varying extents.", "12. The number of seats each party could obtain in the LA and in the Duma depended on the number of votes received. The chances for each individual candidate of being elected depended on what position he or she occupied on the list of his or her respective party. Those at the top had a higher chance of being elected. Even if a party obtained the number of votes required to pass the “minimum threshold” established by law to enter the LA or the Duma, a poor overall result for that party would deprive those in lower positions on the list of a mandate.", "Thus, the chances for each individual candidate of being elected depended not on the results of the voting at a particular polling station, but on the average result of his or her political party in general, throughout the whole territory concerned. 13. Vote counting at the 2011 elections was organised at three levels. Voters cast their votes at the polling stations managed by the Precinct Electoral Commissions (участковая избирательная комиссия (УИК) – hereinafter “the PECs”). The PECs also collected the votes of those casting their votes at home.", "Each precinct usually had between 2,000 and 3,000 registered voters. Generally, the lists of voters registered for federal and city elections were identical, and each voter coming to the polling station received two separate ballot papers – one for the LA elections and another for the Duma elections. 14. On election night the PECs, after opening the ballot boxes (stationary and mobile), counted the votes and drew up results sheets (referred to as “protocols”). Separate protocols were drawn up for the LA and Duma elections.", "All members of the electoral commissions had to sign the protocols and were entitled to receive a copy of them (see paragraphs 178‑179 below for the formal requirements to copies of protocols). 15. After that, one copy of the protocol was brought to the relevant Territorial Electoral Commission (территориальная избирательная комиссия (ТИК) – hereinafter “the TECs”), which was responsible for preparing a consolidated table of results of the voting in the divisions under its jurisdiction. Each TEC covered several electoral divisions (избирательные округа, sometimes also called территории (“territories”)); and each division covered several dozen precincts. To give examples relevant to the applicants’ complaints, TEC no.", "3 covered electoral division no. 17 (comprised of thirty-two precincts), TEC no. 7 covered electoral division no. 15 (comprised of thirty-three precincts), TEC no. 21 covered electoral divisions nos.", "18 (thirty-two precincts) and 19 (thirty-four precincts) and TEC no. 27 covered electoral division no. 33 (forty precincts). 16. Each TEC then sent their own protocols to the St Petersburg City Electoral Commission (Санкт-Петербургская избирательная комиссия) (hereinafter “the City Electoral Commission”), which made a final calculation at the City level.", "The results were published on the website of the City Electoral Commission. The overall system of elections in Russia was supervised by the Central Electoral Commission (Центральная избирательная комиссия (ЦИК)) (hereinafter “the CEC”). 17. The applicants complain of various kinds of manipulation during the elections. They all allege that the protocols containing the results in the precincts were replaced with new ones at the territorial commissions.", "These new protocols contained different figures, inflating the results for ER and diminishing the results for other parties, notably SR and Yabloko. C. Nature of each applicant’s complaint 1. The first applicant 18. Mr Davydov (the first applicant) was born in 1987 in Leningrad. He stood as a candidate for the LA for the SR party.", "His complaint concerns the results of elections to the LA in the Kolpino district of St Petersburg (electoral division no. 19). (a) The difference in results 19. In Mr Davydov’s submission, the results of the elections as published on 5 December 2011 by the City Electoral Commission on its website did not correspond to the real figures obtained by the PECs as a result of the vote counting which had taken place on the evening of 4 December 2011. The official election results at city level (including Kolpino district) were approved by a decision of the City Electoral Commission on 12 December 2011.", "20. In support of his allegation the applicant produced copies of the allegedly original protocols drawn up by PECs. The applicant, as a candidate and a member of SR, had collected those protocols from the members of the electoral commissions who represented SR or other opposition parties, as well as from the observers who had been dispatched to the polling stations by SR, the KPRF and Yabloko. Under the law, after the votes had been counted, members of the electoral commissions and observers were entitled to receive a “certified copy” of the protocol. The applicant also produced a list of the names of observers and members of the electoral commissions who had given him copies of the protocols.", "21. Mr Davydov produced information concerning thirty-five precincts, all belonging to electoral division no. 19. He produced copies of the “original protocols” and of the “final results” published on the website of the City Electoral Commission. Some of the final results are identical to those in the “original” protocols.", "For example, the “original” protocol issued by PEC no. 640 contained results which were identical to the official final results. 22. However, in the majority of the polling stations the number of votes cast in favour of ER was much lower than the figure which appeared in the official results. Polling station no.", "639 could be taken as an example. According to the applicant’s copy of the protocol issued by PEC no. 639, 903 valid ballot papers were cast. The votes were distributed as follows: - ER 218; - LDPR 132; - KPRF 137; - SR 302; - PR 12; - Yabloko 89; - PD 13. 23.", "According to the final results published by the City Electoral Commission, the same 903 valid ballot papers were distributed as follows: - ER 460; - LDPR 210; - KPRF 137; - SR 28; - PR 6; - Yabloko 55; - PD 7. 24. In the applicant’s opinion, the difference between the published results and the “original” protocols showed that the votes had been redistributed in favour of ER and, to a certain extent, the LDPR. 25. The applicant submitted “original” protocols in respect of the following twenty-one precincts where the results of ER, recorded in the original tables, were lower than the results officially published by the City Electoral Commission: nos.", "638, 639, 641, 642, 643, 644, 646, 648, 649, 651, 652, 653, 654, 657, 661, 662, 664, 665, 666, 667 and 668. From the documents submitted by the applicant it appears that the form of the “original” reports differs from one PEC to another. All the “original” reports contained certain pre-printed parts to be filled in; however, not all of the information fields were filled in and not all signatures were always in place. Thus, some of the reports submitted by the applicant did not have a third page, which should contain the signatures of the members of the electoral commissions (for example, precinct no. 638).", "Some of the reports contained a third page with the signatures of the head of the relevant PEC and/or his or her deputy, but not the signatures of the other members, and did not contain the official stamp or indicate the time when they had been drawn up (for example, no. 639). Some reports had no third page, but the first page bore the words “authentic copy”, the signature of the head of the electoral commission and an official stamp (for example, no. 642). 26.", "A number of the “original” protocols had all the necessary entries and signatures, indicated the date and time they had been drawn up, and bore an official stamp on the third page (for example, station no. 654, which reported that ER had received 261 votes whereas the official final results reported 748; the protocols from precincts nos. 657, 661, 665 and others show a similar pattern) or even on every page (for example, station no. 643, which listed ER as having obtained 253 votes, in contrast to the 498 votes it received according to the final results). 27.", "Generally speaking, most of the “original” protocols are photocopies containing the handwritten inscription “authentic copy”, the PEC stamp and the handwritten signature of the head of the commission, his or deputy and, occasionally, the secretary. (b) Overall effect of the changes 28. According to the “original” protocols presented by the first applicant, in division no. 19 ER received 8,695 votes, whereas the City Electoral Commission reported a figure which was almost twice as high: 17,265 votes. The same “original” copies indicated that SR had obtained 10,031 votes, while the official result was only 4,538 votes.", "Votes for other parties (except for the LDPR) had also been redistributed in favour of ER. 2. The second applicant 29. The second applicant (Ms Andronova) was born in 1953 in Leningrad. Her complaint concerned the right to vote in both the LA and the State Duma elections.", "She was a voter registered in electoral precinct no. 652 in Kolpino (electoral division no. 19). She was also a voting member of PEC no. 652.", "She was affiliated to SR. She voted for SR at both levels and monitored both elections – to the City LA and to the State Duma – at that polling station. 30. The initial result achieved by SR in the LA elections in precinct no. 652, as reflected in the copy of the protocol which the second applicant received as a PEC member, was 299 votes; the official result was 19 votes. As to the Duma elections, SR received 315 votes according to the initial count and 115 votes according to the official results.", "31. Other parties also saw their votes redistributed in favour of ER. Thus, according to the protocols, the KPRF obtained 174 votes in the Duma elections and 164 in the LA elections; however, the City Electoral Commission reported 74 and 14 votes respectively. The official results of ER at that polling station were 574 in the Duma elections, while the initial figure stood at 274; and 599 votes in the LA elections, compared to 259 according to the initial protocols. 3.", "The third applicant 32. The third applicant (Mr Andronov) was born in 1986 in Leningrad. His complaint concerned the right to vote in both the LA and the State Duma elections. He was a voter registered in electoral precinct no. 651 in Kolpino (electoral division no.", "19), and was a voting member of the same PEC. He was affiliated to SR. The official results of SR at that station were 125 votes (Duma elections) and nine votes (LA elections), whereas according to the “original” protocols, SR received 345 and 328 votes respectively. The official results achieved by ER were 640 (Duma) and 807 (LA), compared to the initially recorded 310 (Duma) and 299 (LA). 4.", "The fourth applicant 33. The fourth applicant (Ms Nikolayeva) was born in 1988 in Leningrad. Her complaint concerned the right to vote in both the LA and the State Duma elections. She was a voter registered in electoral precinct no. 654 in Kolpino (electoral division no.", "19), and was a voting member of the same PEC. She was affiliated to SR. In that precinct in the Duma elections SR received 307 votes according to the “original” protocol and 157 according to the official published results; and 287 and 14 respectively in the LA elections. The official results of ER were 748 (LA) and 424 (Duma), compared to initial results of 261 (LA) and 274 (Duma). 5.", "The fifth applicant 34. The fifth applicant (Mr Sizenov) was born in 1972 in Leningrad. His complaint concerned the right to vote in both the LA and the State Duma elections. He was a voter registered in electoral precinct no. 661 in Kolpino (electoral division no.", "19) and was a voting member of the same PEC. He was affiliated to Yabloko. In that precinct in the Duma elections Yabloko received 90 votes originally and 40 votes officially, and in the LA elections 103 and 8 votes respectively. In the same vein, SR received 358 votes according to the “original” protocols and 138 according to the official results in the Duma elections, and 360 and 13 respectively in the LA elections. The official results of ER were 667 (Duma) and 861 (LA), with 296 (Duma) and 281 (LA) being recorded initially.", "6. The sixth applicant 35. The sixth applicant (Mr Belyakov) was born in 1948 in Leningrad. He was a voter registered in electoral precinct no. 637 in Kolpino (electoral division no.", "18); his complaint only concerned the elections to the LA. According to him, as a result of the redistribution of votes, the result achieved by ER had increased from 380 to 804 votes, to the detriment of other parties. The sixth applicant had received the relevant protocols from Mr M., who was the head of the local branch of the KPRF and had received the protocols from the KPRF observer at that polling station. 7. The seventh and eighth applicants 36.", "The seventh applicant (Mr Yakushenko) was born in 1954 in the Leningrad Region. He was a voter registered in electoral precinct no. 623 in Kolpino (electoral division no. 18); his complaint concerned the elections to the LA. According to him, as a result of the redistribution of votes, ER’s result had increased from 731 to 798 votes, to the detriment of other parties.", "The seventh applicant also received the protocols from Mr M. 37. The eighth applicant (Mr Payalin) was born in 1968 in Leningrad. He stood as a candidate in the elections to the LA for SR. His complaint concerned the results in electoral division no. 22 of St Petersburg in the elections to the LA. In particular, he challenged the official figures for twenty-two electoral precincts (nos.", "721, 722, 723, 724, 725, 726, 727, 728, 729, 731, 733, 734, 735, 736, 739, 740, 741, 742, 743, 744, 745 and 794). According to the initial calculation, in electoral division no. 22 SR had obtained 9,616 votes, whereas the official result stood at 6,415. He claimed that as a result of the falsification of the results SR had been deprived of a number of seats in the LA and he had not been elected. 38.", "The seventh and eighth applicants later withdrew their complaints to the Court (see paragraphs 202 and 203 below). 8. The ninth applicant 39. The ninth applicant (Mr Truskanov) was born in 1946 in Leningrad. He stood as a candidate in the elections to the LA for SR. His complaint concerned the results of the elections to the LA in electoral division no.", "17 of St Petersburg. In particular, he challenged the official figures concerning the results in ten electoral precincts (nos. 486, 489, 495, 496, 497, 498, 500, 501, 508 and 509). According to the applicant’s calculations based on the initial protocols collected by him and by several other political parties concerned, in this electoral division SR had obtained 7,530 votes, while the official result indicated 5,765 votes. At the same time, ER’s results had changed from 5,677 to 12,598 votes.", "40. The ninth applicant’s complaint has another limb. He claimed that in division no. 17 two “closed” electoral precincts, nos. 1852 and 1853, had been set up at a site with special security status – a heavy machinery plant.", "Observers, candidates and media were not allowed to access those “closed” precincts; ER’s results in those precincts were particularly high, if compared with other precincts where observers and candidates had been able to monitor the process of voting and counting. 9. The tenth applicant 41. The tenth applicant (Ms Pushkareva) was born in 1957 in the Donetsk Region. She stood as a candidate in the elections to the LA for SR.", "Her complaint concerned the results of the elections to the LA in electoral division no. 33 of St Petersburg. In particular, she challenged the official figures concerning the results in 18 electoral precincts (nos. 1070, 1084, 1089, 1090, 1093, 1097, 1098, 1103, 1104, 1107, 1108, 1109, 1111, 1114, 1115, 1118, 1126 and 1127). Thus, according to the initial protocols obtained by the applicant as a candidate in this circuit, SR had obtained 9,794 votes, whereas the official result was announced as 7,131.", "42. Furthermore, the tenth applicant indicated that the official results in electoral precincts nos. 1071, 1091, 1099 and 1113 had been declared void by the higher electoral commission. On 5 December 2011 TEC no. 27 decided, first, to conduct an independent recount in the four precincts owing to “complaints of breaches of the law and doubts about the correctness of the protocols”.", "The TEC then decided as follows: “Having conducted an independent recount in electoral precincts nos. 1071, 1091, 1099 and 1113 ... and having concluded that the violations of the law ... were such that the results could not be determined (the number of ballot papers found in the ballot boxes significantly exceeds the number of papers issued at the voting stations), TEC no. 27 decided ... to declare the results of the election void.” No new election had been organised, and as a result voters living in those four precincts had been deprived of their right to vote, and the applicant’s party (SR) had been deprived of a number of votes. 10. The eleventh applicant 43.", "The eleventh applicant (Mr Shestakov) was born in 1982 in Leningrad. He stood as a candidate in the elections to the LA for SR. His complaint concerned the results in electoral division no. 15 of St Petersburg, only in respect of the elections to the LA. In particular, he challenged the official figures concerning the results in thirteen electoral precincts (nos. 554, 555, 557, 592, 593, 597, 598, 600, 601, 605, 606, 610 and 611).", "According to the initial copies of the protocols collected by the applicant from the observers and PEC members, SR had obtained 6,629 votes in this electoral division; the official result stood at 3,894 votes. 44. In addition, the eleventh applicant also contested data appearing in some of the “original” protocols. In particular, he claimed that the protocols from sixteen PECs (nos. 549, 552, 553, 554, 444, 446, 558, 592, 594, 598, 601, 605, 606, 607, 608 and 611) did not reflect the actual results.", "45. He referred to the following breaches of procedure which had been reported by observers and some members of electoral commissions and which were, in his opinion, indicative of manipulation: - observers had been removed from polling stations under different pretexts, such as that they had been “filming the lists of registered voters and the process of voting” or “using dictaphones” (nos. 549 and 554); “displaying written materials bearing the symbol of one of the parties” (no. 549); or “making offensive comments in respect of the head of the electoral commission” (no. 552); - observers had been positioned so that they were unable to see the voting booths and the head of the PEC had refused to relocate the ballot boxes, the voting booths or the observers’ seating area, or to let the observers move to better positions (nos.", "549, 552, 554, 592, 605, 608 and 611); - during the voting unidentified individuals had blocked the view of the booths or ballot boxes so as to prevent observers from seeing what was happening there (no. 549); - some people had voted without having received ballot papers from the electoral commission (no. 549), or had stuffed several ballot papers into the boxes at once (no. 553); observers reported that the number of people who had turned up to vote was, according to their calculations, much lower than the number of ballot papers deposited in the boxes (nos. 549 and 594); and compact wads of dozens of identical ballot papers filled in for ER had been found in certain boxes (nos.", "598 and 608); - the observers had been ordered to stay a certain distance away from the tables where the ballot papers were counted, and could not therefore see what was happening and what was written on the papers (nos. 552 and 558); - some people who should normally have been among the registered voters had not found their names on the lists (nos. 558 and 607); - the “mobile ballot boxes” used for voting at home had not been shown to the observers (no. 558); - the members of the electoral commission who had taken the “mobile ballot boxes” to home voters had discovered that the people concerned had already voted in person at the voting station and had stated that they had never applied to vote at home (nos. 601 and 607).", "46. The observers had referred to other problems and anomalies in the voting and counting process (insufficient number of blank ballot papers, lists of registered voters not stapled together and sealed, inexplicable interruptions to the process of counting the votes, third parties entering the premises of the City Electoral Commission and talking to the head of the commission, agitation for ER, and so on). 47. To confirm his allegations the eleventh applicant submitted copies of complaints lodged by individual observers and members of the electoral commissions at the electoral precincts concerned. D. Complaints to the City Electoral Commission and the judicial review thereof (second, third and fourth applicants) 48.", "On 6 December 2011 the third and fourth applicants (Mr Andronov and Ms Nikolayeva) lodged an administrative complaint with the City Electoral Commission indicating that the official results of the voting (in LA and Duma elections) in precincts nos. 651 and 654 of Kolpino district were wrong and did not correspond to those recorded in the protocols. 49. As regards polling station no. 651, the third applicant (Mr Andronov) described the process of transporting the protocols to TEC no.", "21. He indicated that the protocols had been taken by the PEC chairman to the TEC on 5 December 2011. However, when Mr Andronov had spoken to the chairman on the telephone at about 7.15 p.m., the latter had informed him that the document had not yet been handed to the TEC and that he was waiting in the corridor to be called. Nevertheless, by that time information about precinct no. 651 had already appeared on the website of the City Electoral Commission.", "In other words, the City Electoral Commission had published the precinct results before TEC no. 21 had received the protocols from the chairman of the precinct commission. The figures published by the City Electoral Commission were different from the result recorded in the “original” protocol, with a higher number of votes for ER. The PEC chairman had later informed Mr Andronov that he had handed in the protocols and had been given a receipt by the TEC; according to the third applicant, the receipt contained the original results, and not those which had been published later. A copy of that receipt had later been added to the file before the TEC.", "The third applicant had recorded all his conversations with the PEC chairman and submitted a CD with those recordings. He also indicated that he would be prepared to request a printout of his telephone call history during the period concerned from the mobile operator. 50. As regards polling station no. 654, the fourth applicant (Ms Nikolayeva) gave fewer details about the process of transporting the protocols and the tabulation of results at the TEC; she simply indicated that as a voting member of the precinct commission she had received a copy of the protocols, and that this copy did not correspond to the official results published by the City Electoral Commission.", "51. On 8 December 2011 the City Electoral Commission forwarded the third applicant’s complaint to the Kolpino District Prosecutor for further action. It appears that the fourth applicant’s complaint was also sent there. 52. On 12 December 2011 the City Electoral Commission officially approved the results of the elections in St Petersburg, including precincts nos.", "651 and 654. 53. On 19 December 2011 the Kolpino District Prosecutor informed the third applicant that as the election results had been officially approved the complaint had to be lodged with the courts. 54. On 28 December 2011 the City Electoral Commission informed the third applicant, by letter, that after the official approval of the election results, the results could only be contested in court.", "The fourth applicant did not receive any reply to her complaint. 55. On 2 and 8 February 2012 the third and fourth applicants lodged complaints with the Oktyabrskiy District Court, challenging the refusal of the City Electoral Commission to examine their complaints. 56. On 9 and 15 February 2012 the Oktyabrskiy District Court rejected the applicants’ complaints.", "The relevant part of the court’s reasoning in both decisions reads as follows: “In the complaint [the applicant] pointed to a possible falsification of the results of the voting, which is a crime under Article 141-1 of the Criminal Code of the Russian Federation [; however,] the City Electoral Commission of St Petersburg has no power to establish, investigate or ascertain circumstances, events or actions which may trigger criminal liability, [and therefore] the court considers that it was justified in forwarding the complaint to the Kolpino District Prosecutor’s office.” 57. The two applicants appealed; on 16 April and 10 May 2012 the St Petersburg City Court upheld the lower court’s decisions. 58. The second applicant (Ms Andronova) also complained to the City Electoral Commission about a discrepancy between the numbers of votes recorded by her at PEC no. 652 and those announced by the City Electoral Commission.", "On 9 December 2011 the City Electoral Commission informed her that her complaint had been forwarded to the St Petersburg City Prosecutor. 59. The second applicant also applied to the Oktyabrskiy District Court, contesting the City Electoral Commission’s refusal to examine her complaint. On 5 March 2012 her complaint was dismissed, on similar grounds (see paragraph 56 above). The St Petersburg City Court upheld the decision on appeal on 2 May 2012.", "E. Attempts to start a criminal investigation into the alleged falsification 1. The first applicant (LA elections in precinct no. 646) 60. On 20 December 2011 the Kolpino District Prosecutor received a complaint alleging falsification of the results in precinct no. 646 (as challenged by the first applicant – see paragraphs 18 et seq.", "above). 61. On 18 January 2012 the Kolpino District Prosecutor decided not to open an investigation into this allegation. The investigator noted that, indeed, according to the “original” protocols produced by the unnamed claimant, the number of votes received by ER had been only one-third of the total officially reported. However, the investigator had received another protocol from the City Electoral Commission, in which the number of votes recorded was identical to that reported on the website.", "Having examined it, the investigator continued as follows: “... In this connection it is necessary to conduct a graphological examination of the signatures of the members of PEC no. 646 [on the protocols] submitted by the applicant and by the CEC. On the basis of the above [the investigator] has decided not to open a criminal case under Article 142.1 of the Criminal Code, as there is no evidence of a crime.” 62. It appears that at some point the decision of 18 January 2012 was quashed by a supervising prosecutor.", "On 21 February 2012 the same investigator again decided not to open a case. The new decision by the investigator read as follows: “... In this connection it is necessary to conduct a graphological examination of the signatures of the members of PEC no. 646 [on the protocols] submitted by the applicant and by the City Electoral Commission; without [such an examination] it is impossible to establish whether there is evidence of a crime as provided for by Article 142.1 of the Criminal Code. Such an examination was ordered on 15 February 2012, but so far it has not been completed.", "On the basis of the above ... [the investigator] decided not to open a criminal case under Article 142.1 of the Criminal Code, as there is no evidence of a crime.” 63. According to the applicants, in the following months that decision by the investigator was set aside and the case was reopened and then closed again at least once. The applicants did not have any more detailed information about all the reopenings and closures of the case. 2. Complaint by the second applicant (LA elections and Duma elections in precinct no.", "652) 64. On 5 December 2011 the second applicant (Ms Andronova) lodged a complaint with the St Petersburg Department of the Investigative Committee. She wrote that, as a voting member of PEC no. 652, she had seen the results of the election and had participated in the transfer of the signed protocol to TEC no. 21.", "In a telephone conversation the head of the TEC had confirmed that he had received the protocol. According to that document, SR had received 315 votes; however, the official results reported 115 votes. The second applicant attached a copy of the “original” protocol and the final results as published on the website of the City Electoral Commission, and asked the Investigative Committee to open a criminal investigation into the matter. In her opinion, the circumstances of the case were indicative of falsification of the results of the elections – a crime under the Criminal Code of the Russian Federation (see paragraphs 29 et seq. above).", "65. It appears that the second applicant’s complaint was forwarded to the Kolpino District Prosecutor’s Office for consideration. 66. On 14 February 2012 the Kolpino District Prosecutor informed the second applicant that he had decided not to take any action in connection with her complaint. The prosecutor informed the second applicant, without giving any specific details or answering the allegations raised in the complaint, that having considered the situation, he had not detected any breaches of electoral law.", "She was entitled to challenge the official results of the elections before a court that had jurisdiction over the relevant electoral commissions. 3. The third and fourth applicants (LA and Duma elections in precincts nos. 651 and 654) 67. On 6 December 2011 the third and fourth applicants lodged a complaint with the St Petersburg Department of the Investigative Committee, seeking the opening of a criminal investigation into the alleged falsification of the results of the elections in precincts nos.", "651 and 654 (see paragraphs 32 and 33 above). The third applicant referred, in particular, to the conversation he had had with the chairman of PEC no. 651, and insisted that the results of the elections in that precinct had been published before the relevant protocols had been transported to TEC no. 21 (see paragraph 49 above). He also attached a transcript of that conversation.", "This complaint was forwarded to the Kolpino District Prosecutor. 68. On 18 January 2012 a decision was taken not to open a criminal investigation. Documents submitted after the present case was communicated indicate that on 23 January 2012 the decision of 18 January 2012 was set aside by the Kolpino District Prosecutor. 69.", "On 14 February 2012 the Kolpino District Prosecutor informed the third applicant that he had decided to take no action in respect of the complaint for want of any breach of legislation (in a letter identical to the letter of the same date sent to the second applicant – see paragraph 66 above). On the same day the Kolpino District Prosecutor informed the fourth applicant that her complaint was being examined. 70. On 12 June 2012 an investigator of the Kolpino District Investigative Committee ruled that a criminal investigation was not to be opened into allegations of fraud in precinct no. 654 in view of the absence of evidence of a crime (he referred to another claimant, not the fourth applicant).", "The decision was based principally on the Kolpino District Court judgment of 22 March 2012, which confirmed the results of elections in Kolpino, including in precinct no. 654 (see paragraph 143 below). The investigator, in line with the judgment of 22 March 2012, found that what the claimant had presented as a “copy of the PEC original protocol” did not constitute valid evidence, as it was incompatible with the requirements of the St Petersburg Elections Act. Thus, the recount ordered and conducted by TEC no. 21 had been lawful and the results of this recount were correctly reflected on the City Electoral Commission’s website.", "4. The sixth applicant (LA elections in precinct no. 637) 71. The sixth applicant (Mr Belyakov) lodged a complaint with the Investigative Committee concerning falsification of the results in precinct no. 637 (see paragraph 35 above).", "The Investigative Committee forwarded it to the City Electoral Commission. On 30 December 2011 the City Electoral Commission informed the sixth applicant that after official approval of the results, any complaint should be lodged with a court. 72. On 10 January 2012 the Kolpino District Court found that forwarding the applicant’s criminal-law complaint to the City Electoral Commission had been unlawful. However, the court did not indicate what sort of action should have been taken by the Investigative Committee in response to the applicant’s complaint.", "73. The documents submitted by the parties indicate that two other individuals who had acted as observers in PECs nos. 644 and 648 lodged similar complaints in December 2011. At some point these complaints were joined to the sixth applicant’s complaint concerning falsification of the voting results in precinct no. 637.", "74. On 21 May 2013 an investigator of the Kolpino District Department of the Investigative Committee ruled that a criminal investigation was not to be opened, in view of the absence of evidence of a crime. This decision covered complaints lodged by various individuals about precincts nos. 637, 644, 648 and 651. He referred, principally, to the Kolpino District Court judgments of 22 March and 24 May 2012 (see paragraphs 143 and 117-121 below).", "Along the same lines, he found that what the applicants had presented as a “copy of the original protocol” of PEC no. 637 did not constitute valid evidence, as it failed to meet the requirements of the St Petersburg Elections Act. In respect of PECs nos. 637 and 651, the investigator noted that the decision of TEC no. 21 to conduct recounts had been lawful.", "The results of the recounts had not been declared void, and were correctly reflected on the City Electoral Commission’s website. F. Judicial review proceedings before the Supreme Court and the Constitutional Court 1. Applications to the Supreme Court for judicial review 75. On 12 December 2011 the first five applicants lodged a complaint with the Supreme Court of Russia seeking the quashing of the decision of the СEC whereby the results of the elections had been officially approved. Their complaint concerned the results of the elections to the LA and to the Duma in the Kolpino district of St Petersburg (that is, electoral divisions nos.", "18 and 19). According to the first five applicants, the official results published by the CEC did not correspond to the real results (see paragraphs 18-34 above). 76. In their complaint the applicants explained in what capacity they had participated in the elections. The first applicant indicated that he had stood as an SR candidate in the elections, and the other applicants indicated that they had been either members of the electoral commission, observers, or voters.", "77. The applicants explained that the results of the elections published by the City Electoral Commission on its website and then reproduced by the CEC did not correspond to the protocols they had obtained from the relevant PECs, and that the overall difference between the figures in those protocols and the final results for Kolpino was close to 8,000 votes. The applicants produced copies of the “original” protocols and printouts of the final results from the website of the City Electoral Commission and asked for the latter results to be declared void, along with the decision of the City Electoral Commission and the decision of the CEC approving them. 78. On 23 December 2011 a Supreme Court judge refused to consider that complaint.", "The judge decided that the court had no jurisdiction to examine such a complaint, since the alleged violations did not affect the rights of voters, but might have affected the rights of the parties which had participated in the elections. 79. The applicants appealed, but on 9 February 2012 their appeal was dismissed. The Supreme Court of Russia, sitting as a court of appeal, noted that under the Duma Elections Act, section 92(4) and (5), the quashing of a decision of the CEC whereby the results of elections were approved was possible only where the violations complained of affected the interests of the political parties participating in the elections. Section 77 of the Basic Guarantees Act contained a similar provision.", "The court held that the violations complained of could have affected the interests of the parties whose candidates had stood in those elections, but not the rights of the voters. 2. Proceedings before the Constitutional Court 80. Having obtained the Supreme Court’s decision of 9 February 2012, the same applicants brought a complaint before the Russian Constitutional Court. They complained about the Supreme Court’s interpretation of the Code of Civil Procedure (the CCP), the Basic Guarantees Act and the Duma Elections Act.", "According to the Supreme Court, the provisions of those instruments did not authorise voters to complain of incorrect vote counting: only political parties had standing to do so. In the applicants’ opinion, such an interpretation contradicted the Constitution. 81. On 22 April 2013 the Constitutional Court delivered a judgment on the applicants’ complaint (judgment no. 8-P/2013).", "It held that an individual voter had a legitimate interest in having his or her vote in support of a political party or candidate counted correctly. Thus, the “active electoral right” was not limited to the right to cast a vote freely at the polling station; it also included the process of counting votes and obtaining a correct final result which reflected the real will of the electorate. Voters should have the right to check the validity of the counting process. In addition, the interests of the parties participating in the elections and the voters might be different. The fact that the process of casting votes was secret did not preclude voters from complaining about incorrect recording of the results, since this affected the election process as a whole and could potentially undermine the legitimacy of the elected body.", "Therefore, it did not matter which party the particular voter had voted for at the elections. The Constitutional Court concluded that voters should have the right to lodge complaints about the process of counting votes (point 2.1 of the judgment). 82. As to the judicial avenue for such complaints, the Constitutional Court noted that although this was not the only possible legal mechanism, it existed in many European countries. Referring to Resolution 1897 (2012) of the Parliamentary Assembly of the Council of Europe, to the principles developed by the Venice Commission, and to the case of X v. Germany (no.", "8227/78, Commission decision of 7 May 1979), the Constitutional Court noted that the law might create certain procedural barriers to such complaints: for example, it might establish short time-limits for complaints or set a minimum number of voters needed for such complaints to be brought. 83. The Constitutional Court concluded that judicial protection of electoral rights should be available to voters not only in connection with complaints about electoral campaigns and the process of voting, but also in respect of irregularities in the process of counting votes. At the same time, the exercise of the right to judicial protection must not disturb the stability of the functioning of elected bodies. Therefore, in order to prevent abuse of rights, only substantial violations in the process of the counting of votes could lead to a reconsideration of the results of the elections.", "84. In point 2.4 of the judgment the Constitutional Court invited the federal legislature to secure the right to judicial review of the process of counting votes and determination of the final results of elections. The Constitutional Court added that courts conducting such reviews must be capable of declaring the results of elections in a particular constituency void. The exercise of the right to obtain judicial review of vote counting could be subject to rules and procedures established by a federal law. 85.", "The Constitutional Court then examined provisions of the legislative instruments referred to by the applicants (point 3.1 of the judgment). In the opinion of the Constitutional Court those instruments, if interpreted in compliance with the spirit of constitutional provisions, did not prevent voters from complaining about the process and results of the counting of votes by the electoral commissions, and allowed the courts, where the violations complained of prevented the correct determination of the will of the electorate, to declare the results of the elections void. In point 3.3 of the judgment the Constitutional Court held that a regional branch of a political party participating in the elections had standing to bring a complaint about violations of electoral law at regional level. 86. The Constitutional Court further held that voters should not be put in a situation of uncertainty as to the scope of their right of access to court and the procedure of exercising that right.", "It held that the federal legislature, having proclaimed that the courts were competent to examine complaints about breaches of the electoral law, had to adopt special rules to ensure that voters could exercise their right of access to court. The law must introduce rules to prevent competing political forces from abusing the right to bring judicial proceedings and from employing such practices as a tool for political manipulation. The rules of the CCP and the other instruments under examination by the Constitutional Court, as they were formulated at the time, implied that all participants in elections, irrespective of their status and the type and scale of the violation concerned, had equal rights to bring complaints before a court about any violation of their electoral rights. However, such a lack of differentiation was prejudicial to the stability of the democratic system and created an opportunity for abuse. The procedure for judicial review of irregularities in election procedures was unified at all levels of the electoral system; however, the interest of voters in having their vote counted accurately was stronger at the level of the precinct where they voted (as opposed to higher levels of the electoral system).", "87. In the concluding paragraphs of the judgment, the Constitutional Court noted that the courts of general jurisdiction often interpreted the CCP and other applicable acts differently, as if those acts gave the right to bring a complaint about inaccuracies in the counting of votes only to political parties, but not to voters themselves. In part, this was due to the wording of point 20 of Supreme Court Decree no. 5 of 31 March 2011, where the Supreme Court had held that the courts could not examine complaints of breaches of the electoral law where those breaches did not affect the rights of the complainant. 88.", "The Constitutional Court concluded that such practices were related to the uncertainty of the underlying legislative provisions. Such practices were declared to be incompatible with the Constitution (point 4.3). The Constitutional Court ordered the federal legislature to enact a law which would define the procedure and conditions of voters’ exercise of their right to judicial review of the electoral process at the stages of vote counting and summing up the results. In the meantime the courts of general jurisdiction were ordered to accept for examination on the merits complaints by voters concerning the counting process at the level of the electoral precincts where they had voted. G. Judicial review proceedings before the St Petersburg City Court 1.", "The first five applicants (LA and Duma elections in the Kolpino district as a whole) 89. On 12 December 2011 the first five applicants lodged a complaint with the St Petersburg City Court seeking to have overturned the decision of the City Electoral Commission of 12 December 2011 whereby the results of the elections to the LA and Duma were officially approved. This complaint was very similar to the one lodged with the Supreme Court (see section F above). 90. On 23 December 2011 a judge of the City Court refused to consider the complaint on the merits for procedural reasons.", "First, the judge observed that the City Court had jurisdiction over complaints lodged against the electoral commission at city level. However, in the opinion of the judge, the applicants’ complaint was directed against the actions of the lower commissions – precinct and territorial. Consequently, the City Court had no jurisdiction to examine those claims. Second, the judge found that the applicants had alleged that the officials of the electoral commissions were guilty of electoral fraud, which was a criminal act and could not be examined in civil proceedings. Third, in their complaint the applicants had not fulfilled certain formal requirements.", "The judge invited the applicants to amend their complaint accordingly, attach the missing documents, and resubmit it before 11 January 2012. 91. The applicants appealed. They indicated that they had not asked the court to find anybody criminally liable; the only purpose of their complaint was to have overturned the decision of the City Electoral Commission whereby it had approved the official results of the elections published on its website on 5 December 2011. Under Article 26 of the CCP and section 75(2) of the Basic Guarantees Act, the City Court was competent to examine complaints against the City Electoral Commission.", "92. On 22 February 2012 the decision of 23 December 2011 was upheld on appeal by the Supreme Court. The Supreme Court confirmed that the City Court had no jurisdiction over the claim. The applicants claimed that they had not been informed about the decision of the Supreme Court but had learned about it from the Supreme Court’s website some time later. 93.", "In parallel to this appeal, on 10 and 11 January 2012 the applicants resubmitted their complaint, having made the amendments suggested by the City Court. 94. On 12 and 13 January 2012 the City Court refused to consider the complaint on the merits. The judge of the City Court found that the applicants were trying to contest the results of the elections in the Kolpino district, electoral divisions nos. 18 and 19 (TEC no.", "21). However, under section 74(2) of the Basic Guarantees Act, such complaints fell within the jurisdiction of the corresponding district courts. As to the role of the City Electoral Commission, the judge observed that its duty was to summarise data received from the lower commissions. The court reiterated that the main subject of the applicants’ complaint was the data which had emanated from the precinct and territorial commissions; therefore, the applicants had to contest the actions of those commissions before the relevant district courts, and not before the City Court. 95.", "The applicants appealed. They insisted that they had not challenged the PECs’ decisions. Quite to the contrary, their case fully relied on the protocols issued by the PECs, which they had appended to their complaint. As to TEC no. 21, the applicants only knew that the TEC had received the protocols from the PECs, but not what had happened to them later and how the TEC had processed the data.", "The applicants had not participated in the process of calculating results at territorial level and did not know what figures TEC no. 21 had sent to the City Electoral Commission. They had learned about the incorrect figures from the official publication of the City Electoral Commission of 5 December 2011, as approved by its decision of 12 December 2011. Consequently, it was the decision of the City Electoral Commission which they were contesting. 96.", "In their appeal the applicants reiterated that they were simply comparing the data contained in the PEC result sheets and deemed to be correct and the “incorrect” data published by the City Electoral Commission. They did not know and could not know at what level the “correct” figures had turned into “incorrect” ones. However, the City Court was equally unable, without examining the case on the merits, to infer that the applicants’ complaint concerned allegedly unlawful actions on the part of the TEC. 97. The applicants contended, with reference to section 26 of the Duma Elections Act, that the City Electoral Commission’s role was not limited to a mechanical summing up of the data received from the lower commissions.", "The City Electoral Commission had a general duty to “coordinate the operations” of the lower commissions, ensure respect for electoral rights, guarantee that a uniform procedure was applied in the calculation of votes, and so on. It was also responsible for announcing and approving the final results of the elections. Therefore, the applicants contested the decision of the City Electoral Commission, and not the individual decisions of each PEC or TEC. On the strength of the above, the applicants concluded that their complaint, as directed against the actions of the City Electoral Commission, was within the jurisdiction of the St Petersburg City Court. 98.", "On 7 February 2012 the St Petersburg City Court, sitting in a three-judge formation, dismissed the appeal against the decision of 13 January 2012, repeating the findings of the lower court as to the question of jurisdiction. It confirmed that the City Electoral Commission merely summarised data received from the lower commissions. The City Court also indicated that point 39 of the Supreme Court Plenary Ruling no. 5 of 31 March 2011 stated that if a complaint about a decision approving election results referred to alleged violations on the part of the PECs, the subject of the complaint was in fact the decision of the PEC, and such cases were to be examined by the relevant district courts. A similar decision was reached by the City Court on 19 March 2012 on the appeal against the decision of 12 January 2012 (see paragraph 94 above).", "2. The sixth applicant (LA elections in precinct no. 637) 99. The sixth applicant (Mr Belyakov) lodged a complaint with the St Petersburg City Court against the decision of the City Electoral Commission approving the final results of the voting. His complaint was similar to those of the first five applicants, but concerned only electoral precinct no.", "637 and only the elections to the LA. He brought his complaint in his capacity as an individual voter in that precinct. The applicant claimed that according to the copy of the protocol he had received from a voting member of the electoral commission, the KPRF and Yabloko had received 200 and 128 votes respectively; however, according to the official results those parties had received only 14 and four votes. By contrast, the results of ER had grown from 380 to 804 (see paragraph 35 above). The applicant had not voted for either ER or SR.", "He believed that as a result of the falsification his vote had been effectively “stolen”, and given to a party which had benefited from the falsification. He asked the City Court to overturn the decision of the City Electoral Commission in the part concerning the precinct in question. 100. The applicant produced a copy of the protocol issued by PEC no. 637.", "This copy bore the official stamp of the PEC; it was signed by the head and eight members of the commission. The document specified that there had been no incidents during the voting and that no complaints about the voting process had been received. 101. In addition, the applicant submitted a copy of the protocol issued by TEC no. 21, and a printout of a screenshot of the webpage of the City Electoral Commission.", "The City Electoral Commission was indicated in the text of the complaint as “the interested party”. 102. On 25 January 2012 a judge of the St Petersburg City Court ruled that it was impossible to consider the applicant’s complaint without additional clarifications and documents. He noted that the applicant was challenging actions of the City Electoral Commission which were not decisions, records of results or anything similar. Therefore, the judge invited the applicant to specify to which action of the City Electoral Commission his challenge applied.", "The applicant was also invited to identify the decision of the City Electoral Commission approving the results in precinct no. 637, and to submit a copy of that decision “with another copy for the interested party”. The applicant was invited to explain what specific breach of the electoral legislation he was contesting and who was responsible for that breach, and to specify in what respect the City Electoral Commission had not acted in accordance with the law. 103. On 3 February 2012 the sixth applicant, having provided additional material to supplement his complaint, resubmitted it to the City Court.", "104. On 9 February 2012 a judge of the City Court refused to consider the complaint on the merits, finding that the applicant had failed to submit the clarifications and additional documents requested on 25 January 2012. He ruled as follows: “[In accordance with the law,] the protocol issued by the PEC in respect of [a particular] polling station has to be drawn up in two original copies; ... the PEC sends copy no. 1 ... to the Territorial Commission, which then forwards it to the St Petersburg City Commission. The photocopy of the protocol from precinct no.", "637 submitted by the claimant did not indicate which original copy [had served to make the photocopy]; thus, there are no grounds to believe that the interested party [the City Electoral Commission] has a copy of that document. While the claimant’s complaint is based on the argument that the [official] results of the voting in precinct no. 637 are different from those which are reflected in the protocols of PEC no. 637, and while the claimant relied on that item of evidence and produced it to the court, he was required [by law] ... to submit, for the [use of the] interested party, a second copy of the document he had at his disposal”. 105.", "The applicant appealed. He argued that he had submitted a copy of the protocol to the court. He had received that copy from a member of the PEC, who had obtained it after the counting of votes was over. The City Electoral Commission (the interested party) had the original PEC protocol, so it was absurd to require him to submit anything more than he had already submitted to the court. 106.", "On 5 March 2012 the St Petersburg City Court, on appeal, upheld the decision of 9 February 2012. It noted that the copy which the applicant had submitted did not indicate whether it was a copy of the original document, no. 1 or 2. As can be understood from the appeal decision, the applicant should have submitted to the District Court a copy made from the original document, either no. 1 or no.", "2, so that that copy could be transmitted to the “interested party” (that is, the City Electoral Commission); without such a document the applicant’s complaint could not be examined. 107. The Government specified in their memorandum of 14 October 2014 that copy no. 1 of the original document drawn up by the PEC contained a number of annexes, such as separate opinions of the commission’s members and complaints received during the voting. This copy had been transferred to the relevant TEC.", "Copy no. 2 had been kept at the precinct office and made available to the public; following this it too had been transferred to the territorial commission. No copies of this document were forwarded to the City Electoral Commission, since the TECs had provided it with a summary of the information received from the relevant precinct commissions; therefore the City Electoral Commission had no copies of the original protocols from the precincts. 3. Complaint lodged by the St Petersburg branch of SR (LA elections in St Petersburg City as a whole) 108.", "On 19 December 2011 the St Petersburg branch of SR lodged a complaint with the St Petersburg City Court. The complaint concerned several electoral divisions, in particular nos. 15, 17, 22 and 33. The party complained, in particular, about the difference between the official results and the results set out in the copies of the documents received by the observers and members of the PECs in those divisions. They also indicated that the City Electoral Commission had failed to examine properly eighteen complaints lodged by SR and eighty-seven complaints lodged by others.", "109. On 27 February 2012 the St Petersburg City Court dismissed the complaint. It found that all the administrative complaints to the City Electoral Commission had been properly discussed and addressed. The City Court further found that the City Electoral Commission’s decision approving the results of the elections had been adopted unanimously and in accordance with the procedure set out by the law. An employee of the City Electoral Commission had informed the complainants of the time and the date of the meeting of the Commission, so they had been given the chance to attend.", "Some of those attending the meeting had been affiliated to SR. Section 30(1) of the Basic Guarantees Act did not require that every person on the list established in that provision be notified. The Commission had an obligation to notify them “within the bounds of feasibility” (“в пределах возможностей”). Some representatives of SR had been informed about the meeting and could have passed that information on to others. In fact, information about the meeting of 12 December 2012 had not been published in the media or on the “Vybory” (“Elections”) database, but this was immaterial.", "The City Court concluded that the City Electoral Commission had not committed any breach of the law which would affect the results of the election. 110. SR appealed. On 23 May 2012 the Supreme Court upheld the City Court’s judgment. In addition to the City Court’s arguments, it noted that although the City Electoral Commission had not taken individual decisions on each and every complaint it had received between 4 and 12 December 2012, that could not affect the lawfulness of its final decision to approve the results of the elections.", "The members of the Commission had been informed about the complaints received by the Commission, and that had been enough to satisfy the requirements of the law. In particular, it was perfectly acceptable that all those complaints had been examined by a special working group created within the Commission, and not the Commission itself. The Supreme Court also noted that, in breach of the law, the individuals who had lodged the complaints with the City Electoral Commission had not been invited to be present for the examination of their complaints; however, that was not a sufficient ground for declaring the final decision of the City Electoral Commission unlawful. The Supreme Court also held that the “consolidated protocols” containing the election results at city level had been approved in accordance with the correct procedure and were therefore lawful. The failure of the City Electoral Commission to notify all interested parties in accordance with section 30(1) of the Basic Guarantees Act did not constitute a ground for invalidating the results of the elections, since “it had not prevented the actual will of the voters from being determined”.", "111. The Supreme Court also held that the claimants had failed to prove that the complaints which the City Electoral Commission had received could have affected the results of the voting. In essence, those complaints were challenging the results of the voting in certain electoral precincts. However, the decisions of the PECs had to be challenged before the district courts. The Supreme Court concluded that “since it has not been established that there have been any breaches of electoral law which would affect [the determination of] the will of the voters”, the lower court had been correct to dismiss the complaint.", "H. Judicial review proceedings before the district courts 1. The sixth applicant (LA elections in precinct no. 637) 112. On 25 January 2012 the sixth applicant (Mr Belyakov, precinct no. 637) lodged a complaint with the Kolpino District Court concerning the actions of TEC no.", "21 (see paragraph 35 above). 113. On 27 January 2012 the District Court returned the complaint to the applicant. It noted that he had failed to submit a sufficient number of copies of his complaint and annexes: in particular, he had not submitted a copy for the prosecutor’s office. Furthermore, the copy of the document on which he had relied was signed by the secretary of the TEC but not by its chairman, and the TEC protocols had not been signed by all of its members.", "The District Court invited the applicant to add the missing documents and resubmit his complaint. 114. On 7 February 2012 the applicant resubmitted the complaint. 115. On 1 March 2012 the Kolpino District Court decided that it had no jurisdiction to examine the complaint.", "It noted that the applicant had complained, as a voter, of a breach of his “active electoral right” (the right to vote). However, in the opinion of the District Court the actions of the TEC which the applicant contested and which concerned the allegedly incorrect distribution of votes among the political parties might have affected the interests of those parties but not the interests of the individual voters. The applicant had participated in the elections as a candidate, but for a different precinct. The court concluded that the applicant’s rights had not been affected by the impugned acts of the TEC, and discontinued the examination of the case. 116.", "The applicant appealed. On 12 April 2012 the St Petersburg City Court ordered the lower court to examine the case on the merits, disagreeing with its conclusion that the actions of TEC no. 21 had not affected the applicant’s rights as a voter. 117. On 24 May 2012 the Kolpino District Court examined the complaint.", "According to the applicant, he requested the examination of a number of witnesses, in particular members, chairmen and observers of the electoral commissions concerned. The District Court refused to call any witnesses; it only heard the applicant, representatives of TEC no. 21, the City Electoral Commission, and a prosecutor. The latter recommended dismissing the applicant’s complaint as unfounded. 118.", "The District Court dismissed the applicant’s complaint. The relevant part of its decision reads as follows: “... In support of his arguments ... the claimant submitted a copy of the protocols from PEC no. 637, the protocols from TEC no. 21 ... and the consolidated protocols ... for the election as a whole.", "However, those documents were drawn up in breach of the mandatory formal requirements established by the Basic Guarantees Act. [Namely], in breach of [the relevant provision of the Act] the copy of the protocols does not indicate the running number of the original copy it was made from. In breach of [the relevant provision of the Act] numerical data in the protocol are not written out in words. [In breach of the provisions of the law] the copy of the protocol did not contain the entries ‘true copy’ or ‘exact [copy]’, and did not indicate the date and the time the copy was issued.” 119. Furthermore, the District Court observed that the PEC protocol contained inconsistent data.", "For example, the number of valid ballot papers noted in the table amounted to 1,276, and the aggregate number of votes for all candidate parties was indicated as 1,246, whereas that number should correspond to the number of valid ballot papers. The aggregate number of ballot papers deposited in the stationary boxes, those deposited in the mobile boxes, and “cancelled ballot papers”, which should correspond to the number of ballot papers received by the precinct commission, was higher (1,630 instead of 1,600). The District Court concluded that the copy of the PEC protocol relied upon by the claimant was inadmissible in evidence. 120. The District Court further established that on 5 December 2011 the TEC had overturned the decision of PEC no.", "637 approving the election results and had ordered a full recount. The applicant had not contested that decision. The City Electoral Commission submitted to the District Court “copy no. 2” of the PEC protocols marked “recount”. The data contained in that copy, drawn up following the recount, corresponded to the officially approved results of the elections.", "That copy had all the necessary entries and fully met the formal requirements. Under the law, if the original protocols contained inconsistent data the PEC was entitled to conduct a recount and issue a new return. The court refused to grant the applicant’s requests for a number of witnesses to be called, including the chairman of the PEC and observers, having concluded that the documents submitted had provided sufficient evidence about the outcome of the results. 121. The District Court referred again to the applicable legislation, which provided for a revision of the results of an election only where breaches of the law were such as to prevent the real opinion of the voters from being established.", "The court concluded that the applicant’s complaint did not reveal any such breach. It dismissed the applicant’s complaint and refused to declare void the official results of the elections in precinct no. 637. 122. The applicant appealed.", "He submitted that, according to his information, no recount had been conducted. The law required the mandatory presence of all the PEC members and observers at any recount; however, they had not been invited for that purpose. Even if a recount had taken place, it would have been unlawful. The fact that the copy of the protocols submitted by the applicant to the court did not correspond to the copy of the protocols at the disposal of the City Electoral Commission had not been contested by the first-instance court. The very reference to a version for the “recount” confirmed the existence of two different results.", "In the course of the hearing the applicant had repeatedly asked the District Court to ascertain whether the recount had had any lawful basis, but the court had failed to address that argument. The applicant claimed that the witnesses whose appearance he had sought would have been able to confirm that no recount had taken place. The alleged inconsistencies in the original table were immaterial; what mattered was that the original results calculation had been replaced with a new one, and that this second document was a concoction. 123. According to the applicant’s statement of appeal, the alleged recount had been carried out in response to a complaint by a voter, a Mr L. However, the “original” document indicated that the PEC had received no complaints from voters or observers.", "Furthermore, according to the letter of 26 December 2011 from the TEC chairman in reply to the applicant’s complaint, before finally signing the protocols the commission had received “no complaints from the representatives of the political parties”. The applicant concluded that the “complaint by Mr L.”, which had served as a pretext for the secret recount, was a fake. 124. The applicant argued that he had been unable to challenge the decision of the TEC to conduct a recount, because that decision had been concealed from the public and representatives of the parties and had become apparent only from the documents submitted by the City Electoral Commission to the court. 125.", "On 16 August 2012 the St Petersburg City Court, sitting as a court of appeal, dismissed the sixth applicant’s appeal, endorsing the reasons adduced by the District Court. The appeal court did not comment on the Kolpino District Court’s refusal to call witnesses. It noted that the evidence produced by the applicant was unreliable, whereas the evidence produced by the TEC and the City Electoral Commission was in conformity with the formal requirements, and the District Court had found it convincing. The City Court concluded that the applicant had failed to prove his allegations. 2.", "The seventh applicant’s complaint (LA elections in Kolpino district as a whole) 126. On 14 December 2011 the seventh applicant (Mr Yakushenko) lodged a complaint with the Kolpino District Court alleging falsification of the results of voting in Kolpino as a whole (electoral divisions nos. 18 and 19). His complaint concerned the following fifty-four precincts: nos. 623, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 657, 658, 661, 662, 663, 664, 666, 667, 668, 669, 670, 671, 672, 673, 675, 678, 680, 681, 682, 683, 684, 685 and 687.", "These proceedings therefore concerned the precincts challenged by the first six applicants in the domestic proceedings and before this Court (see paragraphs 18-36 above). 127. On 19 December 2011 the Kolpino District Court returned the complaint to the seventh applicant unexamined and informed him that it should have been submitted to the City Court. 128. On 28 December 2011 the applicant resubmitted the complaint to the City Court, but on 29 December 2011 it was returned unexamined.", "The City Court was of the opinion that the complaint fell within the jurisdiction of the Kolpino District Court. The applicant appealed, but on 26 January 2012 the City Court, sitting as a court of appeal, confirmed that it had no jurisdiction to examine such a case. 129. On 19 January 2012 the applicant resubmitted his complaint to the Kolpino District Court. (a) Judgment of 16 July 2012 by the Kolpino District Court 130.", "On 16 July 2012 the Kolpino District Court examined the complaint. A copy of the transcript of these proceedings has been submitted by the Government. 131. According to the decision and the transcript, the District Court heard submissions from the prosecutor, who recommended dismissing the complaint. The applicant made several requests for certain witnesses to be examined and documents disclosed; some of those requests were refused and others were granted.", "Thus, the court heard twenty-three witnesses whose appearance had been requested by the applicant, namely observers and members of electoral commissions (including some of the applicants in the present case). They described their role in the elections, and explained how they had received copies of the protocols with the results. Most of the witnesses testified that the data in the protocols which they had received at the polling stations differed significantly from the official results published by the CEC, that they had not been notified of any recounts and that they had not witnessed a recount at the TEC, although some of them had been there to deliver the PEC protocols. 132. The judgment of the District Court started with a summary of the applicable electoral legislation and witness statements.", "The court further observed that “[the applicant] did not indicate in his statement and additional submissions how his rights [to vote and to be elected] had been violated”. Furthermore, the court observed that the copies of the protocols submitted by the applicant did not meet certain formal requirements. 133. On the basis of the witness statements the court concluded that none of the witnesses had given their copies of the protocols personally to the seventh applicant (Mr Yakushenko). Furthermore, at three polling stations (nos.", "640, 644 and 653) the copies of the protocols obtained from the PECs contained data which did not correspond to the data in the “original” protocols submitted by the claimant. 134. The District Court stressed that it was its duty to ascertain whether an official document had been issued by a body which had been entitled to do so, whether it had been signed by a duly authorised person and had other requisite entries, how it had been copied and stored, whether the copy submitted to the court was identical to the original, and so on. The court observed that it could not rely on copies where the originals had been lost, the copies produced by the parties were not identical, or it was impossible to establish the actual content of the document on the basis of other evidence. 135.", "On the strength of the above, the court concluded that the copies of protocols submitted by the claimant could not be admitted in evidence. It also found that the claimant had not submitted other evidence to show that the will of the voters had not been properly reflected. 136. The District Court refused to declare unlawful the “recount” of votes ordered by TEC no. 21 on 5 December 2011 in polling stations nos.", "627, 630, 633, 635, 637, 638, 641, 646, 651, 652, 654, 657, 661, 662, 664, 665, 666, 667, 668, 675, 678, 680, 681 and 682. According to the court, the supervising electoral commission had the power to order a recount if the protocols received from the lower commissions contained “errors [or] discrepancies” or if there were “doubts as to whether the protocols had been drawn up correctly”. The law also entitled the supervising commission to conduct the recount itself and issue a new protocol. The District Court referred to the following reasons for the recount: “doubts as to whether the protocols of the precinct commissions were drawn up correctly, complaints of breaches of the law committed by the PECs during the counting of the votes, as well as a complaint by Mr L., a candidate on the SR list”. 137.", "The court referred to a witness statement by Ms S., a member of TEC no. 21. According to Ms S., the TEC had decided to conduct recounts; she had personally recounted votes with the commission’s deputy chairman, Mr R. Observers and members of the lower commissions had been entitled to observe the recount. The TEC included members from different parties. An SR member of the TEC, Ms Sh., “was very often present” during the recount.", "In addition, observers had been present at the TEC and supervised the process of counting and decision-making. All the complaints had been read out by the TEC chairman and discussed. Most of the complaints related to the difference between the results reported in the copies of the protocols received by the observers and “the data in the possession of the TEC”. The protocols which were submitted to the TEC differed from the protocols which had been given to the observers; this was why the TEC had decided to recount the votes. As a result, the information which was in the possession of the TEC had been confirmed.", "When the recount was being conducted the chairmen of the PECs concerned had not been present, but the candidates had been. The observers had not been informed of the recount, but they had in any event been present at the TEC; all the actions of the TEC had been visible to them. As a result of the recount the TEC had drawn up new protocols. 138. Ms S.’s witness statement, made on 28 May 2012 and reflected in the transcript of the hearing, gave additional details compared to what was cited in the District Court’s judgment.", "In particular, the actual recount had taken place in the basement room of the district administration building where the TEC was located, and that room had remained closed since it contained sealed bags with the ballot papers delivered from the PECs. Mr R. had opened the bags in her presence, breaking the seals which had been placed by the PECs. The room had contained no furniture, and they had brought only two chairs into it. The recount had been carried out by her and Mr R., and each precinct had taken about two hours to count. This work had lasted almost the entire day of 5 December 2011.", "While no one else had been specifically invited to the room, the observers, other members of the TEC and others had been able to enter it and observe the recount. The new protocols had then been drawn up in the main room used by the TEC, upstairs. Ms S. was unable to say what had happened to the “original” protocols. 139. The District Court concluded that by holding a recount TEC no.", "21 had acted within its powers, and there was no reason to declare those actions unlawful. PEC members had the right to be present during a recount, but their absence during the recount “did not constitute a ground for declaring the recount unlawful”. On the basis of the above, the District Court dismissed the applicant’s complaint. 140. The applicant appealed.", "(b) Decision by the court of appeal of 18 October 2012 141. On 18 October 2012 the St Petersburg City Court dismissed the applicant’s appeal. Its reasoning, which was almost identical to the judgment of the District Court, can be summarised as follows. First, the first-instance court had been correct not to take into account the copies of protocols submitted by the applicant, since the witnesses questioned in the court did not confirm that they had given their copies directly to him. The copies submitted by the applicant did not meet the formal requirements.", "In addition, the copies of the protocols concerning precincts nos. 640, 644 and 653 did not correspond to the copies which were in the archives of the three respective PECs. The applicant had failed to prove that the elections had been tainted by violations of the electoral law which had prevented the will of the voters from being established. According to the decisions issued by TEC no. 21 on 5 December 2011, the results had been declared void in the following precincts: nos.", "667, 666, 646, 641, 668, 665, 664, 662, 657, 654, 652, 651, 641, 638, 635, 637, 681, 680, 678, 675, 630, 682, 627 and 629. In all those precincts the TEC had conducted recounts, on the basis of “doubts as to whether the protocols were drawn up correctly”, “complaints of violations of the law”, and “a complaint by Mr L.”. The TEC’s actions had been lawful. The TEC members had had the right to be present during the recount, but they had not been obliged to be there; consequently, their absence had not affected the lawfulness of the recount. 3.", "SR’s complaint concerning the lawfulness of elections in electoral division no. 19 142. In parallel to the above, the St Petersburg branch of SR challenged the results of the elections to the LA in electoral division no. 19 in Kolpino (TEC no. 21).", "These results are challenged by the first to fifth applicants (see paragraphs 18-34 above). The claimant stressed that information about eighteen electoral precincts (including the precincts challenged by the five applicants) had been recorded incorrectly, that is to say differently from the “original” protocols issued as a result of the calculation of votes at the precinct commissions, in the presence of all the members of those commissions and observers. The complaints which had subsequently been lodged with the territorial commission could not serve as valid grounds for invalidating these results and ordering recounts, as no complaints had been lodged or recorded at the time of the calculation of the total number of votes in each of the precincts. 143. On 22 March 2012 the Kolpino District Court dismissed the complaint (the arguments were similar to those employed later in its decision of 16 July 2012, described in paragraphs 130-139 above).", "In particular, the court was of the opinion that the copies of documents relied upon by the claimant party did not comply with the requirements of the relevant legislative provisions, and could not serve as valid grounds for a challenge to the official results. By contrast, the results of the recounts in the electoral precincts concerned, including those challenged by the applicants, had been drawn up in line with the statutory requirements and did not raise any doubts as to their authenticity and lawfulness. No additional witnesses had been called by the District Court. The parties’ observations also indicate that on 30 May 2012 the St Petersburg City Court dismissed an appeal by the party and upheld the judgment. 4.", "SR’s complaint concerning the lawfulness of elections in two “closed” electoral precincts 144. The St Petersburg branch of SR lodged a complaint about the lawfulness and results of elections to the LA in two “closed” electoral precincts – nos. 1852 and 1853 of electoral division no. 17 (see paragraph 40 above, complaint lodged by the ninth applicant). The claimant argued that the elections in the two precincts, which had been created on 30 November 2011 by a decision of TEC no.", "3 in the territory of a large heavy machinery plant (OAO Kirovsky Zavod), had been unlawful. They pointed out, inter alia, that the PECs had been formed in breach of the relevant legal requirements and comprised fewer members than prescribed by the law (three members each, instead of no fewer than seven, in view of the fact that there were over 1,000 voters in each precinct); that no members from the applicant party had been appointed; and that on election day no observers and no candidates had been allowed access to the polling stations by the security guards of the enterprise where the voting was taking place. 145. On 16 August 2012 the Kirovsky District Court of St Petersburg dismissed the complaint. The court found that the exact number of voters was unknown in advance but estimated at about 2,000, and therefore that establishing two three-member commissions was justified; that the claimant had failed to challenge the decisions of TEC no.", "3 of 30 November 2011 setting up the two precincts; and that it was the party’s responsibility to arrange for invitations for its observers to the plant in advance, and not during the election weekend itself. The court refused to call any witnesses or to seek any additional information, such as the electoral roll or information about exclusion of voters from the roll at their regular places of residence. It rejected the need to check whether there were any observers at the PECs, since “the absence or presence of observers did not affect the results of the elections, and there are no grounds to believe that the voters were not able to express their true will”. The party appealed, but on 17 October 2012 the St Petersburg City Court dismissed the appeal and upheld the judgment of the District Court. 5.", "SR’s complaint about the results in electoral division no. 17 146. The St Petersburg branch of SR lodged a complaint about the lawfulness and results of elections to the LA in several of the electoral precincts comprising electoral division no. 17 (see complaint by the ninth applicant, paragraph 39 above). They stressed that the results in ten precincts had been invalidated by TEC no.", "3 without valid reasons being given, that the changes had led to a loss of votes for the claimant, and that the conduct of recount had entailed breaches of the relevant legislation. 147. On 22 June 2012 the Kirovskiy District Court of St Petersburg dismissed the complaint. First, the District Court challenged the authenticity of the copies of the protocols relied upon by the claimant, on the following grounds: the absence of a reference to the running number of the original copy of the return from which the copy had been made; the date, time and place it had been drawn up; a full record of the names of the PEC chairmen and members who had signed it; and inscriptions certifying the correctness of the copy. Second, in eight of the precincts the recount had been ordered by the TEC.", "The TEC submitted a copy of its report, which noted breaches in formalising these eight PEC reports, and the court agreed that the breaches were serious (unrecorded corrections; inconsistency between the sum of the number of votes cast for each party and the total number of votes cast; difference between the figures noted numerically and spelled out, and so on). In such circumstances, the decisions to conduct a recount had been a lawful one; the final returns issued following the recounts had been correct and the results matched the figures announced by the City Electoral Commission. The court did not find it necessary to call any additional witnesses from the PECs or the TEC concerned, as suggested by the claimant. 148. The St Petersburg City Court, upon appeal, upheld the District Court’s decision on 27 August 2012.", "6. SR’s complaint about the results of the elections in electoral division no. 15 149. The St Petersburg branch of SR lodged a complaint about the lawfulness and results of elections to LA in several precincts in electoral division no. 15 (see complaint by the eleventh applicant, paragraphs 43 et seq.", "above). The Kirovskiy District Court dismissed the complaint on 15 May 2012. That decision was upheld by the St Petersburg City Court on appeal on 23 July 2012. 7. SR’s complaint about the results in electoral division no.", "33 150. The St Petersburg branch of SR lodged a complaint about the lawfulness and results of elections to the LA in several precincts in electoral division no. 33 (see complaint by the tenth applicant, paragraphs 41 et seq. above). The Moskovskiy District Court dismissed the complaint on 22 May 2012.", "No appeal against that ruling was lodged. I. Information on recounts at electoral commissions 1. Factual and statistical information submitted by the applicants 151. The applicants presented copies of some of the “original” documents received by them which had served as the basis for their complaints.", "152. They also submitted a graphic table containing information about the differences between the “original” and official results in electoral divisions nos. 15, 18, 17, 19, 22 and 33 of St Petersburg, precinct by precinct. Their document stated that the votes had been recounted in 100 electoral precincts in St Petersburg in the Duma elections and in eighty-six precincts in the LA elections. Following recounts, in the Duma elections ER’s results were higher in eighty-six precincts and lower in none; SR’s results were higher in three precincts and lower in seventy-eight; the KPRF’s results were higher in six and lower in forty-eight; and Yabloko’s results were higher in four and lower in forty-five.", "In the LA elections, ER’s results were higher in ninety-three precincts and lower in seven; SR’s results were higher in three precincts and lower in eighty-seven; the KPRF’s results were higher in three precincts and lower in fifty-two; and Yabloko’s results were higher in one precinct and lower in seventy-nine. 2. Factual and statistical information submitted by the Government 153. The Government submitted a number of copies of official documents and composite tables containing information about the procedure and results of the recounts in some of the precincts where the results were contested by the applicants, as well as others. The relevant data can be summarised as follows.", "(a) Copies of commissions’ decisions and information about their composition and the presence of members 154. The Government submitted copies of the documents ordering recounts in a number of precincts, following decisions taken by the relevant TECs. Some of them concern the precincts where the results were challenged by the applicants. For example, recounts in eleven of the precincts where the results were challenged by the tenth applicant (see paragraph 41 above) had occurred as a result of a decision by TEC no. 27 (electoral division no.", "33). Similarly worded decisions, signed by the TEC chairman and secretary at an unspecified time on 5 December 2011, stated that there were “complaints lodged with the territorial electoral commission about breaches of legislation occurring in precinct electoral commission no. ... during the counting of votes, and other evidence providing objective reasons to doubt the correctness of the protocols”. The identical decisions then stated that, in the circumstances, the alleged breaches could be overcome by conducting recounts. The precinct commissions concerned were directed to carry out the recounts “immediately” and to draw up new protocols marked “recount”.", "Identical decisions were also rendered by the relevant TECs in respect of electoral precincts nos. 637 (see paragraph 35 above), 557 and 597 (see paragraph 43 above). The decisions in respect of electoral precincts nos. 486 (see paragraph 39 above), 651 (see paragraph 32 above), 652 (see paragraph 29 above), 654 (see paragraph 33 above) were identical to the above, with the difference that the order was for the recounts to be conducted by the TEC itself. 155.", "One of the protocols indicated the names and presence of members of TECs no. 3 (recounts for electoral precincts nos. 486 and 509), no. 4 (recounts for precincts nos. 725, 728, 731, 733, 742, and 743), no.", "7 (recounts for precincts nos. 605 and 610), no. 21 (recounts for precincts nos. 638, 646, 651, 652, 654, 657, 662, 664, 665, 667, 668) and no. 27 (recounts for precincts nos.", "1071, 1091, 1099, 1113 and, separately, for no. 1109). It appears from these documents that each TEC had eight members from various political parties and NGOs, including, in each commission, a member from SR and a member from the KPRF. In the six protocols submitted, the members from SR and the KPRF were present in only one commission each during the recounts, namely no. 21 for SR and no.", "4 for the KPRF; all the other members were present during the recounts, with one exception. 156. The Government also submitted lists indicating the composition of dozens of PECs, as well as copies of the protocols drawn up by the PECs as a result of the original counts, or the recounts wherever they had taken place. Wherever there had been a recount it was noted by hand on the first page of the protocol. No copies of the initial protocols, that is, those drawn up prior to the recounts, were submitted.", "It appears from these documents that wherever recounts were conducted by PECs their members appointed by SR and/or the KPRF were systematically absent. To give two examples, in electoral division no. 33, where the results were challenged by the tenth applicant, the Government submitted copies of sixteen protocols for the LA elections; of those, eleven were marked “recount”. In those marked “recount”, the list of signatures of the PEC members show that the members appointed by SR and the KPRF were not present in any of them, wherever these political parties had appointed representatives to these commissions. Similarly, in electoral division no.", "19, where the results were challenged by the first to fifth applicants, the Government submitted copies of nineteen precinct protocols, or, where the recount had taken place at the TEC, protocols from territorial commissions. These protocols indicated that recounts had been conducted by precinct commissions in four cases; in none of them had the members appointed by SR and the KPRF been present during the recount. 157. The Government also summarised all breaches of formal requirements in the “original” copies of protocols submitted by the applicants in respect of the precinct commissions challenged by them. Thus, the most common problems raised by the protocols relied upon by the applicants were identified as follows: the running number of the original from which the copy had been taken was not indicated, the address of the precinct commission was missing, the exact time at which the copy was drawn up was not indicated, the figures were not spelled out in writing, not all names and signatures of the members of the PECs were listed, the commission’s stamp was missing, the third page of the protocol was missing, or the copies were not certified with an inscription confirming their authenticity.", "(b) Tables with information about procedure and results of recounts 158. In their additional submissions of 22 May 2015, the Government presented a report on ninety-nine precincts initially concerned by this complaint. The report contained the following data: the serial numbers of the PECs and TECs, whether a recount had taken place, the grounds for any recount (recorded as “doubts about correctness and complaints” in all cases) and the body which had conducted the recount, the presence of members of the commission concerned during the recount, the exact timing of the recount, the total number of votes cast, and the number of votes gained and lost by a particular party (the last two fields were not filled in for all precincts). This table can be summarised as follows: 159. TEC no.", "3, division no. 17, covered thirty-two precincts (elections to the LA). The results in twelve precincts were challenged by Mr Truskanov, the ninth applicant. Of twelve precincts challenged, eight were subject to recounts, all of them ordered by TEC no. 3 on 5 December 2011.", "Recounts in two precincts were conducted by the TEC itself (nos. 486 and 509), and in six by the PECs concerned (nos. 489, 496, 497, 500, 501 and 508). As a result of the recounts, in eight of the precincts concerned where these figures were indicated, the table showed, among other things, a higher vote for ER in four precincts (in no. 496 an increase by 343 votes out of 1,149 votes cast; in no.", "500 by 200 votes out of 895 votes cast; in no. 501 by 300 votes out of 1,054 votes cast; and in no. 508 by 280 out of 1,025 votes cast). At the same time, ER’s vote went down in two precincts (in no. 489 by 40 votes out of 686 votes cast, and in no.", "496 by 104 votes out of 675 cast). SR lost votes in two precincts (in no. 489 by 120 votes out of 686 votes cast, and in no. 496 by 130 votes out of 677 cast) and gained in one (no. 497, by 10 votes out of 1,149 cast).", "160. TEC no. 7, division no. 15, covered thirty-three precincts (elections to the LA). The results in twenty precincts were challenged by Mr Shestakov, the eleventh applicant.", "Of the twenty precincts, five were subject to recounts, all of them ordered by the TEC on 5 December 2011. Recounts were conducted in three precincts by the TEC and in two by PECs; no increase or decrease for particular parties was indicated in these recounts. The recount conducted by the TEC was carried out by its six members between 7.45 a.m. and 8.43 a.m.: they thus recounted 4,668 votes in three precincts in 58 minutes. 161. TEC no.", "21, division no. 18, covered thirty-two precincts (elections to the LA). The results in two of them (PECs nos. 623 and 637) were challenged by Mr Yakushenko and Mr Belyakov, the seventh and sixth applicants. A recount in PEC no.", "637 was ordered by the TEC on 5 December 2011 and carried out by the PEC concerned at 7.10 p.m. that day; no increase or decrease for particular parties was indicated in that recount. 162. TEC no. 21, division no. 19, covered thirty-four precincts (elections to the LA).", "The results in twenty-one of them were challenged by the first to fifth applicants. Of the twenty-one challenged, fourteen were recounted: this was ordered by the TEC on 5 December 2011. The recount was conducted by the TEC in eleven of the fourteen cases; no increase or decrease for particular parties was indicated by the Government. The times at which the recounts had been concluded by the TEC were indicated on 5 December 2011 as between 4.05 p.m. and 7.50 p.m. In particular, the recount in PEC no.", "668 was concluded at 4.05 p.m. (907 votes); PEC no. 646 was concluded at 5.10 p.m. (1,002 votes); PEC no. 667 was concluded at 5.20 p.m. (874 votes); PECs no. 638 (1,351 votes) and 657 (1,122 votes) were concluded at 5.40 p.m.; and PECs nos. 652 (983 votes) and 654 (1,066 votes) were concluded at 7.50 p.m.", "Thus, the table indicates that on 5 December 2011 TEC no. 21 recounted 11,321 votes cast in eleven precincts in three hours and forty-five minutes. 163. TEC no. 4, division no.", "22, covered thirty-four precincts (elections to the LA). The results in twenty-two precincts were challenged by Mr Payalin, the eighth applicant (complaint withdrawn). Of the twenty-two precincts, recounts were carried out at six; all the recounts were ordered by the TEC on 5 December 2011. In addition, in PEC no. 722 there was no formal recount, but a new result was drawn up “owing to a technical error”, at 8 p.m. on 6 December 2011 by eight of the twelve PEC members; it resulted in the reassignment of 482 votes from ER to the KPRF (out of 1,600 votes cast).", "Recounts were ordered and carried out by the TEC in six precincts (a total of 6,565 votes); these ballots were recounted by six members of the TEC in forty-five minutes, between 9.05 p.m. and 9.50 p.m. on 5 December 2011. In all six precincts ER gained between 202 (PEC no. 743, total number of votes cast 1,083) and 612 votes (PEC no. 725, total number of votes cast 1,269) in each precinct, the exact number of votes lost by the LDPR. The total number of votes gained by ER in these six precincts following recounts amounted to 2,422 votes (out of 6,565 votes cast).", "164. TEC no. 27, division no. 33, covered forty precincts (elections to the LA). The results in eighteen of them were challenged by Ms Pushkareva, the tenth applicant.", "Of those eighteen, eleven were recounted: all the recounts were ordered by the TEC on 5 December 2011. Only one precinct was recounted at the TEC, at 9.15 a.m. on 5 December 2011: no. 1109, where as a result ER gained 322 votes (the losses were incurred by SR (down by 122 votes), the KPRF (down 100) and Yabloko (down 100)). Other precincts were recounted by a majority of the members of the PECs concerned in the early hours of 5 December 2011; as a result, ER’s vote increased in five of the eight precincts where this was indicated in the table submitted by the Government. The largest gain was in PEC no.", "1090, where the number of votes cast for ER increased by 900 out of 1,764 votes cast (no indication was given of corresponding losses by other parties). Of the other three precincts, ER lost votes in two (in PEC no. 1098, down by 337 out of 616 votes cast; and in PEC no. 1127, down by 140 out of 898 votes cast). However, it was not indicated that any of these losses had led to corresponding increases for any other party, in contrast to the losses sustained, for example, in PEC no.", "1109 by three parties. 165. TEC no. 21, “Yuzhnaya” division, covered 337 precincts (elections to the State Duma). The results of four of them were challenged by Ms Andronova, Mr Andronov, Ms Nikolayeva and Mr Sizenov, the second to fifth applicants.", "The table contains information about recounts in three precincts (nos. 651, 652 and 654) and does not indicate whether any parties lost or gained any votes as a result. The recount was ordered and carried out by the TEC on 5 December 2011; it lasted for two hours, from 11 a.m. to 1 p.m., and covered 3,175 votes. 166. Where the table indicated that there had been a recount, the number of members of the PECs and TECs present was always a majority (six out of eight for the TECs concerned; six, seven, eight or nine out of eleven or up to ten and eleven out of thirteen members in the PECs concerned), except for one PEC, no.", "1127 (TEC no. 27, territory 33), where all eleven members were present at the recount concluded at 7 a.m. on 5 December 2011, and where, as the only different result, ER had lost 140 votes out of 898 votes cast. 167. In total, the table submitted by the Government contains information about recounts in forty-eight precincts (forty-five in the elections to the LA and three in the Duma elections), covering cumulatively over 51,000 votes cast (not all precincts mentioned in the Government table contained these data). In the twenty-two precincts where those data were at least partially indicated for the LA elections (covering over 24,000 votes), as a result of recounts, ER gained a total of 5,155 votes and lost a total of 621 votes; SR gained a total of 10 votes and lost a total of 422 votes; the KPRF gained no votes and lost 215 votes; Yabloko gained 38 votes and lost 311.", "In addition, in one precinct (no. 722, see paragraph 163 above) 482 votes were reassigned from ER to the KPRF in a new protocol compiled by the relevant PEC. 168. The second table, submitted by the Government on 22 May 2015, contains certain information about the results of recounts in over 100 precincts; however, this information is not organised into divisions and TECs, and contains no reference to the present case. It does not contain information about the precincts where the results were challenged by the applicants.", "From this table it appears that for many precincts a “second entry” was made on 11 December 2011 (the grounds for this “second entry” are not explained and it is unclear whether there was a formal recount). As a result of this “second entry” many final figures for the parties participating in the elections had been changed as compared to the “first entry” made on 5 December 2011. J. Inquiry into the validity of documents submitted by the applicants 169. On 2 July 2014 the chairman of the CEC, Mr Churov, sought to check the authenticity of the “original” protocols relied upon by the applicants in the present case.", "On 22 July 2014 the Ministry of the Interior forensic expert centre concluded that the copies of the protocols relied upon by the tenth applicant (PECs nos. 1089 and 1104) had been certified by stamps which differed from the stamps used by those PECs to certify the copies submitted to the City Electoral Commission. For all the other protocols no such conclusion could be drawn. Furthermore, several copies submitted by the applicants differed from the copies submitted by the CEC, meaning that those two sets of documents had not been simply reproduced by means of electronic reproduction. The expert report was unable to conclude that the documents in question had been tampered with or subjected to any changes or alterations.", "170. In September 2014 the chairman of the CEC wrote to the St Petersburg Department of the Investigative Committee. He argued that the applicants in the present case had submitted documents to the European Court which they claimed were authentic copies of the “original” election protocols from a number of precincts in St Petersburg. The letter pointed out that these documents raised doubts as to their authenticity, and asked the Investigative Committee to carry out an inquiry into the matter. On 25 September 2014 the Kirovskiy District Department of the Investigative Committee initiated an inquiry (проверка) into the matter.", "Subsequent documents indicate that the Department attempted to contact eleven applicants in this case and to collect information from them. It appears that only Mr Shestakov, the eleventh applicant, was questioned. He reiterated what he had already stated about the way he had obtained copies of the protocols from members of PECs and observers. On 27 October 2014 an investigator of the District Department ruled that a criminal investigation should not be opened, finding no evidence of crimes under Articles 141, 142 and 142.1 of the Criminal Code (see paragraph 191 below). At the same time, in so far as the question concerned copies of the “original” protocols, the investigator forwarded the relevant material to the St Petersburg Department of the Interior to decide whether there had been any falsification of official documents.", "171. On 14 November 2014 an investigator at the St Petersburg Department of the Interior decided that there was no need to open a criminal investigation into the alleged crime under Article 327 (falsification of official documents) in view of the expiry of the statutory time-limit (two years). The decision referred to the conclusions of the expert report of 22 July 2014 (see paragraph 169 above), but stated that any individuals who might have committed the act in respect of the two documents had not been identified. 172. According to the Government’s additional memorandum of 22 May 2015, on 12 December 2014 the St Petersburg deputy prosecutor overturned the decision of 14 November 2014 and remitted the matter to the investigating authorities.", "He indicated that the copies of the protocols from precinct electoral commissions had been incorrectly classified as “official documents”. On 18 February 2015 the Kirovskiy District Department of the Investigative Committee ruled that no criminal investigation should be opened in respect of the acts by Mr Davydov and others in the absence of evidence of an offence under Articles 141, 142 and 142.1 of the Criminal Code. II. RELEVANT DOMESTIC LAW AND PRACTICE A. General legislative framework governing the elections of December 2011 in St Petersburg 173.", "Elections at federal level were governed at the material time by Federal Law no. 51-FZ “on the Election of Deputies to the State Duma of the Federal Assembly of the Russian Federation” of 18 May 2005 (“the Duma Elections Act”). 174. In addition, elections are governed by Federal Law no. 67‑FZ on the basic principles of elections and referendums of 12 June 2002 (“the Basic Guarantees Act”).", "175. Elections at city level were governed at the material time by Law no. 252-35 of St Petersburg on the Election of Deputies to the Legislative Assembly of St Petersburg of 15 June 2005 (“the St Petersburg Elections Act”). All legal instruments referred to below are cited as they stood at the relevant time. B.", "Regulation of specific questions 1. Rights of observers and members of electoral commissions during federal elections 176. Section 30(9) of the Basic Guarantees Act provided that observers had the right to familiarise themselves with the protocols of the electoral commissions and to obtain “certified copies of those protocols”. 177. Section 29(23)(g) of the Basic Guarantees Act provided that members of electoral commissions (both voting members and observers) had the right to obtain certified copies of the documents drawn up by the electoral commissions.", "Although election protocols were not mentioned explicitly, that provision appears to have applied to those documents too. 2. Formal requirements as regards protocols and other documents drawn up by electoral commissions, and the making of copies 178. Sections 78-79 and of the Duma Elections Act and sections 52-53 of the St Petersburg Elections Act set out similar formal requirements as regards precinct electoral commission protocols. Such requirements included an indication of the running number of the copy; the type and date of election; an indication that it was an election protocol; the address of the precinct commission; the numerical results for each relevant field, in figures and words; the date and time, indicating hours and minutes, when the document was drawn up; the names and signatures of the chairman, deputy chairman, secretary and other members of the commission; and the stamp of the commission.", "If the protocol ran to more than one page, each page had to be validated by names and signatures, and contain the date and time when it had been drawn up and the precinct commission stamp. 179. The protocol was to be drawn up in two copies, with running numbers one and two. Immediately after the first copy had been drawn up, at the request of entitled persons (members of the commissions, observers) certified copies could be issued by the electoral commission. The issue of these copies was to be noted in a special register, which was to be signed both by the person receiving the copy and by the member of the PEC issuing it (section 79(26) of the Duma Elections Act and section 53(23) of the St Petersburg Elections Act).", "180. The first copy of the protocol was to be signed by all members of the precinct commission. Once completed, the first copy was immediately transmitted to the corresponding TEC. All annexes, such as complaints received by the PEC, the commission’s response to such complaints, and separate opinions of its members, were attached to the first copy. The transfer of the first copy of the protocol to the TEC could be attended by any member of the precinct commission or any observer.", "181. The second copy of the protocol remained at the precinct commission until completion of its work (for five days after the official announcement of the election results) and was accessible to authorised persons such as members of electoral commissions, observers, candidates, and representatives of political parties. Certified copies of the annexes mentioned in the preceding paragraph were attached to it. A certified copy of the second copy was displayed for public view at the precinct commission. 3.", "Proceedings within the Territorial Electoral Commissions 182. Section 80 of the Duma Elections Act and section 54 of the St Petersburg Elections Act set up similar procedures for the verification of election results by TECs. Thus, the members of the TEC received the results from the precinct commissions and, once compliance of the protocols with the formal requirements and the presence of the annexes had been verified, they entered the data in order to compile the results for the given electoral territory. The transfer of protocols from PECs, the tabulation of results and the drawing up of the TEC protocol with the overall results were to take place in the same room, in full view of the TEC members and observers. 183.", "The same room was to be equipped with a large board on which the results from each precinct and changes to the overall result for the territory were to be entered as soon as the protocols from the precincts arrived, indicating the time those entries had been made. The data were also to be entered into the State-run electronic database “Vybory”. 184. Once all data from the precincts have been compiled, the TEC drew up its own protocol, also in two running copies, containing the names and signatures of all members and the exact date and time of the signing. 4.", "Recounts 185. Section 69(9) of the Basic Guarantees Act read as follows: “Where the tables ... of results contain errors or discrepancies, [or] where there are doubts as to whether the protocols ... received from the lower commission have been drawn up correctly, the higher commission may order a recount [by the lower commission...] or conduct a recount itself ... The recount shall be conducted in the presence of a voting member (or members) of the higher commission by the commission which drew up and approved the protocol [that is, the lower commission] or by the commission which ordered the recount [that is, the higher commission] with mandatory notification of the non-voting members of the commission, observers, candidates and other people ... who have the right to be present at the recount.” 186. Sections 79(31) and 80(15-17) of the Duma Elections Act specified the method for recounts in the precinct and territorial electoral commissions. Thus, if the changes to the protocol concerned fields other than the counting of votes for the candidates or parties, the precinct commission was obliged to inform all those who had been present at the initial count, issue a protocol marked “recount” and submit it to the territorial commission, together with the original protocol.", "The TECs were entitled to carry out recounts of their own results and to issue “recount” protocols under similar conditions. In addition, the territorial commissions could, upon discovering errors or discrepancies, or in case of doubt as to the correctness of the precinct commissions’ results, order recounts or conduct recounts themselves, on the same conditions as in the preceding paragraph. Such recounts could be ordered either before or after formal approval of the PEC protocols. 187. Similar provisions were contained in the St Petersburg Act (sections 53(27) and 54(15-16)).", "5. Appeals procedure 188. Section 75 of the Basic Guarantees Act provided that decisions of various electoral commissions and of their members which infringed electoral rights were subject to appeal to a court. Complaints against the CEC were to be lodged with the Supreme Court; complaints against decisions and acts of regional electoral commissions concerning elections to the federal legislature were to be lodged with the regional courts; and complaints against actions of all other electoral commissions were to be lodged with the district courts. When examining a complaint against an electoral commission’s decision, the relevant court also took into account the decisions of the lower electoral commissions if the violations alleged could have influenced the results of the elections in question (section 75 (4)).", "The courts’ decisions were binding and could, inter alia, invalidate the commissions’ decisions about the results and outcome of the elections. In April 2014 this section of the Basic Guarantees Act was amended so as to expressly mention the right of voters to challenge the results in the precincts where they had voted, taking into account the ruling of the Constitutional Court (see paragraphs 80-88 above). 189. Complaints could also be made to the higher electoral commissions, which were obliged to consider them and to take decisions; the applicants were to be informed of the decision. If a complaint was brought simultaneously before the higher commission and a court, consideration by the commission was adjourned until the end of the court proceedings (section 75(9)).", "The right to lodge complaints was granted to voters, candidates and their representatives, electoral groups, public bodies, observers and the commissions themselves. The commission considering the complaint should invite the complainant and a representative of the commission concerned (section 75(10) and (12)). If the commission identified breaches of law during the voting or during the drawing up of the results, it could declare the results void and, if necessary, call for a recount. The commission could act upon complaints until the results of the elections had been officially approved, following which the results could only be challenged before a competent court (section 77). 190.", "Similar provisions were contained in the St Petersburg Act (sections 61 and 63). C. Criminal law provisions 191. Article 141 of the Criminal Code of the Russian Federation (the Criminal Code) proscribed interference with the free expression of the voters’ opinion in elections and with the functioning of electoral commissions. Articles 142 and 142.1 of the Criminal Code accordingly established criminal responsibility for falsification of ballot papers and other electoral documents and for falsification of the outcome of the elections. According to authoritative comments on these provisions, while the offence of falsification of electoral documents could be committed by both electoral officials and private parties, the offence of falsifying election results could only be committed by members of electoral commissions and other persons who took part in the work of the commissions.", "D. Examples of relevant court practice submitted by the parties 1. Examples submitted by the applicants 192. The applicants submitted copies of five judgments of St Petersburg district courts which followed the same pattern as experienced in the present case by them and SR. These judgments were rendered upon complaints lodged by the St Petersburg branch of SR and concerned the results of the elections of 4 December 2011 in several precincts in electoral divisions nos. 2, 4, 5, 8, 14 and 22, none of which were covered by the complaints lodged by the applicants in the present case.", "In all those cases the courts dismissed complaints concerning alleged discrepancies between the “original” copies of the protocols obtained by the members of the precinct commissions and the final results, in view of procedural deficiencies in these “original” copies. 2. Examples submitted by the Government 193. The Government submitted records of over twenty criminal convictions handed down by various district courts in Russia between 2010 and 2014. Most of these convictions concerned actions of members and chairpersons of PECs who had falsified electoral papers and the results of municipal and regional elections held between 2010 and 2014.", "The convictions under Article 142 (falsification of ballot papers and other electoral documents) sometimes mentioned the participation of victims, namely voters whose electoral rights had been infringed; the convictions under Article 142.1 (falsification of election results) did not refer to victims. 194. The Government also submitted seven judgments finding, in whole or in part, the decisions of PECs and, in one case, the TEC, invalid in municipal, regional and federal elections held between 2011 and 2014. The complaints had been lodged by members of the electoral commissions, candidates and observers. In addition, in one case in 2012 a justice of the peace in St Petersburg had fined the chairman of a PEC for refusing to issue a copy of the final protocol to a member of the same commission.", "195. In their additional observations of 22 May 2015 the Government submitted statistics on the total number of complaints on electoral matters submitted to and reviewed by courts between 2009 and 2014. This document indicates that every year 3,000 to 3,819 complaints on electoral matters were lodged with the courts. In each of those years 25% to 43% of complaints were upheld. In 2012 35% of all the electoral complaints lodged with the courts were upheld.", "III. RELEVANT INTERNATIONAL DOCUMENTS A. Code of Good Practice in Electoral Matters 196. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 18‑19 October 2002), read as follows: “GUIDELINES ON ELECTIONS I. Principles of Europe’s electoral heritage The five principles underlying Europe’s electoral heritage are universal, equal, free, secret and direct suffrage.", "Furthermore, elections must be held at regular intervals. ... 3. Free suffrage ... 3.2. Freedom of voters to express their wishes and action to combat electoral fraud ... x. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting; ... xii. counting should preferably take place in polling stations; xiii.", "counting must be transparent. Observers, candidates’ representatives and the media must be allowed to be present. These persons must also have access to the records; xiv. results must be transmitted to the higher level in an open manner; xv. the state must punish any kind of electoral fraud.", "... II. Conditions for implementing these principles ... 3. Procedural guarantees 3.1. Organisation of elections by an impartial body a. An impartial body must be in charge of applying electoral law.", "b. Where there is no longstanding tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level. c. The central electoral commission must be permanent in nature. d. It should include: i. at least one member of the judiciary; ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.", "... e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis (see point I.2.3.b). f. The bodies appointing members of electoral commissions must not be free to dismiss them at will. g. Members of electoral commissions must receive standard training. h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.", "3.2. Observation of elections a. Both national and international observers should be given the widest possible opportunity to participate in an election observation exercise. b. Observation must not be confined to the election day itself, but must include the registration period of candidates and, if necessary, of electors, as well as the electoral campaign.", "It must make it possible to determine whether irregularities occurred before, during or after the elections. It must always be possible during vote counting. c. The places where observers are not entitled to be present should be clearly specified by law. d. Observation should cover respect by the authorities of their duty of neutrality. 3.3.", "An effective system of appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b.", "The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. c. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body. d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome.", "It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections. g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).", "h. The applicant’s right to a hearing involving both parties must be protected. i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. ... EXPLANATORY REPORT ... [I.]", "3.2.2.4. Counting 45. The votes should preferably be counted at the polling stations themselves, rather than in special centres. The polling station staff are perfectly capable of performing this task, and this arrangement obviates the need to transport the ballot boxes and accompanying documents, thus reducing the risk of substitution. 46.", "The vote counting should be conducted in a transparent manner. It is admissible that voters registered in the polling station may attend; the presence of national or international observers should be authorised. These persons must be allowed to be present in all circumstances. There must be enough copies of the record of the proceedings to distribute to ensure that all the aforementioned persons receive one; one copy must be immediately posted on the notice-board, another kept at the polling station and a third sent to the commission or competent higher authority. 47.", "The relevant regulations should stipulate certain practical precautions as regards equipment. For example, the record of the proceedings should be completed in ballpoint pen rather than pencil, as text written in pencil can be erased. 48. In practice, it appears that the time needed to count the votes depends on the efficiency of the presiding officer of the polling station. These times can vary markedly, which is why a simple tried and tested procedure should be set out in the legislation or permanent regulations which appear in the training manual for polling station officials.", "49. It is best to avoid treating too many ballot papers as invalid or spoiled. In case of doubt, an attempt should be made to ascertain the voter’s intention. 3.2.2.5. Transferring the results 50.", "There are two kinds of results: provisional results and final results (before all opportunities for appeal have been exhausted). The media, and indeed the entire nation, are always impatient to hear the initial provisional results. The speed with which these results are relayed will depend on the country’s communications system. The polling station’s results can be conveyed to the electoral district (for instance) by the presiding officer of the polling station, accompanied by two other members of the polling station staff representing opposing parties, in some cases under the supervision of the security forces, who will carry the records of the proceedings, the ballot box, etc. 51.", "However much care has been taken at the voting and vote-counting stages, transmitting the results is a vital operation whose importance is often overlooked; it must therefore be effected in an open manner. Transmission from the electoral district to the regional authorities and the Central Electoral Commission – or other competent higher authorities – can be done by fax. In that case, the records will be scanned and the results can be displayed as and when they come in. Television can be used to broadcast these results but once again, too much transparency can be a dangerous thing if the public is not ready for this kind of piecemeal reporting. The fact is that the initial results usually come in from the towns and cities, which do not normally or necessarily vote in the same way as rural areas.", "It is important therefore to make it clear to the public that the final result may be quite different from, or even completely opposite to, the provisional one, without there having been any question of foul play. ... [II.] 3. Procedural safeguards 3.1.", "Organisation of elections by an impartial body 68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results. 69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior.", "70. However, in states with little experience of organising pluralist elections, there is too great a risk of government’s pushing the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition. 71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity.", "72. According to the reports of the Bureau of the Parliamentary Assembly of the Council of Europe on election observations, the following shortcomings concerning the electoral commissions have been noted in a number of member States: lack of transparency in the activity of the central electoral commission; variations in the interpretation of counting procedure; politically polarised election administration; controversies in appointing members of the Central Electoral Commission; commission members nominated by a state institution; the dominant position of the ruling party in the election administration. 73. Any central electoral commission must be permanent, as an administrative institution responsible for liaising with local authorities and the other lower-level commissions, e.g. as regards compiling and updating the electoral lists.", "74. The composition of a central electoral commission can give rise to debate and become the key political issue in the drafting of an electoral law. Compliance with the following guidelines should facilitate maximum impartiality and competence on the part of the commission. 75. As a general rule, the commission should consist of: - a judge or law officer: where a judicial body is responsible for administering the elections, its independence must be ensured through transparent proceedings.", "Judicial appointees should not come under the authority of those standing for office; - representatives of parties already represented in parliament or which have won more than a certain percentage of the vote. Political parties should be represented equally in the central electoral commission; “equally” may be interpreted strictly or proportionally, that is to say, taking or not taking account of the parties’ relative electoral strengths. Moreover, party delegates should be qualified in electoral matters and should be prohibited from campaigning. 76. In addition, the electoral commission may include: - representatives of national minorities; their presence is desirable if the national minority is of a certain importance in the territory concerned; - a representative of the Ministry of the Interior.", "However, for reasons connected with the history of the country concerned, it may not always be appropriate to have a representative of the Ministry of the Interior in the commission. During its election observation missions the Parliamentary Assembly has expressed concern on several occasions about transfers of responsibilities from a fully-fledged multi-party electoral commission to an institution subordinate to the executive. Nevertheless, co-operation between the central electoral commission and the Ministry of the Interior is possible if only for practical reasons, e.g. transporting and storing ballot papers and other equipment. For the rest, the executive power should not be able to influence the membership of the electoral commissions.", "... 82. Other electoral commissions operating at regional or constituency level should have a similar composition to that of the central electoral commission. Constituency commissions play an important role in uninominal voting systems because they determine the winner in general elections. Regional commissions also play a major role in relaying the results to the central electoral commission. ... 3.2.", "Observation of elections 86. Observation of elections plays an important role as it provides evidence of whether the electoral process has been regular or not. 87. There are three different types of observer: partisan national observers, non-partisan national observers and international (non-partisan) observers. In practice the distinction between the first two categories is not always obvious.", "This is why it is best to make the observation procedure as broad as possible at both the national and the international level. 88. Observation is not confined to the actual polling day but includes ascertaining whether any irregularities have occurred in advance of the elections (e.g. by improper maintenance of electoral lists, obstacles to the registration of candidates, restrictions on freedom of expression, and violations of rules on access to the media or on public funding of electoral campaigns), during the elections (e.g. through pressure exerted on electors, multiple voting, violation of voting secrecy, etc.)", "or after polling (especially during the vote counting and announcement of the results). Observation should focus particularly on the authorities’ regard for their duty of neutrality. ... 91. The law must be very clear as to what sites observers are not entitled to visit, so that their activities are not excessively hampered. For example, an act authorising observers to visit only sites where the election (or voting) takes place could be construed by certain polling stations in an unduly narrow manner.", "3.3. An effective system of appeal 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.", "93. There are two possible solutions: - appeals may be heard by the ordinary courts, a special court or the constitutional court; - appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. 95.", "Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision.", "A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.", "97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.", "... 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100.", "The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats.", "This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102.", "Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.” B. Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), Election Observation Mission, Final Report on the elections to the State Duma, 4 December 2011 (Warsaw, 12 January 2012) 197. The OSCE summarised its findings as follows: “The preparations for the 4 December elections were technically well-administered across the country, but the elections were marked by the convergence of the state and the governing party. Although seven parties ran, the prior denial of registration to certain political parties narrowed political competition. The contest was also slanted in favour of the ruling party. This was evidenced by the lack of independence of the election administration, the partiality of most media, and the undue interference of state authorities at different levels.", "This did not provide the necessary conditions for fair electoral competition. Despite the lack of a level playing field, voters took advantage of their right to express their choice. During voting, election officials were observed to be dedicated and experienced and procedures were followed overall. However, the quality of the process deteriorated considerably during the count, which was characterized by frequent procedural violations and instances of apparent manipulation, including several serious indications of ballot box stuffing. Result protocols were not publicly displayed in more than one-third of polling stations observed.", "Throughout election day, observers also reported a number of instances of obstruction to their activities, in particular during count and tabulation. The final election results were announced by the CEC on 9 December. A number of mass demonstrations took place across the country, linked to allegations of election day fraud that received broad publicity, including on the Internet. The legal framework is comprehensive and provides an adequate basis for the conduct of elections. However, structurally, the legal framework is overly complex and open to interpretation, which led to its inconsistent application by various stakeholders, often in favour of one party over the others.", "Laws guaranteeing the right to peaceful assembly were in some cases applied restrictively, undermining contestants’ rights. Numerous amendments to the legal framework had been adopted since the previous elections. A number of recent changes improved certain elements of the electoral process, although the reduction of the parliamentary threshold to five per cent did not apply in these elections. The CEC adopted detailed instructions to facilitate preparations for the elections. It held regular sessions and took most decisions unanimously, without debate.", "The process of adjudication of complaints by the CEC lacked transparency and did not afford the contestants effective and timely redress. The CEC has not complied with the legal requirement that all complaints must be acted upon and responded to in writing. Representatives of most political parties expressed a high degree of distrust in the impartiality of election commissions at all levels and questioned their independence from various state administration bodies.” 198. More specifically, the OSCE reported on vote counting and appeals: “XIV. ELECTION DAY The voting process was assessed positively in 93 per cent of polling stations observed and procedures were followed, overall.", "... Party representatives were present in almost all polling stations visited. The majority of them were nominated by ER (85 per cent of visits), KPRF (75 per cent) and SR (59 per cent). ... The vote count was assessed as bad or very bad in every third polling station observed. This was mainly due to a poor organization, lack of transparency and serious departures from the counting procedures outlined by the CEC.", "Signatures of voters who voted were not counted in 42 polling stations and in 38 polling stations, the number of ballots issued for ‘mobile voting’ was not recorded. In almost half of the observed counts, marked ballots were not shown to those present. ... Twelve cases of extended breaks in the counting process were reported. In some instances, PECs interrupted the count, at times taking voting material out of sight of observers. Observers were restricted in their observation in 20 polling stations.", "In 7, they were expelled from polling stations during the count. Observers did not receive copies of result protocols in 21 polling stations observed and in almost half of polling stations visited, signed protocols were not posted publicly. The tabulation was assessed negatively in 17 of the observed TECs. In 41 cases, observers reported that the facilities for the reception and recording of results were inadequate. The organisation of data collection was evaluated as bad or very bad in 11 observer reports.", "Insufficient transparency of the process was noted in 24 cases. The submitted PEC protocols were not always filled in. They were also not signed with a pen in 21 cases and did not contain all required figures in 32 cases. In addition, some procedural irregularities were noted, such as a failure to enter the data from PEC protocols into TEC summary tables in 10 of the observed TECs. ... C. ANNOUNCEMENT OF RESULTS ...", "The CEC announced preliminary results on the day after the elections. The final results were approved on 9 December. The CEC posted tables with summaries of final results from all election commissions on its website, which enhanced the transparency and made independent verification by stakeholders possible. The reported turnout was 60.21 per cent. ER received 49.32 per cent of the votes and won 238 seats, KPRF – 19.19 per cent and 92 seats, Just Russia [SR] – 13.24 per cent and 64 seats, and LDPR – 11.67 per cent and 56 seats.", "Other lists did not surpass the thresholds; YA [Yabloko], which received 3.43 per cent of the votes however, will now qualify for state funding. One CEC member objected to the official final results announced and submitted a dissenting opinion. He stated that elections did not allow for the free expression of the will of voters and were characterized by an unequal treatment of contestants by different government bodies in favour of ER. He also highlighted that there were numerous violations of the law during the counting process. Finally, he stated that, despite repeated requests, he was not given copies of all 33 dissenting opinions attached to the summary protocols of SECs.", "One other non-voting CEC member from KPRF suggested that, given the number of reported violations during these elections, the CEC adopt a resolution to dismiss the CEC chairperson. The suggestion was rejected. LDPR and SR representatives at the CEC also severely criticized the conduct of State Duma elections. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 TO THE CONVENTION AND ARTICLE 13 OF THE CONVENTION 199. The applicants alleged a violation of Article 3 of Protocol No. 1 to the Convention and a violation of Article 13 of the Convention. The Court has recently explained the difference between cases where the applicants’ complain about post-electoral disputes that have not been the subject of judicial review, where a separate issue under Article 13 might arise (see Grosaru v. Romania, no. 78039/01, §§ 55-56, ECHR 2010), and, by contrast, cases where the national legislation and practice include judicial supervision of such disputes.", "In the latter case, the Court has limited its examination to Article 3 of Protocol No. 1 to the Convention (see Namat Aliyev v. Azerbaijan, no. 18705/06, §§ 57 and 81, 8 April 2010; Kerimova v. Azerbaijan, no. 20799/06, §§ 31-32, 30 September 2010; and Riza and Others v. Bulgaria, nos. 48555/10 and 48377/10, §§ 94-95, 13 October 2015).", "200. In the present case, regard being had to the domestic judicial procedures, the Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention, and that no separate examination is necessary under Article 13 of the Convention. Article 3 of Protocol No. 1 to the Convention reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 201.", "The Government contested the allegations. A. Procedural issues and admissibility 1. Requests to withdraw applications 202. The Court notes that after the complaint was communicated two applicants submitted requests to withdraw their applications.", "On 4 April 2014 Ms Napara informed the Court that the seventh applicant (Mr Yakushenko) wished to withdraw his complaint. On 12 May 2014 the eighth applicant (Mr Payalin) signed a request to the Court to withdraw his complaint, citing personal reasons. 203. The Court takes note of the applicants’ requests. Having regard to Article 37 of the Convention, it finds that the seventh and eighth applicants do not intend to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention.", "The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require further examination of their complaints by virtue of Article 37 § 1 of the Convention in fine. It therefore strikes out these two complaints. 204. The Court is therefore prevented from examining the complaints brought by these two applicants and the facts on which their complaints were based. The facts cited by the seventh and eighth applicants will appear in the Court’s analysis below in so far as they are relevant to the remaining applicants’ complaints.", "2. The Government’s question as to representation 205. In their observations of 24 October 2012 the Government questioned the representatives’ authority to represent all the applicants. They were of the opinion that the Court should apply the rules of the Practice Direction on Institution of Proceedings strictly and accept that Ms Moskalenko and Ms Napara were at any given moment the representatives of only those applicants who had presented valid powers of attorney, and only then if this had been done within eight weeks of receipt of the Registry’s letter acknowledging their initial application. They argued that this situation should have been treated by the Court as a ground for inadmissibility, and referred to inadmissibility decisions against the Netherlands (Post v. the Netherlands (dec.), no.", "21727/08, 20 January 2009; Kemevuako v. the Netherlands (dec.), no. 65938/09, § 22, 1 June 2010; and Kaur v. the Netherlands (dec.), no. 35864/11, §§ 17-18, 1 June 2010). 206. The Court notes that all the applicants who did not withdraw their applications are represented by both Ms Moskalenko and Ms Napara (see Appendix for details).", "At the time of the submission of the initial application forms, in December 2011 and in January 2012, the applicants had submitted at least one valid power of attorney each. It therefore distinguishes the situation in the present case from the one faced in Post (cited above), where no authority form was submitted. For the same reason, the Court does not find that the decisions where the belated submission of duly signed authority forms had a bearing on the calculation of the six-month time-limit (see Kemevuako and Kaur, both cited above) are relevant to the present case. 207. It therefore finds that no issues arise under the above-mentioned Practice Direction that need to be examined.", "3. The Government’s preliminary objection as to the Court’s competence ratione materiae (a) The parties’ submissions 208. The Government were of the opinion that the applicants had raised before the Court the question of the results of the elections to the State Duma and the LA. Such questions should not be considered by the Court, as they fell outside the ambit of the right to free elections guaranteed by Article 3 of Protocol No. 1 to the Convention.", "Referring to the case of Namat Aliyev (cited above, § 77), the Government invited the Court to follow the same line of argument and to refrain from evaluating each piece of evidence produced by the applicants which had not been confirmed by thorough domestic investigation in the judicial procedure. 209. Under the same heading, the Government argued that in so far as the Court could be understood to be enquiring whether the domestic courts had carried out an effective review of the applicants’ claims, such a complaint was inadmissible ratione materiae under Article 6 § 1 of the Convention, in line with the Court’s well-established practice (they referred, inter alia, to Cherepkov v. Russia (dec.), no. 51501/99, 22 January 2000, and Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002).", "210. The applicants retorted that their claim had been brought under Article 3 of Protocol No. 1 to the Convention and thus fell within the Court’s jurisdiction. (b) The Court’s assessment 211. The Court has previously established that the rights guaranteed by Article 3 of Protocol No.", "1 to the Convention cover not only the process of organisation and management of the voting process, but also the manner of review of the outcome of elections and disputes concerning validation of election results (see Kovach v. Ukraine, no. 39424/02, §§ 55 et seq., ECHR 2008; Namat Aliyev, cited above, § 72; and Kerimova, cited above, § 54). In view of the above, it dismisses the Government’s objection as to its competence ratione materiae. 4. The Government’s preliminary objection as to exhaustion of domestic remedies (a) The parties’ submissions (i) The Government 212.", "The Government asked for the application to be declared inadmissible for non-exhaustion of domestic remedies. The Government put forward several arguments in this respect. (α) General legal framework 213. The Government pointed out that the applicants had been free to employ a number of legal remedies under the domestic legislation which could have provided them with an effective mechanism for the consideration of their claims. 214.", "First, the Government indicated that the applicants could have sought the opening of criminal proceedings under Article 142.1 of the Criminal Code (see paragraph 191 above). They cited examples of convictions for fraud of members of electoral commissions (see paragraph 193 above), and argued that the same procedure had been available to the applicants in the present case. Similarly, some breaches of electoral law could be classified as administrative offences. The relevant practice demonstrated that electoral officials could receive sanctions in such a procedure (see paragraph 194 above). 215.", "The Government then noted that the courts were empowered to adjudicate complaints about alleged violations by the electoral commissions. The courts could declare the election results in constituencies void if the violations were sufficiently serious. At the time, the applicants had been entitled to seek judicial review of the election results within one year of the date on which the results of the relevant elections had been made public. The court was obliged to take a decision within a period of two months after the complaint had been lodged. Again, the Government referred to successful examples of such procedures (see paragraph 194 above).", "216. Next, the Government observed that the higher-ranking electoral commissions were capable of adjudicating complaints and, where necessary, could invalidate the results or order a recount. As an example, the Government referred to the decisions issued by TEC no. 27 in St Petersburg to declare void the results in electoral precincts nos. 1071, 1091, 1099 and 1113 (challenged by the tenth applicant – see paragraph 42 above).", "The TEC had reacted to the complaints brought by voters, observers and candidates and conducted a recount. As a result, it had concluded that since the number of ballot papers contained in the ballot boxes exceeded the number of ballot papers issued by the relevant PECs, the outcome of the elections could not be ascertained. The election result was therefore void. 217. As a general comment, the Government remarked that the remedies should have been exhausted by the time the application had been lodged.", "Since most of the applicants had lodged their complaints on 8 December 2011, the judicial and administrative proceedings had not yet taken place. (β) Objections in respect of each individual applicant 218. The Government then detailed their arguments in respect of individual applicants, pointing out that not all of them had lodged complaints with the competent domestic courts. Instead, the results in some of the precincts concerned had been challenged by the St Petersburg branch of SR. SR, in its last application to the St Petersburg City Court, had asked for the election results in St Petersburg to be declared void as a whole, and not in the individual constituencies referred to by the applicants before the Court (see paragraphs 108-111 above). Furthermore, wherever the complaints had been lodged, they had not been pursued with the courts at cassation level; therefore the applicants had failed to exhaust the domestic remedies available to them.", "219. Finally, the Government argued that after 22 April 2013, the date of ruling No. 8-P by the Constitutional Court (see paragraphs 80-88 above), the applicants concerned had had the opportunity to resubmit their complaints to the courts as individual voters. Their failure to do so should be regarded as a failure to exhaust domestic remedies. (ii) The applicants 220.", "The applicants insisted that the electoral fraud constituting the basis of this complaint had been reported by them to various Russian authorities. Among themselves, they had employed each avenue of domestic remedy suggested by the Government, but had received no effective review of their complaints. In the applicants’ view, the violations alleged had been of a systemic and persistent nature, which made each and every remedy ineffective, because no State authority was prepared to expose the systemic falsifications in favour of the ruling party. (α) Proceedings before the electoral commissions 221. In so far as the Government could be understood to have stated that the applicants should have challenged each decision of a PEC or TEC before the superior electoral commission, the applicants pointed out that the City Electoral Commission had treated their complaints as falling into the domain of the prosecutor’s office.", "As a result of the ensuing delays, the City Electoral Commission had validated the election results and the applicants had been advised to bring their complaints before the courts (see paragraphs 48-59 above). The applicants stressed that the way in which their complaints had been considered displayed a lack of consistency in drawing the boundaries between the jurisdiction of the electoral commissions, courts and law-enforcement authorities, which had forwarded their complaints from one to another. As a result, none of the remedies employed had been effective in practice. (β) Criminal investigation 222. In so far as the Government argued that the applicants could have relied on the criminal investigation, the applicants reiterated that the alleged breaches of electoral legislation had been raised by the second, third, fourth and eighth applicants with the competent authorities, namely the prosecutor’s office and the investigative committee.", "These complaints had concluded with decisions not to open criminal investigations (see section E above). The law-enforcement authorities had uniformly referred to the validation of the election results by the CEC and by the district courts, and had refused to consider any further evidence produced by the applicants. 223. The applicants stressed, in particular, that their complaints to the Investigative Committee had contained all the necessary elements of a request to open a criminal investigation. Despite that, the Committee had treated the complaints by the second, third and fourth applicants as “information about a breach of legislation” and had forwarded them to the prosecutors (see paragraphs 64-70 above).", "The sixth applicant’s similar complaint had been forwarded to the City Electoral Commission (see paragraph 71 above). The attempts to obtain judicial review of the investigative committee’s actions had not led to any results (see paragraph 72 above). 224. As a specific example, the third applicant stressed that his application to the investigative committee had contained specific indications of fraud in respect of PEC no. 651, since the results in that constituency had allegedly been published before the relevant protocol had been transmitted to TEC no.", "21. Despite detailed submissions made by the third applicant to this effect, including an audio recording of telephone conversations, he had been informed by the Kolpino District Prosecutor’s Office that no breaches of legislation had been detected (see paragraphs 49 and 53 above). The Kolpino District Investigative Committee’s decision of 21 May 2013 had simply referred to the validity of the TEC no. 21 decision to conduct a recount and to the correct reflection of the results of that recount on the City Electoral Commission’s website (see paragraph 74 above). The investigating authority had thus refrained from any evaluation of the evidence indicating fraud.", "The applicants invited the Court to regard this example as characteristic of the attitude of the domestic law-enforcement authorities, which had avoided any in-depth analysis of the evidence raised by the applicants. (γ) Complaints to the courts 225. The applicants disputed the Government’s assertion that they had failed to use the proceedings before the relevant domestic courts responsible for considering complaints against the electoral commissions. They explained that they had challenged the electoral commissions’ decisions at all levels of the judicial system, but had obtained no real review. The courts, using formal pretexts, had refrained from giving an answer to the substance of their complaints of electoral fraud and redistribution of votes, essentially in favour of ER.", "226. More specifically, the first five applicants had lodged a complaint with the Supreme Court, which had refused to consider it on the merits, citing the lack of standing for individuals to challenge the results of voting for party lists (see paragraphs 75-79 above). 227. The first six applicants in their capacity as individual voters and members of the PECs had applied to the St Petersburg City Court on two occasions, seeking to challenge the decisions of the City Electoral Commission concerning both the State Duma and the LA, but that court had refused to consider the issues on the merits (see paragraphs 89-106 above). 228.", "Other applicants (the ninth, tenth and eleventh applicants) had stood as SR candidates in the LA elections. In view of the extent of the falsifications, the St Petersburg SR branch had lodged a complaint with the St Petersburg City Court challenging the results in the city as a whole (see paragraphs 108-111 above). The City Court had refrained from analysing the substance of the complaints, choosing to focus on the procedure the City Electoral Commission had used to review their complaints. Finding that there had been no serious breaches of that procedure, the courts had endorsed the official results of the elections. 229.", "As to the district courts, the Kolpino District Court had examined individual voters’ complaints about alleged irregularities. Two rounds of proceedings, one of them covering the entire Kolpino district, had resulted in the dismissal of their complaints despite, in the applicants’ view, ample evidence of serious breaches of electoral legislation. Rendering its judgment of 24 May 2012, confirmed by the St Petersburg City Court on 16 August 2012, the District Court had declined to call additional witnesses or to clarify the procedure and reasons for recounting of votes in PEC no. 637 (see paragraphs 117-121 above). As to the proceedings which concerned the results of the electoral divisions 18 and 19, the Kolpino District Court had called a number of witnesses, including members of several PECs and one member of TEC no.", "21. However, it had ignored the evidence of breaches of the procedure for recounts, and had endorsed the TEC decision as to the “corrected” results of the elections (see paragraphs 126-141 above). 230. In the same vein, when the St Petersburg branch of SR had challenged in the courts the results of elections in the precincts referred to by those applicants who complained in their capacity as candidates, the courts had refused to enter into the substance of their submissions. Instead, they had systematically focused on “insignificant” defects in the copies of the “original” protocols submitted by the claimants and had dismissed dozens of duly certified copies as invalid evidence.", "By contrast, the final results given by the TECs had been endorsed without any in-depth analysis of their lawfulness and conformity with the procedure. The courts had also systematically refused to seek and obtain additional evidence which could have shed light on the substance of the claim, such as the “original” protocols where recounts had taken place, witness statements by the officials involved, and so on (see paragraphs 142-150 above). (δ) Application to the Constitutional Court 231. The applicants disagreed with the Government that, following the Constitutional Court ruling of 22 April 2013, in order to exhaust domestic remedies they should have sought reopening of the judicial proceedings in their capacity as individual voters. 232.", "They stressed that while the said ruling had found unconstitutional the practice which had excluded individual voters from challenging the election results, it had invited the federal legislature to amend the legislation accordingly. Before this finding, they had had no guaranteed access to the courts with such claims and could not therefore demand the reopening of the proceedings on grounds of newly discovered circumstances. (b) The Court’s assessment 233. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV, and Selmouni v. France [GC], no.", "25803/94, § 76, ECHR 1999-V). The Court further emphasises that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). Where several remedies are available, an applicant who has made use of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999‑III).", "An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case‑law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. For example, applicants who have not pursued a remedy that has already proved ineffective for other applicants in the same position can reasonably be exempted from doing so (see, mutatis mutandis, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 156, ECHR 2003‑VI). 234. The Court first remarks that although the applicants’ complaints were made in a different capacity and to various domestic authorities, there is a clear similarity between them.", "Their common complaint was that there was a difference between the results recorded initially by the precinct commissions and the official outcome published by the City Electoral Commission. Next, the applicants submitted that the domestic authorities had not effectively reviewed that allegation. 235. Turning to exhaustion, the first six applicants tried several remedies before applying to the Court. The complaints in respect of each of the constituencies where the results had been challenged by them were submitted for examination to at least one of the national authorities suggested by the Government.", "Between them, they exhausted all of those remedies and maintained that no effective review had been provided. In so far as the Government suggested that the applicants should have had recourse to the cassation procedure, it is true that the Court ruled in May 2015 that the two-tier cassation procedure introduced in January 2012 in civil proceedings constituted a domestic remedy to be used for exhaustion purposes (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015). However, this requirement could not be applied to applications lodged before 12 May 2015, since the effectiveness of that remedy had not previously been recognised in the Court’s case-law (see Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016, with further references).", "This part of the Government’s objection should, therefore, be dismissed. 236. The situation of the ninth, tenth and eleventh applicants is slightly different. As candidates on the SR list, they did not bring domestic proceedings in their individual capacity, but relied on the proceedings initiated by that party in respect of the electoral divisions concerned (see paragraphs 144‑150 above) and the elections to the LA in St Petersburg City as a whole (see paragraphs 108-111 above). The Court notes that the position of the Russian Supreme Court, as expressed in its decision of 9 February 2012 and before the matter was reversed by the Constitutional Court in its ruling of 22 April 2013, was that the violations complained of affected the interests of the political parties whose candidates had stood for election, and not of individual voters or candidates, who had no standing to challenge them in the courts (see paragraph 79 above).", "In view of this, the three applicants in question could reasonably have concluded that they had no standing before the domestic courts and that they should rely instead on the party to raise such complaints on their behalf. In these circumstances, they could reasonably be exempted from from the obligation to pursue a remedy that had proved inaccessible to other persons in the same position. 237. The Court further notes that the question of whether the applicants had obtained a review of their similar allegations of a breach of their Convention rights is precisely what is in dispute between the parties. In such circumstances, it is impossible to address the question of the compatibility of the applicants’ complaints with the admissibility criteria, raised by the Government under Article 35 § 1 of the Convention, without addressing the substance of their complaints under Article 3 of Protocol No.", "1 to the Convention. It follows that this objection should be joined to the merits. 5. The Government’s preliminary objection as to the well-foundedness of the complaint and abuse of the right of petition (a) The Government 238. The Government argued that the applicants had submitted invalid documents to the Court in support of their claims.", "The CEC had denied that the documents on which the applicants had relied as the basis of their claims had been authentic copies of the PEC protocols. They referred to a table enumerating procedural defects in these documents. The most common defects were the absence of a reference to the running number of the original from which the copy had been taken; the absence of a reference to the date and time and address of the PEC; the failure to record the figures numerically; the absence of one or more signatures of PEC members; the lack of a stamp to attest to the signatures; and the lack of certification of the copy as “correct”. According to the Government, some of the copies had been signed by people who were not members of the PECs concerned (see paragraph 157 above). 239.", "The Government also mentioned that in July 2014 an expert centre of the Ministry of the Interior had concluded that the copies of the protocols relied upon by the tenth applicant (PECs nos. 1089 and 1104) had been certified by stamps which differed from the original stamps used by those PECs (see paragraph 169 above). 240. The Government stressed that where the votes in a given electoral precinct had been recounted, the initial protocol of the results bore no legal value as regards the establishment of the results of the election. Therefore, wherever there had been a recount only the second protocol had been submitted to the City Electoral Commission.", "241. As to the document compiled by the applicants, containing data on all the precincts concerned (see paragraph 152 above), the Government pointed out that the applicants had not challenged with the Court the entirety of these results, but only the selected ones as enumerated by them. On the other hand, not all the precincts where the results were challenged by the applicants had had recounts. 242. Finally, the Government pointed out that in some of the polling stations recounts had led to either confirmation of the initial results (PECs nos.", "1084 and 1126) or to a reduction in the ER vote (PECs nos. 1098, 1127) (see paragraphs 164 and 167 above). 243. On the strength of the above, the Government pointed to the Court’s practice of dismissing applications which were knowingly based on untruths or on the submission to the Court of documents that had knowingly been forged (they referred to Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007, and Poznanski and Others v. Germany (dec.), no.", "25101/05, 3 July 2007). (b) The applicants 244. The applicants disagreed. They stressed that the very fact of the existence of the “original” election results communicated to them by the members and chairpersons of the PECs, observers and other candidates was not in dispute by the Government, at least in respect of those precincts where there had been recounts. However, no “authentic” copies of such original documents had been provided by the Government either.", "In such circumstances, this objection was unfounded. (c) The Court’s assessment 245. Unlike in the above cases cited by the Government, the question of forgery or knowing misrepresentation of key facts – in the present case, the “original” election results as noted by various observers, candidates and members of the electoral commissions – was never resolved by any domestic authority. The crux of the applicants’ complaints is precisely the absence of an effective domestic inquiry into the allegations raised by them. In such circumstances, the Court cannot agree with the Government that the complaint should be treated as an abuse of the right of petition under Article 35 §§ 3 (a) and 4 of the Convention, or that it should be dismissed on this ground as manifestly ill-founded.", "6. Conclusion as to admissibility 246. The Court notes that the application raises serious issues of facts and law and that it is not inadmissible on any grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicants 247. The applicants essentially reiterated their initial complaints. In particular, they argued that the “recounts” and the resulting differences in the results, none of which had been contested by the Government, constituted a major breach of the right to free elections. The applicants could not accept that the results recorded in dozens of precincts, by full compositions of PECs and in the presence of observers and journalists, were erroneous while the recounts, carried out under unclear circumstances and for dubious reasons, better reflected the voters’ intentions.", "The applicants stressed that it was not permissible to exclude some of the members of electoral commissions and observers from recounts – which was in effect what had occurred. The results of the recounts had largely benefited the ruling party, to the detriment of the opposition parties. As an example, the applicants referred to electoral division no. 22, where recounts had been conducted in twenty-nine of the thirty-four precincts (85% of votes cast) and where, as a result, ER had gained between 200 and 440 votes in each precinct, while SR had lost votes in all precincts (see paragraphs 37 and 163 above). The applicants were of the opinion that the Government had failed to clarify a number of important points about the recounts, such as the exact timing and place of this exercise, and had failed to submit a number of important documents, including copies of the “original”, “pre-recount” results protocols.", "248. The applicants stressed that the Government, like the domestic authorities, had not argued that the “original” results protocols were incorrect or that they had been falsified. The challenges to the authenticity of these documents were limited to purely formal requirements. In any event, these formal requirements were applicable to the work of the PECs concerned, and could not be held against the applicants, who had simply obtained the copies, duly signed and stamped, from the officials in charge. 249.", "The applicants stressed once again that they had not had an effective hearing of their complaints in any domestic forum. The electoral commissions had been directly involved in the falsifications, and had defended their chairmen and members who could have been implicated. The law‑enforcement authorities had, on various pretexts, avoided mounting an investigation into their allegations. The courts had also proved complacent, and had refrained from addressing the substance of their numerous and well‑documented complaints. The applicants concluded that they had faced “systemic, endemic and concordant” behaviour on the part of all State authorities, demonstrating the lack of independence of any of them.", "The extent of the falsifications and the striking similarities in the methods pointed, in the applicants’ opinion, to the existence of a technique which had been premeditated and then set in motion. In such circumstances, any attempts to obtain redress at the national level had become futile. (b) The Government 250. The Government’s extensive observations are set out in their memorandum of 14 October 2014 and additional observations of 22 May 2015. Their position can be summarised as follows.", "(i) General arguments on the existence of limitations, aims and proportionality 251. In their additional observations submitted on 22 May 2015, the Government argued that where some of the applicants had complained in their capacity as voters, the facts had not disclosed any breaches of Article 3 of Protocol No. 1 to the Convention, because they had been able to cast their votes freely and without any interference. They drew an analogy with the Court’s findings in the judgment of Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, §§ 75 and 79, 11 January 2007).", "Equally, they stated, the applicants’ complaints of breaches of the passive aspect of the right to free elections had been based on assumptions and unconfirmed conjecture about the voters’ intentions. 252. First, the Government argued that there had been no limitation of the applicants’ rights guaranteed under Article 3 of Protocol No. 1 to the Convention. They stressed that the applicants had been able to cast their votes freely, or to stand as candidates for election.", "There had been no State interference with the free expression of the will of the people at any stage of the process; the voters had been able to cast their votes; the results had been correctly assessed and recorded; and all complaints lodged had been effectively reviewed. In respect of the applicants who had complained of breaches of their passive electoral rights, the Government reiterated that they had been able to stand as candidates on party lists and fully participate in the elections in that capacity. The number of votes cast for each of the applicants, and the good overall results for SR in St Petersburg (the party had come second in the LA elections and third in the State Duma elections) showed that the elections had been free and pluralistic. There existed no guarantee of being elected, so long as the general requirements of free expression of the will of the people were complied with. The St Petersburg regional list of SR, which concerned five of the applicants (Mr Davydov, Mr Payalin, Mr Truskanov, Ms Pushkareva and Mr Shestakov) had included over fifty candidates, and the top twelve had been elected to the LA.", "These five applicants had retained their positions on the party’s list and would be eligible to replace candidates in the LA, should any of the serving SR members lose their seat. The five applicants had continued their political activity; some of them had been elected to municipal councils (Mr Shestakov and Mr Truskanov), and others had stood in the municipal elections in 2014, with varying results. The fact that there had had to be recounts in some precincts, in accordance with the guarantees set down in the applicable legislation, could not be interpreted as interference. Moreover, the results of the recounts demonstrated that the gains and losses had not been uniformly in favour of or to the detriment of any particular party; contrary to the applicants’ assertions, in many constituencies ER had lost votes, and SR had gained votes or remained on an equal number. 253.", "Alternatively, the Government argued that any limitation had been proportionate to the aims that could be considered legitimate in the context of democratic elections, including the protection of State sovereignty and democratic order; protection of the voters’ and candidates’ rights; adequate counting of votes and reflection of their results; and the prevention of distortion of the voters’ will, which could lead to a violation of the principle of democratic government, a fundamental constitutional principle of the Russian Federation. They reiterated that a wide margin of appreciation was accorded to States in the electoral sphere (the Government referred to the Court’s judgments in the cases of Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 52 and 54, Series A no. 113; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008; Ždanoka v. Latvia [GC], no. 58278/00, §§ 100, 110, 132 and 135, ECHR 2006‑IV; and others) and argued that this margin had not been overstepped in the present case.", "(ii) On the effectiveness of the consideration of the applicants’ complaints 254. In so far as some of the applicants had sought to institute criminal proceedings, the Government were of the opinion that the conclusions of the law‑enforcement authorities had been well founded. Thus, the second, third and fourth applicants had written to the St Petersburg Investigative Committee on 6 December 2011 alleging electoral fraud. In response, on 14 February 2012 the Kolpino District Prosecutor had found no reason to proceed with the criminal investigation, because the actions of the electoral commissions were susceptible to judicial review. Only the third applicant had appealed against that decision to a court, and on 11 July 2012 the St Petersburg City Court had concluded that the investigative committee was obliged to consider the applicant’s request.", "On 21 August 2012 the Kolpino District Department of the Investigative Committee had decided that no breach of electoral legislation had occurred at PEC no. 651. The difference in results referred to by the applicants was explained by the recounts conducted by the competent TEC. Similar decisions had been taken on complaints lodged by other applicants (see section E above). 255.", "The Government also reiterated that the inquiry into the possible falsification of the “original” results protocols had led to the conclusion that no crime had been committed, although the expert report retained doubts as to the authenticity of some of the documents relied upon by the applicants (see section J above). 256. In so far as the applicants alleged that the courts had failed to give their complaints effective consideration, the Government argued, first, that the proceedings in question could not be judged by the standards of Article 6 of the Convention, which was not applicable. As an alternative argument, the Government submitted that the courts had effectively considered all the questions raised by the applicants in their complaints, and that they had examined all the relevant sources of information and all documents which could be obtained. In so far as at least some of the applicants could be considered to have exhausted domestic remedies, the courts had carefully examined their allegations and evaluated them in line with the rules on examination of evidence established by the national legislation.", "The general rules on the admissibility and relevance of evidence, the burden of proof, and jurisdiction had been correctly applied by the courts. Their conclusions could not be considered arbitrary (the Government referred to I.Z. v. Greece, no. 18997/91, Commission decision of 28 February 1994, Decisions and Reports (DR) 76‑B, p. 65, at p. 68, and Babenko v. Ukraine (dec.), no. 43476/98, 15 September 1998).", "257. In their additional observations of 22 May 2015 the Government observed that judicial review of an alleged breach of electoral law did not necessarily lead to election results being declared void. In order for a court to cancel the outcome of the voting or the results of elections, the breaches should be so serious as to thwart the free expression of the voters’ opinion and thus inadequately reflect the voters’ will in the election results. 258. More specifically, as far as the proceedings initiated by SR before the St Petersburg City Court concerning the validity of elections were concerned (see paragraphs 108-111 above), the Government were of the opinion that the City Court had been correct in focusing on the procedure followed by the City Electoral Commission, as the Commission was best placed to answer this type of complaint.", "259. The Government also commented on the proceedings in the Kolpino District Court initiated by the sixth applicant in respect of the results of the elections in precinct no. 637 (see paragraphs 112-125 above). The trial and appeal courts had carried out a detailed and well-reasoned review of the applicant’s allegations. They had carefully examined all the relevant evidence and correctly concluded that the “copy” presented by the applicant could not be treated as valid evidence of a different outcome of the election, in view of that document’s formal deficiencies.", "On the contrary, the final results had been based on the decision of TEC no. 21 of 5 December 2011 to order a recount and a copy of the results protocol following that recount had been produced by PEC no. 637 and duly certified. The applicant’s pleas to the electoral commissions for additional witnesses to be called had been aimed at proving a “factitious” allegation that the recount had not taken place, or that it had been carried out in breach of existing rules. The courts had correctly based their findings on valid documents and had dismissed unfounded allegations.", "260. Similarly, the examination of the claim about the outcome of elections in the entire divisions nos. 18 and 19 had been in line with the applicable national standards and had taken into account all valid and relevant evidence presented by the parties (see paragraphs 126-141 above). The Kolpino District Court had called and questioned a total of twenty-four witnesses; it had also attempted to call additional witnesses, in accordance with the parties’ requests. The court had been unable to treat the documents submitted by the applicant as valid evidence of the results of the election.", "The trial court judgment was based on a large amount of evidence examined during the hearing, and the well-foundedness of its conclusions had been confirmed by the appeal court. The Government raised similar arguments in respect of the proceedings in the Kolpino District Court initiated by SR (see paragraphs 142-143 above). 261. The Government questioned the relevance of the examples of similar decisions taken by other St Petersburg district courts following complaints lodged by SR (see paragraph 192 above). They stressed that in those proceedings the courts had been unable to obtain any evidence of falsification of the election results.", "The courts had established, on the basis of valid evidence and witness statements and in respect of each precinct concerned, that the “originals” relied upon by the claimant had been prepared by observers prior to the drawing up of the final results, and that those documents had not been properly checked or certified. On the contrary, the recounts themselves, which had been ordered by the territorial commissions whenever there were doubts or complaints about the results, proved that the system had strained to achieve the most correct reflection of the voters’ will. The courts had pondered upon and, where this was justified, rejected requests for additional witnesses to be called in order to establish the exact circumstances in which the recounts had been held. 262. Finally, the Government rejected the applicant’s allegation that the courts had applied different standards in accepting evidence submitted by the claimants and the electoral commissions.", "They stressed that the courts had carried out an individual evaluation of each piece of evidence, and that their conclusions had been based on law and had been explained in the judgments. (iii) On the composition of and procedure at the electoral commissions 263. The Government denied that there were any reasons to suspect the City Electoral Commission or TECs of partiality. These commissions functioned on a permanent basis and had between five and fourteen members, appointed for five years. Each political party present in the regional legislature was entitled to appoint its members.", "PECs were created for the duration of the elections, also on the basis of multi-party representation. Each party had no more than one voting member. 264. The Government also reiterated that in addition to the voting members of the electoral commissions, parties and electoral unions could appoint observer members. During the elections of December 2011 in St Petersburg, a total of 6,091 observers had been appointed, of whom 1,507 were nominees of SR and 1,217 of ER.", "This constituted an additional guarantee of the impartiality of electoral commissions, and the parties concerned could have used this instrument. 265. In respect of the two “temporary” PECs formed in precincts nos. 1852 and 1853, the Government stressed, in their additional observations, that their creation and composition had been based on information about the supposed number of voters (up to 1,000 in each precinct) submitted by the administration of OAO Kirovsky Zavod, and in accordance with the applicable legal provisions (see paragraphs 40 and 144‑145 above). The applicants had not challenged the lawfulness of the setting up of these two particular commissions.", "266. The Government pointed out that the applicants had failed to seek to hold the chairpersons and members of the PECs administratively liable for supplying them with the allegedly incorrect election results. 267. The Government then reiterated the procedure for recounts conducted by PECs and TECs. They submitted that of the ninety-nine precincts initially concerned, forty-eight had had recounts (see paragraphs 158-167 above).", "The recounts were aimed at establishing the correct outcome of the voting, and the applicable procedures had been carefully observed. The results of the recounts could not be called into question. In particular, where the applicants had pointed to the testimony in court of a member of TEC no. 21 to prove that the recount had been conducted in breach of the existing rules (see paragraphs 137-138 above), the Government retorted that of the twenty-four precinct recounts, only eleven had been conducted by Territorial Commission no. 21 (PECs nos.", "638, 646, 651, 652, 654, 657, 662, 664, 667 and 668). This recount had been conducted in accordance with the applicable rules, and the new results had been certified by a majority of the TEC members, as required by the law. Recounts in four precincts (PECs nos. 637, 641, 661 and 666) had been conducted by the PECs concerned, and had also been attested to by their members’ signatures. The District Court in its judgment of 16 July 2012 had correctly assessed the evidence submitted, including the TEC member’s witness statement, and had concluded that the alleged violations had not taken place (paragraphs 126-141 above).", "268. In so far as the applicants alleged that the TECs had breached procedure in ordering the recounts in the absence of written complaints of breaches of procedure at precinct levels, the Government countered that the TECs were empowered to act to dispel any doubts as to the correct establishment of the election results. The copies of the relevant reports of the TEC decisions (the Government referred to TECs nos. 3, 4, 7, 21 and 27), showed that the decisions had been taken, in each case, upon weighty grounds, and by a lawful composition, namely a majority of members. All commissions were collegial bodies, based on multi-party representation, and each member had only one vote.", "Copies of these decisions had been submitted to the Court (see paragraphs 154-157 above). All these decisions had been made public and had not been appealed against by the applicants or by the TEC members who had been absent during the recounts. The law did not stipulate which commission, precinct or territorial, should conduct recounts; this depended on the practical circumstances of the case. As to the method of conducting recounts, the Government explained that “unlike the [initial] procedure of determination of the election results, recounts mean recounting the ballot papers which have already been sorted (packed in stacks), which considerably accelerates the procedure. That is why the number of ballot papers found in ... ballot boxes cannot serve as a criterion for determination of the length of time recounts take” (p. 262 of the Government’s additional observations).", "269. Overall, as regards the composition and functioning of electoral commissions, the Government were of the opinion that their composition was well balanced (they included representatives from all parties concerned, each with a single vote), and that the applicants had failed to submit “any sufficient proof of particular acts of abuse of power or electoral fraud committed within the electoral commissions to the applicant party’s detriment” (citing the case of Georgian Labour Party v. Georgia, no. 9103/04, § 110, ECHR 2008). 270. In their additional observations of 22 May 2015, the Government mentioned that the CEC had upheld up to 40% of the complaints lodged with it (without referring to the relevant dates or the source of those data).", "They disagreed that there was a lack of clarity in the distribution of powers between the electoral commissions and the law-enforcement authorities, as alleged by the applicants. They stressed that the commissions involved had acted in line with their sphere of competence, and constituted effective and independent bodies tasked with consideration of complaints of breaches of electoral legislation – unless there were reasons to suspect the criminal offence of falsifying documents. 2. The Court’s assessment (a) General principles 271. Article 3 of Protocol No.", "1 to the Convention enshrines a principle that is characteristic of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt, cited above, § 47). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46-51). 272. The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention, and has emphasised that the rights guaranteed under Article 3 of Protocol No.", "1 to the Convention are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005‑IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no.", "24833/94, § 63, ECHR 1999‑I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000‑IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002‑II). While the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote and to stand for election, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 to the Convention have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate or arbitrary (see Mathieu‑Mohin and Clerfayt, cited above, § 52, and Yumak and Sadak, cited above, § 109 (iii)).", "273. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory, but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998‑I, and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006‑VIII). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see Namat Aliyev, cited above, § 72), including the manner of review of the outcome of elections (see Kovach, cited above, § 55). 274.", "The Court has established that the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures the effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process, and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to the Convention to hold democratic elections. Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 to the Convention and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections were not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Aliyev, cited above, § 81).", "275. The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party, cited above, § 101) and for their decisions to be sufficiently well reasoned (see Namat Aliyev, cited above, §§ 81-90). 276. As to the facts in dispute, the Court is not required under Article 3 of Protocol No. 1 to the Convention to verify whether every particular alleged irregularity amounted to a breach of domestic electoral law (see I.Z.", "v. Greece, cited above, § 68). The Court is not in a position to assume a fact-finding role by attempting to determine whether all or some of these alleged irregularities have taken place and, if so, whether they amounted to irregularities capable of thwarting the free expression of the people’s opinion. Owing to the subsidiary nature of its role, the Court needs to be wary of assuming the function of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Its task is nevertheless to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and has ensured that individual electoral rights were exercised effectively (see Namat Aliyev, cited above, § 77, and Gahramanli and Others v. Azerbaijan, no. 36503/11, § 72, 8 October 2015).", "277. In this connection, the Court considers that in cases where it is alleged that the breach of the domestic legal rules was such that it seriously undermined the legitimacy of the election as a whole, Article 3 of Protocol No. 1 to the Convention requires it to assess whether such a breach has taken place and has resulted in a failure to hold free and fair elections. In doing so, the Court may have regard to whether an assessment in this respect has been made by the domestic courts; if it has been made, the Court may review whether or not the domestic courts’ finding was arbitrary (see Kovach, cited above, § 55, and Karimov v. Azerbaijan, no. 12535/06, § 43, 25 September 2014).", "(b) Application in the present case (i) Applicability of Article 3 of Protocol No. 1 to the Convention 278. It is clear that the elections to the State Duma qualify as the elections of a legislature in terms of Article 3 of Protocol No. 1. The parties also do not dispute the applicability of Article 3 of Protocol No.", "1 to the Convention to the elections to the St Petersburg LA, the legislative body of a constituent subject of the Russian Federation (see, for a similar situation, Antonenko v. Russia, no. 42482/02 (dec.), 23 May 2006, where the parties and the Court did not dispute the applicability of the provision). The Court reiterates here that the word “legislature” in Article 3 of Protocol No. 1 to the Convention does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question (see Mathieu-Mohin and Clerfayt, § 53, and Matthews, § 40, both cited above). It has therefore found the term to encompass the Flemish Council in Belgium, on the basis that constitutional reform had vested in it sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (Mathieu-Mohin and Clerfayt, cited above, § 53).", "Similarly, regional and Lӓnder councils have been held to form constituent parts of the legislature in Italy, Austria and Germany (see Vito Sante Santoro v. Italy, no. 36681/97, §§ 52‑53, ECHR 2004‑VI; X v. Austria, no. 7008/75, Commission decision of 12 July 1976, DR 6, p. 120; and Timke v. Germany, no. 27311/95, Commission decision of 11 September 1995, DR 82-A, p. 158). 279.", "Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government, or within the shared jurisdiction of federal subjects and the federal government to the extent of the latter’s scope of authority. The St Petersburg Legislative Assembly is a democratic government body of one of the subjects of the Russian Federation, vested with a wide range of powers in the constituent territory, based on the constitutional separation of powers between the regions and the Federation. The Court confirms that, as such, it falls under the definition of “legislature” within the meaning of Article 3 of Protocol No. 1 to the Convention. (ii) Nature of the alleged violation 280.", "The applicants complained of several breaches of the right to free elections during the election of two legislative bodies - the St Petersburg LA and the State Duma. The most common complaint was that in the election to the LA there was a difference between the results obtained by the political parties, as recorded initially after counting by precinct commissions, and the official results published by the City Electoral Commission. As a corollary, the applicants submitted that the domestic authorities had failed to ensure an effective review of this allegation, in breach of their positive obligation under Article 3 of Protocol No. 1 to the Convention. Four applicants (the second to fifth applicants) questioned, for the same reasons, the outcome of the elections to the State Duma in their respective precincts.", "The Court will focus its analysis on this complaint. 281. The Government denied that any real difference existed between the results recorded in the protocols drawn up at the PECs and those published by the City Electoral Commission. They pointed to the procedural deficiencies in the copies of the “original” results protocols, and insisted that they could not serve as valid evidence of the existence of results which were different from the official ones. In their view, this issue had been carefully examined by the competent authorities wherever the applicants had sought such a review, and thus there had been no breach of the positive obligation to set up an efficient system for examination of complaints.", "At the same time, they accepted that the results obtained in some precincts had been subject to a recount; however, the recount procedure had been in accordance with the law and its results had not been so unequivocally to the detriment of the opposition parties as the applicants had alleged. On that account, the Government both denied the existence of the breach alleged, and submitted that the positive obligation of review had been complied with. 282. The Court notes that each of the applicants challenged the official results in at least one electoral precinct of St Petersburg (see Appendix for a summary of complaints). In doing so, they relied on a number of factual allegations to show that the results for various political parties had changed between the time the PECs had completed the counting and the time the results were tabulated and entered into the system at the territorial level.", "They provided copies of PEC results protocols which contained different figures from those officially published, and submitted that no real explanation for this difference had been provided. As a result of this difference, the applicants argued, the free expression of the will of the people in the choice of legislature had been thwarted; in addition, some applicants’ passive electoral rights to become a member of the LA had been infringed. 283. The Court observes that the Venice Commission Code of Good Practice in Electoral Matters devotes significant attention to the process of counting, transfer and tabulation of results, insisting that this process must be transparent and open, and that observers and candidates’ representatives must be allowed to be present and to obtain copies of the records drawn up (see section I.3.2 of the Code, paragraph 196 above). In the same vein, the Explanatory Report to the Code contains some additional recommendations applicable to the process of counting, recording of results and their transfer to the higher authority (see Explanatory Report, sections I.3.2.2.4.", "(Counting) and I.3.2.2.5. (Transferring the results), paragraph 196 above). The Report suggests that observers, media and others authorised to be present at the polling station should be allowed to be present during the count, and that there should be “enough copies of the record of the proceedings to ensure that all the aforementioned persons receive one”. Furthermore, transmission of the results – “a vital operation whose importance is often overlooked” – should also be carried out in an open and controlled manner, where the person transmitting the results, usually the presiding officer of the polling station, should be accompanied by other members of the polling station representing opposition parties, if necessary under additional security (ibid.). 284.", "These detailed recommendations reflect the importance of technical details, which can be crucial in ensuring an open and transparent procedure of ascertaining the voters’ will through the counting of ballot papers and the accurate recording of election results throughout the system, from the local polling station to the Central Electoral Commission. They confirm that, in the eyes of the Code of Good Practice in Electoral Matters, the post-voting stages covering counting, recording and transfer of the election results form an indispensable part of the election process. As such, they should be accompanied by clear procedural guarantees, be open and transparent, and allow observation by members across the whole political spectrum, including the opposition, in order to ensure the realisation of the principle of the voters’ freedom to express their will and the need to combat electoral fraud. 285. It is true that Article 3 of Protocol No.", "1 to the Convention was not conceived as a code on electoral matters designed to regulate all aspects of the electoral process (see Communist Party of Russia and Others v. Russia, no. 29400/05, § 108, 19 June 2012). However, the Court has already confirmed that the common principles of the European constitutional heritage, which form the basis of any genuinely democratic society, enshrine within themselves the right to vote in terms of the opportunity to cast a vote in universal, equal, free, secret and direct elections held at regular intervals (see the Code of Good Practice in Electoral Matters, paragraph 196 above). Article 3 of Protocol No. 1 to the Convention explicitly provides for the right to free elections at regular intervals by secret ballot, and other principles have also been recognised in the Convention institutions’ case-law (see Russian Conservative Party of Entrepreneurs and Others, cited above, § 70).", "In this setting, free elections are to be seen as both an individual right and a positive obligation of the State, comprising a number of guarantees starting from the right of the voters to form an opinion freely, and extending to careful regulation of the process in which the results of voting are ascertained, processed and recorded. 286. At the same time, the Court reiterates that the level of its own scrutiny will depend on the particular aspect of the right to free elections. Thus, tighter scrutiny should be reserved for any departures from the principle of universal suffrage (see Hirst (no. 2), cited above, § 62).", "A broader margin of appreciation can be afforded to States where the measures prevent candidates from standing for election, but such interference should not be disproportionate (see Krasnov and Skuratov v. Russia, nos. 17864/04 and 21396/04, § 65, 19 July 2007, and Russian Conservative Party of Entrepreneurs and Others, cited above, § 65). 287. A still less stringent scrutiny would apply to the more technical stage of vote counting and tabulation. Due regard must be had to the fact that this is a complex process, with many persons involved at several levels.", "A mere mistake or irregularity at this stage would not, per se, signify unfairness of the elections, if the general principles of equality, transparency, impartiality and independence of the electoral administration were complied with. The concept of free elections would be put at risk only if there was evidence of procedural breaches that would be capable of thwarting the free expression of the opinion of the people, for instance through gross distortion of the voters’ intent; and where such complaints received no effective examination at the domestic level. Moreover, the Court should be cautious about conferring unrestricted standing to challenge this stage of elections on individual participants in the electoral process. This is especially so where the domestic legislation contains reasonable restrictions on individual voters’ ability to challenge the results in their respective constituencies, such as the requirement for a quorum of voters (see section II.3.3 (f) of the Code of Good Practice in Electoral Matters, paragraph 196 above). Nevertheless, States should ensure such access to the appeal system as would be sufficient to make the guarantees under Article 3 of Protocol No.", "1 effective throughout the electoral cycle. In the Russian context, the Constitutional Court ruling of 22 April 2013 confirmed the standing of individual voters to challenge the results in the constituencies where they had voted; subsequent legislative changes ensured such standing (see paragraph 188 above). 288. The Court therefore confirms that only serious irregularities in the process of counting and tabulation of votes that remained without an effective examination at the domestic level can constitute a breach of the individual right to free elections guaranteed under Article 3 of Protocol No. 1 to the Convention, in both its active and its passive aspects.", "In line with its subsidiary role, the Court’s task is limited to ensuring that the examination at domestic level afforded minimum procedural guarantees and that the findings of the domestic authorities were not arbitrary or manifestly unreasonable (see Communist Party of Russia and Others, cited above, §§ 116-17). It will proceed to analyse the applicants’ complaints accordingly. (iii) Whether the applicants have made out a claim of serious irregularities 289. The first question to ask is whether the applicants have put forward a serious and arguable claim disclosing an apparent failure to hold free and fair elections in their constituencies (see Gahramanli and Others, cited above, § 73). In order to answer that question, the Court will examine the parties’ submissions and statistical and other data.", "(α) Recapitulation of the parties’ relevant submissions 290. First, the Court notes that each applicant submitted sufficiently detailed and concordant information about the violations alleged. Thus, the first five applicants, in various capacities, challenged the outcome of the LA elections in thirty-five precincts in the Kolpino district of St Petersburg, electoral division no. 19. Four applicants challenging the results of elections to the State Duma (the second, third, fourth and fifth applicants) also submitted relevant information in this respect.", "They provided copies of the results protocols for twenty-one precincts, compiled and certified by the relevant PECs, which they had obtained either in their capacity as a candidate for SR (the first applicant, see paragraph 20 above), or as voting members of the PECs concerned (the second to fifth applicants – see paragraphs 29-34 above). 291. The sixth applicant’s complaint concerns the precinct in which he was a simple voter, but he obtained a copy of the “original” document from an observer at that polling station (see paragraph 35 above). 292. The ninth applicant challenged the official results in ten precincts of electoral division no.", "17, and, as a candidate of SR, had obtained copies of the “original” protocols compiled by the PECs from observers and voting members from that party (see paragraph 39 above). 293. The tenth applicant challenged the official results in eighteen precincts of electoral division no. 33, and, as a candidate of SR, had obtained copies of the “original” protocols compiled by the PECs from observers and voting members from that party (see paragraph 41 above). The eleventh applicant, who challenged the results in thirteen precincts of electoral division no.", "15, was in a similar position (see paragraph 43 above). 294. The Court notes that while many of the applicants’ allegations are contested by the Government, a number of significant assertions are confirmed by the information contained in the Government’s submissions and official documents. Aware of the limits of its own fact-finding in this type of case (see paragraph 276 above), the Court will first focus on the elements that are not disputed by the parties. (β) Recounts 295.", "It is not disputed by the parties that the votes were recounted in many precincts after the initial count had been conducted by the PECs and once the results protocols, duly signed and attested by the relevant precinct officials, had been transferred to the electoral commission at the territorial level (see paragraphs 158-167 above). 296. To be more specific, it appears from the above-mentioned table compiled by the Government that there were recounts in at least some of the precincts where the results were challenged by each applicant in the elections to the LA. In the case of the first five applicants, who complained about overall and individual precinct results in electoral division no. 19, out of twenty-one precincts where they had submitted the “original” protocols there were recounts in fourteen, including the precincts where there were challenges by the second to fifth applicants (nos.", "651, 652, 654 and 661). The same applies to the sixth applicant (precinct no. 637 in electoral division no. 18), the ninth applicant (eight precincts recounted of the twelve challenged in electoral division no. 17), the tenth applicant (eleven precincts recounted of the eighteen where the results were challenged, electoral division no.", "33) and the eleventh applicant (five precincts recounted out of twenty, electoral division no. 15). In the Duma elections, challenged by the second to fifth applicants, there were recounts in three precincts (nos. 651, 652 and 654). 297.", "From the summary document presented by the Government, it appears that of the ninety-nine precincts that initially gave rise to challenges by the applicants in the present case, there were recounts in almost half, namely forty‑eight precincts (forty‑five in the LA elections and three in the Duma elections). These recounts concerned over 50,000 votes cast. The reasons for such a high percentage of recounts were indicated in a standard and summary manner, mostly as “doubts about correctness and complaints” (see paragraph 158 above). 298. The Court notes the Government’s argument that the possibility of recounts as such could be essential to ensure an adequate reflection of the voters’ intention and to prevent the distortion of results, for example by errors and irregularities.", "Indeed, an exceptional application of this procedure does not necessarily lead to a suspicion of electoral fraud, provided that the reasons for it are clearly indicated, they appear sufficiently serious to call into question the outcome of the electoral commission’s work, and transparency and careful adherence to the procedure accompany both the decision-making process and the recount itself. 299. In the present case, the Court finds it difficult to accept, without any additional explanation, that the scope of errors and irregularities in almost half the electoral precincts concerned was such that their results should have been declared void by the higher commissions and assessed anew, with widespread discrepancies between these two counts (see paragraph 167 above). The recounting of votes on such a massive scale in itself points to a serious dysfunction in the electoral system and is capable of throwing serious doubts on the fairness of the entire process. The Court observes in this respect that the Venice Commission Code of Good Practice in Electoral Matters recommends in section I.3.2 of its Guidelines that “counting should preferably take place at polling stations”; the Explanatory Report on the Code adds in paragraph 45 that “this arrangement obviates the need to transport the ballot boxes and accompanying documents, thus reducing the risk of substitution” (see paragraph 196 above).", "Where the result of every second voting station is subsequently declared void and replaced with a new one, the whole procedure risks appearing compromised. (γ) Reasons for recounts 300. The reasons leading to the invalidation of the initial results protocols and the procedures to follow in the case of a recount are enshrined within the national legislation (see paragraphs 185-187 above). It is difficult to assess in the abstract whether these provisions provide sufficient guarantees against possible abuses. Thus, it might appear that the reasons for conducting recounts were formulated rather broadly, and referred simply to “errors or discrepancies”, or even merely to doubts about the correctness of the results protocols (see the Basic Guarantees Act, the Duma Elections Act and similar provisions of the St Petersburg Elections Act).", "On the other hand, the decision-making process and recounts should be characterised by the same guarantees of transparency and openness as in the initial counting of votes, and should require notification of the voting members of both the precinct and territorial commissions concerned, assurances of their presence, as well as that of observers and other interested parties, and immediate notification of the final results to all concerned. 301. In the present case, part of the applicants’ allegation concerns precisely the absence of transparency and notification at the level of territorial commissions. The Court finds that these allegations are supported by a number of weighty arguments which are not disputed by the parties. Thus, the decisions of the territorial commissions to invalidate the precinct protocols were similarly worded and referred to general and unspecified reasons (see paragraph 154 above).", "Such deficient reasoning renders it difficult to evaluate whether there was a real need to set at naught the outcome of the process reached by so many polling stations and, in turn, reinforces the suspicion of unfair play. (δ) Procedure and guarantees for the conduct of recounts 302. As to the transparency and safeguards of the process, it is apparent from the documents submitted by the Government that when the decisions to conduct recounts were taken at the territorial level, out of the five TECs concerned (nos. 3, 4, 7, 21 and 27), a representative of SR was present in only one (no. 21), and a representative of the KPRF also in only one (no.", "4), while all other members were present on all the other occasions, with one exception (see paragraph 155 above). This signifies that at the time when the decisions were taken to scrap the initial results and conduct a new count, three territorial commissions out of five had no representation at all from the parties considered as opposition (SR and the KPRF), and only reduced representation in two others. 303. Wherever the recounts were conducted by the PECs, the members appointed by SR and the KPRF were also systematically absent (see paragraph 156 above). This mirrored the problem noted above in respect of the TECs which had ordered and conducted recounts.", "Such frequent and widespread absence of observers and voting members from the opposition parties at the crucial stage of ascertaining the election results contributes to the well-foundedness of the applicants’ allegations of unfairness. 304. It is further not disputed by the parties that the decisions of the territorial commissions to cancel the results of the precinct commissions and to order new counts were not communicated to those applicants who had been members of the PECs concerned, and that they learned of those decisions only subsequently, during the appeals. 305. Wherever the territorial commissions declared the precinct commission results void they either conducted the recounts themselves or required the PECs to do so.", "It appears from the copies of the protocols and the documents submitted by the Government that out of the forty-eight precincts where recounts had been ordered the territorial commissions conducted recounts in twenty-six, while the rest were dealt with by the PECs (see paragraphs 158-167 above). As to the recounts conducted by the territorial commissions, in addition to the absence of the members of SR and the KPRF from some of the commissions (see the preceding paragraph), the Court notes that a number of other elements that are not disputed by the parties raise further doubts as to the adherence to the rather strict requirements of the domestic legislation (see paragraphs 185-187 above). 306. For example, it is difficult to reconcile the speed of the recounts in some of the TECs with the amount of work they had to carry out and the feasibility of complying with the applicable procedural requirements. Thus, as the results protocols indicate, in TEC no.", "7 the recounts in three precincts (about 4,700 ballot papers) were carried out in less than one hour; in TEC no. 21 recounts in eleven precincts (over 11,300 ballot papers) were carried out in three hours and forty-five minutes; and in TEC no. 4 recounts in six precincts (about 6,600 ballot papers) were concluded in a record forty‑five minutes (see paragraphs 160, 161 and 163 above). Even if the Government’s argument that the recount should have been easier than the initial count because the ballots were already bundled together (presumably, according to the results marked – see paragraph 268 in fine above), it should still have involved manual verification of each single ballot, in order to obtain results that would be different from the initial ones. (ε) Results of the recounts 307.", "Wherever the Government presented such figures, it generally appears that as a result of recounts ER gained votes. In the twenty‑three precincts where the Government submitted these data, the recounts concerned over 24,000 votes; in this group ER gained 5,155 votes. In other words, the parties do not dispute that as a result of recounts more than one fifth of votes cast were reassigned in favour of the ruling party. The same documents show that, as a result of this exercise, the opposition parties (SR, the KPRF and Yabloko) lost large numbers of votes (see paragraph 167 above). 308.", "The Court remarks here that the Government have challenged the value of the evidence presented by the applicants in the form of the “initial results protocols” obtained from the precinct commissions at the conclusion of the vote count. It finds that this question will be best addressed in the following subsection on the effective examination of the applicants’ complaints, since the domestic authorities have devoted a significant amount of attention to it. However, it notes that the overall evaluation of the applicants’ claim as serious is reinforced by the absence of proper copies of the “initial results protocols” wherever a recount has taken place, the lack of information as to what happened to them, and the incomplete picture of the results of the recounts provided by the Government. (ζ) OSCE report 309. Finally, the Court notes that the OSCE observation mission reported irregularities and frequent procedural violations at the stage of the counting of votes and tabulation of results.", "They assessed vote counting as “bad or very bad” at every third station observed; they noted frequent breaches of procedure, a lack of transparency and poor organisation, among other problems (see paragraphs 197-198 above). (η) Conclusion as to the seriousness of the irregularities alleged 310. To recapitulate, the Court finds that the following elements of the applicants’ complaints of unfairness of the elections are not disputed by the parties: the results in almost half the initially challenged precincts in the elections to the LA (and three of the four challenged in the Duma elections) were declared void by the territorial commissions and recounts were ordered; these decisions were summarily and similarly worded, making it difficult to assess whether they were justified; the composition of the TECs which had taken the decisions to conduct recounts excluded the members from both opposition parties in the majority of cases; not all the members of the PECs concerned had been notified of the decisions taken and thus did not take part in the recounting; the recounts at the territorial commissions were carried out in such a short time that it called into question their ability to comply with the procedural requirements of the national legislation; the members of the opposition parties were systematically absent from the recount process both at the territorial and precinct levels; and as a result of the recounts the governing party overwhelmingly gained and the opposition parties lost. Moreover, the applicants’ allegations are indirectly supported by an independent and credible international observer mission, which identified the counting and tabulation of the results as the most problematic stages of the elections in question. 311.", "In view of the evidence summarised above, the Court finds that the applicants have presented, both to the domestic authorities and to the Court, an arguable claim that the fairness of the elections was seriously compromised by the procedure in which the votes had been recounted. An irregularity of this sort would be capable of leading to a gross distortion of the voters’ intentions, in respect of each of the precincts where the results were challenged by the applicants. The Court will now examine whether there was an effective examination of the applicants’ complaints at the domestic level. (iv) Effective examination of the applicants’ complaints 312. As noted above, the applicants put forward an arguable claim that the fairness of the elections to the LA of St Petersburg (and the State Duma, where applicable) in the precincts concerned was seriously compromised to the extent of grossly distorting the voters’ intentions.", "In particular, the recounting of votes raised serious doubts as to the adherence of this procedure to the applicable national legislation, including the guarantees of transparency, openness and equal participation of all political players. This complaint was raised before the national authorities. Between them, the applicants tested all the remedies available under the domestic legislation and seen by the Government as effective and accessible. The Court has already decided that in view of the parties’ arguments the question of exhaustion of domestic remedies should be joined to the merits (see paragraph 237 above). It will now proceed to examine whether in any of the procedures the applicants obtained an adequate and effective review of their complaints of serious irregularities by an independent authority.", "(α) Electoral commissions 313. The Court will start this examination by considering the procedure before the electoral commissions. Under the law, higher electoral commissions have the authority to consider complaints against decisions of the lower commissions. This procedure is equipped with some important procedural guarantees, such as the right of the complainant to be notified of the consideration of his or hercomplaint and to be present. The commissions can overturn decisions of the lower electoral commissions and order new counts, but only in the short time preceding the official approval of the election results (see paragraphs 189-190 above).", "314. In the present case, the second, third and fourth applicants lodged administrative complaints with the City Electoral Commission on 6 December 2011, as soon as the results of the elections were announced (see paragraphs 48-58 above). Each of the three applicants, in their capacity as voting members of the PECs, complained about the results announced for the precincts concerned, namely nos. 651, 652 and 654. The complaints indicated that the results announced by the City Electoral Commission differed from the results given in the copies of the results protocols obtained by them at the close of the count.", "The third applicant, in addition, alleged that the results for precinct no. 651 had been announced before the chairman of the precinct commission had transferred the results protocol to the territorial commission and provided a record of the telephone conversation to prove it. 315. The documents submitted by the parties indicate that the City Electoral Commission did not consider the applicants’ complaints in substance; upon receipt they were forwarded to the prosecutor’s offices. On 12 December 2011 the election results for St Petersburg were officially approved by the Commission, making further complaints to the electoral commissions impossible.", "The applicants appealed against the conduct of the City Electoral Commission to the Oktyabrskiy District Court, which in separate but similar decisions confirmed that the complaint fell within the competence of the prosecutor’s office (see paragraphs 56 and 59 above). In such circumstances, the Court finds that the complaints to the higher electoral commission proved ineffective, since that body refused to consider the complaints in substance, and its decision was endorsed by the courts. (β) Criminal investigation 316. As stated in the preceding paragraphs, the complaints lodged by the second, third and fourth applicants with the City Electoral Commission were viewed by the latter body as indicating a criminal offence and, as such, were forwarded to the prosecutor. These three applicants also lodged separate complaints with the investigative committee – the second applicant on 5 December 2011, and the third and fourth applicants on 6 December 2011 (see paragraphs 64, 67 above).", "A complaint about alleged falsification in precinct no. 646, submitted by the first applicant, was lodged with the Kolpino Prosecutor’s Office on 20 December 2011 (see paragraph 60 above). Also in December 2011, the sixth applicant lodged a complaint with the Kolpino District Investigative Committee (see paragraph 71 above). In this way, the law-enforcement authorities were made aware of the substance of the applicants’ complaints in the days immediately following the elections. The third applicant’s complaint was particularly detailed: he insisted that the results in precinct no.", "651, which differed from those contained in the “original” results protocol, had been announced prior to their transmission to the territorial commission. Other applicants gave fewer details, but also suggested that the difference between the figures obtained at the conclusion of vote counting in the five PECs concerned (nos. 637, 646, 651, 652 and 654) and the results announced by TEC no. 21 on 5 December 2011 was indicative of fraud. 317.", "As confirmed by the court decisions and other documents, the counts conducted by the six PECs were declared void by the territorial commission late on 5 December 2011 and a recount was ordered. The law-enforcement authorities were of the opinion that the applicants’ complaints pointing to the difference in results related to the outcome of the elections, and invited them to challenge those results before the competent courts. Wherever this procedure had previously been employed, the authorities had relied on court decisions to dismiss the allegations as unsubstantiated (see paragraphs 70 and 74 above). The inquiries carried out by the prosecutors and the investigative committee concluded that as the results of the elections had been approved by the electoral commissions and confirmed by the competent courts there were no indications of criminal offences (see paragraphs 66, 70, 61-63 and 74 above). It does not appear that any independent action was taken to verify the applicants’ allegations: no one was questioned, and no additional documents or information were reviewed.", "It appears from one investigator’s decision not to conduct an investigation that the possibility of seeking an expert graphological assessment was considered at some point; however, it does not seem that such an assessment was commissioned or carried out (see paragraph 62 above). 318. To sum up, the prosecutor’s office and the investigating committee saw no reasons to take any procedural steps aimed at verifying the allegations of fraud in the six precincts concerned, and opened no criminal investigation. None of the applicants was granted the status of victim in the proceedings, and thus they had very little opportunity to influence their course. The law‑enforcement authorities were at one in the view that the matter fell into the domain of the courts competent to deal with complaints about th procedural decisions by the relevant electoral commissions, which, in their turn, had served to validate the results of the recount without any objections.", "It is difficult to see how the applicants could have overturned this presumption in the absence of any pertinent action by the investigators. 319. The Government supplemented their argument about the effectiveness of criminal proceedings in cases concerning alleged electoral fraud by reference to a number of criminal convictions imposed by courts in various regions and in several types of elections (see paragraph 193 above). It is certainly not in dispute that the State can, in principle, investigate, prosecute and bring to justice those guilty of breaking the rules of elections. However, the Court is not convinced that these examples are of direct relevance to the conclusion that the investigation was ineffective in the present case.", "First, it notes that the participation of individuals lodging complaints in this type of case is not necessary, and the nature of the offence is such that the complaints can be examined with very little, if any, participation of the victims. Second, and closely linked to this, is the particular role of the investigating authorities, which are supposed to take action to address breaches in the organisation of the democratic process as such, not necessarily in connection with an identified individual’s right. Third, none of the examples point to a situation in which the applicants were challenging the results of a recount deemed valid by the electoral commissions, as in the case at hand. 320. In so far as the Government claimed that the applicants had failed to further challenge the decisions not to open criminal investigations, they seem to be implying that a criminal investigation was the remedy that should have been attempted.", "However, both the prosecutor’s office and the investigative committee consistently indicated to the applicants that this type of complaint should have been lodged with the courts; it would therefore appear reasonable for the applicants to assume the same. 321. On the strength of the above assessment, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies on account of the applicants’ failure to appeal against the decisions not to open a criminal investigation. It also concludes that this procedure did not provide a forum for effective evaluation of the circumstances in which the recount had been carried out. (γ) Judicial review 322.", "The national courts at several levels examined the alleged violations associated with the recounts. The parties disagreed as to whether the applicants had received an adequate and effective examination of their allegations in those proceedings. In the context of establishing the factual circumstances constituting an alleged breach of Article 3 of Protocol No. 1 to the Convention, the Court considers that it should first ensure that the review was not arbitrary or manifestly unreasonable (see paragraph 288 above, and Communist Party of Russia and Others, cited above, §§ 116-17). 323.", "Turning to the applicants’ situation, their encounters with the courts could be summarised as follows. First, the interpretation of the national law at the relevant time did not empower voters to challenge the outcome of elections (see paragraphs 75-79 above). As a result, for those applicants who complained solely in their capacity as voters, a judicial review of the election results was not guaranteed, although the national courts’ practice does not appear to be uniform (see paragraph 116 above). The Russian Constitutional Court found the interpretation which excluded individual voters from the range of subjects authorised to appeal to be contrary to the Constitution and recommended legislative changes (see paragraphs 80-88 above). This extensively reasoned judgment opened the way for a judicial review for future voters, but the results of the elections held in December 2011, of which the applicants were complaining, remained unaffected.", "324. The St Petersburg City Court refused to consider the complaints lodged by individual applicants against the decision of the St Petersburg Electoral Commission in both the Duma and the LA elections (the first to sixth applicants) on the merits. In a number of procedural decisions, all of them upheld on appeal, the City Court concluded essentially that it had no jurisdiction over the matter, since the precinct commission results had been reviewed and ascertained by the territorial commission; the City Electoral Commission did not even have copies of the protocols in question (see paragraphs 98 and 106 above). 325. The St Petersburg City Court examined the complaint lodged by one of the political parties concerned – SR – against the results in several electoral divisions during the elections to the LA, including those contested by the applicants (see paragraphs 108-111 above).", "The Government pointed out that where the complaints had been lodged by SR and not by individual applicants those proceedings could not count for exhaustion purposes (see paragraph 218 above). However, given the uncertainty about the access of individual voters to a judicial review in these matters, the applicants cannot be reproached for relying on the results of the procedure initiated by SR. 326. The Court finds that the proceedings initiated by SR in the St Petersburg City Court could have been central in the examination of the allegations of large-scale violations of electoral legislation, as raised by all the applicants. If the applicants’ complaint can be viewed as a sample, nearly half of the ninety-nine precincts where they originally challenged the results were subject to a recount. The Court has concluded above that a recount conducted on such a massive scale in itself raises strong doubts as to the integrity of the process (see paragraph 299 above).", "This was accompanied by a number of serious, repeated and unexplained procedural shortcomings, such as the unclear reasons for recounts, the systematic failure to inform and ensure the presence of representatives of “opposition” parties in the commissions ordering and carrying out the recounts, and the questionable conditions under which they were carried out. The City Court appears to have been best placed to carry out a review of these recurrent and similar allegations that extended over several electoral territories, and to ensure an independent and impartial evaluation of well-founded complaints. 327. However, the City Court limited its examination to reviewing procedural aspects of the City Electoral Commission’s adjudication of complaints that had been submitted to it earlier. As is apparent from the judgment, the only question that the City Court examined at some length was whether the City Electoral Commission had properly notified the party representatives about the hearing and whether they had had an opportunity to attend.", "Having satisfied itself that this procedure had not been seriously breached, it concluded that the Commission had been correct in rejecting the complaints. This conclusion served as an opportunity for the City Court, and then the Supreme Court, to refrain from examining the substance of the complaints about the procedural justifications and reasons that could explain the discrepancies between the results for dozens of precinct commissions and the final figures (see paragraphs 108-111 above). 328. Procedurally, this approach does not tally well with the provisions of the national legislation which confer on judges independent and wide‑reaching powers to oversee the results of elections upon complaints by authorised subjects (see paragraphs 188 and 190 above). The electoral commissions review complaints over a very tight timeframe, only up until the official endorsement of the election results (see paragraph 189 above).", "This presupposes limitations on the procedure, given that the decisions need to be taken quickly, and the scope of review will necessarily be restricted. The courts, on the other hand, are not bound by the decisions of the electoral commissions, and can overturn their decisions about the results and outcome of elections if the violations alleged are so serious that they call into question the proper reflection of the electorate’s will. It therefore appears surprising that in a case raising such serious, widespread and well-documented allegations going to the heart of the electoral system’s credibility, the courts limited themselves to reviewing procedural aspects of the City Electoral Commission’s adjudication of complaints concerning the same matter. In effect, the claimants – including the applicants whose complaints about the results in their respective precincts in the LA elections were covered by this procedure – were denied an examination of the substance of their complaint by a competent and independent authority. This outcome appears to be arbitrary and manifestly unreasonable.", "329. In view of this approach chosen by the St Petersburg Court in its judgment of 27 February 2012, and later endorsed by the Supreme Court, it is not surprising that the procedures initiated by individual applicants and SR in the district courts were unsuccessful. The courts’ examinations were mostly limited to purely formal issues, principally whether the copies of the results protocols obtained from the precinct commissions following the conclusion of the count had complied with numerous requirements applicable to such documents. The courts routinely dismissed documents certified by signatures of competent PEC officials and stamps as invalid evidence for trivial reasons, such as the failure to indicate the running number of the original copy from which the copy in question had been made, the absence of an indication of the address of the precinct commission, or the absence of a note indicating that it was an authentic copy (see, for example, paragraphs 118, 134, 143 and 147 above). The Court does not wish to deny the importance of adherence to rules of procedure in matters of election administration and the recording of results.", "At the same time, the national courts have at their disposal other means of establishing the authenticity of documents and of ensuring the examination of complaints in substance, even where certain documents may raise questions as to their authenticity. The central issue raised in the complaints concerned the reasons for and procedural safeguards for recounts, as well as the results to the detriment of SR and to the benefit of ER. These aspects were not addressed by the district courts, which regularly referred to the official endorsement of the final results by the electoral commissions as the principal reason to dismiss the allegations as unfounded (see, for example, paragraphs 120 and 136 above). 330. It seems that the courts only rarely found it necessary to call additional witnesses, in order to ascertain the reasons for and conditions of recounting the results in the elections.", "Thus, in the proceedings concerning fifty‑four precincts in electoral divisions nos. 18 and 19 (the same precincts that gave rise to challenges by the first to sixth applicants), the Kolpino District Court called a number of officials and observers from the PECs concerned. The witnesses supported the claimant’s assertions about the discrepancies between the figures obtained in precinct commissions and the official results, the systematic failure to notify precinct officials about the decisions to recount, and the fact that those officials had not been able to attend the process (see paragraph 118 above). 331. The testimony by one member of TEC no.", "21, which had ordered and conducted a recount, strongly indicated that at least some of the provisions of the national legislation applicable to the procedure had not been complied with: the reasons for ordering it were not clearly spelled out, the persons authorised to be present were not informed, and the counting took place in a different room, which was not freely accessible to the observers and other officials (see paragraphs 137 and 138 above). The same witness stated that the recount had been conducted by two people – herself and the TEC deputy chairman – in a basement room containing virtually no furniture except two chairs, and where all the ballot papers deposited with the TEC were stored, while the results protocols drawn up by TEC no. 21 indicated that the recount of over 11,300 votes in division no. 19 had been conducted in just three hours and forty-five minutes (see paragraph 162 above). Apart from anything else, it is very difficult to reconcile such rudimentary physical conditions for a recount with the speed with which it was carried out.", "However, even this weighty evidence in favour of the allegation of serious breaches of procedure did not lead the District Court, or the St Petersburg City Court on appeal, to question the validity of the results. 332. In the remaining sets of proceedings initiated by various individuals and entities before the district courts (see section H of “The circumstances of the case” above), as in the procedures described above, the courts systematically failed to seek and admit additional evidence in order to dispel doubts about the authenticity of the “original” results protocols, refused to call witnesses asked for by the applicants, and satisfied themselves with an endorsement of the election results as announced by the election commissions. The examples of judgments rendered by other district courts in St Petersburg following similar complaints (see paragraph 192 above) strongly point to the existence of a practice, in respect of this set of elections, whereby such complaints, however common and well-documented, were dismissed on purely formal grounds. 333.", "To sum up, the complaints about alleged violations in LA and Duma elections on account of the recount procedure and the ensuing results in the precincts concerned were duly brought before the courts, by the applicants in their personal capacity as voters, members of the electoral commissions and candidates, and by branches of political parties. The courts were competent, under both federal and regional legislation, to perform independent and effective evaluations of allegations of breaches of the right to free and fair elections. However, they generally refrained from going into the substance of the allegations, limiting their analysis to trivial questions of formalities and ignoring evidence pointing to serious and widespread breaches of procedure and transparency requirements. In essence, they endorsed the electoral commissions’ decisions, without engaging in any real examination of the reasons for the challenges. 334.", "In view of this, the Court finds that the Government’s objection of non-exhaustion of domestic remedies as a result of the failure by some applicants to seek a further judicial review should be dismissed. It also finds that the domestic courts did not ensure a procedure which could comply with the requirement to provide sufficient guarantees against arbitrariness in the review of an arguable claim of serious violations of electoral rights. (v) Conclusion 335. The Court confirms that the right of individual voters to appeal against the results of voting may be subject to reasonable limitations in the domestic legal order. Nevertheless, where serious irregularities in the process of counting and tabulation of votes can lead to a gross distortion of the voters’ intentions, such complaints should receive an effective examination by by the domestic authorities.", "A failure to ensure the effective examination of such complaints would constitute a violation of individuals’ right to free elections guaranteed under Article 3 of Protocol No. 1 to the Convention, in its active and passive aspects. 336. The applicants in the present case made an arguable claim that the fairness of the elections both to the St Petersburg LA and the State Duma in the precincts concerned had been seriously compromised by the procedure in which the votes had been recounted. In particular, the extent of the recounting, the unclear reasons for ordering it, the lack of transparency and the breaches of procedural guarantees in carrying it out, as well as the results whereby the ruling party gained large numbers of votes, strongly support the suspicion of unfairness.", "This complaint was raised before different State authorities that could, at least potentially, be regarded as effective and accessible remedies. In particular, the courts were empowered to consider complaints from participants in the electoral process, to obtain and examine relevant evidence and, if the irregularities were sufficiently serious, to overturn the decisions of the relevant electoral commissions. However, none of the avenues employed by the applicants afforded them a review which would provide sufficient guarantees against arbitrariness. 337. There has accordingly been a violation of Article 3 of Protocol No.", "1 to the Convention in respect of each applicant, in so far as they have been denied an effective examination of their complaints of serious irregularities in the procedure in which the votes were recounted. 338. In the light of this finding, the Court concludes that it is not necessary to examine separately the applicants’ remaining complaints under Article 3 of Protocol No. 1 to the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 339. Two of the applicants complained of a hindrance of their right to individual petition as enshrined in Article 34 of the Convention, which reads: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 340. On 27 October 2014 the first applicant informed the Court, through Ms Napara, that he had received a telephone call inviting him to attend a meeting with an investigator at the St Petersburg Department of the Investigative Committee. He perceived the invitation as connected to the complaint lodged with the Court and aimed at dissuading him from supporting it.", "He did not attend the meeting. 341. In February 2015 Ms Napara informed the Court that in September 2014 the second applicant, Ms Andronova, had not received appropriate medical aid in St Petersburg, and that this might be linked to her complaint to the Court. 342. The Government submitted that only the first applicant, Mr Davydov, had expressly notified the Court about his contact with the investigator.", "The Government further argued that the applicant had been able to exercise his right of individual petition without any hindrance. He had ignored the invitation and the investigator, having collected sufficient information by other means, had given a decision not to open a criminal investigation, acting at the request of the CEC chairman (see paragraphs 169-172 above). 343. The Court agrees that only the first applicant made a corroborated complaint of hindrance. The allegations by the second applicant do not seem to raise prima facie issues under Article 34 of the Convention, and are therefore rejected.", "344. In respect of the contact made by the investigator with the first applicant, which is not disputed by the parties, the Court reiterates that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or instances of contact designed to dissuade or discourage them from pursuing a Convention remedy, or with a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Fedotova v. Russia, no. 73225/01, § 48, 13 April 2006; Mechenkov v. Russia, no. 35421/05, § 116, 7 February 2008; and Yefimenko v. Russia, no.", "152/04, § 164, 12 February 2013). At the same time, Article 34 does not prevent the State from taking measures to improve an applicant’s situation or even from solving a problem which is at the heart of the Strasbourg proceedings (see Vladimir Sokolov v. Russia, no. 31242/05, § 81, 29 March 2011). 345. The Court reiterates that the inquiry in question was initiated at the request of the head of the CEC, to check the authenticity of the documents relied upon by the applicants, both in the domestic proceedings and before the Court.", "It does not appear that the State officials tried to persuade the applicant, directly or indirectly, to withdraw his complaint, or that being summoned in this connection to the investigative committee in itself amounted to a breach of the right of individual petition. 346. The parties agree that the first applicant ignored the summons and that the relevant complaint was eventually rejected for lack of evidence of any crime. In such circumstances, there is insufficient factual basis to enable the Court to conclude that any undue pressure or any form of coercion was put on the first applicant as a result of the case before it (see Alpatu Israilova v. Russia, no. 15438/05, §§ 95-98, 14 March 2013, and Lyapin v. Russia, no.", "46956/09, § 40, 24 July 2014). 347. In such circumstances, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention in respect of the first two applicants. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 348.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 349. Four of the applicants (Mr Davydov, Mr Belyakov, Mr Truskanov and Ms Pushkareva) claimed 10,000 euros (EUR) each in respect of non‑pecuniary damage. The other applicants did not seek any awards. 350.", "The Government found the sums claimed to be excessive. 351. The Court agrees that the applicants are victims of a violation of the right to free elections and that such a finding can lead to an award compensating for non-pecuniary damage. It awards the four applicants listed above EUR 7,500 each in respect of non-pecuniary damage. B.", "Costs and expenses 352. Six of the applicants claimed a total of EUR 8,000 for costs and expenses incurred before the Court. They stated that Ms Napara had spent 50 billable hours on the case (at a rate of EUR 100 per hour) and Ms Moskalenko 25 billable hours (at a rate of EUR 150 per hour). 353. The Government stressed that the applicants had no written contract with the representatives, which made their claim unsubstantiated.", "354. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The absence of a written agreement to recover fees does not preclude the existence of a contractual obligation (see Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005‑IV). The Court observes that Ms Moskalenko and Ms Napara represented the applicants throughout the proceedings before the Court; in particular, they submitted their applications and submitted written observations on their behalf.", "Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 8,000 as claimed (EUR 5,000 to Ms Napara and EUR 3,000 to Ms Moskalenko), plus any tax that may be chargeable to the applicants. The amounts awarded shall be payable into the representatives’ bank accounts directly, as requested by the applicants. C. Default interest 355. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to strike the seventh and eighth applicants (Mr Yakushenko and Mr Payalin) out of the list of applicants in the present case (see Appendix); 2. Declares the complaints of the remaining nine applicants under Article 3 of Protocol No. 1 to the Convention admissible; 3. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of these nine applicants; 4.", "Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 5. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention in respect of the first two applicants; 6. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to Mr Davydov, Mr Belyakov, Mr Truskanov and Ms Pushkareva; (ii) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses. This amount should be paid directly into the representatives’ accounts, as detailed in paragraph 354 above; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 30 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident APPENDIX Applicants’ details No. Applicant’s name and year of birth Date application lodged/ withdrawn Represented by/ Date power of attorney signed Role in the elections and territorial/precinct electoral commissions concerned Complains about 1. Davydov, Andrey Vladimirovich, 1987 8 December 2011 Ms Moskalenko (8 December 2011); Ms Napara (8 December 2011; 31 March 2014) Candidate for LA on Spravedlivaya Rossiya (SR) list. Complains about results of electoral division no.", "19 (Kolpino district) of St Petersburg. Challenges results in 21 precincts: nos. 638, 639, 641, 642, 643, 644, 646, 648, 649, 651, 652, 653, 654, 657, 661, 662, 664, 665, 666, 667 and 668. Right to be elected to the St Petersburg LA 2. Andronova, Olga Olegovna, 1953 Ms Moskalenko (9 December 2011); Ms Napara (9 December 2011) Voter and voting member of PEC no.", "652 (SR) in Kolpino district, electoral division no. 19. Right to vote in elections to LA and the State Duma 3. Andronov, Aleksey Viktorovich, 1986 Ms Moskalenko (9 December 2011); Ms Napara (9 December 2011) Voter and voting member (SR) of PEC no. 651 in Kolpino district, electoral division no.", "19. 4. Nikolayeva, Tatyana Alekseyevna, 1988 Ms Moskalenko (no date); Ms Napara (no date) Voter and voting member (SR) of PEC no. 654 in Kolpino district, electoral division no. 19.", "5. Sizenov, Yevgeniy Petrovich, 1972 Ms Moskalenko (no date); Ms Napara (31 March 2014) Voter and voting member (Yabloko) of PEC no. 661 in Kolpino district, electoral division no. 19. 6.", "Belyakov, Vladimir Gennadyevich, 1948 15 March 2012 Ms Moskalenko (27 January 2012); Ms Napara (27 January 2012, 2 April 2014) Voter in electoral precinct no. 637 in Kolpino district, electoral division no. 18. Right to vote in elections to LA 7. Yakushenko, Sergey Vasilevich, 1954 15 March 2012.", "On 4 April 2014 Ms Napara informed the Court about the applicant’s request to withdraw his complaint. Ms Moskalenko (16 January 2012) Voter in electoral precinct no. 623 in Kolpino district, electoral division no. 18. 8.", "Payalin, Nikolay Lvovich, 1968 15 March 2012. On 12 May 2014 signed a request to withdraw complaint, for personal reasons. Ms Moskalenko (12 January 2012); Ms Napara (12 January 2012, 31 March 2014) Candidate in LA elections on SR list. Complains about results of electoral division no. 22 of St Petersburg.", "Challenges official results in 22 precincts: nos. 721, 722, 723, 724, 725, 726, 727, 728, 729, 731, 733, 734, 735, 736, 739, 740, 741, 742, 743, 744, 745 and 794. Right to be elected to LA 9. Truskanov, Gennadiy Borisovich, 1946 15 March 2012 Ms Moskalenko (27 January 2012); Ms Napara (27 January 2012, 31 March 2014) Candidate in LA elections on SR list. Complains about results of electoral division no.", "17 of St Petersburg. Challenges official results in 10 precincts: nos. 486, 489, 495, 496, 497, 498, 500, 501, 508 and 509; and the procedure in two “closed” precincts nos. 1852 and 1853. 10.", "Pushkareva, Lyudmila Vasilyevna, 1957 Ms Moskalenko (8 December 2011); Ms Napara (10 March 2012) Candidate in LA elections on SR list. Complains about results in electoral division no. 33 of St Petersburg. Challenges official results in 18 precincts: nos. 1070, 1084, 1089, 1090, 1093, 1097, 1098, 1103, 1104, 1107, 1108, 1109, 1111, 1114, 1115, 1118, 1126 and 1127; and the results cancelled in precincts nos.", "1071, 1091, 1099 and 1113. 11. Shestakov, Sergey Sergeyevich, 1982 Ms Moskalenko (8 December 2011); Ms Napara (10 March 2012) Candidate in LA elections on SR list. Complains about results of electoral division no. 15 of St Petersburg.", "Challenged results in 13 precincts: nos. 554, 555, 557, 592, 593, 597, 598, 600, 601, 605, 606, 610 and 611; plus procedural violations claimed in 16 precincts: nos. 549, 552, 553, 554, 444, 446, 558, 592, 594, 598, 601, 605, 606, 607, 608 and 611." ]

[ "FIFTH SECTION CASE OF MARIYANCHUK AND OTHERS v. UKRAINE (Applications nos. 14490/07 and 2 others - see appended list) JUDGMENT STRASBOURG 17 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Mariyanchuk and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President,Mārtiņš Mits,Lado Chanturia, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 13 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "Notice of the applications was given to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE LOCUS STANDI OF MS Liliya Vladislavovna Kurtseva 6.", "As concerns the complaints raised by the applicant in application no. 8922/11, the Court notes that the applicant died on 25 April 2014, while the case was pending before the Court. The applicant’s daughter, Ms Liliya Vladislavovna Kurtseva, has requested to pursue the application on her father’s behalf. The Government objected. Given that the request is in line with its case-law, the Court sees no reason to refuse the request of the applicant’s daughter (see, among other authorities, Benyaminson v. Ukraine, no.", "31585/02, § 83, 26 July 2007; Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005; Fartushin v. Russia, no. 38887/09, § 31-35, 8 October 2015; and Vaščenkovs v. Latvia, no. 30795/12, §§ 25-30, 15 December 2016). However, reference will still be made to the applicant throughout the present text.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 7. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 8. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 9.", "In the leading cases of Kharchenko v. Ukraine, (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine, (no. 40583/15, 15 December 2016), the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 11. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.", "The applicants in applications nos. 14490/07 and 12478/13 submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no.", "66561/01, 30 March 2004), Kharchenko v. Ukraine (cited above), and Ignatov v. Ukraine (cited above). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 14. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table. It rejects the additional claims for just satisfaction submitted by the applicant in application no.", "14490/07. 15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Decides that Ms Kurtseva, the daughter of the applicant in application no. 8922/11, has locus standi in the proceedings; 3. Declares the applications admissible; 4. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 5. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 6.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 7. Dismisses, in application no. 14490/07, the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 17 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Liv TigerstedtSíofra O’Leary Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no. Date of introduction Applicant’s name Date of birth Representative’s name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 14490/07 06/03/2007 Vasyl Petrovych Mariyanchuk 09/07/1967 Andriy Anatoliyovych Kristenko Kharkiv 28/02/2000 to 24/03/2014 14 years and 25 days Art. 6 (1) - excessive length of criminal proceedings: 26/06/1999 to 26/04/2016 3 levels of jurisdiction 11,000 8922/11 22/01/2011 Vladislav Sergeyevich Kurtsev 27/03/1971 The applicant died on 25/04/2014. His daughter, Liliya Vladislavovna Kurtseva, has the quality of heir.", "Valeriy Petrovych Kononenko Kharkiv 21/01/2010 to 25/10/2011 1 year, 9 months and 5 days 1,200 12478/13 13/02/2013 Dmitriy Yuryevich Petrunek 27/01/1982 Lyudmila Mikhaylovna Kichuzhinets Kyiv 12/04/2009 to 07/05/2014 5 years and 26 days Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: On 26/10/2010 the Golosiyivskyy District Court while transferring the criminal case against the applicant to the Pecherskyy Disrtict Court of Kyiv under the jurisdiction rules, extended the applicant’s detention without establishing any time limits or providing reasoning. Art. 5 (4) - excessive length of judicial review of detention: The domestic courts failed to duly review the applicant’s requests for release. 5,900 [1].", "Plus any tax that may be chargeable to the applicants." ]

[ "FIRST SECTION CASE OF ZDJELAR AND OTHERS v. CROATIA (Application no. 80960/12) JUDGMENT STRASBOURG 6 July 2017 FINAL 06/10/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zdjelar and Others v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Aleš Pejchal,Krzysztof Wojtyczek,Ksenija Turković,Pauliine Koskelo,Tim Eicke,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 13 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "80960/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Croatian nationals on 11 December 2012. A list of the applicants is set out in the appendix. All applicants are the children of Mr Milan Zdjelar, who died on 8 August 1995. 2. The applicants were represented by Mr L. Šušak, a lawyer practising in Zagreb.", "The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicants alleged, in particular, that the procedural obligations incumbent on the respondent Government under Articles 2 and 14 of the Convention had not been met and that they had no effective remedy in that respect, as required under Article 13 of the Convention. 4. On 10 April 2014 the above-mentioned complaints were communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). Part of the Zdjelar family – father Milan, mother Anđelija, daughter Dragica (the third applicant) and sons Janko (the first applicant), Slavko (the eighth applicant) and Čedo (the ninth applicant) – lived in Crni Potok, a village situated in the Krajina.", "At the beginning of August 1995 the Croatian authorities announced a campaign of military operation with the aim of regaining control over the Krajina. The operation was codenamed Storm and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.", "B. Investigation into the killing of Milan Zdjelar 6. On 11 October 2001, one S.K. submitted to the State Attorney’s Office (Državno odvjetništvo Republike Hrvatske, hereinafter the “SAO”) a list of persons killed during and after Operation Storm. Milan Zdjelar, the applicants’ father, was on the list and next to his name was a note that he had been shot in the head and a leg on 8 August 1995 by members of the Croatian Army’s “Tigers” brigade.", "On 16 October the SAO forwarded that list to the Ministry of the Interior. 7. On 25 October 2001 the Gvozd police photographed the site of Milan Zdjelar’s grave. 8. On 29 October 2001 the Gvozd police interviewed Dragica Zdjelar, the third applicant, who said that her father had been killed on 8 August 1995 in Crni Potok.", "9. On an unspecified date in 2002 the body of Milan Zdjelar was exhumed and a post mortem was carried out in the Zagreb Šalata Hospital on 20 September 2002. The cause of death was not established and the only injury noted was a broken collar bone. 10. On 23 March 2004 the Gvozd police again interviewed Dragica Zdjelar.", "She said that of her family members, only she and her father had remained in Crni Potok after the beginning of Operation Storm. On 8 August 1995 at about 12.50 p.m. she had been sitting with her father Milan in front of their house, situated on a hill in Crni Potok, about a hundred metres away from the unpaved main road. A military transport vehicle had appeared on that road, coming from the direction of the village of Gojkovac. When it drew level with their house the vehicle had stopped and three soldiers, dressed in camouflage uniforms, had got out and started to walk towards her and her father. Her father had then said that he did not wish to wait for the soldiers but would run into the woods.", "When he started to run, she had followed him and then heard three gunshots. She had hidden in the grass and had seen her father shot twice, in the chest and the leg. He had died soon afterwards. The soldiers had returned to the vehicle and continued in the direction of Topusko. The soldiers who had killed her father had been from the “Tigers” brigade.", "She had hidden in the woods for two days while her father lay dead in the grass. When she returned from the woods she had reported the matter to the Croatian Army and had been given food by some soldiers, who had also buried her father. 11. On 24 March 2004 the Gvozd police interviewed Anđelija Zdjelar, who had no relevant information to give them about the circumstances in which her husband had been killed. 12.", "On 9 April 2004 the Sisačko-moslavačka Police Department (Policijska uprava sisačko-moslavačka) sent a report to the Sisak County State Attorney (Županijski državni odvjetnik Sisak) stating that Dragica Zdjelar had alleged that on 8 August 1995 her father Milan Zdjelar had been killed by Croatian soldiers, members of the “Tigers” brigade. 13. On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were instructed to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to instigate criminal proceedings. 14.", "On 26 September 2005 the applicants and their mother lodged a criminal complaint with the SAO in connection with the killing of Milan Zdjelar, classifying the offence as a war crime against a civilian and alleging that the victim had been of Serbian ethnic origin, unarmed and never involved in any military activity during the war in Croatia. 15. On 29 September 2005 the SAO referred the case to the Sisak County State Attorney’s Office, requesting an investigation into the killing of Milan Zdjelar. 16. Between October 2005 and February 2007 the State Attorney’s Office asked the police about the progress of the investigation on several occasions.", "Each time the police replied that there had been no progress. 17. On an unspecified date the police asked the Military Police Administration (Uprava Vojne Policije, hereinafter the “MOP”) for information about the killing of Milan Zdjelar. On 7 February 2007 the MOP answered that they had no relevant information. This was forwarded to the Sisak State Attorney’s Office on 13 February 2007.", "18. On several occasions between September 2007 and July 2008 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress. 19. On 9 October 2008 the State Attorney’s Office issued an instruction for implementation of the Criminal Code and the Code of Criminal Procedure to the County State Attorney’s Offices, in which they indicated that an inspection of the work of these Offices had highlighted two main problems: the possible partiality of persons involved in the pending proceedings as a result of the ethnicity of the victims or the perpetrators; and the problem of trials in absentia.", "The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and stressed the duties of those working for the State Attorney in that respect. 20. On 30 December 2008 the Sisak State Attorney’s Office asked the Investigation Department of the Sisak County Court to hear evidence from Dragica Zdjelar. This request was complied with on 25 March 2009, when an investigating judge of that court heard evidence from her. Dragica Zdjelar repeated her earlier statement.", "21. On 11 May 2009 the police interviewed F.O. and F.K., both of whom were neighbours of the Zdjelar family in Crni Potok. F.K. confirmed that it had been soldiers from the Croatian Army who had come to the village when Milan Zdjelar had been killed.", "They had no other relevant information about possible perpetrators. 22. On 12 May 2009 the police informed the Sisak State Attorney’s Office that they had asked the Ministry of Defence for information regarding the members of brigade 153 of the Croatian Army who had arrived in Crni Potok after Operation Storm and the killing of Milan Zdjelar. On 20 July 2009 the Ministry of Defence informed the police that Milan Zdjelar had been buried by members of brigade 153 of the Croatian Army which had been under the command of a person named M., and provided a list of all members of that brigade with that name. One of them, M.Š., had already died.", "23. Between 26 January and 3 February 2010 the police interviewed five former Croatian soldiers, A.A., B.J., N.S., G.G. and M.T., all members of the First Brigade of the Croatian army, also called the “Tigers”. None of them had any knowledge about the killing of M.Z. or any other civilians during Operation Storm.", "24. On 15 February 2010, in answer to an inquiry from the SAO, the Sisak State Attorney’s Office drew up a short report on the case. There had been no significant progress. 25. On 9 and 16 March 2010 the police interviewed M.J., M.L.", "and M.M., members of smaller army units belonging to brigade 153 of the Croatian Army. M.J., a former member of the engineering unit, said that his unit had comprised between three and five soldiers and that he had never witnessed the killing of any civilians by any of them. M.L., a former commander of logistics in the artillery unit, stated that his unit had never encountered any civilians at any time during Operation Storm, with the exception of a few in Topusko, to whom they had given food and drink. Most of the villages they had passed through had had no name signs. He had no information to give them about the killing of Milan Zdjelar.", "M.M. had been a soldier in the unit under the command of I.P., and the smaller unit to which he had belonged had been under the command of K. M.M. had no information to give them about the killing of Milan Zdjelar and denied any involvement of his unit in the killing of civilians during Operation Storm. 26. On several occasions between May and December 2011 the State Attorney’s Office asked the police about the progress of the investigation.", "Each time the police replied that there had been no progress. 27. In a separate development, on 8 October 2012, Ž.L., who had been a member of the “Tigers” brigade for about a month in 1994, after which he had been transferred to the Third Battalion, lodged a criminal complaint with the SAO against P.M. – the Minister for war veterans – and others for alleged abuse of authority. In that complaint Ž.L. mentioned the killing of a civilian or civilians in Crni Potok, a few days after Operation Storm.", "He alleged that the crime had been “tolerated by the command of the Third Battalion (bojna) of the First Brigade of the Croatian Army (“gbr.” which stands for “gardijska brigada”) whose commander had been M.A. On 2 November 2012 the SAO forwarded that information to the State Attorney’s Office in Sisak, which forwarded it to the police on 14 November 2012. 28. On 22 November 2012 the police interviewed Ž.L. He said that during Operation Storm, the battalion had been in the village of Krznarić and had then gone on to Crni Potok.", "A person in charge of logistics, named M., had brought in a civilian, saying that he was a “četnik” (derogatory term for a Serbian nationalist or a member of Serbian paramilitary forces). Ž.L. described the man in question in detail. Soon the vice-commander P.Z. and the commander of the Third Company (satnija) J.M.", "had arrived and had taken the man away somewhere. P.Z. and J.M. had returned after about twenty minutes, and when questioned about the whereabouts of the man they had taken away, P.Z. had answered that he had “drifted in the river”.", "After some time they had heard firing on a hilltop above them. Ž.L. and another soldier, M.T., had started walking towards the top of that hill and had come to a house where an old woman was standing wailing. There had been no one in the house, but in a field about twenty metres away they had found an elderly man lying on his belly with gunshot wounds to his back and head. A gun had been lying next to him.", "The man from logistics had said that he had shot him in the head to “shorten his pain”. Ž.L. had expressed his disapproval of the behaviour of the Croatian soldiers to his commander Ž.M. Later on he had learned that the old woman they had encountered in front of her house had also been killed. 29.", "On 13 December 2012 the police again interviewed Dragica Zdjelar. She repeated her earlier statement, in essence, and also gave a description of the two soldiers who had killed her father. 30. During 2013 several short reports on the actions allegedly taken were compiled by the police and the Sisak County State Attorney’s Office. 31.", "On 10 July 2013 the SAO sent to the Sisak County State Attorney’s Office a submission by Ž.L. in which he alleged that he had witnessed the killing of civilians in Crni Potok, which had been both encouraged and perpetrated by the officers in command of the Third Battalion (bojna) of the First Brigade of the Croatian Army. 32. On 16 October 2013 the Zagreb County State Attorney’s Office sent summonses to Dragica Zdjelar, F.O. and Ž.L.", "for 19 and 20 November 2013. 33. On 11 November 2013 Ž.L. informed the Sisak County State Attorney’s Office that, owing to his health problems, he would not be able to come to Sisak on his own. He asked that transport to Sisak be organised for him or that he be heard in Karlovac, where he lived.", "In a further letter written on the same day he stated that some police officers had interviewed him on 22 November 2012 and had concluded that “the information he provided did not lead to the conclusion that a criminal offence had been committed”. He further referred to a letter from the Zagreb State Attorney’s Office of 28 May 2013 stating that “the allegations from his objections and criminal complaints were unfounded”. 34. On 19 November 2013 Zagreb County State Attorney’s Office heard evidence from Dragica Zdjelar and on 26 February 2014 from F.O. They both repeated their earlier statements.", "35. It appears that on 1 December 2014 the Sisak State Attorney’s Office emailed a summons to Ž.L. requiring him to give a statement regarding the killings in Crni Potok in 1995. On 6 December 2014 Ž.L. sent a note back to the State Attorney’s Office referring to the summons and stating that he refused to give any statements because of his health problems, the passage of time, and the fact that he had not actually witnessed any crimes and that his prior allegations in that respect had been unfounded.", "He also alleged that he had been denied his rights in connection with his medical treatment. On 31 December 2014 the State Attorney’s Office forwarded Ž.L.’s note to the Sisak County State Attorney’s Office. 36. On 5 June 2015 the investigation in respect of a number of victims killed on the broader territory of the Sisak County by unknown perpetrators during Operation Storm was assigned to the Osijek County State Attorney’s Office (hereinafter the “OCSAO”). 37.", "On 13 July 2016 the OCSAO, relying on Ž.L.’s statement to the police, asked the Ministry of Defence to provide information about the whereabouts of the people Ž.L. had named, in particular P.J., J.M., a person nicknamed M. and the person who had been in charge of logistics in the “Tigers” brigade. 38. On 23 November 2016 the OCSAO requested that the police in Sisak carry out interviews with one F.K., who possibly had information about the men who had killed Milan Zdjelar; to interview B.J., A.A., N.S., G.G. and M.T., members of the “Tigers” brigade who had been in Crni Potok during Operation Storm, about their whereabouts during the operation; to locate three commanders of the Croatian Army unit whose members had allegedly buried Milan Zdjelar on 10 August 1995 and whose first names all began with M, namely M.J., M.L.", "and M.M. ; and to again interview D.Z., M.V., N.M., D.V, J.V. and M.B., all inhabitants of Crni Potok. 39. On 20 December 2016 the police informed the OCSAO that F.K., N.M., M.B.", "and J.V. had died. There were also several people in Crni Potok called M.V. and D.V. 40.", "On 29 December 2016 the police interviewed G.G. and N.S., former members of the “Tigers” brigade. G.G. said it was possible that the brigade had passed through Crni Potok during Operation Storm but that they had not seen any civilians. He also said that B.J., N.S.", "and M.T. had been part of a patrol group (izviđačka desetina). N.S. said that the “Tigers” brigade had not killed or arrested any civilians or soldiers during Operation Storm. 41.", "On 11 January 2017 the Ministry of Defence informed the police about the whereabouts of M.J., M.L. and M.M. 42. On 16 January 2017 the police interviewed A.A., who had been a member of a “Tigers” brigade patrol group. He said his group had not been in Crni Potok during Operation Storm and he did not know whether the “Tigers” brigade had been there either.", "C. Civil proceedings 43. On 24 April 2004 the applicants and their mother brought a civil action against the State in the Gvozd Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act. 44. The claim was dismissed on 14 July 2005.", "This judgment was upheld on appeal by the Sisak County Court on 18 June 2009 and by the Supreme Court on 5 October 2011. The national courts found that the claim for compensation had been submitted after the expiry of the statutory limitation period prescribed by the law governing damages awards in civil proceedings. 45. A subsequent constitutional complaint lodged by the applicants was dismissed on 5 June 2012. II.", "RELEVANT DOMESTIC LAW AND REPORTS 46. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads: “Every human being has the right to life. ...” 47. Article 34 of the Criminal Code (Krivični zakon, Official Gazette nos.", "25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 8/1991, and 53/1991) prescribes imprisonment for at least five years for murder. Aggravated murder is punishable by up to twenty years’ imprisonment. 48. Paragraph 1 of Article 120 of the Basic Criminal Code of the Republic of Croatia (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992 and 91/1992) reads as follows: War crime against the civilian population “(1) An individual who, by violating the rules of international law during war, armed conflict or occupation, orders that: an attack be carried out on the civilian population, a settlement, individual civilians or a person incapacitated for combat, with the consequence of death, serious bodily harm or serious detriment to the health of individuals; an attack be carried out, without a choice of target, which is directed against the civilian population; that the civilian population be killed, tortured or treated inhumanely or be subjected to biological, medical or other scientific tests, or that [from individuals of such population] tissue or organs be taken for transplant, or that serious suffering or injuries to the body or health be inflicted; or that [civilian population] be displaced, resettled, or forcefully lose their ethnic identity or be converted to another religion; or [that members of the civilian population] be raped or forced into prostitution; or that the measures of intimidation and terror be used, hostages taken, collective punishment or unlawful deportation in concentration camps or other unlawful detention be applied; or that [such a population] be deprived of their right to fair and impartial judicial proceedings; or that they be forced to serve in enemy armed forces or its intelligence services or administration; or that they be subjected to forced labour or famine; or that their property be confiscated, plundered, unlawfully and wilfully destroyed or appropriated at large scale when it is not justified by military needs; or that unlawful and disproportionate contributions and requisitions be imposed; or that the value of the domestic currency be decreased or unlawfully issued, or an individual who commits any of the above acts shall be punished by imprisonment of at least five years or twenty years.", "...” 49. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide: Article 174(2) “In order to ... decide whether or not to request an investigation ... the State Attorney shall order the police to gather the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...” Article 177 “Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and gather all information of possible relevance for the conduct of the criminal proceedings ...” Article 187 “(1) An investigation shall be opened in respect of a particular individual where there is a suspicion that he or she has committed a criminal offence. (2) During the investigation, the evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be gathered ...” 50. The report on the work of the State Attorney’s Office for the year 2012, submitted to Parliament in September 2013, states that in the period between 1991 and 31 December 2012 there were 13,749 reported victims of the war in Croatia, of whom 5,979 had been killed.", "Thus far, the Croatian authorities had opened investigations in respect of 3,436 alleged perpetrators. There had been 557 convictions for war-related crimes. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 51. The applicants complained about the killing of their father and deficiencies in the investigation in that respect.", "They also claimed that their father had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. The applicants further complained that they had no effective remedy at their disposal in respect of the alleged violation of Article 2 of the Convention. They relied on Articles 2, 13 and 14 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under Article 2 of the Convention alone which, in so far as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law.", "...” A. Admissibility 1. The parties’ arguments 52. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of their father. Such a complaint could have led to the institution of disciplinary proceedings.", "As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicants could have sought damages from the State pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012). 53.", "The Government argued further that the applicants had not complied with the six-month time-limit. In this connection they contended firstly that the applicants had not reported the killing of Milan Zdjelar to the relevant authorities for almost six years. Moreover, the applicants should have become aware of the deficiencies in the investigation no later than 2004, when they lodged their civil action for damages, in which it was alleged that the Republic of Croatia was responsible for the war crimes committed by members of the Croatian Army. Further to this, the criminal complaint lodged on 29 May 2005 had been the result of their frustration at the lack of results in the investigation, in connection with which one of the applicants, Dragica Zdjelar, had been interviewed by the police on several occasions. Also, the applicants’ application to the Court was linked to their civil action for damages, but these proceedings could not be taken into account in connection with their complaint under Article 2 of the Convention.", "54. The applicants contested the Government’s objections. 2. The Court’s assessment 55. Before turning to the points raised by the parties in respect of the exhaustion of domestic remedies, the Court will first address the issue of its temporal jurisdiction.", "(a) Compatibility ratione temporis 56. The Court has previously addressed the issue of its temporal jurisdiction as regards both the substantive and the procedural aspect of Article 2 in similar circumstances and found that it had no temporal jurisdiction in respect of the alleged substantive violation of that Article, but did have such jurisdiction in respect of the alleged procedural violation concerning circumstances arising after 5 November 1997, the date of the ratification of the Convention by Croatia (see of Jelić v. Croatia, no. 57856/11, §§ 47-56, 12 June 2014). The Courts sees no reason to depart from such conclusions in the present case. 57.", "It follows that the complaint under the substantive aspect of Article 2 of the Convention is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3(a) and must be rejected in accordance with Article 35 § 4. (b) Exhaustion of domestic remedies 58. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and has rejected them (see Jelić, cited above, §§ 59-67). The Court sees no reason to depart from that approach in the present case. 59.", "It follows that the Government’s objection must be dismissed. (c) Compliance with the six-month rule 60. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable period of time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no.", "73065/01, 28 May 2002). 61. Where no remedies are available or existing remedies are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases in which an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render such a remedy ineffective; in such a case it is appropriate to take the start of the six-month period as the date on which he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no.", "46477/99, 7 June 2001). 62. In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) no.", "57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no.", "37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia, no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec)., no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no. 75504/12; and Grubić v. Croatia (dec.), no.", "56094/12, 9 June 2015). 63. Consequently, where a death has occurred, the victim’s relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on applicants to ensure that their claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid.", "§ 160). 64. The Court has refrained from indicating any specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run; the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the above-cited Varnava and Others judgment the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition might require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events in question. This is particularly pertinent in cases of unlawful death, where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus, the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).", "65. In the present case, the Court notes that the applicants’ father was killed on 8 August 1995. The investigation commenced in October 2001 (see paragraph j above). The applicants lodged their application with the Court on 11 December 2012, more than seventeen years after the date of their father’s death. The investigation was formally ongoing at the time the application was lodged, as it is now (contrast with Utsmiyeva and Others v. Russia (dec.), no.", "31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015). 66. The Court notes the Government’s submission that the Croatian authorities had been confronted by a high death toll (both civilian and military) and that it was not possible to immediately open investigations in respect of each of the deceased (see paragraph 72 below). The large number of victims certainly affected the progress of each individual investigation.", "67. The Court further observes that there were no significant delays in the investigation. In 2009 and 2010 various measures were taken to make progress with the investigation, including the interviewing of witnesses, on the basis of which the applicants could reasonably have believed that an effective investigation was still being conducted. In 2012 witness Ž.L. appeared and stated that the members of his unit had killed civilians in Crni Potok with the acquiescence and even participation of its commanders, some of whom he named.", "That certainly amounted to important evidence which could have led to new discoveries. After that the police questioned some of the members of the Croatian army units allegedly present at the critical time in Crni Potok. Interviews with possible witnesses were carried out as recently as 2014. In 2015 the investigation was assigned to the Osijek County State Attorney’s Office. 68.", "In those circumstances, where the State authorities were occupied with a large number of individual investigations into the deaths of the many people who had been killed during the war in Croatia and where the progress of some of those individual investigations was rather slow, and where new evidence – the statements of possible witnesses – could have arguably led to the discovery of further leads, and where the investigation is still active, it cannot be said that the six-month time-limit expired at any time before the applicants lodged their application with the Court. 69. It follows that the applicants complied with the six-month time-limit. (d) Conclusion as to the admissibility 70. The Court notes that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 71.", "The applicants argued that a number of Serbian civilians had been killed by members of the Croatian Army and the police during Operation Storm. The body of Milan Zdjelar had been buried by Croatian soldiers without a post mortem first being carried out. Dragica Zdjelar, one of the applicants, had been afraid of the police because members of the Croatian police had participated in the killings of Serbian civilians. She had been invited to give her evidence to an investigating judge as late as March 2009. The authorities had not made any effort to identify and prosecute the members of the Croatian Army who had killed the applicants’ father, Milan Zdjelar.", "72. The Government argued that there had been no violation of the procedural aspect of Article 2 of the Convention and that in the circumstances the Croatian authorities had done all they could to investigate the killing of the applicant’s father. They maintained that after the Croatian authorities had regained control over the territories previously under the control of Serbian paramilitary forces in August 1995, they had been faced with a devastated territory and a chaotic post-war situation. 73. The military actions had not ended with Operation Storm, and Croatian territory continued to be shelled from the territory of Bosnia and Herzegovina.", "The Croatian authorities had also been fighting the remaining members of the Serbian paramilitary forces and, as a result of this, criminal activity on the territory in question had increased drastically in the wake of Operation Storm owing to the absence of law-enforcement mechanisms at that time. 74. The authorities had also been preoccupied with the compilation of lists of corpses, as well as their identification and removal. On 4 August 1995 the Ministry of the Interior had ordered all police forces, in co-operation with military structures, to start removing the corpses and to ensure that the appropriate lists had been compiled and, wherever possible, identification carried out. The territory in question had been sparsely populated and abounded with wild animals.", "Operation Storm had taken place in August, when air temperatures had been over thirty degrees. All these factors had made the removal of corpses even more urgent on health grounds. Large parts of that territory had been mined and were not easily accessible, hampering the actions of the authorities. 75. The Croatian authorities had had to provide means for establishing a civil administration and the functioning of the usual State bodies including the police, the State Attorney’s offices and the courts, all of which had taken time.", "Even after the police structures had been established, problems had persisted due to the shortage of police officers and their lack of experience, together with inadequate financial means. 76. As early as in 1991 Croatian authorities had established bodies which were charged with compiling lists of persons who had disappeared during the war. The Administration for the Imprisoned and Disappeared (Uprava za zatočene i nestale) collected data on those who had disappeared. In 1996 and 1998 that Administration had obtained documents listing bodies whose identity had not been established after Operation Storm.", "There had been 903 such bodies. 77. In 2000 an agreement between the Croatian and Serbian authorities had been reached regarding co-operation in respect of the missing persons’ data. In 2001 Croatian authorities had commenced exhumations of bodies which had been buried after Operation Storm. Between 2001 and 2004, DNA samples had been collected from family members of victims for identification purposes.", "78. As regards the killing of Milan Zdjelar, the Croatian authorities had learned about it only in 2001. They had immediately launched an enquiry. The body of Milan Zdjelar had been exhumed and identified, and a post mortem had been carried out. All witnesses had given their evidence.", "The State Attorney’s Offices had exhorted the police to undertake all the necessary steps, but the information gathered had not provided a sufficient basis for identifying a perpetrator. 2. The Court’s assessment (a) General principles 79. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe.", "The object and purpose of the Convention as an instrument for the protection of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 109, ECHR 2002‑IV). 80. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 230, 30 March 2016).", "81. The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Armani Da Silva, cited above, § 230). 82. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible.", "This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Armani Da Silva, cited above, § 233). 83.", "In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Armani Da Silva, cited above, § 234).", "84. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2003-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation (see Armani Da Silva, cited above, § 237). However, where events took place far in the past, due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (see Brecknell v. the United Kingdom, no.", "32457/04, §§ 79-81, 27 November 2007). The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Emin and Others v Cyprus, no. 59623/08et al, (dec.) 3 April 2012; and Gürtekin and Others v. Cyprus (dec), nos. 60441/13 et all, § 21, 11 March 2014; see also Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations).", "(b) Application of these principles to the present case 85. As regards the killing of the applicants’ father, Milan Zdjelar, the Court notes that it occurred during the war, on 8 August 1995 in Crni Potok. The national authorities learned of his killing only on 11 October 2001 and immediately opened a police enquiry. The Court will therefore examine the effectiveness of the investigation since that date. 86.", "The Court notes that one of the applicants – and the daughter of the victim – Ms Dragica Zdjelar, witnessed the killing of her father. Dragica Zdjelar stated during her interview with the police on 23 March 2004 (see paragraph 10 above) that her father had been killed by members of the “Tigers” brigade. She repeated that statement on several occasions, namely on 25 March 2009, 13 December 2012 and 19 November 2013. The police interviewed eight members of the “Tigers” brigade (see paragraphs 23, 40 and 42 above), and attempted to obtain the relevant information about its whereabouts on 8 August 1995, the date on which Milan Zdjelar was killed. 87.", "After Ž.L., a witness who appeared in October 2012, stated that the members of his unit had killed civilians in Crni Potok with the acquiescence and even participation of its commanders, some of whom he named, the investigating authorities pursued the leads he had given (see paragraphs 37-40 and 42 above). 88. At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001 and the judgments referred to therein). The Court notes that the police and prosecutors took statements from the applicants and other possible witnesses.", "None of them had any reliable information about the possible perpetrators of the killing of Milan Zdjelar. 89. As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of Milan Zdjelar, the Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence was collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no.", "46744/07, § 65, 3 April 2012). The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued. The fact that the investigation did not succeed in identifying the perpetrators does not necessarily mean that the investigation was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin and others, cited above, § 27). 90.", "The applicants’ principal complaint appears to be that the investigation has not resulted in any prosecutions. The Court can understand that it must be frustrating for the applicants that potential suspects have been named but no further steps have been taken. However, Article 2 cannot be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the evidence which is available. A prosecution, particularly on such a serious charge as involvement in unlawful killings, should never be embarked upon lightly, as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation and private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance.", "Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person’s life (compare to Palić, cited above, § 65, where the Court held that the investigation was effective, despite the fact that there had not been any convictions; Gürtekin and Others, cited above, § 27; Mujkanović and Others v. Bosnia and Herzegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others v. Bosnia and Herzegovina (dec.), nos 66758/09 et al., § 37, 3 June 2014; Šeremet v. Bosnia and Herzegovina (dec.), no. 29620/05, § 35, 8 July 2014; and Zuban and Hmidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, §32, 2 September 2014; and Nježić and Štimac v. Croatia, no. 29823/13, § 69, 9 April 2015).", "91. As to the requirement of promptness, the Court notes first of all the Government’s argument that the Croatian State apparatus at the beginning of the country’s independence had mainly comprised inexperienced and young officials who had not known how to deal with such a difficult situation. The Court is aware that the investigation and prosecution of war crimes was a sensitive and overwhelming task for a country that was at armed conflict and also accepts that during the armed conflict and at the beginning of the county’s independence the State authorities were faced with a difficult situation. 92. The Court also notes that Croatia declared its independence on 8 October 1991 and all military operations ended in August 1995.", "The Court accepts that obstacles in the investigation into the killings during the arm conflict and post-conflict recovery were attributable to the overall situation in Croatia, a newly independent and post-war State which needed time to organise its apparatus and for its officials to gain experience (compare to Palić, cited above, § 70, 15 February 2011; and Nježić and Štimac, cited above, § 71). 93. The Court also acknowledges that the prosecuting authorities did not remain passive and that significant efforts have been made to prosecute war crimes. In this connection the Court acknowledges the efforts of the State Attorney’s Office which, in July 2005, required the County State Attorney’s Offices to concentrate their activities on identifying the perpetrators and gathering the relevant information (see paragraph 13 above). A further global measure by the State Attorney’s Office occurred in October 2008 when it instructed the County State Attorney’s Offices to favour impartial investigation of all war crimes, irrespective of the ethnicity of those involved (see paragraph 19 above).", "The Court also acknowledges that the prosecuting authorities by 31 December 2012 had opened investigations in respect of altogether 3,436 alleged perpetrators and that there had been 557 convictions (see paragraph 50 above). 94. The Court finds that, taking into account the special circumstances prevailing in Croatia in the post-war period and the large number of war crimes cases pending before the local courts, the investigation has not been shown to have infringed the minimum standard required under Article 2 (compare Palić, cited above, § 71; Gürtekin and Others, cited above, § 32; Mujkanović and Others, cited above, § 42; Fazlić and Others, cited above, § 40; Šeremet, cited above, § 38; and Nježić and Štimac, cited above, § 73). 95. The Court reiterates that it is not its role to micro-manage the functioning of, and procedures applied in, the criminal investigation and justice system in Contracting States which may well vary in their approach and policies (see Armani da Silva, cited above, § 278).", "As to the case at issue, the Court notes that the investigation in the present case has not been closed. 96. In conclusion, the Court is unable to adhere to the applicants’ allegations that the authorities had not made sufficient efforts to identify and prosecute those responsible for the fate of the deceased. The investigation has not been shown to have infringed the minimum standard required under Article 2. It follows that there has therefore been no violation of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 97. The applicants also complained that the death of their father had caused them suffering. They relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 98. In so far as this complaint falls within its competence ratione temporis, the Court reiterates that while a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998‑III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see, for example, Tanlı v. Turkey, no.", "26129/95, § 159, ECHR 2001-III (extracts)). In such cases the Court would normally limit its findings to Article 2. 99. The Court observes that the applicants’ father was killed on 8 August 1995, a fact which was witnessed by Dragica Zdjelar. This case thus concerns a “confirmed death”.", "Given these circumstances, the Court is not persuaded that in the present case, despite its gruesome circumstances, the applicants sustained the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see, by contrast, Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)). 100. In such circumstances, the Court considers that it cannot be held that the applicants’ suffering reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation (see Jelić, cited above, § 113). 101.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS 102. The applicants complained under Article 6 § 1 of the Convention that by wrongly finding that their claim for damages had been lodged after the statutory limitation period had expired, the national courts had deprived them of the right of access to court. They also invoked Article 5 of the Convention in relation to the killing of their father in August 1995.", "103. As regards the complaint under Article 6 § 1 of the Convention, the Court notes that the same issue was resolved in the Bogdanović case, where the same complaint was held to be manifestly ill-founded (see Bogdanović v. Croatia (dec.), no. 72254/11, 18 March 2014, and Orić v. Croatia (dec.), no. 50203/12, 13 May 2014). The Court sees no reason to depart from that approach in the present case.", "It follows that this complaint is inadmissible under Article 35 § 3(a) and must be rejected pursuant to Article 35 § 4 of the Convention. 104. As regards the complaint under Article 5 of the Convention, the Court notes that it relates to events that took place in 1995, whereas the Convention entered into force in respect of Croatia on 5 November 1997. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (compare to Jelić, cited above, § 117). FOR THESE REASONS, THE COURT 1.", "Declares, by a majority, the complaints concerning the procedural aspect of Article 2 admissible; 2. Declares, unanimously, the remainder of the application inadmissible; 3. Holds, unanimously, that there has been no violation of Article 2 of the Convention under its procedural aspect. Done in English, and notified in writing on 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed to this judgment.", "L.A.S.A.C. PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE WOJTYCZEK The present application pertains to offences which were committed before the entry into force of the Convention in respect of Croatia. I have voted against the admissibility of the application because, in my view, the Convention does not impose on a High Contracting Party the obligation to investigate events which predate the entry into force of this instrument in respect of the given State. In other words, the case remains outside the temporal scope of application of the Convention. I have explained in detail my position on this issue in my separate opinions to the judgments in the cases of Janowiec and Others v. Russia ([GC], nos.", "55508/07 and 29520/09, ECHR 2013) and Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, ECHR 2014 (extracts)). APPENDIX" ]

[ "SECOND SECTION CASE OF EFENDİOĞLU v. TURKEY (Application no. 3869/04) JUDGMENT STRASBOURG 27 October 2009 FINAL 27/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Efendioğlu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 6 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3869/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Şükrü Efendioğlu (“the applicant”), on 7 October 2003. 2. The applicant was represented by Mr I. Kahraman, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 6 March 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 4. By a letter dated 2 July 2009 the applicant's representative informed the Court that the applicant had died and that his heirs, Ms Emine Efendioğlu, Mr Ali Rıza Efendioğlu, Mr Abdul Hadi Efendioğlu, Mr Veysel Efendioğlu, Mr Muzaffer Efendioğlu and Ms Feyza Efendioğlu wished to pursue his application. The Government had no comments on this request.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1930 and had been living in Erzurum. On 11 June 2009 he died. 6.", "On 6 April 1989 the applicant bought a plot of land (no. 5784) in Istanbul. The land was later divided in five parts (plot nos. 13320, 13321, 13322, 13323 and 13324). 7.", "Upon the Ümraniye Municipality's decision to put a notice in the Land Registry in 1993, the applicant learned that there was a water pipeline passing underneath plot no. 13324. A. The proceedings for annulment of the applicant's title deed to plot no. 13324 8.", "On 12 April 2000 the Istanbul General Directorate for Water and Infrastructure (the “ISKI”) filed an action with the Üsküdar Civil Court of First Instance and requested the annulment of the title deed of the applicant to the land in question and its registration in their name. In this respect, they submitted that they had occupied the disputed plot of land since 1970 by way of laying down a water pipeline underneath it and that, therefore, it should be registered under its name pursuant to Article 38 of Law no. 2942. 9. In the course of the proceedings a commission of experts examined the documentary evidence and conducted an onsite inspection together with the court.", "On 17 July 2001 the experts submitted their report where they considered, inter alia, that the land in question would be worth around 305,972,500,000 Turkish liras[1]. In the annexed document it was noted that plot no. 13324 was de facto a road. 10. On 28 December 2001 the Üsküdar Civil Court of First Instance, noting that as of 15 November 2001 the Ümraniye Civil Court of First Instance had become operational, transferred the case to it.", "11. On 18 June 2002 the Ümraniye Civil Court of First Instance, on the basis of the evidence, particularly official documents concerning the construction of the water pipeline, accepted the request of the ISKI and ordered that the land be registered in their name. It considered, in particular, that the applicant's property rights over the land in question had ceased, following the expiry of the statutory time‑limit provided under Article 38 of the Law no. 2942. 12.", "The applicant appealed. Referring to a court case concerning the previous owner of the plot of land, the applicant submitted, inter alia, that the water pipeline in question passed through another plot and not plot no. 13324, and that the statutory time-limit provided under Article 38 of the Law no. 2942 had not expired since a notice was put in the Land Registry only in 1993. 13.", "On 10 December 2002 the Court of Cassation upheld the first‑instance court's judgment. The applicant's request for rectification was rejected on 17 March 2003. This decision was served on him on 8 April 2003. B. Subsequent developments 14.", "On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942. 15. On an unspecified date the applicant asked the Ümraniye Civil Court of First Instance to reopen the proceedings on the ground, inter alia, that, according to their own investigation there were no water pipelines passing underneath plot no. 13324 and, consequently, the court's earlier decision had been based on erroneous official documents and the false testimony of State officials.", "16. On 11 December 2003 the Ümraniye Civil Court of First Instance dismissed the applicant's request on the ground that the applicant had already made similar claims in the earlier proceedings, that in the presence of official documents there was no need, in such cases, to investigate by digging up the disputed land, and that, although Article 38 of Law no. 2942 had been subsequently annulled by the Constitutional Court, this was not a reason for reopening the proceedings. 17. The applicant's appeal and subsequent request for a rectification was dismissed by the Court of Cassation on 17 May 2004 and 28 September 2004 respectively.", "18. In 2004 the Ümraniye Magistrates' Court, upon the applicant's request, conducted an onsite inspection of the land. The appointed experts considered that the water pipelines in question were not laid underneath the applicant's plot but next to it. 19. In 2008 the Ümraniye Magistrates' Court, upon the ISKI's request, conducted another inspection of the land.", "The appointed experts considered that the water pipelines in question passed next to plot no. 13324, not underneath it. II. RELEVANT DOMESTIC LAW AND PRACTICE 20. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no.", "58650/00, §§ 23-29, 19 October 2006). THE LAW I. LOCUS STANDI 21. The Court notes that the applicant died on 11 June 2009 and that his heirs, namely Ms Emine Efendioğlu, Mr Ali Rıza Efendioğlu, Mr Abdul Hadi Efendioğlu, Mr Veysel Efendioğlu, Mr Muzaffer Efendioğlu and Ms Feyza Efendioğlu, expressed their wish to pursue the application. The Government did not contest the applicant's heirs' standing before the Court. Consequently, the Court holds that these heirs have standing to continue the present proceedings in the applicant's stead.", "However, Mr Şükrü Efendioğlu will continue to be referred to as the applicant. II. ADMISSIBILITY 22. The Government asked the Court to dismiss the application for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this connection, they maintained that the applicant had failed to raise the substance of his complaints before the domestic courts and to ask for compensation for either de facto expropriation of his land or for its unlawful occupation.", "The Government further claimed that the applicant could have also brought a civil nuisance and abatement action or an action for tort. 23. The applicant did not specifically respond to the above arguments. 24. The Court reiterates that it has already examined and rejected similar arguments by the Government in previous cases (see, for example, I.R.S.", "and Others v. Turkey, no. 26338/95, §§ 35-36, 20 July 2004, and Börekçioğulları (Çökmez) v. Turkey (dec.), no. 58650/00, 13 January 2005). The Court finds no particular circumstances in the present application which would require it to depart from that conclusion. Consequently, the Court rejects the Government's preliminary objection.", "25. Moreover, the Court finds that the applicant's complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 26. The applicant complained that he had been unjustifiably deprived of his land without payment of compensation in breach of Article 1 of Protocol No. 1, which reads, in so far as relevant, as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A.", "The parties' submissions 27. The Government maintained that the annulment of the applicant's title deed and the registration of the land in the name of the ISKI complied with domestic law and that Article 1 of Protocol No. 1 did not stipulate a right to full compensation under all circumstances. 28. The applicant submitted that there was no public interest in depriving him from his property rights without payment of compensation.", "In this connection, he pointed out that Article 38 of the Law no. 2942 was subsequently annulled by the Constitutional Court. Moreover, the applicant noted that he had been deprived of his land without payment of compensation because of insufficient investigation since it was clear that no pipeline passed through his land. B. The Court's assessment 29.", "The Court refers to the basic principles laid down in its judgments concerning Article 1 of Protocol No. 1 (see, in particular, Börekçioğulları (Çökmez) and Others, §§ 35-37, cited above, and the cases referred to therein). It will examine the present case in the light of these principles. 30. In the instant case there is no dispute that the land in question had been registered in the name of the applicant.", "The title deed was transferred to the ISKI by the Ümraniye Civil Court of First Instance's decision, which was upheld by the Court of Cassation on 10 December 2002. Therefore the decision of the domestic courts clearly had the effect of depriving the applicant of his property within the meaning of the second sentence of Article 1 of Protocol No. 1. The Court must therefore examine whether this interference was justified under that provision. 31.", "The Court finds that the Ümraniye Civil Court of First Instance's decision to register the land in the name of the ISKI was provided for by law, as it was based on Article 38 of the Law no. 2942, which came into force on 4 November 1983. In this connection, the Court takes note that the applicant, by reference to expert reports drawn up in 2004 and 2008, criticises the manner in which the domestic courts reached their decision that the ISKI was in possession of the land in question within the meaning of Article 38 of the Law no. 2942. In the present circumstances, however, the Court is not required to take a position on this matter since, in any event, the key issue to be examined is that of proportionality, i.e.", "whether a fair balance was struck between the means employed and the aim sought to be realised. 32. In the instant case, the Court recalls that the applicant's title deed to the land in question was transferred to the General Directorate for Water and Infrastructure pursuant to Article 38 of the Law No. 2942, which provides that applications for compensation for the deprivation of property had to be made within 20 years from the date the property was occupied. By applying this provision retrospectively, the national courts deprived the applicant of any possibility of obtaining compensation for the annulment of his title deed.", "In this connection, the Court notes that it has examined similar cases on previous occasions and has found violations of Article 1 of Protocol No. 1 in respect of the annulment of title deeds, acquired in good faith, but restored to State ownership by applying Article 38 of the Law no. 2942 without compensation being paid (see, for example, İnci (Nasıroğlu) v. Turkey, no. 69911/01, §§ 24-27, 14 June 2007, Börekçioğulları (Çökmez) and Others, §§ 40-43, and I.R.S. and Others, §§ 50-56, both cited above).", "The Court finds no reason to depart from that conclusion in the present case. 33. Accordingly, it finds that there has been a violation of Article 1 of Protocol No. 1. IV.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. In the application form the applicant further complained under Article 6 of the Convention and under unspecified provisions of Protocol No.7 about the manner in which the first-instance court determined the merits of the case. In particular, he considered that the first-instance court had failed to properly investigate whether the Water Authorities' pipeline passed underneath his plot of land. 35. The Court considers that the applicant's complaints fall to be examined under Article 6 of the Convention alone.", "Moreover, having regard to the facts of the case, the submissions of the parties and its finding of a violation under Article 1 of Protocol No. 1 above, the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to give a separate ruling on the applicant's remaining complaint under Article 6 (see, for example, Günaydin Turizm Ve İnşaat Ticaret Anonim Şirketi v. Turkey, no. 71831/01, § 109, 2 June 2009, K.Ö. v. Turkey, no.", "71795/01, § 50, 11 December 2007, Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 43, 17 July 2007, and Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 37. The applicant claimed 899,222 euros (EUR), plus interest running from the date of lodging of the application, in respect of pecuniary damage, and EUR 100,000 in respect of non-pecuniary damage. He based his claim for pecuniary damages on an expert report[2] prepared by Ms Sevim Ünal, a construction engineer, on 24 June 2008 at the applicant's request for the purposes of the present proceedings and submitted to the Ümraniye Civil Court of First Instance. 38. The Government contested the amounts.", "In particular, they held that the value of the land was based on fictitious calculations and assumptions. 39. As regards the applicant's claim for pecuniary damage, in the absence of documents provided by the Government to support the contrary, the Court, having regard the documents contained in the case file, including expert reports, photographs and maps contained in the case file (see paragraphs 9 and 37 above), the circumstances of the case and, in particular, to the fact that the land in question had been and is currently used as a public road, deems it appropriate to fix a lump sum that would correspond to the applicant's legitimate expectations. It accordingly awards the applicant's heirs, jointly, EUR 350,000 under this head. 40.", "As to the applicant's claim for non-pecuniary damages, the Court finds that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction. B. Costs and expenses 41. The applicant also claimed EUR 560 for the costs and expenses incurred both before the domestic courts and the Court. He submitted documentation in this respect.", "42. The Government contested the amount. 43. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and 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 full amount claimed by the applicant.", "C. Default interest 44. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1; 3. Holds that there is no need to examine separately the complaint under Article 6 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant's heirs, jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 350,000 (three hundred and fifty thousand euros) in respect of pecuniary damage, plus any tax that may be chargeable; (ii) EUR 560 (five hundred and sixty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant's heirs; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident [1]. Approximately 265,163 Euros (EUR) at the time. [2]. The expert report contains pictures which clearly indicate that the plot in question is used as a road." ]

[ "THIRD SECTION CASE OF MEZHIDOVY AND OTHERS v. RUSSIA (Application no. 50606/08 and 9 others – see list appended) JUDGMENT STRASBOURG 23 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Mezhidovy and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in ten applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). 3. The Government did not object to the examination of the applications by a Committee. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants are Russian nationals who, at the material time, were living in the Chechen Republic. Their personal details are set out in the appended table. They are close relatives of individuals who disappeared after allegedly being unlawfully detained by servicemen during special operations. The events took place in areas under the full control of the Russian federal forces. The applicants have not seen their missing relatives alive since the alleged arrests.", "5. The applicants reported the abductions to law‑enforcement bodies and official investigations were opened. The proceedings were repeatedly suspended and resumed, and have remained pending for several years without achieving any tangible results. The applicants lodged requests for information and assistance in the search for their relatives with the investigating authorities and various law-enforcement bodies. Their requests received either formal responses or none at all.", "The perpetrators have not been identified by the investigating bodies. 6. Summaries of the facts in respect of each application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and the domestic investigating authorities. The Government did not dispute the principal facts of the cases as presented by the applicants, but questioned the allegation that servicemen had been involved in the events.", "A. Mezhidovy v. Russia (no. 50606/08) 7. The first applicant is the mother, and other applicants are brothers of Mr Magomed-Emin Mezhidov, who was born in 1980. 1. Abduction of Mr Magomed-Emin Mezhidov 8.", "Between 13 and 20 May 2002 a military unit of the Russian federal forces in Chechnya under the command of General Bronivitskiy conducted a special operation in the village of Avtury. The military servicemen cordoned off the area and ran identity checks on all the residents. Detained residents were taken to a special filtration camp set up on the outskirts of the settlement. 9. On the morning of 15 May 2002 Mr Magomed-Emin Mezhidov was at home with the first and second applicants.", "Another relative, Mr M., and a neighbour, were also present. At around 10 a.m. two armoured personnel carriers (“APCs”) arrived at the applicants’ house located in the centre of the village. A group of about twenty armed and masked servicemen in camouflage uniforms broke into the courtyard and threatened all those present with firearms. Having checked the identity documents, the servicemen forced Mr Magomed-Emin Mezhidov into one of the APCs and drove off in the direction of the filtration camp. According to the applicants, the arrest was filmed by journalists.", "10. The applicants submitted written statements from Mr B.Dzh., a village resident arrested on 15 May 2002. He had seen Mr Magomed-Emin Mezhidov in the filtration camp. The latter had been exhausted and had complained of ill-treatment by the servicemen. 11.", "In 2010 Mr Magomed-Emin Mezhidov’s skeletal remains with a bullet hole in the skull were found in a forest near Avtury (see paragraph 17 below). According to the applicants, along with the remains, Mr Magomed‑Emin Mezhidov’s t-shirt, which he had been wearing on 15 May 2002, was found. It had two gunshot holes and a further hole that had been caused by stabbing with a knife. 2. Official investigation 12.", "Immediately after the abduction the applicants informed the authorities about it and requested that a criminal investigation be opened into the incident. 13. On 28 November 2002 the Shali district prosecutor’s office opened criminal case no. 59266 under Article 126 of the Criminal Code of Russia (“the CC”) (abduction). On the same day the first applicant was granted victim status.", "14. On 28 January 2003 the investigation in the case was suspended for failure to identify the perpetrators. It appears that the first applicant was informed of that decision on 11 April 2006. 15. On 13 May 2003, in response to an enquiry from the applicants, the investigator informed them that the investigation had been suspended but that operational search activities were under way.", "16. On 24 December 2003 and 26 February 2006 the first applicant asked various authorities for assistance in the investigation. It appears that her requests were forwarded to the Chechnya Prosecutor’s Office. By letters of 23 January 2004 and 11 April 2006 the prosecutor’s office informed her that the operational search for the perpetrators was ongoing. 17.", "On 22 April 2010 the investigating authority found the skeletal remains of Mr Magomed-Emin Mezhidov, and resumed the investigation. On 22 May 2010 the investigation was again suspended. 18. On 21 January 2011 the investigation was resumed again. Three days later the investigating authority obtained a thirty-second video, allegedly made on 15 May 2002.", "It depicted armed men forcing a person, possibly Mr Magomed-Emin Mezhidov, into an APC. The footage was included in the criminal case file. 19. On 27 January 2011 a new criminal case was opened into the circumstances of Mr Magomed-Emin Mezhidov’s death under Article 105 of the CC (murder). On the same day the investigation in the case was joined to the investigation into the abduction, and suspended for failure to identify the perpetrators.", "It appears that the joint investigation is still pending. B. Shakhidova and Others v. Russia (no. 27066/09) 20. The applicants are close relatives of Mr Akhyad Shakhidov, who was born in 1964, and of his brother, Mr Khamzat Shakhidov, born in 1968. The first applicant is the wife of Mr Akhyad Sakharov; the second, third and fourth applicants are his children.", "The fifth applicant is the wife of Mr Khamzat Shakhidov; the sixth applicant is his son. 1. Abduction of Mr Khamzat Shakhidov and Mr Akhyad Shakhidov 21. On the morning of 14 May 2002 a group of about thirty armed military men in camouflage uniforms arrived in APCs and military lorries in the village of Makhkety to carry out an identity check on residents. The men were of Slavic appearance and spoke unaccented Russian.", "22. At about 10.30 a.m. the servicemen entered the applicants’ house. Mr Akhyad Shakhidov, Mr Khamzat Shakhidov, the applicants and other family members were at home. The men checked the brothers’ identity documents and searched the premises. Then they forced Mr Khamzat Shakhidov into an APC and took him in the direction of the village of Khattuni, in the Vedeno district.", "Shortly thereafter, several armed men remaining in the house forced Mr Akhyad Shakhidov into their military lorry and took him in the same direction. 23. On their way out of the village, the military convoy passed a broken‑down UAZ vehicle. The car’s driver, Mr M.K., the head of the Khattuni police department, asked the servicemen for their help with the vehicle, but to no avail. The first applicant, who was following the convoy, asked Mr M.K.", "where the servicemen were from. The officer replied that they were from Grozny. 24. Another village resident, Mr Zh., was abducted on the same day under similar circumstances. He was released several days later and stated that on the day of the abduction the perpetrators had put him in the same APC as Mr Akhyad Shakhidov and Mr Khamzat Shakhidov.", "After the ride the men had been separated and he had not seen them again. 2. Official investigation 25. Immediately after the abduction the applicants informed the authorities thereof and requested assistance in the search for their relatives. 26.", "On 16 June 2002 the Vedeno district prosecutor’s office opened criminal case no. 73038 under Article 126 of the CC (abduction). 27. On 22 July 2002 the case file was transferred to the Shali military prosecutor’s office for further investigation. 28.", "On 17 December 2002 the case file was destroyed by fire. It was reassembled about two years later, in October 2004. 29. On 18 November 2004 the investigation in the case was suspended. 30.", "On 8 September 2005 the supervising prosecutor ordered that the investigation be resumed. On the same day an examination of the crime scene was conducted. 31. Two days later, on 10 or 11 September 2005, the first and fifth applicants were granted victim status in the case. 32.", "On 16 September 2005 the Chechnya prosecutor’s office replied to a request from the applicants for information, stating that operational search activities were in progress. 33. On 8 October 2005 it was decided to suspend the investigation. The fifth applicant was informed thereof two days later. 34.", "On 21 January 2009 the first applicant asked the investigating authorities to provide her with information about the progress of the investigation. On 28 February 2009 the investigators replied that the proceedings were pending. 35. Five years later, on 28 February 2014, the investigation was resumed, particularly, due to the need to examine the applicants’ consistent allegation of the involvement of State servicemen in the abduction, which had not been duly examined since the beginning of the criminal proceedings. On 5 April 2014, the investigators again suspended the proceedings, without having taken any meaningful steps.", "It appears that the investigation is still pending. C. Israilovy v. Russia (no. 58253/10) 36. The applicants are close relatives of Mr Magomed Israilov, who was born in 1980. The first and second applicants are his late father and mother, who died on 11 June 2013 and 26 March 2014 respectively.", "The third applicant is Mr Magomed Israilov’s brother. 1. Abduction of Mr Magomed Israilov 37. At the material time Mr Magomed Israilov lived with the applicants in the town of Shali, Chechnya. Mr Magomed Israilov’s sister, Ms G.A., was also staying in the house with her son, who was a minor.", "38. At around 3 a.m. on 16 August 2002 (in the documents submitted the date was also referred to as 17 August 2002) the family was at home when two APCs and a Ural lorry with a group of about forty to fifty armed servicemen arrived at their house. The servicemen, all of whom were in balaclavas, broke into the house. Having threatened the family members with firearms, they checked their identity documents and searched the premises. They then forced Mr Magomed Israilov and the third applicant out of the house, blindfolded them, tied their hands behind their backs and put them into different APCs.", "Thereafter, the convoy of military vehicles drove off in the direction of Avtury. 39. The second applicant followed the abductors’ vehicles up to a military checkpoint at the entrance to the military compound of Special Investigative Group-1 (“the military compound”) (Первая Специальная Следственная Группа), located about five hundred metres from their house in the direction of Avtury. He saw the convoy enter the military compound. 40.", "Mr Magomed Israilov has not been seen since. His abduction took place in the presence of several witnesses, including the applicants and their neighbours. 2. The applicants’ search for their relative and subsequent events 41. At around 11 p.m. on 17 August 2002 the third applicant was released by the abductors.", "He was dropped off by the servicemen in front of his aunt’s house in the town of Shali. 42. According to the third applicant, after his abduction he was taken to the military compound. The drive was short, but it was unclear in what direction the vehicle was going. While in detention, he did not see his brother, but heard him screaming.", "He also heard the guards conversing in unaccented Russian. 43. Searching for their son, the first and second applicants spoke to Colonel T.K., who confirmed to them that Mr Magomed Israilov was detained at the military compound and promised to release him in exchange for money. 3. Official investigation 44.", "On 29 August 2002 the Shali district prosecutor’s office opened criminal case no. 59221 under Article 126 of the CC (abduction). On the same day the second applicant was granted victim status in the case. 45. On 29 October 2002 the investigation in the case was suspended.", "46. On 6 June 2003 the supervising prosecutor overruled the decision to suspend the proceedings and ordered that the investigation be resumed. Subsequently, it was suspended and resumed on several occasions. In particular, it was suspended on 6 June 2003, then resumed on 17 April 2006 and then suspended again on 19 May 2006. 47.", "On numerous occasions between 2002 and 2006, in particular on 17 March 2003 and 13 March 2006, the applicants complained to various law-enforcement authorities about the abduction and requested assistance in their search for Mr Magomed Israilov. In reply they received letters stating that their complaints had been examined or forwarded to other authorities for examination and that the law‑enforcement agencies were taking measures to establish their relative’s whereabouts. 48. In 2007 the criminal proceedings were resumed and suspended several times, without any tangible results having been achieved. It appears that the investigation is still pending.", "D. Isiyevy v. Russia (no. 52167/11) 49. The first, second and third applicants are respectively the mother, sister and daughter of Mr Razambek Isiyev, who was born in 1983. 1. Abduction of Mr Razambek Isiyev and subsequent events 50.", "On 22 July 2002 Mr Razambek Isiyev was driving his car on the Argun-Shali highway. At about 3 or 4 p.m. a group of servicemen in APCs stopped him on the highway and took him to the Federal Security Service (“the FSB”) office in the town of Argun. 51. Later the same day the first applicant contacted Mr M.Kh., the head of a unit at the FSB office, where Mr Razambek Isiyev had been hired the previous day. According to Mr M.Kh., the FSB officer, D.Ts., had told him that Mr Razambek Isiyev had been detained for questioning.", "52. At 5 p.m. on 23 July 2002 an APC, a UAZ vehicle and a Ural lorry parked near garages situated next to the applicants’ house. The first applicant saw her son, Mr Razambek Isiyev, inside the UAZ vehicle through its open door. He was pointing in the direction of the garages and explaining something. He saw his mother but before he could say anything the servicemen shut the vehicle door and drove off.", "53. At 10 a.m. on 24 July 2002 the servicemen returned to the same place with Mr Razambek Isiyev. This time they used an excavator to dig the ground. They did not find anything and left. 54.", "On 25 July 2002 the applicants and their relatives gathered in front of the military commander’s office in Argun. Mr M.Kh., the head of the FSB unit, assured the first applicant that he would bring Mr Razambek Isiyev home. For the next several days the first applicant visited the office of the military commander and each time Mr M.Kh. assured her that her son would be released soon. However, Mr Razambek Isiyev has not been seen since.", "2. Official investigation 55. On 3 August 2002 the first applicant complained of the disappearance of her son to the Argun district prosecutor’s office. On the same date the prosecutor’s office opened criminal case no. 78081 under Article 126 of the CC and granted the applicant victim status in the proceedings.", "56. On 3 October 2002 the investigation was suspended, on 27 January 2004 it was resumed, and on 28 January 2004 it was suspended again. 57. On 13 July and 5 August 2004 the North Caucasus military prosecutor’s office forwarded the first applicant’s requests for assistance in establishing her son’s whereabouts to the military prosecutor’s office of military unit no. 20102.", "On 16 August 2004 the latter informed the first applicant that the involvement of their servicemen in her son’s abduction had not been confirmed. 58. On 26 August 2004 the Argun district prosecutor’s office informed the applicants that the investigation of the abduction had been suspended but that search activities were under way. 59. On 12 September 2006 the first applicant asked the investigating authorities to provide her with access to case-file documents.", "It is unclear whether the request was granted. 60. On 22 February 2007 the first applicant requested the authorities to expedite the search for her missing son. As a result, on 27 March 2007 the investigation was resumed. It was again suspended a month later, on 27 April 2007.", "61. On 20 February 2009, 5 August 2010 and 14 February 2011 the applicants asked the investigators to provide them with an update on the progress of the investigation. In reply to the first letter the authorities informed the first applicant that the investigation had been suspended, but that search activities were being undertaken. No reply was given to either the second or the third enquiry. It appears that the investigation is still pending.", "E. Limayevy v. Russia (no. 62560/11) 62. The first applicant is the mother, and the second applicant the brother of Mr Movsar Limayev, who was born in 1978. 1. Abduction of Mr Movsar Limayev 63.", "At 3.30 a.m. on 28 October 2002 three APCs with smeared registration numbers stopped at the first applicant’s house in the village of Mesket-Yurt. Six armed servicemen in camouflage uniforms and balaclavas jumped over the fence into the courtyard. Two servicemen broke into the house and demanded that the lights be turned on. Then they handcuffed Mr Movsar Limayev, who was in his underwear and barefoot, and took him outside. The intruders ordered the applicants and their relatives to remain in the house.", "However, the first applicant went outside and saw Mr Movsar Limayev being forced into one of the APCs, which then drove off in the direction of Shali. 64. The applicants have had no news of Mr Movsar Limayev since. 2. Official investigation 65.", "On the same day, 28 October 2002, the applicants complained of the abduction to the Shali district police and subsequently to a number of other law‑enforcement agencies. 66. On 31 March 2003 the Shali district prosecutor’s office opened criminal case no. 22053 under Article 126 of the CC. On the same day the first applicant was questioned and granted victim status in the criminal case.", "67. On 31 May 2003 the investigation was suspended. 68. On a number of occasions between 2003 and 2005 the applicants complained to various law‑enforcement agencies about the abduction and requested assistance in the search for their relative. In reply they received formal letters, stating either that the investigation was in progress, or that their requests had been forwarded elsewhere.", "69. Between November 2005 and August 2006 the criminal case was suspended and resumed several times. The last decision to suspend the investigation of which the applicants were informed was taken on 3 August 2006. 70. On 26 March 2008 the Materi Chechni (Mothers of Chechnya), an NGO with offices in Moscow and the Republic of Ingushetia, complained on behalf of the first applicant to the Prosecutor General’s Office that the investigation into her son’s death had been ineffective.", "The complaint was forwarded to the investigating authority and included in the criminal case file, but no reply followed. It appears that the investigation is still pending. F. Sadulayeva and Mintsaligov v. Russia (no. 77744/11) 71. The first applicant is the wife, and the second applicant the son of Mr Musa Mintsaligov, who was born in 1968.", "1. Abduction of Mr Musa Mintsaligov 72. At about 3 a.m. on 10 October 2004 the applicants were at home when a large group of armed servicemen in camouflage uniforms arrived at their house in the village of Valerik, in two APCs and two Ural lorries without registration numbers. A group of about six servicemen broke into the house, forced Mr Musa Mintsaligov outside and took him away to an unknown destination. The servicemen spoke unaccented Russian, most of them were in balaclavas and helmets; those without were of Slavic and Asian appearance.", "73. The whereabouts of Mr Musa Mintsaligov remain unknown. His abduction took place in the presence of several witnesses, including the applicants and their neighbours. 2. Official investigation 74.", "Immediately after the abduction the applicants informed the authorities thereof and requested that a criminal investigation be initiated. 75. On 15 October 2004 investigators examined the crime scene. 76. On 16 October 2004 an officer of the Valerik traffic police informed the head of the Achkhoy-Martan district police that on the night of the abduction a convoy of military vehicles, consisting of two APCs and two Ural lorries without registration numbers, had left Valerik, passed through a checkpoint, and driven off in the direction of Urus-Martan.", "77. On 1 November 2004 the Achkhoy-Martan inter-district prosecutors’ office opened criminal case no. 38052 under Article 126 of the CC (abduction). 78. Between 26 November and 24 December 2004 the investigators questioned numerous witnesses to the events, most of whom were the applicants’ neighbours and members of their family.", "They confirmed the circumstances of the abduction as described above. 79. On 25 December 2004 the first applicant was granted victim status in the case and questioned by the authorities. 80. On 1 March 2005 the investigation was suspended for failure to identify the perpetrators.", "It was subsequently resumed on 10 June 2008 and 21 July 2011 following criticism by the supervisors, and then again suspended on 10 July 2008 and 31 July 2011 respectively. 81. In the meantime, on numerous occasions between 2004 and 2006 the applicants complained to various military and law-enforcement authorities about the abduction and requested assistance in the search for their relative. In reply they received letters stating that the law-enforcement agencies were taking measures to establish Musa Mintsaligov’s whereabouts. 82.", "On 2 July 2010 the first applicant asked the authorities to inform her about the progress in the investigation and to resume the proceedings in the criminal case. Three days later the investigator informed her that the proceedings had been suspended on 10 July 2008 but that operational search activities were in progress. 83. On 2 February 2011 the first applicant asked the investigators to grant her full access to the contents of the investigation file. On 8 February 2011 her request was rejected.", "84. On 21 February 2011 the first applicant challenged her lack of access to the criminal case file before the Achkhoy-Martan District Court. 85. On 24 March 2011 the court allowed the applicant’s complaint, having ordered the investigators to grant her full access to the file. 86.", "On 23 June 2011 the first applicant lodged another complaint with the court, challenging the investigators’ failure to take basic investigative steps. The complaint was rejected on 25 July 2011, because on 21 July 2011 the investigators had already resumed the proceedings. Then, ten days later, the investigation was suspended again. It appears that it is still pending. G. Akhmadova and Others v. Russia (no.", "2679/12) 87. The applicants are close relatives of Mr Vakhid Yakhyayev, who was born in 1956. The first applicant is his wife, and the second and third applicants are his sons. 1. Abduction of Mr Vakhid Yakhyayev 88.", "On 22 April 2002 seven or eight armed servicemen in camouflage uniforms entered the applicants’ house in the village of Goyty. The three applicants, Mr Vakhid Yakhyayev’s father, mother, minor daughter and his daughter-in-law were at home and witnessed the events that followed. Speaking unaccented Russian, the servicemen, who were of Slavic appearance, checked the family’s identity documents. They then said that they would take Mr Vakhid Yakhyayev to the Urus-Martan military commander’s office. After the servicemen had left, the first applicant ran outside and saw an APC and a UAZ- minivan driving away from the house.", "Mr Vakhid Yakhyayev has been missing ever since. 2. Official investigation 89. On 22 April 2002 the applicants complained of the abduction to the Urus-Martan district prosecutor’s office. On the same day the latter opened criminal case no.", "61077 under Article 126 of CC (abduction) and granted the first applicant victim status in the case. 90. On 22 June 2002 the investigation was suspended and on 21 October 2003 it was resumed. A month later it was suspended again. 91.", "In October-November 2003 the investigators questioned the three applicants, Mr Vakhid Yakhyayev’s father, mother, minor daughter and his daughter-in-law. All of them confirmed the circumstances of the abduction as described above. 92. On 12 April 2004 the applicants requested that the Urus-Martan district police assist them in their search for Mr Vakhid Yakhyayev. On 2 June 2005 the applicants forwarded a similar request to the Chechnya prosecutor’s office.", "93. On 22 February 2006 the applicants requested that the investigation be resumed. It was resumed on 17 July 2006, and then on 28 April 2006 it was suspended again. 94. On 7 August 2006 the applicants requested information on the progress in the investigation and on 28 April 2010 they requested permission to access the investigation file.", "Their requests were refused, but the applicants successfully challenged the refusal before the Achkhoy‑Martan District Court. Their complaint was granted on 5 October 2010. 95. On 22 June 2011 the applicants asked the investigators to resume the proceedings and inform them of their progress. The next day they received a letter saying that the proceedings had been suspended, but that operational search activities were in progress.", "96. On 5 July 2011 the applicants lodged a complaint against the investigators with the Urus-Martan Town Court, seeking the resumption of the investigation. 97. On 21 July 2011 the investigators resumed the proceedings, so the court rejected the applicants’ complaint as groundless. An appeal lodged by the applicants against that decision was upheld by the Chechnya Supreme Court on 24 August 2011.", "98. On 31 July 2011 the proceedings were suspended again. 99. In April 2012 the investigators resumed and then again suspended the criminal proceedings. It appears that the investigation is still pending.", "H. Zaurbekovy v. Russia (no. 27987/12) 100. The first and second applicants are respectively the sister and the wife of Mr Musa Zaurbekov, who was born in 1964. The third, fourth, fifth and sixth applicants are his children, and the seventh applicant is his mother. 1.", "Abduction of Mr Musa Zaurbekov 101. At about 3 a.m. on 6 May 2003 the applicants and Mr Zaurbekov were at home in Grozny when a group of about ten armed military servicemen in camouflage uniforms broke into their house. Most of the servicemen were in balaclavas and those without were of Slavic appearance. They forced Mr Zaurbekov outside and took him away on foot in the direction of a nearby school, where two APCs and two UAZ vehicles were waiting. The servicemen put Mr Zaurbekov into one of the vehicles and drove off in the direction of Grozny city centre.", "The abduction took place in the presence of the applicants and their neighbours. 102. The written statements of four neighbours, submitted by the applicants to the Court, confirm the account of the events as described above. 103. The whereabouts of Mr Musa Zaurbekov remain unknown.", "2. Official investigation 104. On 6 May 2003 the first applicant informed the Chechnya prosecutor’s office of the abduction and requested that a criminal investigation be opened. 105. On 16 May 2003 the Staropromyslovskiy district prosecutor’s office in Grozny opened criminal case no.", "50052 under Article 126 of the CC (abduction). 106. On 5 June 2003 the first applicant was granted victim status. 107. On 16 July 2003 the investigation was suspended for failure to identify the perpetrators.", "108. On 20 July 2004 the above-mentioned decision was overruled and the proceedings were resumed. A month later, having not achieved any tangible results, the investigation was suspended. 109. The investigation was subsequently resumed on 30 April 2006, suspended on 30 May 2006, resumed on 2 March 2007, and then suspended again on 3 April 2007.", "The applicants were not informed of those decisions. 110. On 6 October 2010 the first applicant asked the Stichting Russian Justice Initiative, an NGO based in Moscow, to assist in the search for her brother and lodge information requests with various authorities in an attempt to establish his whereabouts. The second applicant submitted a similar request to the NGO in April 2011. 111.", "From the documents submitted it transpires that between 2010 and 2011 the applicants contacted the authorities with requests for information, but to no avail. In the autumn of 2011 the first applicant requested that she be allowed to access the investigation file. On 3 November 2011 the investigators granted the request. In 2012 their close relatives and those of Mr Musa Zaurbekov contacted a local human rights NGO, which on their behalf requested various authorities to resume the investigation. 112.", "On 26 March 2014 the investigation was resumed. The second applicant was granted victim status and questioned by the investigators. It appears that the investigation is still pending. I. Abdurzakova and Others v. Russia (no. 39694/12) 113.", "The first applicant is the sister of Mr Aslambek Abdurzakov, who was born in 1976. The second applicant is his mother and the third and fourth applicants are his children. 1. Abduction of Mr Aslambek Abdurzakov 114. At the material time, Mr Aslambek Abdurzakov was living with his family in the village of Duba-Yurt, Chechnya.", "115. At about 4 a.m. on 20 July 2002 (in the documents submitted the date was also referred to as 15 May 2002) the family was at home when a large group of armed military servicemen in camouflage uniforms arrived at their house in an APC and a grey military UAZ minivan. A group of about ten servicemen broke into the house, searched the premises, forced Aslambek Abdurzakov outside, then put him in one of the vehicles and drove off to an unknown destination. 116. The same morning, at some point before the abduction, the same servicemen had broken into the house of Aslambek Abdurzakov’s neighbour, Ms Z.U., and had shot her in the leg.", "117. Sometime after the abduction the second applicant received a note, allegedly handwritten by Aslambek Abdurzakov, saying that he was detained in the Urus-Martan remand prison. 118. The whereabouts of Aslambek Abdurzakov remain unknown. 2.", "Official investigation 119. On 25 July 2002 the Shali district prosecutor’s office opened criminal case no. 59168 under Article 126 of the CC (abduction). 120. On 26 July 2002 the first applicant was granted victim status.", "She and several other witnesses to the abduction were questioned. The applicant’s submissions before the investigators were similar to her account before the Court. 121. On the same date, 26 July 2002, the investigators collected two machine-gun shells found in the house of Ms Z.U., who had been shot in the leg by the abductors. The shells were sent for a ballistics expert examination.", "122. On 27 July 2002 the first applicant was questioned again. She confirmed the statement she had given previously and submitted additional information on the registration numbers of the abductors’ APC and the UAZ vehicle. 123. On the same date, 27 July 2002, the investigators questioned the second applicant, who stated, in particular, that a few days after the abduction she had seen the abductors’ UAZ vehicle entering the premises of the Shatoy district police station.", "124. On 25 September 2002 the investigation was suspended for failure to identify the perpetrators. The applicants were not informed thereof. 125. In 2003 the applicants complained to various authorities about the abduction and requested that an effective investigation be carried out.", "126. Between 2006 and 2007 the investigation was suspended and resumed several times. The applicants were not informed of those decisions. 127. On 16 February 2008 the first applicant requested that the investigators inform her about the progress in the proceedings, and sought information from the Federal Service for the Execution of Sentences on the possible detention of Mr Aslambek Abdurzakov in Russian detention facilities.", "128. On 20 June 2009 the request was granted in part. The investigators asked the Federal Service for the Execution of Sentences to inform them whether Mr Aslambek Abdurzakov had been detained in a detention facility after his abduction. The outcome of that enquiry is unknown. 129.", "On 5 March and 20 October 2011 the first applicant was allowed to access the investigation file. 130. On 1 March 2012 the investigation was resumed. The first applicant gave the investigators a blood sample for inclusion in the database for identification of bodies found in the Chechen Republic. A month later, in April 2012, the investigation was suspended again.", "131. On an unspecified date in 2012 the first applicant complained to the Shali Town Court of the investigators’ failure to take basic investigative steps. The outcome of those proceedings is unknown. It appears that the investigation is still pending. J. Askhabayeva v. Russia (no.", "79940/12) 132. The applicant is the mother of Mr Saykhan Isayev, who was born in 1984. 1. Abduction of Mr Saykhan Isayev 133. During the night between 17 and 18 January 2005 armed servicemen in camouflage uniforms and balaclavas arrived at the applicant’s village of Chechen-Aul in an APC, two UAZ- vehicles and a Niva car.", "The servicemen were armed with machine guns and spoke unaccented Russian. At about 3 a.m. that night a group of about seventeen of them broke into the applicant’s house, searched the premises, violently beat up the applicant’s husband, her three sons and the pregnant wife of one of them. Then the intruders took Mr Isayev away to an unknown destination. 134. The applicant submitted to the Court written statements of several neighbours who saw armed men entering her house and then leaving it with a man on their shoulders.", "As soon as they left, the neighbours entered the house, saw the injured members of the applicant’s family and learned that Saykhan Isayev had been taken away. His whereabouts remain unknown. 2. Official investigation 135. On 18 January 2005 the applicant informed the authorities of the abduction and requested assistance in the search for her son.", "136. On an unspecified date a decision not to open a criminal case was taken. 137. According to the applicant, shortly after the abduction several agents from the Grozny prosecutor’s office arrived at her house in Chechen-Aul. They advised the applicant and her family not to lodge any official complaints concerning the events.", "Therefore, for some time after the abduction, fearing for her life and the lives of her family members, she refrained from asking the authorities to open a criminal case. 138. In May 2005 one of the witnesses to the abduction, Mr R.I., was questioned. Her statement was similar to the applicant’s account before the Court. 139.", "On 8 June 2005 the Grozny district prosecutor’s office opened criminal case no. 44048 under Article 126 of the CC (abduction). 140. On 20 June 2005 the applicant was granted victim status. 141.", "On 18 August 2005, 25 and 27 March 2007, and 23 October 2008 several other witnesses, including the applicant’s family members present during the incident, were questioned. Their statements were similar to the applicant’s account before the Court. 142. On 8 October 2005 the investigation was suspended for failure to identify the perpetrators. On 2 March 2007 that decision was overruled as premature and the investigation was resumed.", "The proceedings were subsequently resumed and suspended several times, including at least four suspensions and resumptions between June 2007 and October 2010. 143. In the meantime, on 28 March 2007 two officials from the Chechen-Aul village administration were questioned. They stated, in particular, that prior to the abduction, law-enforcement agencies had made enquiries about Mr Isayev’s home address. 144.", "On 2 August 2010 and 24 October 2010 two of the applicant’s sons, who had witnessed the abduction, were questioned again. They confirmed the statements they had previously given to the investigators. 145. On 20 October 2010 the investigators examined the crime scene. No evidence was collected.", "146. On 4 November 2010 the investigation was suspended again. 147. On 6 April 2016 the investigators resumed the proceedings in order to question the applicant and take a sample of her saliva for inclusion in a database for identification of corpses found in the Chechen Republic. It appears that the investigation is still pending.", "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 148. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012). THE LAW I. JOINDER OF THE APPLICATIONS 149.", "In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II. COMPLIANCE WITH THE SIX-MONTH RULE A. The parties’ submissions 1. The Government 150.", "In their observations the Government argued that the applicants had lodged their applications with the Court several years after the abduction of their relatives and more than six months after the date when they ought to have become aware of the ineffectiveness of the ensuing investigations. They pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities for a significant time, and that in several cases their representatives had unduly delayed lodging the applications with the Court. Therefore, according to the Government, the applications should be declared inadmissible as lodged “out of time”, unless the applicants were to admit that the respective investigations had been effective. 2. The applicants 151.", "The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relatives and assist the authorities in the proceedings. They submitted that there had been no excessive or unexplained delays in lodging their applications with the Court, which had been brought as soon as they had considered the domestic investigations to be ineffective. According to them, the armed conflict which had been taking place in Chechnya at the material time had led them to believe that investigative delays were inevitable. Owing to their lack of legal knowledge and financial means to hire a lawyer, and in the absence of any domestic provisions for free legal assistance to victims of enforced disappearances, they had been unable to assess the effectiveness of the investigations.", "It had only been with the passage of time and on account of the lack of information from the investigating authorities that they had begun to doubt the effectiveness of the investigation and had started looking for free legal assistance to assess the effectiveness of the proceedings. They had subsequently lodged their applications with the Court without undue delay. B. The Court’s assessment 1. General principles 152.", "A summary of the principles concerning compliance with the six-month rule in disappearance cases may be found in Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 369‑74, 9 October 2014. 2. Application of the principles to the present case 153. Turning to the circumstances of the present cases, the Court notes that in each application the applicants lodged their complaints with the Court within less than ten years of the incidents and the initiation of the related investigations (see Varnava and Others v. Turkey [GC], nos.", "16064/90 and 8 others, § 166, ECHR 2009). 154. Furthermore, in each of the applications the applicants informed the authorities about the abductions either shortly after the incident, or within two weeks. 155. The authorities opened an official criminal investigation into each of those complaints; in each case the investigation was still pending when the application was lodged with the Court.", "156. In each case at hand, the investigation was repeatedly suspended and resumed throughout the periods concerned. Each time, it was suspended and then resumed following criticism by the supervisors. The Court notes that there were certain lulls during the proceedings. 157.", "In Mezhidovy v. Russia (no. 50606/08) and Zaurbekovy v. Russia (no. 27987/12) the longest periods of inactivity comprised more than five years. In Mezhidovy v. Russia (no. 50606/08) the lull in the proceedings lasted between January 2003, when the decision to suspend the investigation was taken, and September 2008 when the application was lodged with the Court.", "In Zaurbekovy v. Russia (no. 27987/12) the investigation was suspended in April 2007 and the application was lodged in April 2012. In both cases, for the purpose of the six-month rule, the lulls ended when the applicants lodged their applications with the Court (see paragraphs 14 and 109 above and the appended table). The Court notes that in neither case were the applicants duly informed of the suspensions in the investigation and that they remained unaware of those procedural decisions for years; nonetheless, they contacted the investigating authorities, who assured them that the search for their relatives was ongoing (see paragraphs 14-16, and 110-111 above). 158.", "In Akhmadova and Others v. Russia (no. 2679/12) the longest lull in the proceedings took place between April 2006 and July 2011, comprising five years and three months. During that period the applicants were in contact with the investigating authorities. They enquired about the progress in the proceedings, requested access to the case file, and challenged the decision to suspend the investigation (see paragraphs 94-96 above). 159.", "In Abdurzakova and Others v. Russia (no. 39694/12) the longest period of inactivity in the investigation occurred between September 2002 and July 2007, lasting for about four years and ten months. From the documents submitted it transpires that the applicants were not duly informed of the decision to suspend the proceedings. Nonetheless, during the pause in the investigation they did not remain passive and attempted to intensify the search for their relative (see paragraph 125 above). 160.", "In Shakhidova and Others v. Russia (no. 27066/09) the longest pause in the investigation occurred between October 2005, when the investigation was suspended, and April 2009, when the application was lodged with the Court. In the meantime the applicants contacted the investigating authorities (see paragraphs 33-34 above, and the appended table). 161. In Israilovy v. Russia (no.", "58253/10), Isiyevy v. Russia (no. 52167/11), Limayevy v. Russia (no. 62560/11), Sadulayeva and Mintsaligov v. Russia (no. 77744/11), and Askhabayeva v. Russia (no. 79940/12), the lulls in the proceedings did not exceed three years and four months.", "The applicants maintained contact with the authorities during the breaks in the respective investigations. 162. Taking into account the overall time frame for lodging the applications, the lack of significant delays in bringing the abduction complaints to the attention of the domestic authorities, the belated notification of the applicants of suspension decisions in some of the cases, as well as the applicants’ efforts to resume the dormant proceedings and the complexity of the cases, along with the nature of the alleged violation, the Court concludes that it was reasonable for the applicants to have waited for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). The breaks that occurred cannot therefore be held against them or interpreted as their failure to comply with the six-month requirement (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), 58055/10, §§ 41-47, 31 May 2016, where the applicants delayed lodging a formal complaint with the domestic authorities, and had not contacted the investigating authorities for about eight years and three months, while the investigation was seemingly dormant.", "163. The Court therefore concludes that the investigations in the cases at hand, albeit sporadic, were being conducted during the periods in question and that the explanations for the delays submitted by the applicants are satisfactory (see Varnava and Others, cited above, ibid.). Accordingly, the applicants have complied with the six-month rule. III. COMPLIANCE WITH THE EXHAUSTION RULE A.", "The parties’ submissions 1. The Government 164. In respect of all of the applications, save for Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no.", "79940/12), the Government argued that it had been open to the applicants to challenge in court any actions or omissions on the part of the investigating or other law-enforcement authorities, but that they had failed to do so. Accordingly, they had not exhausted domestic remedies. 2. The applicants 165. The applicants stated that lodging complaints against the investigators would not have remedied the shortcomings in the proceedings.", "They submitted that the only effective remedy – a criminal investigation – had proved to be ineffective. B. The Court’s assessment 166. The Court has already concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constitutes a systemic problem, and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217). In such circumstances, and noting the absence of tangible progress in any of the criminal investigations into the abductions of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government is not effective in the circumstances (for similar reasoning see Ortsuyeva and Others v. Russia, nos.", "3340/08 and 24689/10, § 79, 22 November 2016). IV. ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties’ submissions 1. The Government 167.", "The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions. There was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions, or that the applicants’ relatives were dead, apart from Mr Magomed-Emin Mezhidov in Mezhidovy v. Russia (no. 50606/08), whose remains had been found in 2010. 2. The applicants 168.", "The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to evidence contained in their submissions and to documents from the criminal investigation files disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents, and the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any news about their relatives for a long time and the life‑threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead. The applicants in Mezhidovy v. Russia (no.", "50606/08) alleged that State agents had abducted and killed Mr Magomed-Emin Mezhidov, whose body was subsequently found in 2010. B. The Court’s assessment 1. General principles 169. A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others (cited above, §§ 393‑96).", "2. Application of the above principles to the present case 170. Turning to the circumstances of the cases presently before it, and in view of all the material, including the copies of the documents from the relevant criminal case files as submitted by the parties, the Court finds that the applicants have presented prima facie cases that their relatives were abducted by State agents in the circumstances set out above. The Court notes that the abductions took place in areas under State control, that specialised military vehicles, such as APCs, were involved in each incident and that the investigating authorities themselves accepted as fact the primary versions of events presented by the applicants and took steps to verify whether State servicemen had indeed been involved. 171.", "The Government have not provided a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 172. Bearing in mind the general principles enumerated above, the Court finds that the applicants’ relatives were taken into custody by State agents in the course of special operations. Given the lack of any news about them since their detention and its life‑threatening nature (see paragraphs 24, 40, 54, 64, 73, 88, 103, 118, and 134 above), and the subsequent discovery of Mr Magomed-Emin Mezhidov’s body (see paragraph 11 above), the Court finds that he was killed following his unacknowledged detention by State agents and that Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov, and Mr Saykhan Isayev may be presumed dead following their unacknowledged detention.", "V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 173. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out effective investigations into the matter. Article 2 reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...” A.", "The parties’ submissions 174. In all cases save for Mezhidovy v. Russia (no. 50606/08), the Government contended that Article 2 of the Convention was inapplicable to the applicants’ complaints of abductions, which must be examined under Article 5 of the Convention. They referred to the case of Kurt v. Turkey (25 May 1998, §§ 101-09, Reports of Judgments and Decisions1998‑III). 175.", "The Government submitted that in any case the complaints should be rejected, because the applicants had failed to substantiate their allegations of enforced disappearances. 176. The Government further argued that the domestic investigations had obtained no evidence that the applicants’ relatives had been held under State control or that they had been killed (except for Mr Magomed-Emin Mezhidov in Mezhidovy v. Russia (no. 50606/08)). In the case of Shakhidova and Others v. Russia, no.", "27066/09, the release of Mr Zh., another village resident, demonstrated that the arrest of a person in Chechnya at the time did not necessarily result in his or her death. Accordingly, it could not be presumed that Mr Khamzat Shakhidov and Mr Akhyad Shakhidov were dead. 177. Lastly, the Government submitted that the mere fact that the investigations had not produced any specific results, or had produced only limited ones, did not mean that they had been ineffective. All necessary steps were being taken to comply with the positive obligation under Article 2 of the Convention.", "178. The applicants maintained their complaints, alleging that their relatives had been abducted and intentionally deprived of their lives in circumstances that violated Article 2 of the Convention. They further argued that the investigations into the incidents had fallen short of the standards set down in the Convention and national legislation. Lastly, they noted that the Government did not provide the Court with some of the investigation files in their entirety as had been requested. B.", "The Court’s assessment 1. Admissibility 179. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaints under Article 2 of the Convention must therefore be declared admissible. 2.", "Merits (a) Alleged violation of the right to life of the applicants’ relatives 180. It is undisputed by the parties that the whereabouts of the applicants’ relatives has been unaccounted for from the time of their abduction to the lodging of the applications with the Court. The question arises as to whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations. 181. The Court has previously held that Article 5 of the Convention imposes an obligation on the State to account for the whereabouts of any person who has been taken into detention and who has thus been placed under the control of the authorities (see Kurt, cited above, § 124).", "Whether a failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on specific evidence, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and Ertak v. Turkey, no. 20764/92, § 131, ECHR 2000-V). 182. In this connection, the Court notes that the Government denied that the applicants’ relatives had been detained by State agents or had been under the control of the authorities after abduction.", "Therefore, the Government’s argument concerning the applicability of Article 5 of the Convention instead of Article 2 is inconsistent. However, leaving aside the contradictory nature of the Government’s position in this regard and assuming that the applicants’ abducted relatives were under the control of State agents after abduction, then the period of time which has elapsed since each person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. The Court considers that such a situation gives rise to issues which go beyond a mere “irregular detention” in violation of Article 5.", "Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı cited above, § 86, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000‑VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected. 183. Based on the above considerations and noting that it has already been found that in all of the applications under examination the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents, and that one of them, Mr Magomed-Emin Mezhidov, had been killed by them, the Court finds, in the absence of any justification put forward by the Government, that the deaths of the applicants’ relatives can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev.", "(b) Alleged inadequacy of the investigations into the abductions 184. The Court considers that the alleged failure of the Government to submit certain documents from the investigation files does not preclude it from examining the effectiveness of the relevant criminal proceedings. 185. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred, in particular, in Chechnya between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see paragraph 166 above). In the cases at hand, as in many previous similar cases reviewed by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives.", "While the obligation to investigate effectively is one of means and not of results, the Court notes that each set of criminal proceedings was plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25). Each was subjected to several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No timely and thorough measures were taken to identify and question the servicemen who could have participated in the abductions. 186. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev.", "Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention. VI. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION 187. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused by the disappearance of their relatives and the unlawfulness of their relatives’ detention. They further argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the alleged violation of Article 2 of the Convention.", "The applicants in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no.", "39694/12), and Askhabayeva v. Russia (no. 79940/12) also alleged a lack of effective domestic remedies in respect of their complaints under Articles 3 and 5 of the Convention. The invoked Articles read, in so far as relevant: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2.", "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 188. The Government contested the applicants’ claims, arguing in particular that the applicants’ mental suffering had not reached the minimum level of severity to fall within the scope of Article 3 of the Convention.", "They also argued that domestic legislation provided the applicants with effective remedies for their complaints. 189. The applicants maintained their complaints. B. The Court’s assessment 1.", "Admissibility 190. 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 191. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation lies not so much in the fact of the “disappearance” of the family member, but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII (extracts)).", "Where the news about a missing person’s death has been preceded by a sufficiently long period when he or she has been deemed to have disappeared, there exists a distinct period during which the applicants have sustained uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)). 192. The Court reiterates its findings regarding the State’s responsibility for the abductions of Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev, and the abduction and subsequent killing of Mr Magomed-Emin Mezhidov, and the failure to carry out meaningful investigations into the incidents. It finds that the applicants, who are close relatives of the abducted men, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they have suffered, and continue to suffer, as a result of their inability to ascertain the fate of their missing family members and of the manner in which their complaints have been dealt with.", "193. The Court has found on several occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122). The Court also confirms that since it has been established that the applicants’ relatives were detained by State agents, apparently without any legal grounds or acknowledgement of such detention (see paragraphs 172 and 183 above), this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention. 194.", "The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of any results from a criminal investigation, any other possible remedy becomes inaccessible in practice. 195. In the light of the above and taking into account the scope of the applicants’ complaints, the Court finds that the applicants in all cases did not have at their disposal an effective domestic remedy for their grievances under Article 2, in breach of Article 13 of the Convention. In addition, the applicants in Mezhidovy v. Russia (no.", "50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no.", "79940/12) did not have at their disposal an effective domestic remedy for their grievances under Article 3, in breach of Article 13 of the Convention. 196. The Court notes that in accordance with its established case-law, the more specific guarantees of Article 5 §§ 4 and 5 of the Convention, being a lex specialis in relation to Article 13 of the Convention, absorb its requirements. In view of its finding of a violation of Article 5 of the Convention (see paragraph 193 above), the Court considers that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention (see, amongst many authorities, Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015, and Aliyev and Gadzhiyeva v. Russia, no.", "11059/12, § 110, 12 July 2016). VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 197. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 198. The applicants claimed compensation for loss of financial support from the breadwinners. They submitted their calculations as follows. The applicants in Mezhidovy v. Russia (no. 50606/08), Shakhidova and Others v. Russia (no.", "27066/09), Israilovy v. Russia (no. 58253/10), Isiyevy v. Russia (no. 52167/11), Limayevy v. Russia (no. 62560/11), and Askhabayeva v. Russia (no. 79940/12) based their submissions on the subsistence level, the average monthly salary provided for by domestic law in their region, as well as the inflation rates and calculations based on the UK Ogden Actuary Tables.", "The applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11), and Akhmadova and Others v. Russia (no. 2679/12) based their calculations on the national minimum wage; and the applicants in Zaurbekovy v. Russia (no. 27987/12), and Abdurzakova and Others v. Russia (no. 39694/12) based their calculations on the Court’s case-law referring to the subsistence level and the UK Ogden Actuarial Tables.", "199. The first applicant in Mezhidovy v. Russia (no. 50606/08) claimed 848,918 Russian roubles (RUB) (approximately 12,260 euros (EUR)). 200. The first, second, third, fourth, fifth, and sixth applicants in Shakhidova and Others v. Russia (no.", "27066/09) claimed RUB 633,249 (approximately EUR 9,290), RUB 20,000 (approximately EUR 290), RUB 31,600 (approximately EUR 460), RUB 120,601 (approximately EUR 1,740), RUB 814,057 (approximately EUR 11,755), and RUB 151,588 (approximately EUR 2,190) respectively. 201. The first and second applicants in Israilovy v. Russia (no. 58253/10) claimed RUB 559,598 (approximately EUR 8,130), and RUB 459,414 (approximately EUR 6,675) respectively. 202.", "The first, second, and third applicants in Isiyevy v. Russia (no. 52167/11) claimed RUB 3,586,517 (approximately EUR 48,810), RUB 1,955,294 (approximately EUR 26,610), and RUB 1,076,194 (approximately EUR 14,650) respectively. 203. The first applicant in Limayevy v. Russia (no. 62560/11) claimed RUB 237,693.58 (approximately EUR 2,660) under that head.", "204. The first and second applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11) claimed EUR 18,500 and EUR 19,200 respectively. 205. The applicants in Akhmadova and Others v. Russia (no.", "2679/12) claimed EUR 25,104 jointly on 11 April 2016. On 7 May 2016 they submitted their translation of just satisfaction claim, according to which, they can be understood as decreasing the amount claimed from EUR 25,104 to EUR 9,000. 206. The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 70,000 jointly.", "207. The applicants in Abdurzakova and Others v. Russia (no. 39694/12) claimed EUR 40,000 jointly. 208. The applicant in Askhabayeva v. Russia (no.", "79940/12) claimed RUB 1,903,338 (approximately EUR 26,830). 209. The Government submitted that the applicants in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), and Shakhidova and Others v. Russia (no.", "27066/09) had failed to prove that their disappeared relatives had been breadwinners. The Government also contested the applicants’ calculation of the financial losses, and pointed out that it was open to them to apply for social allowances for the loss of breadwinners. In respect of the remainder of the applications, the Government left the matter of the award to the Court’s discretion. 2. Non-pecuniary damage 210.", "The applicants in Mezhidovy v. Russia (no. 50606/08), Shakhidova and Others v. Russia (no. 27066/09), Israilovy v. Russia (no. 58253/10), Isiyevy v. Russia (no. 52167/11), Limayevy v. Russia (no.", "62560/11), and Askhabayeva v. Russia (no. 79940/12) claimed compensation for non‑pecuniary damage. They left the amount of the award to be determined by the Court at its discretion. 211. The applicants in Sadulayeva and Mintsaligov v. Russia (no.", "77744/11) claimed EUR 1,000,000 jointly. 212. The applicants in Akhmadova and Others v. Russia (no. 2679/12) claimed EUR 80,000 jointly. 213.", "The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 90,000 jointly. 214. The applicants in Abdurzakova and Others v. Russia (no. 79940/12) claimed EUR 100,000 jointly.", "215. The Government left the matter of the award to the Court’s discretion. B. Costs and expenses 216. The applicants in Mezhidovy v. Russia (no.", "50606/08) claimed EUR 2,803 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 217. The applicants in Shakhidova and Others v. Russia (no. 27066/09) claimed EUR 5,250 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 218.", "The applicants in Israilovy v. Russia (no. 58253/10) claimed EUR 7,304 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 219. The applicants in Isiyevy v. Russia (no. 52167/11) claimed EUR 2,319 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.", "220. The applicants in Limayevy v. Russia (no. 62560/11) claimed EUR 3,172 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 221. The applicants in Sadulayeva and Mintsaligov v. Russia (no.", "77744/11) claimed EUR 5,339 jointly for legal representation before the Court, clerical expenses and translation. 222. The applicants in Akhmadova and Others v. Russia (no. 2679/12) claimed EUR 9,790 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 223.", "The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 1,625 for legal expenses and translation. 224. The applicants in Abdurzakova and Others v. Russia (no. 39694/12) claimed EUR 2,111 for legal expenses and translation.", "225. The applicant in Askhabayeva v. Russia (no. 79940/12) claimed EUR 4,901 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation. 226. The applicants requested that the awards be paid into the bank accounts of their representatives.", "227. The Government argued that in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no.", "27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no. 79940/12) the compensation sought by the applicants was excessive. They pointed out that in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no.", "58253/10), and Shakhidova and Others v. Russia (no. 27066/09) some of the administrative expenses were unsubstantiated. In respect of the remainder of the applications, the Government left the matter of the award to the Court’s discretion. C. The Court’s assessment 228. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation for loss of earnings.", "The Court further finds that loss of earnings applies to the close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213). 229. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and make a financial award. 230. As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no.", "324). 231. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts specified in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts as indicated by the applicants. D. Default interest 232.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev; 4.", "Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate the disappearance of the applicants’ relatives; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering; 6. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention; 7. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in respect of the following applications: Mezhidovy v. Russia (no.", "50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no.", "79940/12); 9. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in respect of the following applications: Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no.", "27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no. 79940/12); 10. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts as indicated by the applicants; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 11.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident APPENDIX No. Application no. and date of introduction Applicant’s name date of birth place of residence Kinship with the abducted person(s) Represented by Pecuniary damage Non-pecuniary damage Costs and expenses 50606/08 18/09/2008 1) Ms Svetlana MEZHIDOVA 04/11/1940 Avtury mother 2) Mr Magomed-Ali Mezhidov 05/02/1986 Avtury brother 3) Mr Magomed-Salakh Mezhidov 16/11/1978 Avtury brother 4) Mr Magomed-Sidik Mezhidov 05/07/1982 Avtury brother SRJI/ ASTREYA EUR 6,000 (six thousand euros) to the first applicant EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 2,000 (two thousand euros) 27066/09 29/04/2009 1) Ms Malkan SHAKHIDOVA 03/09/1966 Makhkety wife 2) Ms Petimat Gisayeva 12/09/1989 Makkhety daughter 3) Mr Ali Shakhidov 11/02/1991 Makkhety son 4) Mr Magomed Shakhidov 01/01/2000 Makkhety son 5) Ms Sayant Abdusalamova 29/05/1977 Makkhety wife 6) Mr Iles Shakhidov 24/12/2002 Makkhety son SRJI/ ASTREYA EUR 4,000 (four thousand euros) to the first applicant EUR 150 (one hundred and fifty euros) to the second applicant EUR 200 (two hundred euros) to the third applicant EUR 900 (nine hundred euros) to the fourth applicant EUR 6,000 (six thousand euros) to the fifth applicant EUR 1,000 (one thousand euros) to the sixth applicant EUR 60,000 (sixty thousand euros) to the first, second, third and fourth applicants jointly EUR 60,000 (sixty thousand euros) to the fifth and sixth applicants jointly EUR 2,000 (two thousand euros) 58253/10 01/10/2010 1) Ms Raisa ISRAILOVA 03/05/1954 Shali mother, passed away 2) Mr Salikh Israilov 25/05/1950 Shali father, passed away 3) Mr Buvaysar Israilov 26/10/1976 Shali brother SRJI/ ASTREYA - EUR 60,000 (sixty thousand euros) to the third applicant EUR 2,000 (two thousand euros) 52167/11 11/08/2011 1) Ms Taus ISIYEVA 22/11/1956 Argun mother 2) Ms Zarema Isiyeva 01/01/1980 Argun sister 3) Ms Amina Isiyeva 04/07/2002 Argun daughter SRJI/ ASTREYA EUR 10,000 (ten thousand euros) to the first and second applicants each EUR 6,000 (six thousand euros) to the third applicant EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 2,000 (two thousand euros) 62560/11 19/02/2009 1) Ms Akimat LIMAYEVA 05/01/1940 Mesker-Yurt mother 2) Mr Magomed Limayev 13/10/1966 Argun brother SRJI/ ASTREYA EUR 1,500 (one thousand five hundred euros) to the first applicant EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 2,000 (two thousand euros) 77744/11 28/11/2011 1) Ms Raisa SADULAYEVA 30/04/1976 Valerik wife 2) Mr Saykhan Mintsaligov 03/08/2003 Valerik son Mr Dokka ITSLAYEV EUR 6, 000 (six thousand euros) to the first and second applicants each EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 2,000 (two thousand euros) 2679/12 21/12/2011 1) Ms Roza AKHMADOVA 28/05/1963 Goyty wife 2) Mr Ramzan Yakhyayev 12/07/1980 Goyty son 3) Mr Apti Yakhyayev 20/10/1985 Goyty,son Materi Chechni EUR 4,500 (four thousand five hundred euros) to the applicants jointly EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 1,000 (one thousand euros) 27987/12 18/04/2012 1) Ms Ayna ZAURBEKOVA 14/09/1963 Grozny sister 2) Ms Roza Zaurbekova 20/04/1969 Grozny wife 3) Ms Zareta Zaurbekova 29/01/1988 Grozny daughter 4) Ms Petimat Zaurbekova 19/12/1998 Grozny daughter 5) Mr Yusup Zaurbekov 06/04/1989 EUR Grozny son 6) Mr Ramzan Zaurbekov 27/09/1990 Grozny son 7) Ms Rebat Zaurbekova 15/10/1928 Grozny mother Mr Tagir Shamsudinov EUR 30,000 (thirty thousand euros) to the applicants jointly EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 1,000 (one thousand euros) 39694/12 29/05/2012 1) Ms Asyat ABDURZAKOVA 07/06/1973 Novye Atagi sister 2) Ms Salmatu Abdurzakova 01/01/1943 Novye Atagi mother 3) Mr Ramzan Abdurzakov 07/01/1998 Novye Atagi son 4) Ms Milana Musayeva 29/01/2002 Novye Atagi daughter Mr Tagir Shamsudinov EUR 20,000 (twenty thousand euros) to the applicants jointly EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 1,000 (one thousand euros) 79940/12 07/12/2012 Tamus ASKHABAYEVA 13/09/1957 Chechen-Aul mother SRJI/ ASTREYA EUR 10,000 (ten thousand euros) EUR 60,000 (sixty thousand euros) EUR 2,000 (two thousand euros)" ]

[ "FIRST SECTION CASE OF KHARLAMOV v. RUSSIA (Application no. 27447/07) JUDGMENT STRASBOURG 8 October 2015 FINAL 08/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kharlamov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Elisabeth Steiner,Khanlar Hajiyev,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 September 2015, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "27447/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Fedorovich Kharlamov (“the applicant”), on 7 May 2007. 2. The applicant was represented before the Court by Mr V. Suchkov, a lawyer practising in Orel. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged a violation of his right to freedom of expression. 4. On 12 September 2012 the application was communicated to the Government. THE FACTS 5. The applicant was born in 1948 and lives in Orel.", "At the time of the events the applicant, a Ph.D. in Physics and Mathematics, was a tenured professor in the physics department of the Orel State Technical University. I. THE CIRCUMSTANCES OF THE CASE 6. By Order no. 383 of 14 December 2006, the president (ректор) of the Orel State Technical University convened a university-wide conference for the election of the university’s academic senate (ученый совет), its standing governing body.", "The date of the conference was fixed for 26 December 2006. According to the Regulation on the Composition of the Academic Senate of the Orel University, candidates to the senate were to be nominated at staff meetings in structural entities by open majority vote (section 3 of the Regulation of 12 December 2006). 7. Unhappy about the fact that neither he nor his colleagues in the physics department had been consulted or informed about the nomination and discussion of candidates to the academic senate, the applicant took the floor at the above public conference and spoke as follows: “... the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts.", "The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination.", "Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” 8. The Orel University sued the applicant in defamation, claiming that his speech had undermined the professional reputation of the university and of its academic senate. The statement of claim was signed by the university president. 9. The Sovetskiy District Court of Orel reviewed the university statutes and regulations on the procedure for the election of the academic senate and took oral evidence from witnesses.", "Four witnesses testified that the physics department had not held a meeting for the election of delegates to the conference or nomination of candidates to the senate because the delegates and candidates had been elected and nominated at the meeting between the heads of departments. The staff had been informed about the meeting several days in advance and anyone could attend it. 10. By judgment of 27 February 2007, the District Court found the applicant liable for defamation of the Orel University and its academic senate. According to the judgment, the applicant “publicly accused [them] of a violation of applicable laws [and] commission of a dishonest act”.", "It also held as follows: “The court cannot agree with the respondent party’s argument that the statements [he had] disseminated at the conference were an expression of an opinion. The statements were made in the affirmative form which is apparent from the minutes of the conference of 26 December 2006, the audio recording of the conference, and testimony by witnesses. The witnesses K. and Sh. who had attended the conference on 26 December 2006 explained that they understood the statements as an affirmation which produced a negative impression on them ... Every legal entity has the right to require that a public appraisal of its activities reflect the real state of affairs. Any negative appraisal of the activities of a legal entity affects its reputation and undermines it.", "The activity of a legal entity can only be potentially successful if its business reputation in the eyes of other organisations and ordinary citizens is maintained at a certain level, especially in a market economy.” 11. The District Court awarded the Orel University 20,000 Russian roubles (RUB) in damages and RUB 2,000 in court fees and directed that the applicant read the refutation at the following university conference. 12. The applicant filed an appeal, relying in particular on Article 10 of the Convention. He also pointed out that the award in respect of damages exceeded his monthly salary.", "13. On 11 April 2007 the Orel Regional Court upheld the District Court’s judgment on the merits but partly amended it. Firstly, it considered that the sentences “All of them can be challenged in courts ... Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” did not contain any statements about the plaintiff and could not therefore be damaging for its reputation. Secondly, it noted that the sentence “no one nominated those candidates [in the departments]” was actually true because candidates had been nominated at the meetings of department heads. Thirdly, the Regional Court considered it appropriate that the operative part of the District Court’s judgment be read out at the following conference by the president rather than by the applicant.", "Finally, it offered a more nuanced characterisation of the disputed phrases as a statement of fact: “Mr Kharlamov’s speech contained a statement of fact: the elected academic senate may not be considered a legitimate body and all of its decisions are likewise illegitimate, in other words, the academic senate was unlawfully elected and its decisions are unlawful. This is a verifiable statement. Accordingly, this information is not a subjective opinion of the defendant but a factual allegation.” II. RELEVANT DOMESTIC LAW A. Constitution of the Russian Federation 14.", "Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. B. Civil Code of the Russian Federation 15. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non‑pecuniary damage sustained as a result of the dissemination of such statements.", "C. Resolution of the Plenary Supreme Court of the Russian Federation no. 3 of 24 February 2005 16. The Resolution requires the courts hearing defamation claims to distinguish between the statements of facts which can be checked for veracity and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code, being an expression of the defendant’s subjective opinion and views that cannot be checked for truthfulness (paragraph 15 above). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 17.", "The applicant complained under Article 10 of the Convention about a violation of his right to freedom of expression in connection with the defamation proceedings brought against him by the Orel State University. Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 18.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Submissions by the parties 19. The Government accepted that the domestic judgments constituted an interference with the applicant’s right to freedom of expression. That interference had a lawful basis in Article 152 of the Civil Code and pursued a legitimate aim of the protection of the reputation of others. 20. According to the Government, the District Court drew a clear distinction between value judgments and statements of fact.", "Thus, it correctly considered that the applicant’s statement about “illegitimacy” of the academic senate was a statement of fact as it amounted to an assertion that the elected academic body had been composed in breach of the applicable regulations. They further insisted that the academic senate elections had been run in full compliance with the internal regulations of the University and that the applicant had no factual basis to make the impugned statement. 21. The applicant submitted that the interference was unlawful as his statement did not fall within the scope of Article 152 of the Civil Code (see paragraph 15 above). He argued that his speech at the conference of 26 December 2006 was an expression of personal opinion rather than “dissemination of statements”, as envisaged by this provision of the Civil Code.", "22. He further argued that the impugned statement was merely an expression of his personal opinion based on facts known to him concerning designation of candidates to the academic senate elections. When deciding on the defamation claim, the District Court failed to distinguish between a statement of fact and a value judgment and disregarded the testimonies of four witnesses called by the applicant (see paragraph 9 above). 2. Assessment by the Court 23.", "It is common ground between the parties that the District Court’s judgment in the defamation proceedings constituted an interference with the applicant’s right to freedom of expression guaranteed by Article 10 § 1. 24. The Government submitted that the interference had a lawful basis; the applicant disagreed. The Court observes that the domestic courts relied on Article 152 of the Civil Code, which allowed the aggrieved party to seek the judicial protection of its reputation and claim compensation in respect of non-pecuniary damages, and the Plenary Supreme Court’s Resolution, which gave an authoritative guidance to the courts hearing defamation claims. The Court therefore finds that the interference was in accordance with law, within the meaning of Article 10 § 2 of the Convention.", "25. Turning to the question of whether the interference pursued a legitimate aim, the Court reiterates that a measure proscribing statements criticising the acts or omissions of an elected body can be justified with reference to “the protection of the rights or reputations of others” only in exceptional circumstances (see Lombardo and Others v. Malta, no. 7333/06, § 50, 24 April 2007). In the instant case, the Court considers that the issue will be more appropriately dealt with in the analysis of the proportionality of the interference. 26.", "The test of necessity requires the Court to determine whether the interference corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see, among many other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑IV). In carrying out its supervisory role the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their margin of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 105, ECHR 2012, and Jersild v. Denmark, 23 September 1994, § 31, Series A no.", "298). 27. In the present case the applicant expressed his views at an academic assembly open to all University staff. He was found civilly liable for his speech, and therefore the impugned interference must be assessed in the context of professional environment. The Court has previously observed that employees owe to their employer a duty of loyalty, reserve and discretion (see, for instance, Kudeshkina v. Russia, no.", "29492/05, § 85, 26 February 2009, and Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)), and that in striking a fair balance the limits of the right to freedom of expression and the reciprocal rights and obligations specific to the professional environment must be taken into account (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 74, ECHR 2011). At the same time the Court does not lose sight of the academic context of the debate. The principle of open discussion of issues of professional interest must thus be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work (see Mustafa Erdoğan and Others v. Turkey, nos.", "346/04 and 39779/04, § 40, 27 May 2014, and Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009). Therefore the Court must look at the interference in the light of the case as a whole, including the nature of the remarks held against the applicant and the professional and academic context in which he made them (see Palomo Sánchez and Others, cited above, § 70, and Lingens v. Austria, 8 July 1986, § 40, Series A no. 103). 28.", "The Court first observes that the applicant’s speech brought to light a matter of professional concern, namely opacity of the academic senate election. The composition of the ruling body of the University and the procedure for designation of candidates to the election are of central importance for the University staff, and discussion around these issues at a University-wide conference forms an integral part of the organisation of the academic life and self-governance. The debate was therefore not a purely private one. On the contrary, it took place in public and the issue raised by the applicant concerned a matter of general interest, which the applicant was entitled to bring to the attention of his colleagues (see Palomo Sánchez and Others, cited above, § 72, Rubins v. Latvia, no. 79040/12, § 84-85, 13 January 2015, and Boldea v. Romania, no.", "19997/02, § 57, 15 February 2007). 29. According to the Court’s constant case-law, there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest and very strong reasons are required for justifying such restrictions (see Krasulya v. Russia, no.12365/03, § 38, 22 February 2007, with further references). In the present case there is no evidence that the domestic courts performed a balancing exercise between the need to protect the University’s reputation and the applicant’s right to impart information on issues of general interest concerning the organization of the academic life. They merely confined their analysis to the discussion of the damage to the plaintiff’s reputation (see paragraph 10 above) without giving any due consideration to the Convention standards described above.", "Neither did the domestic courts consider that the “dignity” of an institution cannot be equated to that of human beings. The Court considers that the protection of the University’s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The Court therefore finds that the domestic courts did not take into account specific features of academic relations and failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of reputation (see Dyundin v. Russia, no. 37406/03, § 33, 14 October 2008).", "30. Turning to the content of the applicant’s speech, the Court reiterates that a distinction must be drawn between the statements of fact, amenable to proof, and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997‑I, and Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts.", "However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004‑XI). 31. In the present case the domestic courts found that the applicant’s statement was untrue and that he had failed to discharge the burden of proof resting on him. The courts focused their attention on the applicant’s describing the elected senate as “illegitimate” and found, on the strength of the available evidence, that the academic senate elections had been run in full compliance with the applicable regulations (see paragraph 13 above).", "The Court observes at the outset that the thrust of the applicant’s speech was his severe discontent with the manner in which the academic senate had been elected. Seeking to attract his colleagues’ attention to the shortcomings in the election procedure, the applicant argued that the heads of department had failed to initiate any public discussion, and claimed that the election had been “in breach of the ordinary professors’ rights” because the candidates had been appointed directly by the heads of departments. The applicant has thus voiced his personal comment on a matter of public interest for the University staff while the domestic courts considered the applicant’s subjective appraisal of the election procedure to be a factual accusation (see, for similar reasoning, Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 22 January 2015). In his defence, the applicant relied on statements of four fellow professors heard by the District Court.", "They corroborated the applicant’s claim that no meetings had been held in the University departments and that no candidates had been nominated by open majority vote (see paragraph 6 above). The Court considers that by calling these four witnesses to testify before the District Court the applicant succeeded in showing that the impugned value judgment had a sufficient factual grounding, and that the situation described by the witnesses, namely the absence of an open discussion of candidates for the academic senate election, could have prompted him to speak the way he did. Against this background, the Court finds irrelevant the Government’s argument about formal compliance of the election procedure with the University internal regulations. The applicant based his opinion about “illegitimacy” of the academic senate on his own assessment of facts which might be accurate or not (see Brosa v. Germany, no. 5709/09, § 45, 17 April 2014) and discharged the obligation to back up his statement with evidence.", "32. The Court notes that the applicant had recourse to a certain degree of hyperbole in his address. At the same time, employees, while engaging in a debate of public interest, are entitled to have recourse to exaggerations as long as they do not overstep the limits of admissible criticism (see, mutatis mutandis, Vellutini and Michel v. France, no. 32820/09, § 39, 6 October 2011). The Court considers that the applicant did not resort to offensive and intemperate language and did not go beyond the generally acceptable degree of exaggeration.", "33. In conclusion, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of the plaintiff’s reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in the matters of debate of public interest and that the interference was not “necessary in a democratic society”. 34. There has therefore been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.", "37. The Government submitted that that the claim was excessive and uncorroborated with any evidence of the applicant’s distress. 38. In the Court’s view, the applicant suffered non-pecuniary damage as a result of the domestic courts’ judgments which were incompatible with the Convention requirements. The damage cannot be sufficiently compensated by a finding of a violation.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500, plus any tax that may be chargeable on that amount. B. Costs and expenses 39. The applicant did not claim any costs or expenses. Accordingly, there is no need to make an award under this head.", "C. Default interest 40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage; (ii) any tax that may be chargeable to the applicant on the above amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachAndrás SajóDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Dmitry Dedov is annexed to this judgment. A.S.A.M.W.", "CONCURRING OPINION OF JUDGE DEDOV 1. In my view, the present case provides an exclusive opportunity for the Court, and the domestic courts, to enrich and develop their case-law on defamation cases. The reason why I consider it necessary to write a separate opinion is that in defamation cases the European Court of Human Rights and the domestic courts adopt a completely different approach to and legal assessment of the same situation after applying the same methodology. Moreover, the position of the Court (expressed in general and even vague terms) does not explain or attempt to explain why the domestic courts were wrong. 2.", "The fact is that Russian judges are very well aware of the difference between statements of facts and value judgments. They also know that value judgments should be based – at least to some degree – on factual circumstances: “even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive” (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II; among Russian cases see, for example, Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, 21 December 2010, § 38). Both the Court and the domestic courts referred to the Resolution of the Plenary Supreme Court no.", "3 of 24 February 2005, which is a principal source for the courts on the substantive and procedural aspects of defamation cases and refers to the Convention and to the implementation of the Court’s case-law. 3. Turning to the application of the election procedure examined by the Russian courts in the context of domestic defamation proceedings, the courts found that the elections had been organised in accordance with those rules. The courts concluded that, according to the regulations on the election of the academic senate of the Orel State Technical University, only faculty councils were entitled to nominate their candidates to the senate, and that this right was not granted to smaller units like departments (кафедры) at the faculties; accordingly, the candidates were not to be discussed at the physics department where the applicant worked at the material time. I ought to mention that those regulations are widely accepted by other universities in Russia.", "The courts established that the council of the Faculty of Electronics and Instrumentation had discussed the candidates and nominated its candidate (in fact a representative in the senate I believe) and that the physics department had not discussed the candidates. The courts concluded that the applicant had failed to prove that the newly elected senate was illegitimate. It seems that the domestic courts did comply with international standards in principle, so it is not sufficient, in my view, for the Chamber to find a violation of Article 10 of the Convention by mere reference to self‑governance in the “academic” or “professional” context, or to “acts or omissions of an elected body” (the latter was not the subject of any criticism by the applicant at all) or to “exaggerations as long as they do not overstep the limits of admissible criticism” (see paragraphs 25-27 and 33 of the judgment). It is hard to say that the case-law of the Court referred to by the Chamber (including the case of Palomo and Sanchez and Others v. Spain) is capable of supporting a finding of a violation in the present case, so the position of the Court needs further clarification. Further, I would like to explain some deficiencies in the domestic proceedings which, in my opinion, led to the violation of Article 10 of the Convention.", "4. With regard to statements of facts and value judgments, the Court noted that “the domestic courts considered the applicant’s subjective appraisal of the election procedure to be a factual accusation” (see paragraph 31 of the judgment). It was neither just an appraisal, nor a statement of fact. The applicant concluded that the elections were unlawful and that therefore all the senate’s decisions should be deemed unlawful. That was a legal opinion.", "Therefore, the Orel Regional Court was wrong to say that the issue of the legitimacy of a governing body was a factual statement, even if the allegation that the academic senate could not be considered a legitimate body was verifiable in court (see paragraph 13 of the judgment). It is clear that the verification of that opinion includes a legal analysis, not the establishment of facts alone. Paragraph 7 of the above-mentioned Resolution of the Plenary Supreme Court provides that statements damaging honour, dignity or professional reputation include statements on the violation of laws or the commission of dishonest or unethical acts. In my view, this position is fair in relation to those violations of laws which could be considered to be dishonest or unethical acts. The shortcomings of the election procedure themselves could not be considered dishonest or unethical, so the national courts had to dismiss the defamation claim lodged by the university.", "The District Court stressed, however, that the applicant had accused the newly elected senate of dishonest acts. That was a further mistake. One may conclude that the applicant in fact accused the management of the university of converting public elections into a private affair. I assume that the management, not the university itself, had to bring the case before the court. This position complies with the principles of corporate law according to which a conflict may arise between the shareholders and the management, but not between the shareholders and the company.", "The only exception relates to criticism of the activity and results of the organisation as a whole. The applicant did not mention anyone’s name, but it was clear that his message was personalised with respect to those who were responsible for organising the election process and their families. The issue is whether the applicant “overstepped the limits of admissible criticism” (see paragraph 32 of the judgment). It may be possible to agree with the conclusion of the domestic courts if we take into account part of the recommendation issued by the Russian Education Ministry on 21 September 2006 (no. 18-02-10/08) on the procedure for electing a rector of a university.", "According to this document, the senate of the university approves the list of candidates to be elected at the conference of delegates. The senate election procedure is similar to that recommendation, so it is not so easy to find someone personally liable. On the other hand, there are governing standards for universities approved by the Russian Government on 14 February 2008 and amended on 2 November 2013 (Resolution no. 71) which provide in section 57 that the senate is an elected representative governing body (выборный представительный орган) of the university which is to be elected at the general meeting of the staff or at the conference of delegates. The internal regulations of the university establish the number of representatives (нормы представительства) so that each structural unit can be represented at the senate.", "The University’s internal regulations allow faculties, not their departments, to be represented in the senate. Each faculty is allowed only one representative in the senate. The regulations do not empower the faculty councils to nominate the candidates and do not explicitly preclude the staff members from evaluating the candidates. Nor do the internal regulations allow the staff members to nominate themselves to stand for election as candidates (under section 60 of Resolution no. 71, such an opportunity does exist, for example in relation to the self-nomination of candidates for the position of rector).", "Democratic elections cannot be effective without alternative candidates. This principle was vital for the contested election of the University of Cambridge Chancellor in 2011 as the election was the first time the Chancellorship had been contested since 1950, and the first actively fought contest since 1847. Three other candidates were nominated to oppose the candidate proposed by the University’s Nomination Board. On hearing of his success, Lord Sainsbury, who won the election, said: “I am delighted and honoured to have been elected as the next Chancellor of Cambridge University, and would like to thank all those who have supported me, and the other candidates who have made this such a friendly election. I am particularly pleased that the election did not turn into a battle between the arts and humanities and science, or between political parties, and I look forward to championing the University in its entirety at home and abroad in the years ahead”.", "These words reflect an impressive development of democratic society and election culture. Turning to the present case, the election regulations seem to be controversial: the faculty council is authorised to discuss and to nominate its candidate/representative, but the ordinary professors have to vote in favour of this candidate/representative without any alternatives. Such a distinction between the choice of the best candidates by faculty councils and the voting at the conference by ordinary professors within the election process (two consecutive, but equal, steps to be made by different groups) leads to the conclusion that the subsequent step (voting) becomes pointless and that the ordinary professors are excluded from the election of their representatives. Hence, in my opinion, the present case cannot be examined without an analysis of the nature of the impugned relations in the context of a representative democracy. This analysis should have been done by the courts at both the international and the domestic level, but they failed to do so.", "5. Democracy: according to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Jerusalem, cited above, § 32). The Court preferred not to take this position as a basis for its judgment.", "Moreover, the phrase “the test of necessity” mentioned in paragraph 26 of the judgment does not have the standard extension “in a democratic society” (see, for example, Jerusalem, cited above, § 33). This creates the impression that the Court preferred to limit itself to the professional and academic context in order to separate this category of defamation cases from “political” ones where journalists, members of parliament or other political figures are involved. I cannot agree with this approach. I believe that the present case relates, more fully, to democracy in the professional and academic context. The Court acknowledged that the applicant had commented on a matter of public interest for the University staff (see paragraph 31 of the judgment), but this is insufficient to conclude that there was a violation of the Convention.", "The State regulations mentioned above and the University’s internal regulations do not prohibit or otherwise preclude the staff members from discussing candidates. But the nature of the democratic process requires such a discussion. The members of the senate are representatives of their units, and no alternative candidates were presented at the conference. This means that a proper election should be organised at the level of the faculty. This level should include the participation of all the staff members, otherwise the election process is actually replaced by a nomination, and stuff members are excluded from the election process under the regulations of the University (and potentially of other universities in Russia).", "The heads of departments are not automatically entitled to speak on behalf of their staff at the faculty council on the issue of a representative government of the University. Therefore, the applicant raised the issue of voting rights and the University management reacted inadequately in the form of a defamatory claim instead of organising a public debate on this issue at the conference. The domestic courts obliged the applicant not merely to pay compensation, but also to read out a statement at another conference of the University that his allegations did not match the reality. In my view, the national courts’ decisions had a chilling, or even humiliating, effect on the applicant. I ought to mention that, according to the Code of Good Practice in Electoral Matters (Guidelines and explanatory report adopted by the Venice Commission at its 52nd session on 18-19 October 2002), universal suffrage means in principle that all human beings have the right to vote and to stand for election.", "The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging participation in debates on matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). This means that the Convention inherently protects democratic principles through the freedom of expression applicable to any organisation. It is vital that democracy start much earlier than parliamentary elections; it starts at the level of local municipalities, associations and organisations. I believe that the protection of representative democracy should prevail over the autonomy of an organisation such as the University, which enjoys a certain degree of autonomy under Russian law in relation to its self-government.", "Further to the findings above, I conclude that the domestic courts and the management of the University revealed an apparent lack of any genuine concern to combat the deficiencies in the senate election process. On the contrary, they did their best to prove that there was no problem with democracy. Such a perception of democracy should be improved in order to protect human dignity and safeguard the progress of society. My analysis is quite detailed, but the values of the Convention cannot be protected by mere reference to the importance of a public debate without identifying those values which may be regarded as a matter of general interest and the subject of public debate. For this purpose the Court undertook a very detailed analysis in the Von Hannover v. Germany (no.", "2) judgment and concluded in paragraph 124 that “the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest”. In the present case the national courts - after a detailed analysis of the facts and law - established that there was no general interest or subject of public debate. The mere reference to the applicant’s dissatisfaction with violation of ordinary professors’ rights is, in my view, not enough to rebut the conclusions of the national courts." ]

[ "SECOND SECTION CASE OF VARGA v. HUNGARY (Application no. 3360/04) JUDGMENT STRASBOURG 23 May 2006 FINAL 23/08/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Varga v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrI.", "Cabral Barreto,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mr S. Naismith, Deputy Section Registrar, Having deliberated in private on 2 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 3360/04) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Varga (“the applicant”), on 21 November 2003. 2. The applicant was represented by Mr M. Nemes, a lawyer practising in Komárom. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.", "3. On 15 September 2005 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 4. The applicant was born in 1948 and lives in Komárom.", "5. On 3 July 1994 criminal proceedings were instituted against the applicant and his accomplices on charges of instigation to smuggling of weapons and of other offences. 6. On 6 December 1994 a bill of indictment was preferred. 7.", "The Tatabánya District Court held hearings on 20, 21 April, 9 May and 13 June 1995. On the latter date it ordered that the investigation be resumed. The time-limit for the completion of the investigation was prolonged on 7 September and 27 October 1995, and also at the hearings on 7 December 1995, 4 June and 13 November 1996. Simultaneously, legal assistance was being sought from the Slovak authorities. 8.", "Further hearings took place on 17 April, 7 October, 13 November and 11 December 1997. At the hearing on 22 January 1998 the case against two co-defendants was separated since they were abroad. Another hearing was held on 29 January 1998. 9. On 4 February 1998 the District Court acquitted the applicant.", "10. On appeal, on 20 March 2000 the Komárom-Esztergom County Regional Court quashed this judgment, essentially for procedural shortcomings, and remitted the case. It ordered that the case be given priority. 11. In the resumed proceedings the case fell within the Regional Court’s jurisdiction acting at first instance due to a legislative change.", "12. The Regional Court held hearings on 7 February and 26, 27 and 28 June 2001. On the latter date it appointed a medical expert. A further hearing was held and another expert appointed on 27 September 2001. 13.", "Additional hearings took place on 1 March, 12 April, 30 August, 22 November and 20 December 2002, and 22 January, 25 February and 9 May 2003. 14. On 22 May 2003 the court finally acquitted the applicant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 16. The Government contested that argument. 17. The period to be taken into consideration began on 3 July 1994 and ended on 22 May 2003. It thus lasted more than eight years and ten months for two levels of jurisdiction.", "A. Admissibility 18. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II) 20. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above). 21.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed 3 million Hungarian forints[1] in respect of pecuniary and non-pecuniary damage. 24. The Government contested the claim.", "25. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 8,000 euros (EUR) under that head. B.", "Costs and expenses 26. The applicant made no claim under this head. C. Default interest 27. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. NaismithJ.-P. Costa Deputy RegistrarPresident [1] EUR 11,600" ]

[ "FOURTH SECTION CASE OF F AND M v. FINLAND (Application no. 22508/02) JUDGMENT STRASBOURG 17 July 2007 FINAL 17/10/2007 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 F and M v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrS.", "Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 26 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22508/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, (“the applicants”), on 7 June 2002. The President of the Chamber decided, of his own motion, that the applicants' and their daughter's identity should not be disclosed (Rule 47 § 3 of the Rules of Court). 2.", "The applicants, the first of whom had been granted legal aid, were represented by Mr E. Kivitie, a lawyer practising in Pori. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The first applicant alleged, in particular, that the criminal proceedings had been excessive in length and that the rights of the defence in respect of witnesses, i.e. the child complainant, had not been respected.", "4. On 28 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1953 and 1950 respectively. A. Public care of D 6. F and M are the father and the mother of D, a girl born on 10 June 1984. On 4 June 1991 she was admitted to the child psychiatric department of a hospital for a six-week period for observation.", "During the observation she mentioned that she had played “finger games” with her father. According to the parents, D had referred to hobby crafts. It appears that the psychologist and the social welfare authorities interpreted this as sexual petting. 7. D received treatment at the hospital from 5 August 1991 to 12 August 1994, following which she went to live in a substitute family.", "The applicants were allegedly refused access to D during her hospitalisation. 8. Meanwhile, on 18 November 1991 the Social Welfare Board (sosiaalilautakunta, socialnämnden) decided to place D in public care on account of a suspicion that she had been sexually abused. The applicants unsuccessfully challenged the public care decision in the administrative courts. It appears that the Supreme Administrative Court rendered its decision in 1995.", "9. The social welfare officials allegedly told the applicants that the girl would return to live with them if they assumed responsibility for the situation and acknowledged the abuse. Although the applicant father was allegedly not guilty of any abuse, on 23 October 1991, he admitted the abuse to the social welfare officials and a psychiatrist in order to have D return home. He did not describe the nature of the abuse. On 7 May 1992 he withdrew his admission as he felt that he could not bear having this lie on his conscience for the rest of his life.", "10. In 1995 the applicants lodged an application with a view to having the public care terminated. In the course of those proceedings, on 21 March 1995, the Social Welfare Board reported to the police the alleged sexual abuse committed in 1990-91. As to the fact that several years had passed since the initial suspicion had arisen, the Board explained that it had refrained from taking criminal action in order to afford the applicants an opportunity to seek therapy. If the therapy had proved successful, the public care could have been terminated and D could have returned to live with the applicants.", "The Board apparently considered that the applicants' therapy had proved unsuccessful. B. Criminal proceedings 1. The pre-trial investigation 11. As noted above, the alleged sexual abuse was reported on 21 March 1995.", "On 19 October 1995 the applicant father was questioned by the police. He denied any abuse. D, now aged 11, was not questioned during the pre-trial investigation. Nor was the father asked whether he wished to have questions put to the girl. The investigation was completed on 17 February 1997.", "2. The Pieksämäki District Court 12. On 27 January 1998 the public prosecutor brought charges against the father for sexual abuse of a minor and for sexual intercourse with a descendant (lapseen kohdistuva haureus ja sukurutsa jälkeläisen kanssa, otukt med barn och blodskam med avkomling). 13. In its written submission of 5 June 1998 to the District Court (käräjäoikeus, tingsrätten) the Social Welfare Board claimed compensation on behalf of D. It also submitted a written medical opinion by Dr S.V., a psychiatrist, according to which the hearing of D before the court would harm her development.", "It appears that Dr S.V. had not seen D since 1992 or 1993. 14. On 26 August 1998 the applicant father was summoned to the District Court hearing. On 17 September 1998 he submitted his written submission, denying the charges.", "He criticised the Social Welfare Board for not having reported the alleged abuse sooner, given the fact that the report had been based on a suspicion which had first arisen in 1991. Further, he requested that D, now aged 14, be heard before the court. 15. At the hearing on 28 September 1998 he denied the charges and maintained that D should be heard either before the court or elsewhere. The court refused the request, considering that the hearing of the girl before the court would not be in her best interests having regard to the time that had passed since the alleged offences and the therapy that she had received.", "The court made reference to the above written medical opinion prepared by Dr S.V. 16. The court received oral evidence from the social welfare director L.K., the applicant mother, Dr S.V., E.V, a psychologist, Dr H-O.P., a psychiatrist, A.V., a social worker, D's substitute mother and D's teacher. E.V. gave evidence to the effect that she had heard about the events from D herself.", "D had said that her father had tickled her genital area and that she had tickled his penis which had risen following which he had urinated on her hand. She had also said that he had put his penis in her mouth and kept it there for a long time until he had urinated into her mouth. D had also lain on top of her father and his penis had been on her genital area. Dr H-O.P., L.K. and A.V.", "testified to having been present when the applicant father had admitted the alleged abuse. None of the witnesses had made any observations on the alleged acts. 17. The court noted that the evidence produced before it was based on D's statements to the medical personnel of the institution in which she had been treated, and on circumstances that had been observed during the observation. There was no forensic evidence as to the alleged abuse.", "On the other hand, there was the admission by the applicant father which had seemed authentic and true to the above witnesses. The court concluded that the statements of Dr S.V. and E.V. proved that the applicant father was guilty of the alleged offences. Having regard to the seriousness of the charges, his admission alone did not suffice to prove his guilt.", "However, it did not lack significance since according to A.V. and L.K. it had been made voluntarily without any pressure having been exercised on him; nor had he been misled. 18. On 8 October 1998 the District Court convicted the applicant father as charged and sentenced him to a suspended term of one year and two months' imprisonment.", "He was ordered to pay compensation plus the legal costs of D's representation. 3. The Eastern Finland Court of Appeal 19. On 9 November 1998 the applicant father appealed, maintaining that D should be heard. He also requested that the National Authority for Medico-legal Affairs (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) be invited to interview her.", "20. The Court of Appeal (hovioikeus, hovrätten) refused the requests. It however held an oral hearing and received the same oral evidence as had been presented to the lower court. Dr S.V. now testified to having met D some weeks before the Court of Appeal hearing and to having asked her about the alleged abuse.", "D had replied that her father had not abused her sexually in any way. The Court of Appeal also received oral evidence from the applicant father. 21. On 1 July 1999 the Court of Appeal amended the District Court's judgment in that it rejected the charge of sexual intercourse with a descendant. It upheld the rest of the lower court's judgment, endorsing its reasoning.", "It did not comment separately on the testimony of Dr S.V. 4. The Supreme Court 22. On 30 August 1999 the applicant father appealed further, maintaining that D should be heard in particular as she had denied the sexual abuse to Dr S.V. some weeks before the Court of Appeal hearing.", "He repeated his request that the National Authority for Medico-legal Affairs be invited to interview the girl. He also submitted a letter from D in which she stated that nothing improper had taken place between her and her father. 23. On 14 December 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal insofar as the compensation claims were concerned and received the Social Welfare Board's reply to the appeal. 24.", "On 2 May 2000 the Supreme Court invited an expert opinion from the National Authority for Medico-legal Affairs on, inter alia, whether D could be heard before the court. On 12 September 2000 the Authority received an expert statement running to 7 pages from its standing expert, Dr E.R. It also invited an opinion by the psychiatrist who had treated D, Dr S.V. It was received on 26 February 2001. As these opinions were partly contradictory in respect of the question whether D could be heard before the court, the Authority requested, on 5 March 2001, Dr E.R.", "'s comment on the opinion of Dr S.V. It was received on 28 March 2001. The Authority submitted its opinion to the Supreme Court on 4 April 2001 following which it was communicated to the parties for comment. 25. On 12 December 2001 the Supreme Court refused leave to appeal insofar as the criminal aspects of the case were concerned.", "As to the compensation claims, it quashed the lower courts' judgments and remitted the case to the District Court as the Social Welfare Board had lacked competence to represent D in the proceedings. 5. Second examination of the compensation claims 26. On 14 December 2001 the case was restored to the District Court's case-list. 27.", "On 16 September 2002 the court, having held an oral hearing at which it heard D, among others, ordered the applicant father to pay compensation to D in the amount of 20,182 euros plus interest from 4 August 1991. 28. The applicant father and D appealed. On 24 August 2004 the Court of Appeal, having held a hearing, revoked the lower court's judgment and rejected the claims. In those proceedings D now aged 20 testified that she had never been sexually abused by her father.", "No one appealed. 29. Meanwhile, on 10 June 2002 when D reached the age of majority she moved back in with her parents. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The pre-trial investigation 30. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).", "31. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3)). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience.", "Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8). 32. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1)). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her.", "Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34). 33. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42).", "B. The receipt of evidence in court 34. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 35. A witness must give testimony orally before the court and must not refer to a written testimony.", "Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948). 36. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten.", "37. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence. C. Subsequent amendments 38. The Code of Judicial Procedure was amended with effect from 1 October 1997 to the following effect.", "A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit as evidence such a statement, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). 39. The Code of Judicial Procedure was again amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no.", "360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence. 40. Chapter 17, Article 21 (as amended by Act no.", "360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows: “(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and: (i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and (ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development. (2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997). (3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned.", "Where necessary, the hearing may take place on premises other than the court room.” 41. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows: “The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed.", "The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 42. The applicant father complained that the criminal proceedings had been excessive in length and that D had not been heard at any stage of the proceedings.", "He also complained that the courts had allowed the Social Welfare Board to submit claims on behalf of D although it lacked the competence to do so and that the public prosecutor and the Social Welfare Board had only relied on witness evidence supporting the charges, thus violating the equality of arms principle. Moreover, in their submission of 10 October 2005 the applicants complained about the length of the compensation proceedings ending with the Court of Appeal judgment of 24 August 2004. Article 6 reads insofar as relevant: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 43.", "The Government contested those arguments. A. Admissibility 44. The Court notes that the complaints about the length of the criminal proceedings and the fact that D was not questioned during the proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "45. The applicant father also complained that the courts had allowed the Social Welfare Board to submit claims on behalf of D although it lacked the competence to do so and that the public prosecutor and the Social Welfare Board had only relied on witness evidence supporting the charges, thus violating the equality of arms principle. Lastly, in their submission of 10 October 2005 both applicants complained about the length of the proceedings ending with the Court of Appeal judgment of 24 August 2004. 46. Insofar as the applicants complained about the length of the civil aspect of the proceedings, the Court finds that the applicant mother cannot claim to be a “victim” within the meaning of Article 34 of the Convention and, moreover, as regards both applicants, that this complaint was introduced more than six months after the final domestic decision for the purposes of Article 35 § 1 of the Convention.", "It follows that this complaint must be rejected in accordance with Article 35 §§ 3 and 4 and Article 35 §§ 1 and 4 of the Convention respectively. 47. As for the remaining complaints, the applicant father has not explained how the fact that the Social Welfare Board, in addition to the public prosecutor, lodged claims against him had violated his right to a fair trial. Nor has he specified what evidence, in addition to the testimony of D, should in his opinion have been produced before the courts. Accordingly, this part of the application is manifestly ill-founded for lack of substantiation and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "B. Merits of the length complaint 48. The period to be taken into consideration began on 19 October 1995 when the applicant father was questioned by the police and ended on 12 December 2001 when the Supreme Court refused leave to appeal in the criminal case. It thus lasted almost six years and two months for three levels of jurisdiction. 49.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 50. The Government argued that the criminal proceedings had been more complex than the average case. The fact that there had been parallel administrative proceedings concerning the care order had to some extent prolonged the pre-trial investigation.", "Also the fact that the applicant father had requested an expert opinion had prolonged the proceedings by eleven months. There had been no periods of unnecessary inactivity attributable to the courts or other authorities. 51. The applicant father contested the Government's contention that there had been public care proceedings running parallel to the pre-trial investigation. Furthermore, the length of the proceedings could not be explained in terms of the factual complexity of the case.", "52. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 53. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. C. Merits of the complaint concerning the rights of the defence 54. The Government argued that D had the right pursuant to the Code of Judicial Procedure not to testify against her father. She had neurological problems and in her mental development she was below normal. The experts consulted during the investigation and the trial proceedings considered that D could not be heard in person because she had not reached the normal level of development and that hearing her would have jeopardized her treatment.", "55. The applicant father considered that the Government's submission that D could have refused to testify against her father was shocking in that she had tried to use all the resources at her command to convince the authorities that no act of incest had ever occurred. Her testimony would have prevented the trial and the immeasurable distress and suffering caused to the whole family. 56. The Court reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument.", "However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him or her either when the statements were made or at a later stage of the proceedings (see Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX). A conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge (see, mutatis mutandis, Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996‑II, p. 472, § 76).", "Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89). 57. The child complainant in this case should for the purposes of Article 6 § 3 (d) be regarded as a “witness”, a term to be given an autonomous interpretation (see Asch v. Austria, judgment of 26 April 1991, Series A no.", "203, p. 10, § 25), because her statements, as given to a psychologist in 1991, were used in evidence against the applicant father. 58. Criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the alleged victim.", "Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence (see Baegen v. the Netherlands, judgment of 27 October 1995, Series A no. 327-B, opinion of the Commission, p. 44, § 77). In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours (see Doorson, cited above, p. 471, § 72, and P.S. v. Germany, no. 33900/96, § 23, 20 December 2001).", "59. The Court observes that the applicant was never given an opportunity to have questions put to the girl during the pre-trial investigation. In fact, she was never questioned at all in the course of the investigation. As to the proceedings in the District Court and the Court of Appeal, it should be noted that the applicant requested her attendance but his requests were turned down. 60.", "The child's statements given to the psychologist E.V. in 1991 constituted the only evidence implicating the father. Not a single interview between the psychologist and the girl had been recorded on audio or video tape. It is surprising that the prosecution never made arrangements to have a fresh interview recorded so as to allow the court to observe the manner in which D reacted to the questions put to her or interacted generally with the psychologist during the interview. The psychologist repeated before the court what D had said to her under observation (see paragraph 16 above).", "The psychologist's statement was highly incriminating. As to the fact that the applicant father had admitted the alleged abuse, the Court observes that the admission, which was unspecific in nature, had been made four years before the criminal investigation had been opened into the case and in connection with public care proceedings. It was later retracted and during the pre-trial investigation and the criminal proceedings he had explained the circumstances in which it had been made (see paragraph 9 above). The witnesses heard by the courts had made no observations on the alleged acts (see paragraph 16 above). In contrast to the case of S.N.", "v. Sweden (no. 34209/96, ECHR 2002‑V) in the present case neither the applicant father nor his counsel had at any stage been afforded an opportunity to have questions put to the child. An examination of the case file does not disclose any particular circumstances which would have prevented this. It is to be observed in this connection that at the time of the pre-trial investigation D had been 11 years old and at the time of the District Court hearing 14 years old. 61.", "In these circumstances, the applicant father's inability to question or to have questions put to her involved such limitations on the rights of the defence that he cannot be said to have received a fair trial. Therefore there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (d). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 62. The applicants further complained that their right to respect for their family life had been violated in that they had been prohibited from visiting D during her hospitalisation.", "Article 8 of the Convention: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 63. The Court observes that D was hospitalised from 1991 to 1994.", "The applicants have not shown that they took proceedings against the restriction of access order or, if they had, that they lodged their application with the Court within a period of six months from the date on which the final decision was taken. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 65. The applicants claimed 350,000 euros (EUR) as compensation for pain and suffering. 66. The Government considered the claim exorbitant as to quantum. 67.", "The Court accepts that the length of the criminal proceedings and the impossibility for the applicant father to have questions put to the girl caused him non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the applicant father EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses 68. The applicant father claimed EUR 10,246 for costs and expenses incurred.", "The legal aid granted by the Council of Europe (EUR 850) had not been deducted in calculating the claim. 69. The Government left it to the Court's discretion whether sufficient detailed information to support the claims had been submitted, as was normally required by the Court. The total amount of compensation for costs and expenses should not exceed EUR 5,000 (inclusive of value-added tax). 70.", "The Court reiterates that an award under this head may be made only in so far as the costs and expenses were actually and necessarily incurred in order to avoid, or obtain redress for, the violation found (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). The Court finds that the claims have been fully substantiated only as far as the fees and expenses amounting to EUR 4,083.80 (inclusive of value-added tax) are concerned. As to the rest of the claims, no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected. The Court also notes that part of the applicant father's complaints has been declared inadmissible.", "Taking into account the legal aid granted by the Council of Europe and all the circumstances, the Court awards the applicant father EUR 2,150 (inclusive of value-added tax). C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the criminal proceedings and the applicant father's inability to question the complainant or to have questions put to her admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3(d) of the Convention on account of the applicant father's inability to question the complainant or to have questions put to her; 4. Holds (a) that the respondent State is to pay the applicant father, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 2,150 (two thousand one hundred and fifty euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the claims for just satisfaction. Done in English, and notified in writing on 17 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KADUK v. UKRAINE (Application no. 21798/05) JUDGMENT STRASBOURG 20 January 2011 This judgment is final but it may be subject to editorial revision. In the case of Kaduk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Rait Maruste, President,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 14 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21798/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Larisa Vladimirovna Kaduk (“the applicant”), on 27 May 2005.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 22 October 2008 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee of three Judges. On 27 November 2009 an additional question concerning the applicant’s complaint under Article 13 of the Convention was put before the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in the village of Solontsievka, Kharkiv Region, Ukraine. 5.", "On 15 March 1998 the applicant’s husband, who worked as an electrician at the construction site, died as a result of a work-related accident. On 10 September 1998 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv against a joint stock company “T.”(“the company”) claiming compensation for pecuniary and non-pecuniary damage sustained as a result of his death. 6. On 15 September 1998 the case was transferred to the Zhovtnevy District Court of Kharkiv, which on 24 January 2001 allowed in part the applicant’s claims. 7.", "On 24 April 2001 the Kharkiv Regional Court[1] upheld this judgment. It became final. 8. On 21 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three-month period with the Supreme Court against court decisions adopted before 21 June 2001 and which had entered into force before that date.", "On 19 July 2001 the company lodged an appeal in cassation. 9. On 28 February 2002 the Supreme Court quashed the decisions of the lower courts and remitted the case for a fresh consideration to the first instance court. 10. In the course of the proceedings before the first instance court three other companies and the local department of the State Insurance Fund for Work-Related Accidents and Diseases (“the Fund”) were joined as co-defendants.", "11. On 10 March 2006 the Zhovtnevy District Court of Kharkiv found in part for the applicant. The court awarded her, inter alia, UAH 68,648.34 (about EUR 11,366) to be paid by the Fund. 12. The Fund appealed against that judgment; however, on 24 October 2006 the Kharkiv Regional Court of Appeal declined its appeal as lodged out of time.", "The Fund appealed in cassation. On 13 December 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, quashed that decision and remitted the matter of the admissibility of the appeal for a fresh consideration. 13. On 5 November 2008 the Kharkiv Regional Court of Appeal partly allowed the appeal by the Fund and ruled that the above amount of UAH 68,648.34 should be paid by the company and not by the Fund. It upheld the remainder of the judgment.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” 15. The Government contested the applicant’s complaint.", "16. The applicant instituted proceedings on 10 September 1998. The Court reiterates that it can take into account only those periods when the case was actually pending before the courts, thus excluding from calculation those periods between the adoption of the final and binding judgments and their revocation in the course of the extraordinary proceedings (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004, and Pavlyulynets v. Ukraine, no. 70767/01, §§ 41-42, 6 September 2005).", "The Court notes that the judgment of 24 January 2001 became res judicata on 24 April 2001, when it was upheld by the court of appeal. The Court further observes that it was only by virtue of the introduction of the new transitional remedy on 21 June 2001 that the applicant was able to challenge the decisions of the lower courts. In such circumstances, the recourse to the Supreme Court to challenge proceedings which had been brought to an end by a final decision must be seen as akin to a request to reopen those proceedings by means of the extraordinary transitional remedy provided for by the Law of 21 June 2001 (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002‑X). Therefore, the period from 24 April 2001 to 28 February 2002 cannot be taken into account.", "The proceedings ended on 5 November 2008. They thus lasted about nine years and four months at three levels of jurisdiction. A. Admissibility 17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 18. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000- VII).", "19. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 21. The applicant further complained under Article 13 of the lack of an effective remedy for the length-of-proceedings complaint. The relevant provision of the Convention reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 22.", "The Government submitted that this complaint should be declared inadmissible as the applicant cannot be considered a victim of the alleged violation. 23. The applicant disagreed. 24. The Court notes that this complaint was lodged by the applicant in April 2009.", "The Court finds that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 25.", "The Government submitted that Article 13 was not applicable to the circumstances of the present case, since the applicant had never made out an arguable claim under Article 6 § 1. 26. The applicant disagreed. 27. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). The Government did not name any such remedy available to the applicant. 28. The Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention (see Efimenko v. Ukraine, no. 55870/00, § 64, 18 July 2006).", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE UNFAIRNESS OF THE PROCEEDINGS 29. The applicant complained under Article 6 § 1 of the Convention about unfairness of the proceedings in her case. 30. The Court notes that the applicant failed to appeal in cassation against the decision of 5 November 2008 (see Vorobyeva v. Ukraine (dec.), no.", "27517/02, 17 December 2002). 31. It follows that this part of the application must be declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 34. The Government contested these claims.", "35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis, it awards the applicant EUR 2,400 in respect of non-pecuniary damage. B. Costs and expenses 36.", "The applicant, who was not represented before the Court, claimed UAH 1,300 (about EUR 120) for the legal expenses incurred before the Court. She provided a receipt evidencing payment to a lawyer of the above amount for drafting documents to the Court. She also claimed UAH 212.79 (about EUR 20) for mailing her letters to the Court. The applicant provided postal receipts in support of this claim. 37.", "The Government contested the claim of UAH 1,300. They left the claim of UAH 212.79 to the Court’s discretion. 38. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 140 under this head.", "C. Default interest 39. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the excessive length of the proceedings and lack of an effective remedy in that respect admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings; 3.", "Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 140 (one hundred and forty euros) for the costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy RegistrarPresident [1] Since June 2001 the Kharkiv Regional Court of Appeal" ]

[ "SECOND SECTION CASE OF LAKATOŠ AND OTHERS v. SERBIA (Application no. 3363/08) JUDGMENT STRASBOURG 7 January 2014 FINAL 07/04/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lakatoš and Others v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Dragoljub Popović,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 3 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3363/08) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Serbian nationals, Mr Slavko Lakatoš (“the first applicant”), Mr Lajči Dimović (“the second applicant”), Mr Ivica Dimović (“the third applicant”), Mr Maćaš Dimović (“the fourth applicant”), Ms Ramajana Ametov (“the fifth applicant”), on 7 January 2008. 2. The applicants were represented by Mr V. Juhas Đurić, a lawyer practising in Subotica (“VJĐ”). The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their Acting Agent, Ms Vanja Rodić. 3.", "The applicants alleged that they had suffered numerous violations of Articles 3, 5, 6 § 2 and 8 of the Convention, all in the criminal justice context. 4. On 22 September 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first, second, third, fourth and fifth applicants were born in 1974, 1980, 1980, 1957 and 1979 respectively. The third applicant lived in Hajdukovo, whilst all other applicants lived in Subotica. A. The underlying events and the subsequent criminal proceedings 6.", "In the course of 2006 and 2007 numerous robberies took place in the municipalities of Bačka Palanka, Bačka Topola, Bački Petrovac, Bečej, Kula, Novi Sad, Odžaci, Senta, Sombor and Vrbas (in northern Serbia). The main targets were older persons and some of them suffered grievous bodily harm. One such robbery took place in Kucura, a village in the vicinity of Vrbas, on 5 November 2007 at about 8 p.m. Shortly thereafter a police patrol noticed what it deemed to be a suspicious vehicle near that village. Whilst they managed to arrest another person, PN, according to the Government, the first, second and third applicants escaped.", "The next morning the fourth and fifth applicants allegedly went to give them a lift back to Subotica. A police patrol, however, stopped them before they entered the town. All five applicants were then arrested and taken to the Novi Sad Police Station. 7. On 6 November 2007 the investigating judge ordered that DNA samples be taken from the applicants.", "Later on, the fifth applicant was released. 8. On 7 November 2007, in their separate reports to their superiors, the police officers involved in the above-described operation stated that the applicants had resisted arrest and/or tried to escape, which is why force had had to be used and the applicants had sustained some injuries. In particular, the first and third applicants had excoriations on their foreheads, the second applicant had “redness on his forehead (above his eyebrows) as well as around his right eye”, and the fourth applicant had an “excoriation on the left side of his head (temporal bone)”. Concerning the first and the third applicants, the reports noted that they were not provided with medical assistance since they never asked for any.", "Officer VD is also referred to as having been injured by the second applicant in the course of arrest. 9. On 8 November 2007 the first, second, third and fourth applicants were taken to the investigating judge. They complained, in the presence of the public prosecutor, of being beaten by the police during arrest and whilst in the Novi Sad Police Station. The investigating judge also noted the injuries sustained by the second and fourth applicants respectively.", "In particular, the second applicant’s injuries included two excoriations and one laceration on the left rear side of his neck, while the fourth applicant’s injuries included bruises on his left shoulder and his face. With the authorisation of the investigating judge, the applicants’ lawyer took photographs of their injuries. The fourth applicant was then released, whereas the first, second and third applicants were remanded in custody on suspicion of having committed numerous robberies and in view of the severity of the potential sentence and the nature of the crimes alleged (under Article 142 § 2 (5) of the Code of Criminal Procedure; see paragraph 38 below). The investigating judge stated that the crimes in question had all been committed in a similar manner, specifically that: (i) the assaults had occurred during the night; (ii) the victims were elderly people who had been living alone; (iii) overwhelming physical force had been used against them, resulting in some cases in serious bodily harm; and (iv) the victims had been left behind tied with ropes in their own homes. 10.", "On the same day the police held a press conference about this case. Reportedly, some of the highest-ranking officers at the Novi Sad Police Station referred to the applicants as members of a criminal group which had committed the said robberies. Also, the police apparently informed the journalists that the local population had been so alarmed that they had already started setting up “village guard units” (seoske straže) for their own protection (see Građanski list, a daily newspaper published in Novi Sad, 9 November 2007, p. 13). The photographs of the first, second, third and fourth applicants were released to the press. 11.", "Pursuant to an order of the investigating judge of 13 November 2007, the first, second and third applicants were medically examined on the same day. According to the medical report: (i) the first applicant had bruises and/or haematoma on the back of his head, left auricle, arms and legs; (ii) the second applicant on his forehead, left auricle, neck and legs; and (iii) the third applicant on his forehead, right shoulder, back and left foot. The fourth applicant did not attend the medical examination because he had apparently returned to Subotica. His injuries, however, were documented by the photos taken on 8 November 2007 and consisted of bruises and excoriations on his left shoulder, his back and his abdomen. 12.", "On 29 November 2007 the fifth applicant gave a statement to the investigating judge to the effect that she had been slapped in the face by the police upon arrest on 8 November 2007. 13. On 13 December 2007 the fourth and fifth applicants asked the investigating judge to inform them whether their DNA samples were still kept and, if so, to order their destruction. 14. On 29 February 2008 the public prosecutor issued an indictment.", "The first, second and third applicants, as well as PN, were charged with 14 robberies and 3 attempted robberies. The second applicant was also accused of causing grievous bodily harm with intent to resist arrest. On the same day the public prosecutor decided not to prosecute the fourth and fifth applicants. 15. On 11 June 2008, at the oral hearing held before the Novi Sad District Court, the third applicant stated, inter alia, that on 8 November 2007 he had shown his lawyer “the injuries sustained whilst in police custody in Novi Sad”.", "He further recounted that in the course of arrest “no force had been used against him”. 16. On 22 September 2008, pursuant to an order of the presiding judge, an additional medical report on the injuries sustained by the first, second and third applicants was produced. It stated that the injuries recorded on 13 November 2007 had been inflicted by “the repeated use of mechanical force”. The possibility that they had been caused by a fall was ruled out.", "Concerning the time-line, the first, second, and third applicants’ injuries would appear to have been sustained some three, seven and three days, respectively, prior to 13 November 2007. The report, however, stated in its introduction that there were no clear-cut stages in the temporal evolution of a haematoma. Lastly, the report considered the photographs taken of the first and second applicants’ injuries and concluded, inter alia, that there were some additional injuries recorded on 13 November 2007 compared to those shown on the photographs. Regarding the third applicant, there were discrepancies between the two. Most injuries, however, were registered on both occasions and some additional injuries were recorded on 13 November 2007.", "17. On 10 July 2009 the Novi Sad District Court found the first and the third applicants guilty of 13 robberies and 4 attempted robberies and sentenced them to 14 years and 6 months’ imprisonment respectively. It found the second applicant guilty of 13 robberies, 4 attempted robberies and causing grievous bodily harm to a police officer with intent to resist arrest and sentenced him to 15 years’ imprisonment. 18. On 1 March 2011 the Novi Sad Appeals Court quashed the first, second and third applicants’ convictions and ordered a retrial.", "In its reasoning, the court noted various procedural deficiencies and described the impugned judgement’s reasoning as “incomprehensible”. The first, second and third applicants’ detention, however, was extended based on the same grounds as before. 19. On 11 November 2011 the, now renamed, Novi Sad High Court again found the first, second and third applicants guilty and imposed the same sentences as earlier. In its reasoning, it referred to, inter alia, the medical expert’s findings of 13 November 2007 and 22 September 2008, as well as the statements given by the police officers involved, and concluded that the injuries sustained by the first, second and third applicants had been caused due to their attempts to resist arrest and/or escape from the police.", "The High Court lastly noted that following their admission to the District Prison on 9 November 2007, as regards the first and third applicants, and 12 November 2007, as regards the second applicant, the prison doctor had: (i) found no injuries concerning the first applicant; (ii) stated that the second applicant had been suffering from anxiety; and (iii) confirmed that the third applicant had had haematomas on his back. 20. On 4 June 2012 this judgment was upheld by the Appeals Court. 21. On 9 August 2012 the first, second and third applicants filed an appeal with the Constitutional Court, alleging numerous substantive and procedural violations.", "These proceedings are still pending. 22. On 28 December 2012 the first, second and third applicants were released from further serving their sentences in view of the general amnesty granted by the Serbian Parliament. B. Additional facts concerning the pre-trial detention 23.", "On 5 December 2007, 4 February, 4 March, 1 April, 30 May, 30 July, 1 October and 1 December 2008, 30 January, 1 April and 1 June 2009 the Novi Sad District Court extended the pre-trial detention of the first, second and third applicants in view of the severity of the potential sentence and the nature of the crime alleged. The legal basis and the reasoning in all these decisions, in so far as relevant, corresponded to the reasoning and legal basis of the detention order issued by the investigating judge on 8 November 2007 (see paragraphs 9 above and 38 below). 24. After their appeals had been rejected by the Supreme Court on the same basis, on 18 June 2008 and 6 July 2009 the third applicant lodged two separate constitutional appeals. In its decisions of 25 December 2008 and 8 October 2009, respectively, the Constitutional Court considered, among other things, whether the grounds and reasons for his pre-trial detention satisfied the requirements of a constitutional right equivalent to Article 5 of the Convention and decided that they did.", "In its decision of 25 December 2008, in the context of the constitutional appeal’s timeliness, the Constitutional Court examined the detention orders issued between 8 November 2007 and 30 May 2008 and concluded that they should be considered jointly (given the “existence of temporal continuity” and the fact that the third applicant had still been detained). The Constitutional Court’s decision of 8 October 2009 concerned the detention order of 1 June 2009. 25. On 9 June 2011 the Constitutional Court rejected the first, second and third applicants’ appeal regarding the length of their detention following the adoption of the District Court’s decision of 10 July 2009. C. Other relevant facts 26.", "On 31 July 2009 PN filed a criminal complaint alleging police abuse. On 6 December 2010 the public prosecutor rejected this complaint for lack of evidence that a crime had been committed. 27. On 31 December 2010 the Novi Sad High Court informed the Government that the fourth and fifth applicants’ DNA samples remained stored in the Novi Sad Forensic Medicine Institute. It further noted that there was no specific legislation on the storage, usage and destruction of DNA material.", "No such material could therefore be destroyed in the absence of a court decision to this effect. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06) 28.", "Article 16 § 2 of the Constitution read as follows: “... [R]atified international treaties are an integral part of the [Serbian] legal system ... and shall be directly applicable ...” 29. Article 18 of the Constitution read as follows: “Human and minority rights guaranteed by the Constitution shall be implemented directly. The Constitution shall guarantee ... the direct implementation of human and minority rights secured by the generally accepted rules of international law ... [and] ... ratified international treaties ... Legislation may prescribe the manner of exercising these rights only if so explicitly stated in the Constitution or if necessary for the enjoyment of a specific right owing to its nature, it being understood that such legislation may not under any circumstances influence the substance of the guaranteed right in question. Provisions on human and minority rights shall be interpreted ... pursuant to valid international standards on human and minority rights, as well as the practice of international institutions which supervise their implementation.” B.", "The Constitutional Court Act (Zakon o Ustavnom sudu, published in OG RS no. 109/07, amendments published in OG RS no. 99/11) 30. Article 87 provides that should the Constitutional Court rule in favour of a group of people on a given issue, that decision will also be applicable to other people in the same legal situation, even if they have personally never filed a constitutional appeal on the issue concerned. C. The Criminal Code (Krivični zakonik, published in OG RS no.", "85/05, amendments published in OG RS nos. 88/05, 107/05, 72/09 and 111/09) 31. Article 137 of the Code reads as follows: “1. Whoever ill-treats another or treats another in a humiliating and degrading manner shall be punished with imprisonment of up to one year. 2.", "Whoever causes severe pain or suffering to another for such purposes as obtaining from him or a third person a confession, a statement or information, or intimidating or unlawfully punishing him or a third person ... shall be punished with imprisonment from six months to five years. 3. If the offence specified in paragraphs 1 and 2 above is committed by an official acting in an official capacity, the official concerned shall be punished for the offence specified in paragraph 1 with imprisonment from three months to three years, and for the offence specified in paragraph 2 with imprisonment from one to eight years.” D. The Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in OG RS nos.", "58/04, 85/05, 115/05, 49/07, 122/08, 20/09, 72/09 and 76/10) 32. Article 3 provides, inter alia, that all State bodies and agencies shall respect the right of all persons to be presumed innocent unless and until their guilt has been established by a final court decision. 33. Article 5 provided, inter alia, that a detained person had to be informed of his or her right to be examined by a medical doctor “without delay”. This duty applied to the police as well as the investigating judge (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, Justinijan, Belgrade, 2005, p. 35).", "Article 5 was somewhat changed with the entry into force of the amendments to the Code of Criminal Procedure published in OG RS 72/09. 34. Article 12 prohibits, inter alia, any and all violence aimed at extorting a confession or a statement from the suspect and/or the accused, or indeed any other person involved in the proceedings. 35. Articles 19, 20, 46 and 235, read in conjunction, provide, inter alia, that formal criminal proceedings (krivični postupak) may be instituted at the request of an authorised prosecutor.", "In respect of crimes subject to prosecution ex officio, including ill-treatment and torture, the authorised prosecutor is the public prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the public prosecutor has learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect. 36. Article 133 provides, inter alia, that the defendant’s participation in the criminal proceedings may be secured by means of sending “summonses, his forcible production in court, the issuance of a prohibition of his leaving his place of residence, [as well as] through the imposition of bail or detention”.", "The competent court shall not apply a more severe measure, in order to secure the defendant presence, if a less severe measure may achieve the same purpose. Also, the measures shall be vacated ex officio when the reasons for their application have ceased to exist, or shall be replaced with other less severe measures once the conditions are met. 37. Article 137 provides, inter alia, that the defendant who is to be or has already been detained based only on circumstances indicating that he will abscond may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he shall not abscond until the conclusion of the criminal proceedings and the defendant himself promises that he will not hide or change his place of residence without permission. 38.", "Article 142 § 1 (5) provides that a person may be remanded in custody on reasonable suspicion of having committed a crime if the potential sentence is imprisonment of more than ten years and if this is justified due to particularly serious circumstances regarding the crime in question (ako je to opravdano zbog posebno teških okolnosti krivičnog dela). Up until September 2009, which is when the amendments to the Code of Criminal Procedure published in OG RS 72/09 entered into force, Article 142 § 2 (5) provided that a person may be remanded in custody on reasonable suspicion of having committed a crime if the potential sentence is imprisonment of more than ten years and if this is justified due to the way in which the crime in question had been perpetrated or due to other particularly serious circumstances regarding the crime (ako je to opravdano zbog načina izvršenja ili drugih posebno teških okolnosti krivičnog dela). 39. Article 224 provides, inter alia, that a criminal complaint may be filed in writing or orally with the competent public prosecutor, as well as that a court of law, should it receive a complaint of this sort, shall immediately forward it to the competent public prosecutor. 40.", "Article 61 provides that should the public prosecutor decide that there are no bases to press charges, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 41. Article 228 § 7 provides, inter alia, that the suspect shall be entitled to request that his medical examination be ordered by the investigating judge. The investigating judge’s decision to this effect, as well as the medical doctor’s subsequent opinion, shall be included in the case file. E. The Police Act (Zakon o policiji, published in OG RS no.", "101/05) 42. Article 86 provides that, whenever force has been used, the police officer concerned shall submit a written report to his superior within 24 hours. The latter shall then establish whether the force used was justified and lawful. F. The Obligations Act (Zakon o obligacionim odnosima, published in Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – no. 29/78, amendments published in OG SFRY nos.", "39/85, 45/89 and 57/89, and in OG FRY no. 31/93) 43. Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction (see, for instance, judgment Pbr. 3879/03 adopted by the First Municipal Court in Belgrade on 29 April 2004, which has, in its relevant part, been upheld by the Supreme Court on 25 May 2006, awarding compensation for, inter alia, a breach of the presumption of innocence under Article 200; see also judgment P.br 2939/01 rendered by the Municipal Court in Šabac on 20 February 2002, which was ultimately confirmed by the Supreme Court on 21 April 2004, ordering the cessation of discriminatory treatment and the publication of an apology under Articles 157 and 199). 44.", "Article 172 § 1 provides that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of “its bodies” to a “third person”. This provision includes State liability for any judicial or police misconduct and/or malfeasance (see, for example, the judgments of the Supreme Court of 10 November 2002, Rev. 6203/02, and 10 April 2003, Rev. no. 1118/03).", "G. The Public Information Act (Zakon o javnom informisanju, published in OG RS no. 43/03, amendments published in OG RS nos. 61/05, 71/09, 89/10 and 41/11) 45. Article 3 provides, inter alia, that journalists and editors shall check the origin and veracity of any information before making it public. 46.", "Article 37 provides, inter alia, that no one may be described as a perpetrator of a crime prior to the adoption of a final court judgment to this effect. 47. Article 84 provides that the State shall be liable for any and all damage caused by the publication of untrue or incomplete information provided by a Government body. 48. Articles 85 and 86 provide that a civil claim based on Article 84 must be filed within a period of six months following the publication of the information in question, and that proceedings instituted thereby shall be conducted with urgency.", "H. The Personal Data Protection Act (Zakon o zaštiti podataka o ličnosti, published in OG RS no. 97/08, amendments published in OG RS nos. 104/08, 68/12 and 107/12) 49. This Act regulates various personal data protection issues, including the administrative and judicial review mechanism at the disposal of persons who believe that their rights have been violated. 50.", "Article 13 provides, in particular, that personal data may, inter alia, be collected and processed by the State without the consent of the person concerned if this is necessary for the purposes of a criminal investigation or prosecution and if it is done in accordance with the relevant legislation. I. Other domestic case-law 51. On 21 February 2006 the Novi Sad Municipal Court, inter alia, recognised alleged breaches of Articles 5 and 8 of the Convention, and ordered the respondent State to pay the plaintiff a specified amount of compensation (Pbr. 1848/05).", "On 8 November 2006 the Novi Sad District Court upheld this judgment and increased the compensation awarded (Gž.br. 3293/06). 52. There is also domestic case-law indicating that a plaintiff complaining about the lawfulness of his detention, as well as the related issues concerning his private life, including the unlawful taking of photographs, had been able to obtain redress before the domestic courts. Specifically, on 21 February 2006 the Novi Sad Municipal Court, inter alia, recognised the alleged breaches of Articles 5 and 8 of the Convention, and ordered the respondent State to pay the plaintiff a specified amount of compensation (Pbr.", "1848/05). On 8 November 2006 the Novi Sad District Court upheld this judgment and increased the compensation awarded (Gž.br. 3293/06). III. RELEVANT INTERNATIONAL REPORTS A.", "Report to the Government of Serbia and Montenegro on the visit to Serbia and Montenegro carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 16 to 28 September 2004, made public on 18 May 2006 53. The relevant sections of this report read as follows: “203. The CPT’s delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. Some of the allegations concerned ill-treatment at the time of or immediately following apprehension, whereas others related to ill-treatment during police questioning and, more particularly, during interrogation by officers of the criminal police. Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody.", "A number of allegations received included recent accounts of beatings on the palms of the hands or soles of the feet, the placing of a plastic bag over the detainee’s head to cause temporary asphyxiation, or the infliction of electric shocks on different parts of the body. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture. ... Further, in almost all of the police stations visited in Belgrade, the delegation found baseball bats and similar non-standard and unlabelled objects in offices used for interrogation purposes. 204. The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours in police custody.", "The number and severity of allegations of police ill-treatment received calls for urgent action by the national authorities ... 206. As regards fundamental safeguards against ill-treatment of persons deprived of their liberty by the police (e.g. the right to have the fact of one’s detention notified to a close relative or third party; the rights of access to a lawyer and a doctor), at present their practical implementation leaves a lot to be desired; the CPT has made detailed recommendations in this area ...” B. Report to the Government of Serbia on the visit to Serbia carried out by the CPT from 19 to 29 November 2007, made public on 14 January 2009 54. The relevant sections of this report read as follows: “13.", "The number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the Committee’s first periodic visit in 2004. That said, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, truncheon blows, blows with a thick book or with a wet rolled newspaper, and handcuffing to fixed objects in a hyper-extended position) during questioning by criminal police officers, in order to obtain confessions or other information. It would appear that juveniles suspected of serious criminal offences are particularly exposed to physical violence. Further, the delegation received some accounts of verbal abuse and threats during questioning ... 14. Most of the allegations of ill-treatment related to periods some time before the delegation’s visit; consequently, any injuries which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime ... 15.", "It should also be noted that, in several police stations visited (e.g. in Bor, Inđija, Kovin, Petrovac na Mlavi, Negotin and Ruma), the delegation again found – in offices used for police interviews – various non-standard issue items (such as baseball bats, iron rods, wooden sticks, thick metal cables, etc). The CPT reiterates its recommendation that any non-standard issue objects be immediately removed from all police premises where persons may be held or questioned. Any such items seized during criminal investigations should be entered in a separate register, properly labelled (identifying the case to which they refer) and kept in a dedicated store. ... 19.", "As stressed by the CPT in the report on its first visit to Serbia, it is axiomatic that judges must take appropriate action when there are indications that ill-treatment by the police may have occurred. In this connection, it should be noted that some persons interviewed during the 2007 visit alleged that the investigating judges before whom they had been brought with a view to being remanded in custody ignored their complaints of police misconduct ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 55. All applicants complained under Article 3 that they had been ill-treated by the police and that there had been no effective official investigation into their ill-treatment. 56.", "Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. As regards the first, second and third applicants 57. The Government maintained that the first, second and third applicants had failed to exhaust the available criminal remedies. The Court considers that this objection goes to the very heart of the question whether the said applicants had suffered a procedural violation of Article 3 and would more appropriately be examined at the merits stage. It therefore decides to join the objection to the merits of the applicants’ complaints.", "The first, second and third applicants’ complaints are further not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other ground. They must therefore be declared admissible. 2. As regards the fourth applicant 58. On 9 December 2009 the fourth applicant died.", "59. On 11 January 2011 his representative informed the Court of this fact, and indicated that Ms Silvana Dimović, the fourth applicant’s daughter, wished to maintain the proceedings brought by her father. 60. The Government made no comment in this regard. 61.", "The Court recalls that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see Karner v. Austria, no. 40016/98, § 22, ECHR 2003‑IX, with further references). 62. In the circumstances of the present case, the Court finds that Ms Silvana Dimović has standing to proceed in her father’s stead (see, mutatis mutandis, among many other authorities and specifically in the context of Article 3, Sulejmanov v. the former Yugoslav Republic of Macedonia (dec.), no. 69875/01, 18 September 2006).", "The Court shall, however, continue referring to the latter as “the fourth applicant” for reasons of convenience (see Raimondo v. Italy, judgment of 22 February 1994, § 2. Series A no. 281‑A). 63. The Government lastly maintained that the fourth applicant had failed to exhaust the available criminal remedies.", "The Court considers that, just like in respect of the first, second and third applicants, this objection goes to the very heart of the question whether the fourth applicant had suffered a procedural violation of Article 3 and would more appropriately be examined at the merits stage. It therefore decides to join the objection to the merits of the fourth applicant’s complaint. The fourth applicant’s complaint is also not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention, and is not inadmissible on any other ground. It must therefore be declared admissible. 3.", "As regards the fifth applicant 64. The Court notes that there is nothing in the case file, except for the fifth applicant’s own statement to the investigating judge of 29 November 2007 to support her allegation that she had been slapped in the face by the police upon arrest. It follows that the fifth applicant’s complaints under Article 3, substantive and procedural, are unsubstantiated and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Merits 1.", "The parties’ submissions (a) The Government’s submissions (i) The substantive aspect 65. The Government maintained that the police had had no choice but to use force since the first, second, third and fourth applicants had resisted arrest and/or tried to escape. In any event, any injuries suffered by them had not reached the threshold of torture, inhuman and/or degrading treatment within the meaning of Article 3. Also, the said applicants’ statements as to when exactly the alleged abuse had occurred, upon arrest or subsequently, had been inconsistent and the third applicant had even stated that he had not been abused during arrest. There were likewise inconsistencies in their statements concerning the duration of the alleged abuse.", "Only the first applicant admitted before the police to having committed the crimes in question, whilst the second and third applicants did not do so. It is therefore difficult to maintain that the police had used force in order to elicit their confessions. The medical report of 22 September 2008 also concluded that the injuries sustained by the first, second and third applicants were inflicted between 3 and 7 days prior to 13 November 2007. Finally, the Government recalled that the fourth applicant had failed to attend the medical examination on 13 November 2007. (ii) The procedural aspect 66.", "The Government noted that the first, second, third and fourth applicants had never lodged written criminal complaints against the officers in question. Had they done so, they could have, if rejected, taken over the prosecution of their cases in the capacity of subsidiary prosecutors. In addition or in the alternative, the first, second, third and fourth applicants should have filed written requests with the investigating judge, seeking that the minutes of the hearing held on 8 November 2007, referring to their alleged injuries, be forwarded to the competent public prosecutor. 67. The Government also argued that although PN’s criminal complaint concerning the same incident had been rejected, this did not mean that the public prosecutor would necessarily have come to the same conclusion concerning the other applicants.", "In any event, PN had never tried to take over the prosecution of his case in the capacity of a subsidiary prosecutor and had thus deprived himself of the opportunity to have his claims examined by the courts. 68. Finally, the Government maintained that it could not be said that the national authorities had remained passive in the face of allegations of ill-treatment. Specifically, on 13 November 2007 the first, second and third applicants were medically examined based on an order issued by the investigating judge. Also, in the subsequent criminal proceedings brought against the said three applicants the court heard additional expert testimony regarding the injuries in question and obtained supplementary medical reports.", "Ultimately, the courts, having found the three applicants guilty, opined that their injuries had been sustained as a consequence of their attempts to resist arrest and/or escape from the police. (b) The applicants’ submissions 69. The first, second, third and fourth applicants maintained that by informing the investigating judge, as well as the public prosecutor, of their abuse on 8 November 2007 they had effectively lodged a criminal complaint within the meaning of the Code of Criminal Procedure. This complaint, however, was never processed by the competent authorities. 70.", "As for the investigating judges’ order to medically examine the first, second and third applicants, this was issued too late and hindered rather than facilitated the proper establishment of the relevant facts. According to Article 5 of the Code of Criminal Procedure the said applicants should have been examined on 8 November 2007, at the latest. In any event, it was obvious that the first, second, third and fourth applicants had been ill-treated during arrest and/or while in the Novi Sad Police Station. The applicants’ statements given to the investigating judge, the relevant police and medical reports, as well as the photographs taken on 8 November 2007, all provided substantiation to this effect. 71.", "Lastly, the first applicant contested the authenticity of the minutes documenting his alleged confessions. 2. The Court’s assessment (a) The substantive aspect 72. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III).", "In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V). 73. According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010; Price v. the United Kingdom, no..33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no.", "67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, 11 July 2006). 74. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).", "Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007). Constant mental anxiety caused by the threat of physical violence and the anticipation of such, has likewise been deemed to go beyond the threshold of Article 3 (see Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 73, 27 May 2008).", "75. The Court emphasises that, in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. The requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals (Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; Tomasi v. France, 27 August 1992, § 115, Series A no. 241-A).", "76. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). While it is not, in principle, the Court’s task to substitute its own assessment of the facts for that of the domestic courts, the Court is nevertheless not bound by the domestic courts’ findings in this regard (see, for example, Ribitsch, cited above, § 32).", "In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, for example, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 77.", "Turning to the present case, the Court notes that the injuries sustained by the first, second and third applicants’ have been documented by the minutes prepared and the photographs taken with the consent of the investigating judge on 8 November 2007, the results of the medical examination of 13 December 2007, and the findings of the medical report of 22 September 2008 (see paragraphs 9, 11 and 16 above). The issue that hence remains to be resolved is the time of their infliction. In this regard, even assuming that the applicants had indeed resisted arrest or tried to escape as argued by the Government and thus sustained injuries, the Court is of the opinion that this alone cannot refute the allegation that the first, second and third applicants had indeed been subjected to abuse whilst in police custody. Specifically, there were conspicuously fewer injuries referred to in the police officers’ reports to their superiors of 7 November 2007 compared to those established in the report based on the first, second and third applicants’ medical examination carried out on 13 December 2007 (see paragraphs 8, 11 and 16 above). The medical report of 22 September 2008 also essentially confirmed the findings of this examination, as well as the existence of the injuries photographed on 8 November 2007 (see paragraph 16 above).", "Similarly, regarding the fourth applicant, although he was not medically examined on 13 November 2007, or thereafter, the minutes prepared by the investigating judge and the photographs taken on 8 November 2007, whose authenticity was never called into question, had likewise documented additional injuries compared to the ones listed in the relevant police report of 7 November 2007 (see paragraphs 8 and 9 above). 78. Since the Government have offered no explanation whatsoever for the discrepancy between the injuries acknowledged by the police on 7 November 2007 and those established subsequently, and there being no credible suggestion that any of these injuries, which had clearly reached the Article 3 threshold, might have been sustained prior to the events of 6 November 2007, the Court cannot but find that there has been a violation of Article 3 of the Convention on account of the inhuman and degrading treatment suffered by the first, second, third and fourth applicants, respectively. (b) The procedural aspect 79. The Court reiterates that where a person makes a credible assertion that he has suffered treatment contrary to Article 3 at the hands of State agents, that provision, read in conjunction with the general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among many authorities, Labita, cited above, § 131).", "Whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. 80. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that ill-treatment has been used (see Stanimirović v. Serbia, no. 26088/06, § 39, 18 October 2011). Victims of alleged violations are not required to pursue the prosecution of officers suspected of ill-treatment on their own.", "This is a duty of the public prosecutor who is better equipped in that respect (Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009; and Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013). If an applicant nonetheless takes over the prosecution and obtains a trial against officers accused of ill‑treatment, those proceedings become an inherent part of the case and must be taken into account (see V.D. v. Croatia, no.", "15526/10, § 53, 8 November 2011; Butolen v. Slovenia, no. 41356/08, § 70, 26 April 2012; and Otašević, cited above). 81. The Court has also held that the investigation should be capable of leading to the identification and punishment of those responsible. If not, 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 State agents to abuse the rights of those within their control with virtual impunity (see Labita, cited above, § 131).", "The investigation must also be thorough: the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. Furthermore, the investigation must be prompt and independent. Lastly, the investigation must afford a sufficient element of public scrutiny to secure accountability. While the degree of public scrutiny required may vary, the complainant must be afforded effective access to the investigatory procedure in all cases (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 137, ECHR 2004-IV).", "82. In the present case, having already found a substantive violation of Article 3, the Court further notes that the first, second, third and fourth applicants had indeed complained of having been abused by the police. They did so before the investigating judge and in the presence of a public prosecutor, as well as the trial and appellate chambers (see paragraphs 9, 20 and 21 above). Yet, despite the Convention and the domestic law requiring that an allegation of this sort be examined ex officio (see paragraphs 80 and 35 above, in that order), no separate abuse-related investigation, aimed at the identification and punishment of those responsible, was ever instituted by the competent authorities (see Hajnal v. Serbia, no. 36937/06, § 99, 19 June 2012).", "The criminal case against the first, second and third applicants, wherein they raised their abuse complaints in order to have some of the impugned evidence excluded, was certainly not capable of the latter. It is thus clear that the aforementioned standards have not been satisfied. Accordingly, the Court dismisses the Government’s preliminary objection and finds that there has been a violation of Article 3 of the Convention in respect of the first, second, third and fourth applicants. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 83.", "The first, second and third applicants complained under Article 5 that the severity of the potential sentence and the nature of the crime alleged could not, by themselves, justify their pre-trial detention up until their initial conviction on 10 July 2009. 84. The Court considers that these complaints fall to be examined under Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 1. Admissibility 85.", "The Government noted that only the third applicant had made use of the constitutional appeal avenue. The first and second applicants had not therefore exhausted an available and effective domestic remedy. In support of their objection, the Government recalled that the Constitutional Court had found violations of the Constitution even in situations where the appeals had been lodged prior to 7 August 2008. 86. The first, second and third applicants maintained that the constitutional appeal could not be deemed as an effective domestic remedy.", "In any event, the third applicant had made use of this avenue which could potentially have benefited the first and second applicants had the Constitutional Court ruled in his favour (see paragraph 30 above). 87. The Court recalls that it has repeatedly held that a constitutional appeal should, in principle, be considered as an effective domestic remedy, within the meaning of Article 35 § 1 of the Convention, in respect of applications introduced against Serbia as of 7 August 2008 (see, for example, Vinčić and Others v. Serbia, nos. 44698/06 et seq., § 51, 1 December 2009; Šorgić v. Serbia, no. 34973/06, § 76, 3 November 2011; and Hajnal, cited above, § 122).", "It sees no reason to hold otherwise in the present case, and notes that the first, second and third applicants had introduced their application before the Court on 7 January 2008. The Government’s objection in this regard must therefore be rejected, it being understood that it would also be inappropriate to divide the situation complained of regarding the extensions of the pre-trial detention prior to and after the said date (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007; Sizov v. Russia, no. 33123/08, § 44, 15 March 2011; Smirnova v. Russia, nos. 46133/99 and 48183/99, § 66, ECHR 2003‑IX (extracts); and Idalov v. Russia [GC], no.", "5826/03, § 130, 22 May 2012; see also paragraph 24 above as regards the Constitutional Court’s approach to this issue). 88. The Court further notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other ground. They must therefore be declared admissible.", "2. Merits (a) The parties’ submissions 89. The Government noted the duration of the first, second and third applicants’ pre-trial detention and maintained that throughout this time there had been reasonable suspicion that they had committed the crimes in question. These crimes were very serious and their perpetrators posed a great danger to society, as was confirmed by their ultimate conviction. Indeed, at their press conference, the police had stated that due to the series of robberies in question the local population had already started forming their own village guard units in order to provide protection.", "Finally, the Government argued that the detention orders impugned by the applicants contained specific and fully adequate reasoning. 90. The first, second and third applicants reaffirmed their complaints, adding that it is only the reasoning of the detentions orders that should be relevant for the Court’s consideration, not other circumstances which had not been taken into account by the domestic courts or those referred to by the Government in their submissions. Also, alternatives to detention had never been considered domestically (see paragraph 36 above). (b) The Court’s assessment 91.", "As established in Neumeister v. Austria (judgment of 27 June 1968, § 4, Series A no. 8, p. 37), 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 conviction, he or she must be presumed innocent, and the purpose of the provision under consideration is essentially to require the individual’s provisional release once continued detention ceases to be reasonable. 92. This form of detention can only be justified in a given case if there are specific indications of a genuine requirement of public interest which outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110 et seq, ECHR 2000‑XI). 93. The responsibility falls in the first place on the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of an important public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release (see, for example, Weinsztal v. Poland, no. 43748/98, judgment of 30 May 2006, § 50).", "It is essentially on the basis of the reasons given in these decisions and of the 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 (see Labita, cited above, § 152). 94. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings at issue (see, amongst other authorities, Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 35; Yağcı and Sargın v. Turkey, judgment of 8 June 1995, § 50, Series A no.", "319‑A). 95. Unlike the first limb of Article 5 § 3, there is no express requirement of “promptness” in its second limb. However, the required scrutiny, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum (see McKay v. the United Kingdom, cited above, § 46). 96.", "Whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being incumbent on the national authorities to always duly consider such alternatives (see, mutatis mutandis, G.K. v. Poland, no. 38816/97, § 85, 20 January 2004), notwithstanding the fact that it cannot be required of them that the examination of bail takes place with any more speed than is demanded of the first automatic review of the applicant’s detention (see McKay cited above, §47). 97. In the present case the first, second and third applicants remained in pre-trial detention for more than one year and eight months – from 6 November 2007 until 10 July 2009. The national courts extended their detention on eleven occasions, relying on the severity of the potential sentence and the nature of the crime alleged (see paragraphs 6, 9 and 24 above).", "While it is true that by reason of their particular gravity and public reaction to them certain offences may give rise to a social disturbance capable of justifying pre-trial detention, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the release of the accused would actually disturb public order (see Letellier, cited above, § 51). In the present case these conditions were not satisfied. The national courts assessed the need to continue the pre-trial detention from a rather abstract and formalistic point of view, taking into consideration only the severity of the potential sentence and the nature of the crime alleged. In their repetitive reasoning they never discussed the possible public reaction to the first, second and third applicants’ release or even referred to the issue. This was only mentioned by the police at the press conference, but as such could not have been appealed within the criminal proceedings, as well as the Government in their observations before the Court, but even then merely in the context of the local population setting up village guard units before the said applicants’ arrest.", "98. In view of the foregoing, there has been a violation of Article 5 § 3 of the Convention in respect of the first, second and third applicants. III. ALLEGED VIOLATIONS OF ARTICLES 6 § 2 AND 8 OF THE CONVENTION 99. The first, second, third and fourth applicants further complained that by referring to them, at a press conference, as members of a criminal group and by making their photographs available to the press the police violated Articles 6 § 2 and 8 of the Convention.", "100. Lastly, the fourth and fifth applicants complained under Article 8 of the Convention that they have not been able to obtain any information about the DNA samples taken from them on 6 November 2007 and, if still kept, to have them destroyed. 101. The provisions of the Convention referred to by the applicants, in so far as pertinent, read as follows: Articles 6 § 2 “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Article 8 “Everyone has the right to respect for his private ... life ... There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.", "The parties’ submissions 102. The Government maintained that the first, second, third, fourth and fifth applicants had failed to exhaust the available civil remedies based on the relevant provisions of the Obligations Acts and/or the Public Information Act. They further recalled that the Convention was directly applicable in the Serbian legal system. 103. Regarding the complaints concerning the taking of DNA samples from the fourth and fifth applicants, the Government further noted that their request to have them destroyed had been submitted prior to the termination of the criminal case against them.", "Finally, although there had been no specific domestic legislation on the storage and automatic destruction of DNA samples obtained in the above context, the applicants should have made use of the said civil remedies which would have been capable of affording compensation and/or injunctive relief as appropriate. In any event, the general provisions of the Code of Criminal Procedure and the Personal Data Protection Act remained applicable. 104. The first, second and third applicants maintained that the filing of a civil claim would have involved considerable logistical difficulties, particularly bearing in mind their detention/incarceration, and that in any event the civil case would have lasted for years. B.", "The Court’s assessment 1. The relevant principles 105. The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances. It is not necessary for the Convention right to be explicitly raised in domestic proceedings provided that the complaint is raised at least in substance (see Castells v. Spain, 23 April 1992, § 32, Series A no. 236; and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports 1996‑IV).", "106. To be effective, a remedy must be capable of redressing directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). In so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted (see Azinas, cited above, § 38).", "In States where the Convention is part of the law of the land, a complainant has to invoke its provisions if so doing is the only means open to him or her of obtaining the redress sought (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, § 33, Series A no. 40). The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13; and Akdivar, cited above, § 69). 107.", "In terms of the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, § 27, Series A no. 198, and Dalia v. France, judgment of 19 February 1998, § 38, Reports 1998-I). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003; and Akdivar, cited above, § 68). 2.", "The application of these principles to the present case 108. Being mindful of the above and turning to the present case, the Court notes that Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish due to a breach of his reputation, personal integrity, liberty or of his other “personal rights” shall be entitled to seek injunctive relief, bring a civil claim for damages and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. The domestic civil courts have applied those provisions in favour of plaintiffs in the context of, for example, the defendant’s right to be presumed innocent as well as in the discrimination context, where in addition to compensation adequate injunctive relief including the cessation of discriminatory treatment and the publication of an apology had been granted (see paragraph 43 above). Moreover, Article 172 § 1 of the Obligations Act provides for State liability in cases of police misconduct or malfeasance, as exemplified by a number of civil court judgments adopted on this basis (see paragraph 44 above). 109.", "The Court further notes that Article 84 of the Public Information Act specifically provides that the State shall be liable for any and all damage caused by the publication of untrue or incomplete information provided by a Government body. According to Articles 85 and 86 of the same legislation such proceedings shall be conducted with urgency (see paragraphs 47 and 48 above). 110. Finally, the Court recalls that Article 18 of the Constitution provides for the “the direct implementation” of human rights secured by ratified international treaties, and sets forth that provisions relating to human rights shall be interpreted pursuant to, inter alia, “the practice of international institutions” entrusted with their implementation (see paragraph 29 above). There is also domestic case-law to this effect, in particular civil court judgments recognising, inter alia, alleged breaches of Article 8 of the Convention in the context of “private life”, including but not limited to the unlawful taking of photographs, and awarding compensation to the plaintiffs where appropriate (see paragraphs 51 and 52 above).", "111. In view of the above, the Court is of the opinion that the first, second, third, fourth and fifth applicants should have brought a civil case, based on the Obligations Act (see, mutatis mutandis, Hajnal, cited above, § 142; Kostić v. Serbia (dec.), no. 40410/07, § 60, 17 September 2013; and Gorgievski v. the former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 10 April 2006), the Public Information Act, the Constitution and/or the Convention, particularly since the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar, cited above, § 71). In their civil suit they could thus have sought compensation and/or any other form of redress “capable” of providing adequate non-pecuniary satisfaction, including, where appropriate, a request for the destruction of DNA samples stored in the Novi Sad Forensic Medicine Institute (see, in this connection, paragraph 27 above and note that the said medical institution had itself implied that the fourth and fifth applicants’ DNA material could have been destroyed on the basis of a court decision so ordering).", "All this is, of course, quite apart from any possibilities for redress stemming from the Personal Data Protection Act, referred to but not specifically relied on by the Government as regards the fourth and fifth applicants (see paragraphs 49 and 50 above). 112. It is further noted that although the first, second and third applicants had been deprived of their liberty until 22 December 2012 this, in and of itself, could not have absolved them of their duty to comply with the exhaustion requirement within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, X. v. the United Kingdom no. 6840/74, Commission decision of 12 May 1977, Decisions and Reports (DR) 10, p. 5). The said applicants also offered no other convincing reasons in this respect.", "113. Finally, the present case must be distinguished from the Matijašević and Hajnal cases, respectively, when it comes to the issue of exhaustion in the context of complaints made under Article 6 § 2 of the Convention (see Matijašević v. Serbia, no. 23037/04, §§ 32 and 33, ECHR 2006‑X; and Hajnal, cited above, § 121). Notably, in those cases the applicants complained that the presumption of innocence had been breached due to the language adopted by the criminal courts themselves, which was why the Court held that the applicants, having complained about this in the criminal context, could not in addition have reasonably been expected to make use of the civil avenue. In the present case, however, the first, second, third and fourth applicants maintain that their right to be presumed innocent had been violated by the police at a press conference.", "In this respect they clearly had no remedies available within the criminal proceedings brought against them and should therefore have attempted to obtain civil redress. Indeed, there is nothing in the case file or in the said applicants’ pleadings that would suggest otherwise. 114. In view of the foregoing, the first, second, third, fourth and fifth applicants’ complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. It further follows that it is therefore not necessary to examine whether the fourth applicant’s daughter is entitled to continue with the proceedings before the Court after her father’s death (see paragraphs 58 and 59 above).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 116. The first, second, third and fourth applicants each claimed 10,000 euros (EUR) in respect of the non-pecuniary damage suffered due to the violation of their rights guaranteed under Article 3 of the Convention.", "117. The first, second and third applicants each further claimed EUR 62,500 in respect of the non-pecuniary damage suffered as a consequence of the violations of their rights guaranteed under Article 5 of the Convention. In this regard, they also requested from the Court to exclude from the evidence before the domestic courts “their statements given to the police under duress”. 118. The said applicants submitted a just satisfaction agreement, as part of their signed authorisation forms, and requested that any damages awarded to them be paid directly to their counsel.", "119. The Government contested these claims. 120. It is clear that the first, second, third and fourth applicants sustained some non-pecuniary damage arising from the breaches of their rights under Articles 3 and/or 5 § 3 of the Convention, for which they should be compensated. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court therefore awards to the first, second and third applicants, as well as to the fourth applicant’s daughter, Ms Silvana Dimović, EUR 5,000 each.", "The Court has also taken account of the Government’s objection (see paragraph 119 above) and decides that these amounts should be paid to the applicants and Ms Dimović personally. 121. Concerning the first, second and third applicants’ request for the exclusion from the evidence before the domestic courts of their statements given to the police, the Court notes that this is essentially a procedural fairness issue which is currently pending before the Constitutional Court (see paragraph 22 above). The request must therefore be rejected. B.", "Costs and expenses 122. The third applicant claimed a total of EUR 4,715 for the costs and expenses incurred domestically, as well as those incurred before the Court. 123. The first, second and fourth applicants each claimed EUR 1,200 for the costs and expenses incurred before the Court. 124.", "The said applicants submitted a fees agreement, as part of their signed authorisation forms, and requested that the costs and expenses awarded to them be paid directly to their lawyer. 125. The Government contested these claims. 126. 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 also reasonable as to their quantum.", "That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. 127. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the third applicant alone the sum of EUR 2,750 for the costs and expenses incurred domestically, as well as to the first, second and third applicants and to the fourth applicant’s daughter, Ms Silvana Dimović a total of EUR 1,800 jointly for the costs and expenses incurred before the Court, all to be paid directly to their legal representative, VJĐ (see Hajnal, cited above, §§ 153 and 154). C. Default interest 128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join to the merits the Government’s objection as to the non-exhaustion of domestic remedies with respect to the first, second, third and fourth applicants’ complaints under Article 3 of the Convention and dismisses it; 2. Declares the fifth applicant’s complaint under Article 3 of the Convention inadmissible; 3. Declares the first, second, third and fourth applicants’ complaints under Articles 6 § 2 and 8 of the Convention, regarding the press conference organised by the police and the distribution of their photographs on that occasion, inadmissible; 4. Declares the fourth and fifth applicant’s complaints under Article 8, concerning the DNA samples, inadmissible; 5.", "Declares the remainder of the application admissible; 6. Holds that there has been a violation of the substantive aspect of Article 3 of the Convention in respect of the first, second, third and fourth applicants; 7. Holds that there has been a violation of the procedural aspect of Article 3 of the Convention in respect of the first, second, third and fourth applicants; 8. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the first, second and third applicants; 9. Holds (a) that the respondent State is to pay to the first, second and third applicants, as well as the fourth applicant’s daughter, Ms Silvana Dimović, 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 Serbian dinars at the rate applicable at the date of settlement: (i) to the first, second and third applicants, as well as the fourth applicant’s daughter Ms Silvana Dimović, personally EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to the third applicant, through his legal representative, Mr V. Juhas Đurić, EUR 2,750 (two thousand seven hundred and fifty euros), plus any tax that may be chargeable to the third applicant, in respect of costs and expenses incurred domestically; (iii) to the first, second and third applicants, as well as to the fourth applicant’s daughter, Ms Silvana Dimović, through their legal representative, Mr V. Juhas Đurić, a total of EUR 1,800 (one thousand and eight hundred euros) jointly, plus any tax that may be chargeable to them, in respect of costs and expenses incurred before the Court; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment. G.R.A.S.H.N. CONCURRING OPINION OF JUDGE SAJÓ While I agree with my colleagues, I find it necessary to specify the reasons why I find the Article 3 complaints admissible.", "The Government maintained that the first, second and third applicants had failed to exhaust the available criminal remedies. The Court considered that this objection went to the very heart of the question whether the said applicants had suffered a procedural violation of Article 3, and examined it at the merits stage. In its analysis of the merits of the allegation of police brutality, the Court stated that there should be an effective official investigation. The Court continued as follows: “Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that ill-treatment has been used (see Stanimirović v. Serbia, no. 26088/06, § 39, 18 October 2011).", "Victims of alleged violations are not required to pursue the prosecution of officers suspected of ill-treatment on their own. This is a duty of the public prosecutor who is better equipped in that respect (Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009; and Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013).” This argument is related to the absence of an initial complaint by the applicants. The Court is of the view that in similar situations an ex officio investigation is required.", "The admissibility issue is, however, slightly different. It concerns the use of available remedies in cases where the investigation fails to occur. Where there is an effective remedy to correct the lack of, or shortcomings in, an investigation, the subsidiarity principle requires that such effective remedy be used. In the present case the possibility of bringing a “subsidiary” prosecution was available, in principle, to the applicants. This possibility exists irrespective of the fact that the prosecution of officers suspected of ill-treatment is the duty of the prosecutor (when he or she becomes aware of it, even in the absence of a formal complaint).", "There can be no doubt that this Court requires the exhaustion of a domestic remedy where the national system offers the possibility of appeal to a court against a decision by the prosecutor not to prosecute in Article 3 cases. The same logic applies where the national system offers the option of bringing a subsidiary prosecution, as long as that remedy is effective. Turning to the present case, it can be argued that in Serbia Article 61 of the Serbian Code of Criminal provides that, should the public prosecutor decide that there is no basis for pressing charges, he must inform the victim of this decision; the latter then has the right to take over the prosecution of the case on his own behalf, as a “subsidiary prosecutor” (see paragraph 40 of the judgment). In other words, only after being informed of the prosecutor’s negative decision can an applicant act as a “subsidiary prosecutor.” In the present case, notwithstanding the order of the judge for medical evidence to be obtained, the public prosecutor took no investigative action (see paragraphs 11 and 16). It is not clear how the applicants could have made use of their right to bring a subsidiary prosecution, which is in any case governed by extremely short deadlines.", "The burden of proving the effectiveness of a remedy falls on the Government. The Government do not specify how, in the specific circumstances, a subsidiary prosecution could have been effective. Therefore, the Article 3 complaints are admissible." ]

[ "SECOND SECTION CASE OF CHMELÍŘ v. THE CZECH REPUBLIC (Application no. 64935/01) JUDGMENT STRASBOURG 7 June 2005 FINAL 12/10/2005 In the case of Chmelíř v. the Czech Republic, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR. Türmen,MrK. Jungwiert,MrM.", "Ugrekhelidze,MrsD. Jočienė,MrD. Popović, judges,and Mr S. Naismith, Deputy Section Registrar, Having deliberated in private on 19 May 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 64935/01) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Martin Chmelíř (“the applicant”), on 12 April 1999.", "2. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm. 3. The applicant alleged that his appeal had not been heard by an impartial tribunal.", "4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 14 September 2004, the Chamber declared the application admissible.", "6. The Government filed observations on the merits of the case and the applicant replied in writing. 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Criminal proceedings against the applicant 8. Criminal proceedings had been pending since 1997 against the applicant, who had absconded. On 12 February 1998 he was arrested by the police and remanded in custody by the Tábor District Court (Okresní soud).", "9. By a judgment of 3 March 1999, the České Budĕjovice Regional Court (Krajský soud) convicted the applicant on several counts, including theft, trespass and illegal possession of weapons, and sentenced him to eight years' imprisonment. It also imposed a fine and disqualified him from driving for five years. The judgment also concerned a number of co-defendants, including V.Š. senior and V.Š.", "junior. 10. The applicant and the prosecutor lodged appeals before the Prague High Court (Vrchní soud) . 11. On 27 April 1999, R.T., a judge at the High Court, was allowed to withdraw from the criminal case V.Š.", "and Others on the ground that he was acquainted with V.Š. 's family. 12. Mr Chmelíř's appeal was subsequently severed from those of his co-defendants. According to the Government, the severance was necessary because of the applicant's numerous obstruction tactics.", "The applicant disputed that allegation in his observations, contending that his case had been severed no later than at the second hearing in November 1999, the first having taken place at the end of the previous summer. 13. Appeals by the applicant's co-defendants were dismissed by the High Court on 22 November 1999. 14. On 1 September 2000 the High Court division, in which Judge R.T. was sitting, dismissed the applicant's appeal as ill-founded.", "15. On 4 December 2000 Mr Chmelíř lodged a constitutional appeal against the decisions of the lower courts. He complained in particular of the lack of impartiality of two of the High Court judges, observing that one of them knew the family of one of his co-defendants – and had, on that ground, been ordered to stand down from hearing the appeal lodged by the co-defendants, but not the applicant's severed appeal – and that the other was the defendant in an action he had brought for the protection of personality rights. 16. On 30 January 2001 the Constitutional Court dismissed the applicant's appeal as manifestly ill-founded, as it had found no indication that the applicant's guaranteed rights had been violated.", "17. On 9 July 2004 the applicant was released on licence. B. The applications for the judge's withdrawal 18. On 3 December 1999 the applicant applied for the withdrawal of M.V., President of the High Court division to which his appeal had been referred, alleging that they had had an intimate relationship in 1996.", "19. On 20 December 1999 the High Court decided at a private sitting not to require M.V. to stand down from the applicant's case. Noting that M.V. had stated on 17 December 1999 that he had not been acquainted with the applicant before the criminal case against the latter was referred to him, the court considered that the applicant was simply using dilatory tactics.", "20. On 5 January 2000 Mr Chmelíř appealed against that decision through counsel, contending that the High Court had failed to bring together the requisite documents. In his view, even if the objection of bias was lacking in justification, its subject matter was so serious that Judge M.V. should objectively have been excluded from hearing the case. 21.", "On 25 January 2000 the applicant's appeal was dismissed by the Supreme Court (Nejvyšší soud) as ill-founded. 22. By a decision of 15 February 2000 given by the President of the High Court division (M.V.) under Article 66 § 1 of the Code of Criminal Procedure, the applicant was fined 50,000 Czech korunas (CZK) (approximately 1,674 euros) for contempt of court, on the grounds that he had made false allegations in his application of 3 December 1999 and that those allegations represented an insolent and unprecedented attack on M.V. and were intended to delay the proceedings.", "The applicant was warned that another similar attack could in the future be classified as a criminal offence. 23. On 24 August 2000 the applicant's appeal was declared inadmissible by the Supreme Court, which considered that the impugned decision had been rendered at second instance. 24. On 7 February 2000 the applicant submitted a fresh application for the withdrawal of M.V.", "from the case, on the ground that he had brought an action against the judge for the protection of personality rights. He considered that this action in itself cast doubt on M.V. 's impartiality. 25. At the High Court hearing on 3 March 2000, the applicant learnt that his application for the judge's withdrawal had been rejected at a private sitting of that court on 1 March 2000.", "The division presided over by M.V. considered that the applicant's request simply represented a provocative obstruction and a fresh attack on the judge's moral integrity. In the decision of 1 March 2000, the court stated that, in reaching its finding, it had referred to the content of the application for the judge's withdrawal, to the statement made by M.V. on 17 December 1999 (during the proceedings concerning the first application for withdrawal) and to the applicant's previous attempts to obstruct the criminal proceedings. 26.", "Mr Chmelíř appealed against that decision to the Supreme Court and also lodged a constitutional appeal in which he relied on his right to a fair hearing. 27. On 24 August 2000 the Constitutional Court (Ústavní soud) dismissed that appeal, without examining it on the merits, considering that it was premature. 28. On the same day, the Supreme Court declared the applicant's appeal inadmissible, finding that the impugned decision had been rendered at second instance (by an appeal court) and that it was therefore unappealable.", "C. Action for the protection of personality rights brought by the applicant against Judge M.V. 29. On 7 February 2000 the applicant brought an action for the protection of personality rights before the Prague 4 District Court (Obvodní soud) against Judge M.V. in his capacity as president of the division to which his appeal had been referred. He alleged that he had suffered non-pecuniary damage because M.V.", "had obliged him to attend a hearing on 23 December 1999 even though the judge had been informed of an anonymous threat concerning the presence of explosives on the court premises. 30. On 20 April 2000 the applicant was requested to submit further particulars of his claims, failing which the proceedings would be discontinued. He complied with the request on 8 May 2000. 31.", "On 12 July 2000 the court discontinued the proceedings on the ground that the submissions lacked precision. 32. The applicant appealed on 18 August 2000. 33. On 23 March 2001 the Prague City Court (Městský soud) set aside the decision of 12 July 2000, finding that cases concerning the protection of personality rights should be heard by the regional courts (or, in Prague, the City Court).", "34. On 12 February 2002 the High Court of Prague settled the dispute as to jurisdiction by referring the case to the Prague City Court. 35. On 10 October 2002 the City Court judge requested the applicant to submit more precise claims. 36.", "On 26 August 2003 the applicant's case was dismissed because he had failed to provide sufficient particulars of his claims. 37. On 8 March 2004 the High Court, to which the applicant had appealed, set aside the judgment of 26 August 2003 and decided that it was necessary to proceed with the examination of that part of the action which concerned redress for non-pecuniary damage (evaluated by the applicant at CZK 500,000). 38. On 17 September 2004 the City Court rejected that part of the application.", "The applicant intended to appeal. II. RELEVANT DOMESTIC LAW 39. The relevant provisions of the Code of Criminal Procedure as applicable at the material time are as follows: Article 30 § 1 “No judge, prosecutor, investigator or police representative may act in criminal proceedings if there is any doubt as to their impartiality, whether because they have a connection with the case concerned, with the persons involved therein, or with the lawyers, statutory representatives or agents of such persons, or because they have a connection with another prosecuting authority. No measure taken by a disqualified person may form the basis of any decision arising from the criminal proceedings.” Article 31 “A decision requiring a judge to stand down for the reasons provided for in Article 30 shall be taken, even proprio motu, by the authority concerned.", "With respect to a judge sitting in a particular division, the decision shall be taken by that division. Such decisions shall be appealable and the matter shall be settled by the higher authority.” Article 66 § 1 “Anyone who ignores a warning and continues to obstruct the course of the proceedings, or who behaves in an insulting manner towards the court, the prosecutor, the investigator or the police representative, or who fails to comply with an order or formal notice issued under the present law, may be ordered by the president of the division or, during preparatory proceedings, by the prosecutor, investigator or police representative, to pay a disciplinary fine of up to 50,000 Czech korunas.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicant called into question the impartiality of two of the High Court judges who heard his appeal. He alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law.", "...” A. The parties' submissions 1. The Government 41. The Government, whilst remaining convinced that respect for the right to an impartial tribunal had to be examined according to the actual circumstances of each case, drew attention in the instant case to the repeated attempts by the applicant to hinder the progress of the proceedings (by putting pressure on witnesses, absconding, changing lawyer, having hearings adjourned). It was precisely for that reason that his appeal was severed from that of his co-defendants.", "The question therefore arose whether, in those circumstances, the national authorities could reasonably have been expected to proceed in such a manner as to leave no doubt concerning the impartiality of the court, even if that had been conceivable. 42. In the Government's view, it could not be asserted that the High Court had insufficiently examined the objection raised by the applicant on 7 February 2000 alleging bias on the part of Judge M.V., even though it had referred to the statement made by M.V. in connection with the examination of the applicant's first objection. Moreover, the fact that M.V.", "had ordered the applicant to pay a disciplinary fine – on which the Court had invited the Government to comment – was of no importance in this connection, in particular because the applicant had failed to mention this aspect in his objection. Similarly, that point could not form the subject of the present application before the Court, for the applicant disputed M.V. 's impartiality solely on the ground that the judge had heard his appeal despite the fact that the applicant had brought an action against him for the protection of personality rights. According to the Government, the Court should not, in assessing whether the rights relied on were respected, take into account any factual circumstances that did not form the basis of the applicant's complaints. 43.", "The Government did not exclude the possibility, in general terms, that doubts might be raised as to the impartiality of a court when a judge was also the defendant in proceedings brought by the accused. However, that would apply more specifically to the situation where civil proceedings were brought prior to criminal proceedings, without there being any direct relation between them. In this connection, the Government referred to Tanner and Malminen v. Finland ((dec.), nos. 42114/98 and 42185/98, 26 February 2002), where the application was declared manifestly ill-founded. The Government submitted that, in the instant case, the applicant's sole purpose in bringing an action for the protection of personality rights was to create the conditions for raising an objection of bias, with a view to protracting the proceedings until the time-limit for detention had expired.", "The applicant had thus stated in the grounds for his objection that the judge's impartiality was compromised by the very existence of such an action (whether justified or not). The Government inferred that he was not seeking the protection of his procedural rights but, on the contrary, wished to take advantage of such protection in order to avoid being sentenced. In this connection, they also drew attention to the grounds of the appeal lodged by the applicant against the dismissal of his first application for withdrawal (see paragraph 20 above). 44. In those circumstances, the Government considered that the High Court had proceeded in the only correct manner, that is to say without yielding to the applicant's blackmail or pressure.", "Any other approach would have provided him and other defendants with a simple means to protract proceedings. In the Government's view, the right to an impartial tribunal was not absolute. When ruling on objections of bias, courts had not only to consider the rights of the defendant but also to take into account the proper administration of justice and the reasonable time requirement. 45. Moreover, it was not to be overlooked that the applicant's guilt was initially established by a first-instance court, whose impartiality had not been challenged by the applicant.", "Judge M.V. only intervened at the appeal stage. The Government considered that, if it was possible to remedy the shortcomings of first-instance proceedings by defect-free proceedings on appeal (see, mutatis mutandis, Lešník v. Slovakia (dec.), no. 35640/97, 8 January 2002), the reverse had to be true, a fortiori, especially as the Court had on many occasions found that the Article 6 § 1 guarantees applied in the first place to proceedings before first-instance courts. Since the High Court had simply upheld the judgment given at first instance, the Government contended that the charges against the defendant were determined by an impartial tribunal in proceedings that satisfied all the requirements of fairness.", "46. With respect to Judge R.T., the decision of 27 April 1999 showed that he had been disqualified because of his connections with two co-defendants of the applicant. After the severance of the applicant's case, there was no apparent reason for that judge to be ordered to stand down, as he had no connections with the applicant. The fact that R.T. had continued to sit in the division to which the applicant's appeal had been referred was therefore justified by the lack of any ground to warrant his exclusion from the case. 47.", "The Government noted that the courts decided on the withdrawal of a judge in private and only in cases where such a request had been submitted to it. In the instant case, however, no such request had been made, either by the applicant or by Judge R.T. For this reason there was no record of any examination of the question of R.T.'s impartiality. It could not however be claimed that the court had ignored this question. Before ruling on a case, the division concerned would systematically seek to establish whether there were any circumstances that would preclude it from doing so. If there were no obstacles, the court, as in the instant case, would continue its examination of the case without adopting any express decision on that matter.", "This was common practice, for a certain presumption of impartiality was necessary for the proper administration of justice. It would certainly be difficult to provide systematically for a special procedure. In case of doubt, it was incumbent upon the defendant to submit an application for the judge's withdrawal, which the applicant had not done in the instant case, for he made no protest to the High Court against the participation of R.T. In this connection, the Government observed that any doubts as to the favourable outcome of an application for withdrawal did not exempt the defendant from the obligation to make use of that remedy. 48.", "In conclusion, the Government considered that it was appropriate in the instant case to take into account the specific circumstances and contended that the High Court had succeeded in maintaining a fair balance between the right of the applicant to an impartial tribunal and the obligation to ensure the proper administration of justice. 2. The applicant 49. The applicant rejected the Government's arguments and maintained that they amounted to little more than speculation, for the purpose of damaging his reputation and justifying the unlawful conduct of the High Court. According to the applicant, the Government had thus demonstrated that the right to an impartial tribunal was not an absolute right afforded to all citizens.", "50. The applicant also denied having any interest in protracting the proceedings and asserted that his sole purpose was to be tried by an impartial tribunal. Only such a tribunal could, in his opinion, ensure that justice took its proper course. In addition, the State had enough resources at its disposal to ensure that the proceedings were completed within a reasonable time, without any need for courts to adopt unlawful methods. Moreover, a few weeks were sufficient for a judge to examine a case, even a complex one.", "51. With respect to the grounds of his appeal of 5 January 2000 (see paragraph 20 above), the applicant contended that they had been drafted by his lawyer and he had not signed them. In response to the Government's argument that he had failed to mention in his application the fine he had been given by M.V. (see paragraph 42 above), the applicant explained that he had only put forward a few facts that in his view were sufficient to show that the judge was biased, and that the fine was part of the overall picture. 52.", "The applicant considered that the Government's contention that what mattered was for the sentence to be decided at first instance by a court that satisfied the requirements of Article 6 § 1 was absurd. In his view, the reality was quite different, because if the shortcomings of a first-instance court could be remedied by an appeal court, then it was the appeal court that was expected to be infallible because its decision was unappealable. Its impartiality therefore had to be subjected to detailed scrutiny. 53. The applicant was quite certain that Judge R.T had sat in the division that ruled on his appeal and had stood down from the case prior to the severance.", "The applicant had never applied for his withdrawal because he had always believed, and continued to believe, that the judge had already been ordered to stand down, and also because such an application would have been regarded as another tactic to delay the proceedings. His lawyer had in fact advised him to stop protesting against the judges who wanted to convict him at all costs and subsequently appeal to the Constitutional Court. Moreover, the fact that R.T. was acquainted with two of his co-defendants had rendered his defence practically impossible, because he had preferred not to mention them in his pleadings even though he would have wished to testify against them. 54. Accordingly, the applicant considered that two of the three members of the appeal court division had not fulfilled the condition of impartiality provided for by Article 6 § 1 of the Convention.", "B. The Court's assessment 55. The Court reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and, above all, as far as criminal proceedings are concerned, in the accused. To that end, it has constantly stressed that a tribunal must be impartial. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1 of the Convention: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Pullar v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996‑III, p. 792, § 30).", "56. The personal impartiality of judges must be presumed unless there is evidence to the contrary (see Cianetti v. Italy, no. 55634/00, § 37, 22 April 2004). As to the objective test it must be determined whether, irrespective of the judge's personal conduct there are ascertainable facts that may raise doubts as to his or her impartiality. In this respect even appearances may be of some importance.", "This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether that person's fear can be regarded as objectively justified (see Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Morel v. France (no. 1), no. 34130/96, § 42, ECHR 2000-VI).", "57. In the instant case, the Court is not convinced that there are sufficient elements to establish that any personal bias was shown by the judges who sat in the High Court division that ruled on the applicant's appeal. In any event, it does not consider it necessary to decide that question since it has arrived at the conclusion, for the reasons set out below, that there was a lack of objective impartiality. 58. For the applicant, the fear of a lack of impartiality stemmed from two circumstances in the instant case: firstly, the president of the appeal division was the defendant in an action brought by the applicant for the protection of personality rights; secondly, another member of the division who knew the family of one of the applicant's co-defendants had, for that reason, stood down from hearing the appeal lodged by those other defendants but continued to sit in the applicant's severed case.", "59. The Court would observe that the question whether the doubts of the person concerned are objectively justified can be answered differently depending on the circumstances of the case (see, mutatis mutandis, Morel (no. 1), cited above, § 45). Accordingly, it is appropriate to examine the applicant's complaint in the light of all the specific facts of the case, as the Government have moreover requested (see paragraph 41 above). Whilst the Government is justified in wishing to take account of the allegedly obstructionist conduct of the applicant, there are other important elements which, contrary to their view, cannot be ignored in assessing the impartiality of the court, such as the decision to fine the applicant taken by the president of the appeal division on 15 February 2000.", "The Court considers that there is nothing to prevent it from going beyond the applicant's allegations and establishing whether there were any other verifiable facts that may have raised doubts as to the impartiality of the court. 60. In this connection, the Court thus notes that, as president of the division to which Mr Chmelíř's appeal was referred, M.V. became the defendant in an action brought by the applicant on 7 February 2000 for the protection of personality rights. Then on 15 February 2000, M.V.", "ordered the applicant to pay a disciplinary fine for contempt of court on the ground that he had made false allegations in his application for the judge's withdrawal of 3 December 1999 and that those allegations had constituted an insolent and unprecedented attack on his person and were intended to delay the proceedings. Lastly, on 1 March 2000, the High Court dismissed the applicant's second application for the judge's withdrawal, after the action had been brought against M.V. for the protection of personality rights. 61. It follows that on 7 February 2000, when the applicant brought an action against M.V.", "for the protection of personality rights, the criminal proceedings before the High Court – in which M.V. was sitting as division president – were pending, as they did not finish until 1 September 2000. The two sets of proceedings thus overlapped for some seven months. Consequently, it cannot be ruled out that, in the context of his criminal proceedings, the applicant may have had reason to fear that M.V. continued to regard him as an opposing party (see, mutatis mutandis, Wettstein v. Switzerland, no.", "33958/96, § 47, ECHR 2000‑XII). 62. Furthermore, in its decision of 1 March 2000 dismissing the application for the withdrawal of its president, M.V. – an application based on the fact that an action had been brought for the protection of personality rights – the High Court division simply referred to the content of that application, to the statement by M.V. in response to the previous application for his withdrawal, and to the applicant's previous attempts to obstruct the criminal proceedings.", "It would thus appear that M.V. did not expressly comment on the grounds of the second application for his withdrawal or state his own views about the action brought against him by the applicant. Even though the said decision described that application as a “new attack on the judge's moral integrity”, the judge made no formal statement capable of dispelling any doubts the applicant may have had (contrast Puolitaival and Pirttiaho v. Finland, no. 54857/00, § 53, 23 November 2004). 63.", "With respect to the Government's reference to the decision in Tanner and Malminen, cited above, the Court would note that in that case it criticised the applicants for not raising their objections in due time. Moreover, their allegations of bias concerned the first-instance court and were, like the merits of the criminal charges against the applicants, reconsidered by the appeal court. However, that was not the case here. 64. Any fears the aforementioned facts may have aroused in the applicant's mind were strengthened by the decision of M.V.", "on 15 February 2000 to order him to pay a fine of CZK 50,000 (approximately 1,674 euros). 65. It is true, as the Court held in Ravnsborg v. Sweden (judgment of 23 March 1994, Series A no. 283-B, p. 30, § 34), that legal rules empowering a court to punish any inappropriate conduct before it are indispensable to ensure the proper and orderly course of judicial proceedings. The Court thus has no intention of depriving courts in Contracting States of the possibility of imposing disciplinary penalties on litigants for the purpose of protecting the interests of justice.", "Once again, it is however necessary to take into account the specific circumstances of each case. 66. In the instant case, the Court acknowledges that the applicant's conduct as pointed out by the Government (see paragraph 41 above) may have delayed the proceedings and complicated the task of the courts, and that the courts might thus have needed to react accordingly. However, it was not that conduct which led the president of the appeal division to fine the applicant. The applicant was actually penalised for the contempt of court constituted by the false allegations in his application for the judge's withdrawal of 3 December 1999.", "Those allegations were regarded by the judge as representing an insolent and unprecedented attack against him with the intention of delaying the proceedings. 67. It should not, however, be overlooked that an application for withdrawal is a statutory remedy that is available to litigants under the Code of Criminal Procedure. Moreover, the reasoning of that decision suggests that the president of the division was unable sufficiently to distance himself from the comments made about him in the context of the applicant's first application for withdrawal. In the Court's opinion, it would be academic to claim that the judge was acting without any personal interest and was simply defending the court's authority and status.", "In reality, courts are not impersonal institutions and operate through the intermediary of the judges on the bench. Since, in the instant case, the contempt of court was constituted by an insolent and unprecedented attack on the president of the division, this indicates that the applicant's conduct was assessed by the judge concerned in relation to his personal understanding, his feelings, his sense of dignity and his standards of behaviour, since he felt personally targeted and insulted. Thus, his own perception and assessment of the facts and his own judgment were involved in the process of determining whether the court had been insulted in that specific case. Emphasis should also be laid, in this context, on the severity of the penalty imposed (the highest possible fine provided for by the Code of Criminal Procedure) and on the warning to the applicant to the effect that any similar attack in the future was likely to be classified as a criminal offence. All these elements show, in the Court's view, that the judge overreacted to the applicant's conduct.", "68. Lastly, the Court would observe that, following the decision of the High Court, the applicant's conviction and sentence became effective. The applicant's constitutional appeal was declared manifestly ill-founded, without any express ruling by the Constitutional Court concerning the complaint of bias on the part of the court, whereas it could have set aside the impugned decisions. In these circumstances, the Court is not convinced that any shortcomings in the High Court proceedings could have been redressed. In this connection, the Court must dismiss the Government's argument that the guarantees under Article 6 § 1 of the Convention are satisfied by the fact that the impartiality of the first-instance court which established the applicant's guilt was not disputed.", "The Court reiterates that, according to its case-law, it is the intervention of a higher court which, in certain circumstances, may remedy an earlier violation of the Convention (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 19, § 33). 69. For the Court, these elements are sufficient to justify the objective existence of fears in the applicant's mind, namely that M.V., as president of the High Court division, lacked the requisite impartiality. Having regard to this finding, and considering that it has already addressed the essence of the complaints of bias on the part of the High Court, the Court does not consider it necessary to rule on the alleged lack of impartiality of Judge R.T. 70.", "In the instant case there has thus been a violation of Article 6 § 1 of the Convention with respect to the requirement of an impartial tribunal. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72.", "Under the head of pecuniary damage, the applicant claimed 13,000 euros (EUR) in respect of his “debts incurred on account and as a result” of the judicial proceedings and his imprisonment, together with the sum of EUR 225,000, corresponding to the damages that he had to pay to the civil parties. Moreover, the applicant claimed EUR 30 for each day spent in prison and compensation of EUR 200 per month for the next thirty years, because of his distressing situation as a citizen with a criminal history and the difficulties he was encountering in finding employment. 73. The Government first drew attention to amendment no. 83/2004 to the Constitutional Court Act, which allowed applicants who had been successful in proceedings before the Court to request, in criminal cases, the reopening of proceedings in the Constitutional Court.", "They further considered that there was no causal link between the alleged violation of the applicant's right to an impartial tribunal and the pecuniary and non-pecuniary damage that he alleged. 74. The Court would note that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 of the Convention might have been (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1575, § 82). In the present case it perceives no causal link between the breach of Article 6 § 1 and the alleged pecuniary damage. There is therefore no ground for compensation under this head.", "In view of the circumstances of the present case, the Court further considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant. B. Costs and expenses 75. Lastly, the applicant claimed EUR 26,000 in respect of the cost of his defence in the domestic proceedings. 76.", "The Court reiterates that, where it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of the violation (see Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). In the instant case, this would correspond in particular to the applications for withdrawal and the constitutional appeals lodged by the applicant. On the basis of the information in its possession and considering the fact that the applicant did not have legal representation in the proceedings before it, the Court awards him EUR 1,000 in respect of the costs and expenses he incurred in the domestic proceedings. C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in French, and notified in writing on 7 June 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJean-Paul Costa Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF PRIZRENI v. ALBANIA (Application no. 29309/16) JUDGMENT STRASBOURG 11 June 2019 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 Prizreni v. Albania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Marko Bošnjak,Işıl Karakaş,Julia Laffranque,Valeriu Griţco,Arnfinn Bårdsen,Darian Pavli, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 21 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29309/16) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Fatos Prizreni (“the applicant”), on 16 May 2016. 2. The applicant was represented by Ms E. Skendaj, of the Albanian Helsinki Committee. The Albanian Government (“the Government”) were represented by their then Agent, Ms Alma Hicka of the State Advocate’s Office. 3.", "The applicant complained of the lack of an effective investigation into the death of his brother while he was serving a prison sentence, contrary to Article 2 of the Convention. He also complained of the inhuman and degrading treatment of his brother as a result of the lack of medical treatment and of the fact that his brother had been handcuffed while in hospital, contrary to Article 3 of the Convention. 4. On 4 October 2016 the Government were given notice of the complaints concerning the alleged lack of an effective investigation into the death of the applicant’s brother while he was serving a prison sentence and the alleged inhuman and degrading treatment as a result of the lack of medical treatment and the fact that he had been handcuffed while in hospital. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Elbasan, Albania. He is the brother of Sh.P., born in 1973. Sh.P.", "died on 22 February 2011. A. Death of the applicant’s brother 6. On 29 March 2010 the Shkodër District Court sentenced Sh.P. to four years’ imprisonment for attempted murder.", "The trial was held in absentia. On 2 December 2010 the Shkodër Court of Appeal upheld the Shkodër District Court’s decision. On 3 February 2011 the latter decision was executed and Sh.P. was sent to serve his prison sentence in the Lezhë detention facility. 7.", "It appears from the case file that Sh.P. was diagnosed by the doctor of the Lezhë detention facility as suffering from psoriasis, parapanesis inferior (partial paralysis of both legs) and elephantiasis. On 9 February 2011 Sh.P. was urgently transferred to Tirana Prison Hospital (Qendra Spitalore e Burgjeve) because according to the doctor of the Lezhë detention facility, he could not be properly treated in an ordinary prison setting. On 17 February 2011 he was transferred to Tirana University Hospital Centre (Qendra Spitalore Universitare Tiranë).", "It appears from the hospital file of 17 February 2011 that the applicant’s brother had been diagnosed with elephantiasis, morbid obesity and multi-organ insufficiency, and was prescribed medication. 8. It appears that on 22 February 2011 Sh.P. died in the intensive care unit of Tirana University Hospital. B.", "Investigative actions 9. On 22 February 2011 a group composed of a judicial police officer, a criminalist and a forensic medical expert carried out an on-site investigation (kqyrjen e vendit të ngjarjes) at Tirana University Hospital Centre and an external examination of the corpse (kqyrjen e kufomës) of Sh.P, and took photographs at the scene. On the same day, the judicial police officer seized Sh.P’s medical file (sekuestroi kartelën klinike) kept at Tirana University Hospital Centre. 10. On 22 February 2011 the judicial police officer in charge of the case ordered a forensic examination of Sh.P.", "and put the following questions to the forensic medical experts: “1. What kind of injuries were noticeable on the deceased? 2. What caused them? 3.", "What was the cause of his death? 4. Was he subjected to negligent medical treatment?” 11. On 22 February 2011 the applicant was questioned as a person with knowledge of the event. He stated that his family members had informed him that his brother was being sent to Lezhë detention facility.", "On 17 February 2011 his mother had told him that his brother had fallen ill and was being transferred to the hospital in Tirana. When he had arrived at the hospital he had found his brother unconscious and tied to the bed with the sheets. He had noticed that the mattress and the blankets were wet and that the area around the bed was very dirty. At approximately 6 a.m. on 22 February 2011, his sister had called him to say that their brother’s condition had deteriorated. When he had arrived at the hospital, he had found his brother dead.", "He added that he wanted to know the cause of his brother’s death. 12. On 25 February 2011 the judicial police officer in charge looked at the admissions register of Tirana Prison Hospital, where it was recorded that Sh.P. had been transferred to that facility on 9 February 2011. 13.", "On 9 March 2011 and again on 25 March 2011 the Tirana prosecutor’s office requested Sh.P.’s file from the Lezhë detention facility. On 21 March 2011 the Lezhë detention facility replied by letter stating that the applicant had been suffering from dyspnea, his lower limbs had both had oedemas, and that he had therefore been urgently transferred to Tirana Prison Hospital. In addition, they attached Sh.P.’s prison file. 14. On 10 March 2011, the prosecutor in charge of the case ordered a series of investigative actions to be carried out by a judicial police officer: “(1) to contact forensic experts who would carry out a forensic examination to find out the cause of death of the deceased; (2) to seize the criminal and medical files of Sh.P.", "from the prison facilities, as well as from the hospital; (3) to search the registers of the Tirana Prison Hospital, Tirana University Hospital and Shkodër civilian hospital in order to find out when he had been hospitalised, what the diagnosis had been, how long he had stayed, etc. ; the pages of the register relevant to the search would have to be attached to the report; (4) to question Tirana prison employees, medical staff who had taken care of Sh.P., and his family members about his medical history, his treatment, when he had last been hospitalised, etc. ; and (5) to carry out any other action which might be deemed necessary before 29 March 2011.” 15. On 25 March 2011 I.O., one of the doctors who had been taking care of the applicant’s brother in the hospital, when questioned by the judicial police officer, stated that while under their supervision Sh.P. had been manifesting respiratory and hepatic insufficiency.", "According to him, Sh.P. had been diagnosed with multi-organ insufficiency and morbid obesity. Sh.P. had been treated like any other patient and the treatment prescribed had been administered in accordance with the rules. 16.", "On 25 March 2011 P.D., one of the doctors who had been taking care of the applicant’s brother in the hospital, when questioned by the judicial police officer, stated that Sh.P. had been transferred to Tirana Prison Hospital from Lezhë prison hospital. He had been treated like any other patient and the treatment prescribed had been administered in accordance with the rules. 17. On 30 March 2011 a group of forensic experts carried out an examination of Sh.P.", "The forensic medical report stated, inter alia: “...1. Two ecchymoses were noticed on both forearms. Oedemas on the lower extremities. Psoriasis. ... 2.", "... Ecchymosis caused by blunt objects (sende të mbrehëta). Rest of the lesions are a consequence of the other illnesses of the deceased ... 3. ... No traces of medication or narcotic or psychotropic substances could be detected in Sh.P.’s blood. ... 4. ...", "The death of Sh.P. was a result of acute cardio-respiratory insufficiency due to complications of the generalised metabolic illness of the deceased ... 5. With regard to the question whether Sh.P. underwent a negligent medical treatment, this would be the subject of an inquiry by another forensic medical commission once they had the investigative file at their disposal ...” C. First set of proceedings 18. On 24 February 2011 the police reported Sh.P.’s death to the Tirana prosecutor’s office, which registered it in a criminal file.", "After having carried out some investigative actions, on 13 April 2011 the Tirana prosecutor’s office decided not to institute criminal proceedings (mosfillimin e procedimit penal) and to give notice of that decision to the interested parties. The decision was based on the medical report of 30 March 2011, which had found that the death of Sh.P. had been the result of acute respiratory and cardiac insufficiency and other diseases. Furthermore, the decision stated that there was no fact, evidence or indication that a criminal offence could have been committed. On 13 May 2011 the applicant was notified of the Tirana prosecutor’s decision.", "19. On 17 May 2011, the applicant lodged a complaint with the Tirana District Court against the decision of the Tirana prosecutor’s office. On 20 October 2011 the Tirana District Court rejected the applicant’s complaint on the grounds that he did not have legal standing to complain against the impugned decision, because he had only been notified of it as a family member of the deceased. The first-instance court also stated that under Article 291 of the Criminal Procedural Code, only the persons who had reported an offence could complain against a decision not to institute criminal proceedings. 20.", "On 20 April 2012 the Tirana Court of Appeal upheld the Tirana District Court’s decision of 20 October 2011. On 23 January 2014 the Supreme Court rejected an appeal lodged by the applicant. On 17 November 2015 the Constitutional Court rejected the applicant’s complaints against the ordinary domestic courts’ decisions, with the argument that the statutory denial of standing to challenge the prosecutor’s decision did not violate the essence of the applicant’s right of access to a court. D. Second set of proceedings 21. On 16 February 2015 the applicant reported the death of his brother to the Tirana prosecutor’s office.", "On 27 March 2015 the Tirana prosecutor’s office decided not to institute criminal proceedings based on the applicant’s report. On an unspecified date the applicant lodged a complaint with the Tirana District Court about the above-mentioned decision. On 18 November 2015, the Tirana District Court, making reference to the first set of proceedings and evidence used in those proceedings, decided without hearing the applicant to reject his complaint. II. RELEVANT DOMESTIC LAW A.", "Constitution of Albania 22. Article 21 of the Constitution provides that everyone’s life is protected by law. Article 25 provides that no one may be subjected to torture or to cruel, inhuman or degrading punishment or treatment. B. Code of Criminal Procedure (CCP) 23.", "The relevant provisions of the CCP provided, at the relevant time, as follows: Article 58Rights of the person injured by the criminal offence “1. The injured party of a criminal offence or his heir has the right to request the prosecution of the perpetrator and to claim damages. 2. The injured party who has no legal capacity to act may exercise his rights recognised by law through his legal representative. 3.", "The injured party has the right to present his claims to the prosecuting authority and require the obtaining of evidence. If the claim is not accepted by the prosecutor, he has the right to appeal to a court within five days of receiving notice.” Article 59The accusing injured party 1. The person injured by the criminal offences provided for in Articles 90, 91, 92, 112 § 1, 119,119/b, 120, 121, 122, 125, 127, 148, 149 and 254 of the Criminal Code may apply to a court to participate as a party in the trial in order to confirm the indictment and to claim damages. 2. The prosecutor participates in the trial of such cases and, as the case may be, requests either the conviction or acquittal of the defendant.", "3. If the accusing injured party or his/her defence lawyer fails to appear at the hearing without reasonable grounds, the court shall dismiss the case. Article 290Circumstances that do not permit the initiation of proceedings “1. Criminal proceedings may not commence or, if they have commenced, shall be terminated at any stage if: a) the accused person has died; b) the accused person lacks criminal responsibility or has not reached the age of criminal liability; c) the complaint of the injured person is missing or has been withdrawn; ç) the law does not define the act as a criminal offence or it has been clearly proven that the offence was not committed; d) the criminal offence has ceased [to exist]; dh) an amnesty has been issued; e) in all other cases provided for by law.” Article 291Decision not to institute proceedings (mosfillimin e procedimit) “1. Where circumstances preventing the initiation of proceedings exist, the prosecutor shall issue a reasoned decision not to institute proceedings.", "2. Notice of the decision shall be served forthwith to those who have lodged a criminal report or a complaint; they may appeal against the decision to a court within five days of being served notice of the decision.” Article 329Appeal against a decision dismissing the case “1. The injured party and the defendant are entitled to appeal to a district court against a decision to dismiss the charge or the case. 2. If the court finds the injured party’s complaint well founded, it shall decide that the investigation should be continued, whereas if it accepts the defendant’s complaint, the court shall change the decision to terminate the proceedings into a more favourable formulation for the defendant.", "3. The decision of the court is amenable to appeal by the prosecutor, the injured party and the defendant.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION Exhaustion of domestic remedies and six-month rule 1. The Government’s submissions 24. The Government submitted that the applicant had not exhausted domestic remedies because the legal avenue that he had chosen to follow was the wrong one.", "Even assuming that he had exhausted the domestic remedies available to him, in the Government’s view, he had lodged his application with the Court outside the six-month time-limit, in view of the Supreme Court’s decision of 23 January 2014 and the fact that he was not required to exhaust the appeal to the Constitutional Court. 25. According to the Government, with regard to the first set of proceedings, the applicant had remained passive and had never reported the case to the prosecutor’s office. All the domestic courts had duly reasoned that under Article 291 of the Criminal Procedure Code, he could not be a party to those proceedings as they had not been initiated by him. There were other available remedies in the domestic system which he could have made use of.", "Article 58 of the Criminal Procedure Code enabled injured parties or their heirs to ask that criminal proceedings be instituted against the perpetrator and to claim compensation. 26. With regard to the second set of proceedings (see paragraph 21 above), although they were initiated on the basis of the applicant’s fresh complaint to the prosecutor’s office and led to an appeal filed with the Tirana District Court, he had not pursued the matter any further than the first-instance court. For this reason, the Government submitted, the applicant’s complaints should be rejected as inadmissible for not having exhausted domestic remedies. 2.", "The applicant’s submissions 27. The applicant submitted that he had exhausted the domestic remedies available to him and that he had lodged the complaint with the Court within the time-limit set by Article 35 § 1. He made reference to the Court’s case-law in this regard, with particular emphasis on the Court’s approach to applying the rule of exhaustion of domestic remedies with some degree of flexibility and without excessive formalism. The applicant submitted that he had officially asked the judicial police officer in charge of investigating his brother’s death to carry out an investigation with a view to clarifying the circumstances of his brother’s death. This had constituted a formal request to bring charges under Article 59 of the Criminal Procedure Code.", "In addition, the mere fact that his brother had died, had given rise ipso facto to an obligation on the part of the authorities under Article 2 of the Convention to carry out an effective investigation. 28. With regard to the second set of proceedings, the applicant stated that he had decided not to lodge an appeal with the Court of Appeal or the Supreme Court because it would have had no prospects of success given that the court would only have considered the file as it had emerged from the first set of proceedings. 3. The Court’s assessment 29.", "The Court will first address the Government’s objection that the application was submitted outside of the six-month time-limit. The Court has already held that, in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 263 ECHR 2014 (extracts). 30. In the present case, the Court notes that the applicant challenged the prosecutor’s decision not to initiate a formal criminal inquiry into his brother’s death all the way to the Constitutional Court, thus playing an active role in the process.", "A petition to the Albanian Constitutional Court on alleged fair trial violations is a remedy that normally should be exhausted (see Xheraj v. Albania, no. 37959/02, § 43, 29 July 2008; Beshiri and Others v. Albania, no. 7352/03, § 32, 22 August 2006 and Balliu v. Albania (dec), no. 74727/01, 16 June 2005). The applicant’s petition, grounded on domestic constitutional guarantees of due process and access to a court, was deemed admissible and reviewed by the Constitutional Court on its merits.", "31. The applicant lodged the application with the Court on 16 May 2016, that is 5 months and 29 days after the decision of the Constitutional Court. The Court therefore rejects the Government’s objection that the complaint was submitted out of time. 32. With regard to the second objection, concerning the exhaustion of the domestic remedies, the Court notes that the applicant requested the judicial police officer in charge of his brother’s case to investigate the circumstances of the latter’s death (see paragraph 11 above).", "Furthermore, he challenged the Tirana prosecutor’s decision not to institute criminal proceedings up to Constitutional Court level (see paragraphs 18-20). 33. The question of whether the applicant should have been required to bring a separate criminal complaint regarding the circumstances of his brother’s death is closely tied to the merits of his Article 2 and Article 3 complaints. That being so, the Court is of the view that this objection should be examined jointly with the merits of that complaint (see paragraphs 44-45 below). II.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 34. The applicant complained that the authorities had not conducted an effective investigation into the death of his brother, as provided for in Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Whether the authorities carried out an effective investigation 1.", "The parties’ submissions 35. The applicant submitted that the investigation carried out by the authorities had failed to provide satisfactory information about the circumstances surrounding his brother’s death. It had not excluded beyond any reasonable doubt that the health damage described in the medical report had not been caused due to ill-treatment of his brother and/or lack of appropriate medical care. The forensic medical experts who had carried out the medical examination had not addressed the judicial police officer’s question as to whether the medical treatment of the applicant’s brother had been inappropriate. On the contrary, they had maintained that that remained to be verified by yet another commission.", "Furthermore, the investigative actions carried out had not provided a convincing explanation for the absence of any trace of medication in the applicant’s blood and that it was not attributable to inadequate treatment. 36. In addition, the applicant made reference to the principles stemming from the Court’s case-law regarding the protection afforded by Article 2 of the Convention to persons in custody and in a vulnerable position. According to the applicant, given the particular circumstances of this case, a thorough forensic examination had been crucial in order to determine the cause of death and also to verify whether there had been any signs of ill‑treatment. 37.", "The Government submitted that the authorities had carried out an effective investigation into Sh.P.’s death. The prosecutor had ordered a series of investigative actions to be carried out (see paragraph 14 above). In particular, the Government drew the Court’s attention to the conclusions of the forensic medical report, which found that the death of Sh.P. had been caused by respiratory and cardiac insufficiency as a result of his medical history. 38.", "The Government further submitted that the medical staff had kept Sh.P. under constant supervision. This was proved by the medical files seized during the investigative actions. Therefore, the domestic authorities had taken all the necessary measures to safeguard the life of Sh.P. His death had come about due to circumstances beyond the authorities’ control.", "2. The Court’s assessment (a) General principles 39. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2, the Court must subject to the most careful scrutiny complaints about deprivation of life (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47 Series A no. 324, and Nachova and Others v. Bulgaria [GC], nos.", "43577/98 and 43579/98, § 93, ECHR 2005‑VII). 40. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Nachova and Others v. Bulgaria [GC], cited above). The Court has further stated that whenever a detainee dies in suspicious circumstances, Article 2 requires the authorities to conduct an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness (see Trubnikov v. Russia, no. 49790/99, §§ 87-88, 5 July 2005).", "41. Furthermore, in the context of health care, the Court has interpreted the procedural obligation of Article 2 as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017; and Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009). 42.", "An investigation must be effective in the sense that it is capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible. Although it is not an obligation of result but of means, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible, will risk falling foul of the required standard of effectiveness (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 166, ECHR 2011). The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see Nachova and Others v. Bulgaria [GC], nos.", "43577/98 and 43579/98, § 111, ECHR 2005‑VII). In all cases, the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Mustafayev v. Azerbaijan, no. 47095/09, § 72, 4 May 2017). 43. A requirement of promptness and reasonable expedition is implicit in this context (see Sıdıka İmren v. Turkey, no.", "47384/11, § 59, 13 September 2016). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Merkulova v. Ukraine, no. 21454/04, § 50, 3 March 2011, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, 30 March 2016).", "(b) Application of the above principles to the instant case 44. The Court will first address the Government’s submission, which it has joined to the merits of the case, that the applicant adopted a passive attitude, failing to report the case to the prosecutor’s office (see paragraph 25 and paragraph 33 above). 45. As has been pointed out above the authorities must act of their own motion once a matter has come to their attention (see paragraph 40 above). Consequently, it is immaterial whether the applicant himself took an active role in involving the investigating authorities.", "46. As regards the details of the investigation actually carried out, the Court notes that the investigation into the death of Sh.P. commenced promptly, on the very day of his death, with an on-site visit, an external examination of the corpse and the seizure of the medical file (see paragraph 9 above). Furthermore, on 10 March 2011 the Tirana prosecutor’s office ordered a series of investigative actions (see paragraph 14 above). 47.", "The Court further notes that the forensic medical examination of Sh.P. carried out on 30 March 2011 found that he had died as a result of acute respiratory and cardiac insufficiency due to complications of his generalised metabolic disease. It further found that there were no traces of medication in his blood. Sh.P.’s medical file, on the other hand, indicated that a series of drugs had been administered to him, as prescribed by the medical staff (see paragraph 7 above). 48.", "The Court, nonetheless, observes some particular shortcomings in the investigative actions carried out by the domestic authorities. 49. First, there is an inconsistency between the information recorded in the medical file indicating that the applicant’s brother had been prescribed medication and the forensic medical examination of 30 March 2011 in respect of Sh.P.’s medical treatment. The investigative actions carried out did not establish whether Sh.P. had been under medication before his death and, if so, whether that had been the proper treatment, given his medical history (see paragraph 17 above).", "The Court is therefore not satisfied that it has been established beyond any reasonable doubt that Sh.P.’s death came about as a result of his disease and not because of inadequate treatment and care. In addition, the investigation did not address the allegations of handcuffing of the applicant’s brother while hospitalised, and whether such a measure had contributed to the latter’s death, given in particular the nature of his medical conditions. 50. Secondly, the Court notes that the decision of the prosecutor’s office of 13 April 2011 not to open an investigation was taken primarily on the basis of the same medical examination. Having established that the medical examination failed to answer some crucial questions, namely, whether there had been adequate medical treatment and whether the applicant’s conditions in hospital had contributed to his death, the Court is not satisfied that the decision taken by the Tirana prosecutor’s office not to bring charges, or even formally open a criminal inquiry, is in line with the procedural obligation enshrined in Article 2 of the Convention.", "51. Thirdly, the Court notes that despite the applicant’s efforts to challenge that decision, his complaints were rejected by the domestic courts (see paragraphs 18-21 above). The Court once again reiterates that the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Mustafayev v. Azerbaijan, cited above, § 72). The Court has stressed on many occasions that the involvement of the next of kin serves to ensure the public accountability of the authorities and public scrutiny of their actions in the conduct of the investigation. The right of the family of the deceased whose death is under investigation to participate in the proceedings, requires that the procedures adopted ensure the requisite protection of their interest, which may be in direct conflict with those of the police or security forces implicated in the event (see Anusca v. Moldova, no.", "24034/07, § 44, 18 May 2010). The statutory impossibility in the present case, for the applicant to effectively challenge the prosecutor’s decision not to institute criminal proceedings is inconsistent with the State’s obligation to conduct an effective investigation. 52. Accordingly, the Court dismisses the Government’s preliminary objection. The deficiencies described above lead the Court to the conclusion that the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s brother.", "There has therefore been a breach of the State’s procedural obligation under Article 2 to protect the right to life. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 53. The applicant complained that while in custody his brother had been subjected to a form of treatment contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 54. The applicant also claimed that he had found his brother tied to his hospital bed with sheets while unconscious, and that the marks on his brother’s wrists raised serious suspicions that he had been handcuffed while at the hospital.", "Furthermore, the result of the forensic medical examination showing a lack of medication in his blood raised serious doubts as to whether he had received appropriate medical care. No further investigations had been conducted in this respect, despite an indication in the forensic medical examination report that the matter should be further investigated. 55. The Government disputed the applicant’s submission. They argued that the investigative file showed that all the measures required to carry out a thorough investigation into whether the applicant’s brother had been subjected to ill-treatment had been taken into consideration.", "Evidence showed that he had been kept under constant medical supervision. With regard to the applicant’s claim that his brother had been handcuffed, the Government submitted that this was not supported by the evidence. 56. The Court has found above that the authorities failed to establish conclusively the cause of Sh.P.’s death. Moreover, the authorities failed to provide any plausible explanation regarding the two bruises found on Sh.P.’s wrists and there is no indication that prison police or hospital personnel were questioned on this issue.", "The applicant’s statements to the police, coupled with the findings of the forensic report on the bruises found on his brother’s body, amounted to an arguable claim that the applicant’s brother might have been subjected to treatment contrary to Article 3 while hospitalised, triggering the obligation of the authorities to investigate the matter (Bouyid v. Belgium [GC], no. 23380/09, § 92, ECHR 2015). 57. The Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see Tarariyeva v. Russia, no.", "4353/03, § 109, ECHR 2006‑XV (extracts). In the present case, the forensic medical report merely mentioned the existence of signs and the fact that they had been caused by impact of a blunt object (mbrehtës) on the applicant’s brother’s body. However, the authorities did not carry out any further examination to establish whether the applicant’s brother had been subjected to any form of ill-treatment (see paragraph 17 above). Furthermore, no further investigations were conducted in this respect. Hence, the Court finds that the domestic authorities did not undertake sufficient investigative measures to establish beyond any reasonable doubt if the bruises on the applicant’s brother’s wrists were caused by treatment contrary to Article 3 of the Convention.", "In these circumstances, the Court is unable to conclude that there has been a substantive violation of Article 3. 58. In the final analysis, the Court considers that the authorities failed to carry out an effective investigation to establish whether the applicant’s brother had been subjected to ill-treatment while in custody. There has therefore been a violation of Article 3 of the Convention under its procedural limb in that respect. IV.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION 59. The applicant further complained that there was no effective remedy in the domestic system for his complaints under Articles 2 and 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 60. The applicant claimed that although he had lodged a complaint against the decision of the Tirana prosecutor’s office not to institute criminal proceedings, the Tirana District Court had rejected it. He had pursued this path up to the Constitutional Court, but to no avail.", "This was an indication that the remedies he had used were not effective and that there were no other available remedies he could have made use of. 61. The Government contested that argument. They claimed that the applicant had had effective remedies available to him but he had chosen to follow the wrong procedural avenue (see paragraphs 19-21 above). 62.", "The Court observes that this complaint concerns the same issues as those examined under Articles 2 and 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusions above under Articles 2 and 3 of the Convention, the Court considers it unnecessary to examine these issues separately under Article 13 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 64. The applicant claimed 30,000 euros (EUR) in respect of the non‑pecuniary damage suffered by himself and his brother. 65. The Government submitted that the applicant’s claims were unsubstantiated, given that he had not submitted any evidence. 66.", "The Court reiterates that it has found that the authorities failed to carry out an effective investigation, contrary to the procedural obligation under Articles 2 and 3 of the Convention. Having regard to the finding of violations and making its assessment on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 67. The applicant also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.", "This included a lump sum for his legal representation before the Constitutional Court and before the Court by six legal representatives. He submitted a general invoice and service contracts for the legal representatives. 68. The Government submitted that these claims were exorbitant and unsubstantiated. 69.", "The Court finds that the applicant must have incurred some costs and expenses in the proceedings. Accordingly, in the present case, regard being had to the information in its possession, the Court considers it reasonable to award the applicant the sum of EUR 1,450 for the proceedings before the Court. C. Default interest 70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the preliminary objection concerning non-exhaustion of domestic remedies to the merits and dismisses it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 2 of the Convention, in its procedural limb; 4. Holds that there has been no violation of Article 3 of the Convention, in its substantive limb; 5. Holds that there has been a violation of Article 3 of the Convention, in its procedural limb; 6.", "Holds that it is unnecessary to examine whether there has been a violation of Article 13 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts; (i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (ii) EUR 1,450 (one thousand four hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SADAK AND OTHERS v. TURKEY (No. 2) (Applications nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95) JUDGMENT STRASBOURG 11 June 2002 FINAL 06/11/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. In the case of Sadak and Others v. Turkey (no. 2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM.", "Pellonpää,MrA. Pastor Ridruejo,MrJ. Makarczyk,MrR. Türmen,MrsV. Strážnická,MrS.", "Pavlovschi, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 21 May 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in nine applications (nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Turkish nationals, Mr Selim Sadak, Mr Sedat Yurttaş, Mr Mehmet Hatip Dicle, Mr Sırrı Sakık, Mr Orhan Doğan, Mrs Leyla Zana, Mr Ahmet Türk, Mr Nizamettin Toguç, Mr Naif Güneş, Mr Mahmut Kılınç, Mr Zübeyir Aydar, Mr Ali Yiğit, and Mr Remzi Kartal (“the applicants”), on 23 August 1994 (no. 25144/94) and 16 December 1994 respectively. 2.", "The applicants were represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul, and Mr Y. Alataş, a lawyer practising in Ankara (nos. 25144/94, 27100/95 and 27101/95), and by Mr P. Leach, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London (nos. 26149/95 to 26154/95). The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions. 3.", "The applicants complained that they had been forced to vacate their parliamentary seats following the dissolution of the Democracy Party (“the DEP”) by the Constitutional Court and alleged the violation of Articles 5, 6, 7, 9, 10, and 11 of the Convention and Article 1 of Protocol No. 1. 4. On 22 May 1995 the Commission decided to join the applications and to give notice of them to the Government. 5.", "The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 6. The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).", "7. By a decision of 6 January 2000 the Chamber decided that the applications should also be examined under Article 3 of Protocol No. 1. 8. By a decision of 30 May 2000 the Chamber declared the applications admissible with the exception of application no.", "25144/94, which it declared partly inadmissible in so far as it concerned Article 5 of the Convention [Note by the Registry. The Court's decision is obtainable from the Registry]. 9. The applicants and the Government each filed written observations on the merits of the case (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).", "Comments were also received from a non-governmental organisation in London, Interights – The International Centre for the Legal Protection of Human Rights, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3). 10. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). These cases were assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 11. The applicants, who were born in 1954, 1961, 1955, 1957, 1955, 1961, 1942, 1951, 1956, 1946, 1961, 1959 and 1948 respectively, are Turkish nationals. They were members of the Turkish Grand National Assembly and the DEP (Democracy Party – Demokrasi Partisi), a political party which was dissolved by the Constitutional Court on 16 June 1994. 12. On 7 May 1993 the DEP was founded and the appropriate declaration submitted to the Ministry of the Interior.", "13. On 2 November 1993 Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for the DEP to be dissolved. In his application he accused the DEP of having infringed the principles of the Constitution and the law on political parties. He considered that declarations made by various members of the DEP's central committee and its former chairman during two meetings held abroad (at Erbil in Iraq and Bonn in Germany) were likely to undermine the integrity of the State and national unity. 14.", "On 1 March 1994 the Constitutional Court decided of its own motion to obtain the oral submissions of certain interested parties. Thus, on 22 March 1994 it took evidence from the applicant Mr Kartal, in his capacity as the vice-chairman of the DEP, and from Mr Kaplan, in his capacity as the party's legal representative. 15. On 2 March 1994 the Grand National Assembly lifted the parliamentary immunity of some of the DEP's MPs, including that of the applicants, in response to a series of applications made by the public prosecutor at the Ankara National Security Court. 16.", "On the same day Mr Dicle and Mr Doğan were arrested as they were leaving parliament, and taken into police custody. On 4 March 1994 the same thing happened to Mr Sakık, Mr Türk and Mrs Zana. The arrest of Mr Yurttaş and Mr Sadak, who had remained inside the parliament building, was prevented by the Speaker of the National Assembly on the ground that they were still members of parliament. 17. On 16 June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the State and national unity.", "18. The Constitutional Court also declared that the parliamentary seats of all the applicants were forfeited as a secondary measure attending the decision to dissolve the DEP. The measure was not applied to four MPs who had recently left the party. 19. On the same day, fearful of the consequences of the criminal proceedings brought against them, Mr Toguç, Mr Güneş, Mr Kılınç, Mr Aydar, Mr Yiğit and Mr Kartal went abroad (to Brussels).", "20. On 1 July 1994 Mr Sadak and Mr Yurttaş went to the public prosecutor's office with their lawyer and were placed in custody. 21. On a later date Principal State Counsel filed submissions in which he accused the applicants of separatism and undermining the integrity of the State, both of these being capital offences under Article 125 of the Criminal Code. 22.", "The Ankara National Security Court gave judgment on 8 December 1994. Applying section 8 of the Prevention of Terrorism Act (Law no. 3713), it sentenced Mr Sakık to three years' imprisonment for separatist propaganda. Mr Türk, Mr Dicle, Mr Doğan, Mr Sadak and Mrs Zana were each sentenced to fifteen years' imprisonment for membership of an armed gang pursuant to Article 168 of the Criminal Code and Mr Yurttaş was sentenced to seven and a half years' imprisonment for assisting and supporting an armed gang, an offence under Article 169 of the Criminal Code. 23.", "On an appeal on points of law by the applicants and Principal State Counsel on 26 October 1995, the Court of Cassation quashed Mr Türk's and Mr Yurttaş's convictions and ordered their release on the ground that they had contravened only section 8 of the Prevention of Terrorism Act. The Court upheld the other applicants' convictions. II. RELEVANT DOMESTIC LAW 24. The relevant provisions of the Constitution provide as follows: Article 5 “The fundamental aims and duties of the State shall be to safeguard the independence and integrity of the Turkish nation, its territorial unity, the Republic and democracy, to ensure the well-being, peace and happiness of both individuals and society, and to endeavour to remove any political, economic or social barrier restricting the fundamental rights and freedoms of the individual in a manner incompatible with the principles of equality before the law and justice and to secure the conditions required for the material and spiritual development of the individual.” Article 10 “Everyone shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.", "No privileges shall be granted to any individual, family, group or class. Organs of State and administrative authorities shall be required to comply in everything they do with the principle of equality before the law.” Article 69 (as in force at the material time) “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ...", "Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founder members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founder members and leaders, at whatever level, of political parties which have been permanently dissolved may not become founder members, leaders or auditors of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved.” Article 69 § 8 (as worded after the constitutional amendment of 1995) “... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...” Article 84 § 3 (as in force at the material time) “... The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, and that of other members who belonged to the dissolved party on the date when the action for dissolution was brought, shall end on the date when the Presidency of the Grand National Assembly is notified of the dissolution order.” Article 84 § 5 (as worded after the constitutional amendment of 1995) “...", "The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.” 25. The relevant provisions of the Criminal Code provide: Article 125 “It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State's independence, breaking its unity or removing part of the national territory from the State's control.” Article 168 “Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.” Article 169 “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment ...” 26. Section 8(1) of the Prevention of Terrorism Act (Law no.", "3713), as amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995, provides: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 27. Article 3 of Protocol No. 1 provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 28. The applicants insisted on the predominant role of elected representatives in a pluralist, democratic and parliamentary system. They disputed the reasons given by the Constitutional Court in its decision to dissolve the party.", "They contended that in the speeches at issue the DEP's leaders had done no more than highlight the Kurdish identity of certain citizens and the need to promote the language and culture of the “Kurdish people” and introduce legislation in that connection. 29. Referring to the Resolution of 30 June 1994 in which the Parliamentary Assembly of the Council of Europe made observations on this subject, the applicants submitted that pluralism in a democratic society required the free expression of all opinions even if they did not correspond to those expressed by the government. The applicants' forfeiture of their parliamentary seats following the dissolution of the DEP had had the effect of preventing a part of the population from taking part in political debate and had thus led to an infringement of Article 3 of Protocol No. 1.", "30. Referring to Mathieu-Mohin and Clerfayt v. Belgium, the Government asserted that Article 3 of Protocol No. 1 applied only to election to the legislature and that the word “legislature” was to be interpreted according to the State's constitutional structure. They reiterated that the applicants' forfeiture of their parliamentary seats had been the consequence of the DEP's dissolution pursuant to the provisions of the Constitution. That measure had pursued several legitimate aims, namely the protection of public safety and national security as well as the preservation of the democratic system and territorial integrity.", "31. The Court points out that implicit in Article 3 of Protocol No. 1 are the subjective rights to vote and to stand for election. Although those rights are important, they are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations.", "In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see the following judgments: Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, Series A no. 113, p. 23, § 52; Gitonas and Others v. Greece, 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 233, § 39; Ahmed and Others v. the United Kingdom, 2 September 1998, Reports 1998-VI, p. 2384, § 75; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000‑IV).", "32. The Court would also point out that Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy, and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt, cited above, p. 22, § 47). As to the links between democracy and the Convention, the Court has made the following observations (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 21-22, § 45, and Yazar and Others v. Turkey, nos.", "22723/93, 22724/93 and 22725/93, §§ 47-48, ECHR 2002-II): “Democracy is without doubt a fundamental feature of the European public order ... That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ...” 33. Furthermore, the Court, like the Commission, considers that this Article guarantees the individual's right to stand for election and, once elected, to sit as a member of parliament (see Ganchev v. Bulgaria, no. 28858/95, Commission decision of 25 November 1996, Decisions and Reports 87, p. 130, and Gaulieder v. Slovakia, no.", "36909/97, Commission's report of 10 September 1999, § 41). 34. The Court has already held that “[w]hile freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament ... call for the closest scrutiny on the part of the Court” (see Castells v. Spain, judgment of 23 April 1992, Series A no.", "236, pp. 22-23, § 42). 35. Even supposing that the measure in question pursued one or more legitimate aims, as the Government maintained, the Court considers that it was not proportionate to those aims for the reasons outlined below. 36.", "In the instant case it must be noted that the reasons given by the Constitutional Court in its judgment of 16 June 1994 ordering the dissolution of the DEP related to speeches given when abroad by the former chairman of the party and a written declaration made by the party's central committee. Following the party's dissolution and pursuant to the provisions of the law on political parties and Article 84 § 3 of the Constitution, which at the material time provided a system for the automatic forfeiture of parliamentary office, the applicants, who were members of parliament and the DEP, were forced to vacate their parliamentary seats. 37. To assess the proportionality of that measure, the Court considers it important to note that as a result of the amendment to Article 84 § 5 of the Constitution, only the seat of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party must be forfeited (see Article 84 § 3 of the Constitution in force at the material time). In the instant case, the forfeiture of the applicants' parliamentary seats was the consequence of the dissolution of the political party of which they were members and occurred regardless of their personal political activities.", "38. The Court notes the extreme harshness of the measure in question. The DEP was immediately and permanently dissolved and the applicants, who had been DEP MPs, were prohibited from engaging in their political activities and could no longer fulfil their mandate. 39. The Court considers in this connection that the nature and severity of the interferences are factors to be taken into account when assessing their proportionality (see, for example, Sürek v. Turkey (no.", "1) [GC], no. 26682/95, § 64, ECHR 1999-IV). 40. Having regard to all of the above considerations, the Court concludes that the penalty imposed on the applicants by the Constitutional Court cannot be regarded as proportionate to any legitimate aim relied on by the Government. The Court therefore considers that the measure in question was incompatible with the very substance of the applicants' right to be elected and sit in parliament under Article 3 of Protocol No.", "1 and infringed the sovereign power of the electorate who elected them as members of parliament. It follows that there has been a violation of Article 3 of Protocol No. 1 in the instant case. II. ALLEGED VIOLATION OF ARTICLES 7, 9, 10, 11 AND 14 OF THE CONVENTION 41.", "The applicants alleged that the forfeiture of their parliamentary seats following the dissolution of the DEP by the Constitutional Court had infringed their right to freedom of association under Article 11 of the Convention. They also alleged a violation of Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression) and 14 (prohibition of discrimination) of the Convention. Article 11 of the Convention provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.", "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 42. In the Government's submission, parliamentary office was one of the highest public positions in the State, attracting extensive immunities and privileges, which were attached not to the person of each member of parliament but to their office. Referring to Glasenapp and Kosiek v. Germany (judgments of 28 August 1986, Series A nos. 104 and 105), they maintained that the instant cases mainly related to access to the civil service, a right which was not guaranteed by the Convention.", "43. The Government asserted that the disputed decision made by the Constitutional Court had been based on Article 84 of the Constitution. They pointed out that, since the constitutional amendment introduced in 1995, Article 84 had only continued to have that consequence in respect of members of parliament whose words and deeds had led to the dissolution of their political party. 44. The Government pointed out that freedom of association – like freedom of expression – was not absolute and often conflicted with other paramount interests in a democratic society.", "Accordingly, the margin of appreciation had to be gauged in the light of the legitimate aim pursued by the interference and the background to the facts of the case. They asserted that the speeches given by the DEP's leaders to the public had been apt to incite part of the population to revolt and give rise in them to feelings of hatred, violence and ethnic discrimination, particularly when they described “Turks” as “enemies”, advocated the establishment of an independent Kurdish State and totally repudiated the Republic of Turkey as a whole. The applicants had never once criticised those speeches and had never severed their ties with the PKK, the Workers' Party of Kurdistan. 45. The applicants maintained that the provisions on political parties and Article 84 of the Constitution, which established a system of automatic forfeiture of parliamentary office following the dissolution of a political party, were incompatible with the Convention, in particular its Preamble and Articles 9, 10 and 11.", "They submitted that they had in no way caused the dissolution of the DEP by their words or deeds and concluded from that that the interference in question had not been justified under paragraph 2 of Article 11 of the Convention. 46. The applicants submitted that the forfeiture of their parliamentary seats was contrary to Article 7 of the Convention, the relevant part of which provides: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...” 47.", "Having regard to its conclusion as to compliance with Article 3 of Protocol No. 1, the Court does not consider it necessary to examine these complaints. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 48.", "The applicants alleged that they had been unjustly deprived of the benefit of their parliamentary remuneration in breach of Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 49. It should be pointed out that the measures about which the applicants complained were the secondary effects of the forfeiture of their parliamentary seats, which has been found by the Court to constitute a violation of Article 3 of Protocol No.", "1. Consequently, there is no need to examine that complaint separately. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 50. The applicants complained that they had not had a fair trial in the Constitutional Court in so far as their rights of defence had been restricted during those proceedings.", "They considered this to amount to a violation of Article 6 § 1 of the Convention. 51. The Government submitted that Article 6 § 1 was not applicable to the facts of the case. 52. Having regard to its conclusion as to compliance with Article 3 of Protocol No.", "1, the Court does not consider it necessary to examine this complaint. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicants alleged that they had sustained pecuniary damage corresponding to what they would have earned as members of parliament had they not been forced to vacate their seats and the loss of earnings they endured as a result of the restrictions to their civic rights.", "They assessed that damage at 882,300 United States dollars (USD) for Mahmut Kılınç, USD 573,300 for Nizamettin Toguç, USD 681,300 for Ali Yiğit, USD 413,300 for Remzi Kartal, USD 1,872,300 for Zübeyir Aydar, USD 338,500 for Naif Güneş and USD 548,700 each for Ahmet Türk, Sırrı Sakık and Sedat Yurttaş. Under the head of non-pecuniary damage, the same applicants, except for Naif Güneş, each claimed USD 5,000,000. Selim Sadak, Leyla Zana, Hatip Dicle and Orhan Doğan referred to the claim they had already made in connection with applications nos. 29900/96, 29901/96, 29902/96 and 29903/96, which the Court had already examined (see Sadak and Others v. Turkey (no. 1), ECHR 2001-VIII).", "The applicants did not produce any vouchers in support of their claims. 55. The Government argued that a member of parliament's salary was paid for the performance of quite specific functions and that, following the forfeiture of his seat, a member of parliament no longer had that status and no longer had the right to be paid. The Government submitted that the applicants' claim in respect of non-pecuniary damage was excessive and would be likely to lead to unjust enrichment. 56.", "The Court considers that irrespective of the dissolution of the DEP, because of the forfeiture of their parliamentary seats, the applicants undoubtedly sustained pecuniary damage, which, however, cannot be assessed with precision. To that must be added non-pecuniary damage, which the finding of a violation in this judgment is not sufficient to make good. That being so, the Court, making its assessment on an equitable basis as required by Article 41, awards 50,000 euros (EUR) to each applicant in respect of all heads of damage taken together. B. Costs and expenses 57.", "In respect of the costs and expenses relating to their legal representation in the Constitutional Court and in Strasbourg, Selim Sadak, Leyla Zana, Hatip Dicle, Orhan Doğan, Ahmet Türk, Sırrı Sakık and Sedat Yurttaş together claimed USD 33,000. With regard to Mr Alataş's and Mr Kaplan's fees, they sought an additional total of USD 200,000. The other applicants sought 3,460 pounds sterling (GBP) for their British lawyers' fees and their costs and expenses together with GBP 20,042 for fees, administrative and translation costs and travel expenses incurred by the Kurdish Human Rights Project (KHRP) when assisting with the applications. The applicants did not produce any vouchers in support of their claims. 58.", "The Government argued that the costs of the applicants' representation before the Constitutional Court could not be relevant here as that was unconnected with the proceedings before the Strasbourg institutions. The Government said these claims were manifestly excessive, particularly the amount in respect of fees. They submitted that the claims should not be accepted as this would inflate the award into unjust enrichment. 59. The Court reiterates that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no.", "31195/96, § 79, ECHR 1999-II). In that connection, it should be pointed out that the Court may award the applicant not only the costs and expenses incurred before the Convention institutions, but also those incurred in the national courts for the prevention or redress of a violation found by the Court (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999-I). 60. As to the costs claimed by the KHRP, the Court is not persuaded that the latter's participation in the proceedings justifies an award and so it rejects that claim.", "Making its assessment on an equitable basis in the light of the evidence in its possession, the Court awards Selim Sadak, Leyla Zana, Hatip Dicle, Orhan Doğan, Ahmet Türk, Sırrı Sakık and Sedat Yurttaş together EUR 10,500 and Nizamettin Toguç, Naif Güneş, Mahmut Kılınç, Zübeyir Aydar, Ali Yiğit and Remzi Kartal together EUR 9,000, in respect of all costs and expenses. C. Default interest 61. The Court considers it appropriate to set default interest at an annual rate of 7.25%. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 3 of Protocol No.", "1; 2. Holds that it is unnecessary to examine whether there has been a violation of Articles 7, 9, 10, 11 and 14 of the Convention; 3. Holds that it is unnecessary to examine whether there has been a violation of Article 1 of Protocol No. 1; 4. Holds that it is unnecessary to examine whether there has been a violation of Article 6 § 1 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, plus any tax or stamp duty that may be chargeable at the time of payment, to be converted into Turkish liras at the rate applicable on the date of settlement: (i) EUR 50,000 (fifty thousand euros) to each of the applicants, all heads of damage taken together; (ii) for costs and expenses, EUR 10,500 (ten thousand five hundred euros) to Selim Sadak, Leyla Zana, Hatip Dicle, Orhan Doğan, Ahmet Türk, Sırrı Sakık and Sedat Yurttaş together and EUR 9,000 (nine thousand euros) to Nizamettin Toguç, Naif Güneş, Mahmut Kılınç, Zübeyir Aydar, Ali Yiğit and Remzi Kartal together; (b) that simple interest at an annual rate of 7.25% shall be payable from the expiry of the above-mentioned three months until settlement; 6. Dismisses the remainder of the applicants' claim for just satisfaction. Done in French, and notified in writing on 11 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleSir Nicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF POZNAKHIRINA v. RUSSIA (Application no. 25964/02) JUDGMENT STRASBOURG 24 February 2005 FINAL 06/07/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Poznakhirina v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsS.", "Botoucharova,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 1 February 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25964/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Svetlana Anatolyevna Poznakhirina, a Russian national, on 6 May 2002. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. On 19 May 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4. The applicant was born in 1951 and lives in Novovoronezh, Voronezh Region.", "5. In 1999 the applicant brought proceedings against the Chief Department of Finance of the Voronezh Region to claim welfare payments to which she was entitled in respect of her child. 6. On 5 January 2000 the Novovoronezh Town Court of the Voronezh Region awarded the applicant 3,387.87 roubles (RUR). This judgment entered into force on 15 January 2000.", "7. On 10 February 2000 the enforcement order was issued and sent to the bailiff service of the Tsentralnyy District of Voronezh. 8. On 10 April 2000 the applicant complained to the Department of Justice of the Voronezh Region about the bailiffs’ failure to execute the judgment in her favour. 9.", "On 20 April 2000 the Department of Justice of the Voronezh Region informed the applicant that her award would be enforced in accordance with the order of priority set out by the Federal Law on Enforcement Procedure. 10. On 26 June 2001 the bailiff terminated execution proceedings in respect of the judgment of 5 January 2000, as the debtor had no sufficient funds. The applicant was suggested to bring an action against the Administration of the Voronezh Region. 11.", "On 13 February 2002 the Tsentralnyy District Court of Voronezh granted the applicant’s request to resume enforcement proceedings. In this decision the court dismissed the bailiff’s argument that an action against the Administration of the Voronezh Region was necessary to secure execution of the judgment against the Chief Department of Finance. The court found that the judgment of 5 January 2000 could be enforced as it stood. 12. The sum awarded has not been paid to the applicant.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 13. The applicant complained that the prolonged non-enforcement of the judgment of 5 January 2000 violated her “right to a court” under Article 6 § 1 of the Convention and her right to the peaceful enjoyment of possessions as guaranteed in Article 1 of Protocol No. 1 to the Convention.", "These Articles in so far as relevant provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 14. The Government contested the admissibility of the application on the ground that the applicant had failed to exhaust domestic remedies.", "They submitted that the applicant’s original claim for the benefits at issue should have been brought against the Administration of the Voronezh Region, and not only against the Chief Department of Finance. They asserted that such claim would have yielded a judgment with better chances of enforcement. 15. In reply to the Government’s objection, the applicant referred to the decision of the Tsentralnyy District Court of Voronezh dated 13 February 2002, in which it was established that no further action was necessary to secure the enforcement of the judgment. 16.", "The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v Poland [GC], no.", "30210/96, § 158, ECHR 2000‑XI). 17. The Court notes that the validity of the judgment of 5 January 2000 against the Chief Department of Finance is undisputed. Moreover, a separate court decision of 13 February 2002 confirmed that it could be enforced. The Court considers that having obtained a judgment and an execution order against a particular State authority the applicant should not be required to institute, on her own initiative, other proceedings against different State agency to meet her claims.", "Moreover, even assuming that the applicant brought an action against the Administration of the Voronezh Region, the underlying problem of the non-enforcement of the judgment of 5 January 2000 would remain. The Court concludes that such an action would not have been an effective remedy within the meaning of Article 35 § 1 of the Convention. 18. The Court therefore does not accept that the applicant was required to exhaust domestic remedies through a further court action against another defendant. 19.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 20.", "The Government acknowledged that the applicant was entitled to the sum awarded to her under the judgment of 5 January 2000. They explained that this amount had not been paid to her due to the budget deficit of 2000-2002. They contended, however, that all outstanding benefits from this period were to be paid by the end of 2003. 21. The applicant maintained her complaint.", "She alleges that the judgment in question has not been enforced to date. Article 6 § 1 of the Convention 22. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention.", "Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III, and Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). 23. The Court further observes that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1.", "The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State (see Burdov v. Russia, cited above, § 35). 24. Turning to the instant case, the Court notes that the judgment of 5 January 2000 has until now remained unenforced in its entirety for almost five years. 25. By failing for such a substantial period of time to take the necessary measures to comply with the final judicial decisions in the present case, the Russian authorities deprived the provisions of Article 6 § 1 of their useful effect.", "26. There has accordingly been a violation of Article 6 § 1 of the Convention. Article 1 of Protocol No. 1 to the Convention 27. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No.", "1 if it is sufficiently established to be enforceable (see Burdov v. Russia, cited above, § 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). The judgment of 5 January 2000 provided the applicant with an enforceable claim and not simply a general right to receive support from the State. The judgment had become final as no ordinary appeal was made against it, and enforcement proceedings had been instituted. It follows that the impossibility for the applicant to have this judgment enforced for a substantial period of time constitutes an interference with her right to peaceful enjoyment of her possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No.", "1. 28. By failing to comply with the judgment of 5 January 2000, the national authorities have prevented the applicant from receiving her award. The Government have not advanced any justification for this interference and the Court considers that the lack of funds cannot justify such an omission (see Burdov v. Russia, cited above, § 41). 29.", "There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 31. The applicant claimed RUR 6,520 in respect of pecuniary damage, of which RUR 3,388 was for the principal amount awarded and unpaid to the applicant and RUR 3,132 was for the interest payable at the statutory rate. The applicant claimed EUR 20,000 in respect of non-pecuniary damage which she had sustained as a result of the authorities’ failure to enforce the judgment. 32. The Government did not contest the applicant’s claim for pecuniary damage.", "In respect of non-pecuniary damage, they submitted that the amount claimed by the applicant was unreasonable and unsubstantiated. They claim that, in any event, the award should not exceed the amount awarded by the Court in the Burdov v. Russia case. Alternatively, they submitted that the finding of a violation would in itself constitute sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 33. The Court notes that the State’s outstanding obligation to enforce the judgment at issue is not in dispute.", "Accordingly, the applicant is still entitled to recover the principal amount of the debt in the course of domestic proceedings. The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violations found.", "It therefore considers that the Government shall secure, by appropriate means, the enforcement of the award made by the domestic courts. For this reason the Court does not find it necessary to make an award for pecuniary damage in so far as it relates to the principal amount. 34. The Court accepts, however, the applicant’s claim in respect of pecuniary damage in so far as it relates to the interest. It awards the applicant the sum of RUR 3,132 under this head.", "35. The Court notes that the applicant’s loss as a result of non-enforcement of the judgment in her favour was mostly of a pecuniary nature, which is compensated for by the award in respect of pecuniary damage. It observes that in the judgment Burdov v. Russia (cited above, §47) it made an award of EUR 3,000 for non-pecuniary damage suffered as a result of non‑enforcement of a judgment in the applicant’s favour. In that case the judgment at issue concerned a Chernobyl-victim’s pension payable as compensation for health damage leading to disability, which was the applicant’s main source of income. In the present case, on the contrary, the applicant was gainfully employed and the payment at stake was a marginal benefit which was not the applicant’s means of support.", "Having regard to the nature of the breach in this case, the Court finds that the finding of a violation constitutes in itself sufficient just satisfaction for the non‑pecuniary damage, if any, sustained by the applicant. B. Costs and expenses 36. The applicant also claimed EUR 1,834.61 for the costs and expenses incurred as a result of a visit to Strasbourg which she undertook to familiarise herself with the file concerning the application. 37.", "The Government contested the applicant’s claims concerning reimbursement of her trip to Strasbourg, since the applicant’s attendance was not required by the Court and was undertaken on the applicant’s own initiative. 38. According to the Court’s case-law, an applicant is entitled to reimbursement of the 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, although the applicant was permitted, at her request, to have access to her case file, her attendance was not required by the Court. Regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in respect of the applicant’s travel to Strasbourg.", "C. Default interest 39. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the award made by the domestic court, and in addition pay the applicant RUR 3,132 (three thousand one hundred and thirty two roubles) in respect of pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 24 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF YAYLA v. TURKEY (Application no. 70289/01) JUDGMENT STRASBOURG 21 July 2005 FINAL 21/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yayla v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrC. Bîrsan,MrsM. Tsatsa-Nikolovska,MsR. Jaeger,MrE.", "Myjer, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 30 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 70289/01) 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, Ms Nefise Nafize Yayla (“the applicant”), on 26 April 2001. 2. The applicant was represented by Mr Bilal İstek, a lawyer practising in Izmir.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 5 April 2004 the Court decided to communicate the application to the Government. In a letter of 8 April 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1940 and lives in Izmir. 5. On 6 February 1998 the General Directorate of National Airports expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot of land and the relevant amount was paid to her when the expropriation took place.", "6. Following the applicant's request for increased compensation, on 29 April 1999 the Antalya Civil Court of First-instance awarded her additional compensation plus interest at the statutory rate. 7. On 20 October 1998 the Court of Cassation quashed the judgment of the First-instance court. 8.", "On 18 April 2000 the Antalya Civil Court of First-instance awarded the applicant an additional compensation of 3,400,000,000 Turkish liras (TRL) plus an interest at the statutory rate applicable at the date of the court's decision. 9. On 27 June 2000 the Court of Cassation upheld the judgment of the Antalya Civil Court of First-instance. 10. On 26 October 2000 the Court of Cassation rejected the General Directorate of National Airports' request for rectification.", "11. On 7 December 2000 the General Directorate of National Airports paid the amount of TRL 8,138,266,000 to the applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE 12. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp.", "2674-76, §§ 17-25). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicant complained that the additional compensation for expropriation, which she had obtained from the authorities only after two years and nine months' court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey.", "She relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 14. The Government averred that the applicant had not exhausted remedies available to her in domestic law since she had failed to make proper use of the remedy available to her under Article 105 of the Code of Obligations.", "Under that provision, she would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation had she established that the losses exceeded the amount of default interest. 15. The Court observes that it dismissed a similar objection in the case of Aka v. Turkey (cited above, pp. 2678-79, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government's objection.", "16. In the light of the principles it has established in similar cases (see, among other authorities, Aka, cited above) and of all the evidence before it, the Court concludes that the application requires an examination on the merits and there are no grounds for declaring it inadmissible. B. Merits 17. The Court has found a violation of Article 1 of Protocol No.", "1 in a number of cases that raise similar issues to those arising here (see Aka, cited above, p. 2682, §§ 50-51). 18. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner a loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.", "19. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary and non-pecuniary damage 21. The applicant sought compensation for pecuniary damage in the sum of 40,817 United States dollars (USD). She also claimed compensation for non‑pecuniary damage of USD 5,000. 22. The Government contested her claims.", "23. Using the same method of calculation as in the Aka judgment (cited above, pp. 2683-84, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicant 7,122 euros (EUR) for pecuniary damage. 24. The Court considers that the finding of a violation of Article 1 of Protocol No.", "1 constitutes in itself sufficient compensation for any non‑pecuniary damage suffered by the applicant. B. Costs and expenses 25. The applicant also claimed USD 3,251 for the costs and expenses incurred before the domestic courts and USD 3,000 for those incurred before the Court. 26.", "The Government contested those claims. 27. Making its own estimate based on the information available, the Court considers it reasonable to award the applicant a global sum of EUR 500 under this head. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums plus any tax, stamp duty or imposts that may be chargeable at the date of payment, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 7,122 (seven thousand one hundred and twenty-two euros) in respect of pecuniary damage; (iii) EUR 500 (five hundred euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FOURTH SECTION CASE OF WRONA v. POLAND (Application no. 29345/09) JUDGMENT STRASBOURG 10 March 2015 This judgment is final but it may be subject to editorial revision. In the case of Wrona v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Ledi Bianku,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 17 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29345/09) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Piotr Wrona (“the applicant”), on 25 May 2009.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. On 14 March 2011 the application was communicated to the Government. 4.", "On 12 March 2014 the Judge appointed as Rapporteur requested the parties pursuant to Rule 49 § 3 (a) of the Rules of Court to submit factual information concerning the state of criminal proceedings against the applicant at that time and whether he had made further use of domestic remedies in that respect. 5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1966 and lives in Puck. A. Criminal proceedings against the applicant and his pre-trial detention 7. On 19 September 2007 the applicant was arrested on suspicion of drug trafficking and membership in an organised criminal group.", "The investigation against him and several other persons was conducted by the Puck District Prosecutor (Prokurator Rejonowy). 8. On 21 September 2007 the Wejherowo District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence and the complex nature of the case.", "9. The applicant’s pre-trial detention was later extended by the Gdańsk Regional Court (Sąd Okręgowy) on 6 December 2007 and on 11 March and 10 June 2008. On 10 September 2008 the Gdańsk Court of Appeal (Sąd Apelacyjny) further extended the applicant’s detention. The courts repeatedly relied on the original grounds given for the applicant’s detention. They also emphasised the need to secure the process of obtaining evidence as the case concerned activities of an organised criminal group.", "10. On an unspecified date in 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy). 11. On 5 December 2008 a bill of indictment against the applicant and seventeen other persons was lodged with the Gdańsk Regional Court. The applicant was charged with numerous counts of drug trafficking and with membership in an organised criminal group.", "The bill of indictment stated that six accused had pleaded guilty and agreed to the sentences indicated by the prosecution authorities under Article 335 of the Code of Criminal Procedure (wniosek o skazanie). It was accompanied by 20 volumes of the case file. The prosecutor requested the court to hear 48 witnesses. 12. During the court proceedings the applicant’s detention pending trial was further extended by decisions of the Gdańsk Regional Court delivered on 11 December 2008 and 12 March and 9 June 2009; and by the Gdańsk Court of Appeal’s decisions of 26 August and 25 November 2009, 23 February, 19 May, 25 August and 19 October 2010, 12 January and 23 March 2011.", "The applicant’s appeals against decisions prolonging his detention and all his subsequent applications for release were unsuccessful. The courts continually justified their decisions by the existence of a reasonable suspicion that the applicant had committed the offences. They also referred to the likelihood of a heavy prison sentence being imposed on the applicant after conviction. They further relied on the need to secure the proper conduct of the proceedings, emphasising that the accused and subsequently the witnesses in the case had to testify before the trial court. They considered that the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings resulted from the fact that he had been charged with membership in an organised criminal group.", "Finally, they found that the trial court conducted the proceedings in a correct and timely manner. They noted in this regard the complex character of the case and the voluminous documentation gathered (on 23 March 2011 the case file comprised 36 volumes). They also referred to multiple procedural motions of the accused and their lawyers. 13. Between 12 November 2008 and 14 August 2009 the applicant served a prison sentence ordered in another set of criminal proceedings against him.", "14. Meanwhile, on 19 February 2009 the trial court decided to examine the charges against six co-accused in separate proceedings. 15. On 15 April 2009 the court scheduled the first hearing for 13 May 2009. It also scheduled five further hearings.", "16. The hearings scheduled for 13 and 28 May 2009 were adjourned due to the absence of one of the accused. 17. The trial was eventually started on 9 July 2009. Subsequently, the trial court held ten further hearings by the end of 2009.", "18. In 2010 the court held altogether sixteen hearings. Four of the scheduled hearings were adjourned due to absences or sick-leaves of the accused or their lawyers. 19. In 2011 eight hearings were held by 20 May 2011.", "On that date the Gdańsk Regional Court lifted the applicant’s detention and imposed on him police supervision and prohibition to leave the country. It considered that it was no longer necessary to hold the applicant in detention as the proceedings were at an advanced stage. The applicant was released on the same date. 20. The proceedings are still pending.", "B. Proceedings under the 2004 Act 21. On 12 October 2010 the applicant lodged a complaint with the Gdańsk Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He questioned the overall length of the proceedings and stated that he had been deprived of his liberty for three years. He complained that due to the lengthy proceedings he had not been able to maintain contact with his newborn daughter and that his financial situation had deteriorated.", "He relied on Article 6 § 1 of the Convention. 22. On 16 November 2010 the Gdańsk Court of Appeal rejected the applicant’s complaint. The appellate court found that the applicant had failed to indicate circumstances that would justify his request, as required by section 6 of the 2004 Act. It considered that to satisfy this requirement it did not suffice to question the overall length of proceedings, as did the applicant.", "It stressed that the applicant should have indicated a concrete inactivity or deficient activity on the part of the domestic authorities resulting in the allegedly excessive length of proceedings. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Length of pre-trial detention 23. The relevant domestic law and practice concerning the imposition of pre‑trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no.", "31330/02, §§ 27‑33, 25 April 2006; and Celejewski v. Poland, no. 17584/04, §§ 22‑23, 4 May 2006. B. Length of proceedings 24. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no.", "15212/03, §§ 12-23, ECHR 2005‑V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII; and its judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 23-30, 20 April 2010. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 25. The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 26. The Government contested that argument.", "A. Admissibility 27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Period to be taken into consideration 28. The applicant’s detention started on 19 September 2007, when he was arrested on suspicion of drug trafficking and membership in an organised criminal group. On 20 May 2011 the Gdańsk Regional Court lifted the preventive measure. 29.", "However, between 12 November 2008 and 14 August 2009 the applicant served a prison sentence which had been imposed on him in other criminal proceedings. This term, as being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s pre-trial detention for the purposes of Article 5 § 3. Accordingly, the period to be taken into consideration amounts to two years, eleven months and fifteen days. 2. The parties’ submissions (a) The applicant 30.", "The applicant argued that the length of his detention had been unreasonable. In his opinion, the courts had not given relevant and sufficient reasons for keeping him in detention for such a long period. He also alleged that they had failed to display the required degree of diligence in the conduct of the proceedings. (b) The Government 31. The Government considered that the length of the applicant’s pre‑trial detention was compatible with the standards resulting from Article 5 § 3 of the Convention.", "They argued that the grounds stated in the decisions of the domestic courts were “relevant” and “sufficient” to justify the entire period of the applicant’s detention. These grounds were, in particular, the gravity of the charges against the applicant who had been charged with numerous counts of drug trafficking committed in an organised criminal group. They also argued that the domestic authorities had conducted the proceedings with due diligence. They submitted that, despite the exceptional complexity of the case, the investigation had been completed within a period of some fourteen months. They underlined that the applicant’s detention was under constant supervision by domestic courts.", "3. The Court’s assessment (a) General principles 32. The Court recalls that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).", "(b) Application of the above principles in the present case 33. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the serious nature of the offences with which he had been charged; (2) the severity of the penalty to which he was liable; (3) the need to secure the proper conduct of the proceedings. As regards the latter, they referred to the risk that the applicant might influence witnesses or otherwise obstruct the proceedings, since the case concerned an organised criminal gang (see paragraphs 8-9 and 12 above). 34. The applicant was charged with numerous counts of drug trafficking and of membership in an organised criminal group (see paragraphs 7 and 11 above).", "In the Court’s view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007). 35. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to obtain voluminous evidence and to determine the degree of the alleged responsibility of each of the defendants, who had acted in a criminal group and against whom numerous charges of serious offences were laid, constituted valid grounds for the applicant’s initial detention.", "36. Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re‑offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006). 37.", "As regards the risk of pressure being exerted on witnesses and of obstruction of the proceedings, the judicial authorities relied on the serious nature of the offences and the fact that the applicant had been charged with being a member of an organised criminal group. 38. Indeed, in cases such as the present one concerning organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co‑accused, or otherwise obstruct the proceedings, is by nature particularly high (see Gładczak v. Poland, no. 14255/02, § 55, 31 May 2007). It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task.", "The Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see Górski v. Poland, no. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent prolongations of the detention (see Celejewski, cited above, § 37). 39. The Court acknowledges that, in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established. During the period necessary to terminate the investigation, draw up the bill of indictment and hear evidence from the accused and the key witnesses, they could have relied on the need to secure the proper conduct of the proceedings on this ground.", "The Court therefore accepts that the risk flowing from the nature of the applicant’s criminal activities could justify holding him in custody for the whole relevant period. 40. The Court also takes note of the fact that, when the authorities could no longer justify the applicant’s detention, they replaced it with a less stringent preventive measure and released the applicant on police supervision (see paragraph 19 above). 41. The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre‑trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period of two years, eleven months and fifteen days.", "42. It remains for the Court to ascertain whether the authorities, in dealing with the applicant’s case, displayed diligence required under Article 5 § 3 (see McKay, cited above, § 44). In this regard, the Court observes that the proceedings were of considerable complexity, regard being had to the number of defendants and the extensive evidentiary proceedings. Nevertheless, the investigation was completed within the period of one year and some two months (see paragraphs 7, 11 and 31 above). The trial court started the trial without substantial delay, taking into account the fact that it had to decide whether to sever the charges against some accused to separate proceedings (see paragraphs 11 and 14 above).", "In the relevant period, that is until 20 May 2011, when the applicant was released, the hearings in his case were held regularly and at short intervals (see paragraphs 15‑19 above). In the light of the above circumstances, the Court finds that the national authorities displayed special diligence in handling the applicant’s case. There has therefore been no violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 43.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ...any criminal charge against him, everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...” 44. The Government contested that argument. 45. The period to be taken into consideration began on 19 September 2007 and has not yet ended. It has thus lasted so far over seven years for one level of jurisdiction.", "A. Admissibility 46. The Government admitted that the applicant had exhausted remedies available under Polish law. 47. The Court notes that the on 16 November 2010 the Gdańsk Court of Appeal rejected the applicant’s complaint under the 2004 Act on formal grounds. It found that the applicant had failed to comply with the procedural requirements of this remedy as he had not specified the circumstances that would justify his request.", "48. However, in the present case the Government have not pleaded the applicant’s failure to exhaust domestic remedies on this ground and it is not for the Court to consider this matter of its own motion (see, mutatis mutandis, Mooren v. Germany [GC], no. 11364/03, §§ 57-59, 9 July 2009 and Rydz v. Poland, no. 13167/02, § 72, 18 December 2007). 49.", "It follows that this complaint cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 50. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The Government 51. The Government submitted that the national authorities displayed due diligence in the conduct of the proceedings in issue. They argued that the length of the proceedings was not excessive in the light of the complexity of the case, which concerned charges of organised crime brought against several defendants.", "They emphasised that the bill of indictment was accompanied by 20 volumes of the case file and the prosecutor requested the trial court to hear 48 witnesses. They further submitted that until July 2011 the trial court had scheduled at least two hearings per month. They argued that the proceedings had been prolonged due to the conduct of the defendants who had lodged numerous procedural motions and one of whom had committed acts of self-mutilation. (b) The applicant 52. The applicant submitted that the length of the proceedings against him was unreasonable.", "2. The Court’s assessment 53. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 54.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of justifying the delay in the present case. In particular, the Court considers that the fact that the domestic authorities had to deal with a complex case which involved a number of defendants and concerned charges of organised crime cannot in itself justify the overall length of the proceedings. The Court notes in this connection that the judicial proceedings have been pending at first instance since December 2008 (see paragraphs 11 and 20 above). In contrast, the investigation in the present case was completed within a period of one year and some two months (see paragraphs 7 and 11 above). Moreover, at the beginning of the judicial proceedings the charges against several defendants were severed to separate sets of proceedings (see paragraphs 11 and 14 above).", "Taking into account the information submitted by the parties as regards the extent of the evidentiary proceedings, the number of accused and witnesses in the case and the number of volumes of the case file (see paragraphs 11-12 and 50 above), the Court is not convinced that the case was of such exceptional complexity as to justify the total length of the proceedings. In so far as the Government relied generally on the procedural motions and other actions of the defendants, the Court reiterates that the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities (see Kudła v. Poland, cited above, § 130). Notwithstanding the significant difficulties which they faced in the present case, they were required to organise the trial efficiently and to ensure that the Convention guarantees were fully respected in the proceedings. 55. Having regard to the above circumstances and to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 56. Lastly, the applicant invoked Article 6 § 3 (d) of the Convention without specifying his complaint. The Court notes that the criminal proceedings against the applicant are still pending (see paragraph 20 above).", "57. It follows that this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 3,500 euros (EUR) in respect of pecuniary and non-pecuniary damage. 60. The Government did not express an opinion on the matter. 61.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,500 in respect of non‑pecuniary damage. B. Costs and expenses 62. The applicant did not make any claim for costs and expenses involved in the proceedings.", "C. Default interest 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 5 § 3 of the Convention about the length of the applicant’s pre-trial detention, and Article 6 § 1 of the Convention about the length of criminal proceedings against him admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 3 of the Convention; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 10 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ULU AND OTHERS v. TURKEY (Applications nos. 29545/06, 15306/07, 30671/07, 31267/07, 21014/08 and 62007/08 JUDGMENT STRASBOURG 7 December 2010 FINAL 14/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ulu and others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Ireneu Cabral Barreto, President,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 16 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in six applications (nos.", "29545/06, 15306/07, 30671/07, 31267/07, 21014/08 and 62007/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Turkish nationals, Turgay Ulu, Sedat Hayta, Kamil Yaman, Metin Yamalak, Tamer Tuncer and Kamil Görkem, born in 1973, 1973, 1977, 1980, 1971 and 1981 respectively. The dates of introduction of the applications and the names of the applicants’ representatives are indicated in the appended table. The Turkish Government (“the Government”) were represented by their Agent. 2. On 19 May 2009 the Court decided to give notice of the applications to the Government.", "It also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicants are Turkish nationals who were arrested and subsequently detained pending judicial proceedings. They were either released or convicted on various dates, except for the applicant Kamil Yaman (no.", "30671/07) who is still in pre-trial detention. The details of the dates of the arrests, the dates of the orders for the applicants’ pre‑trial detention, the dates of the indictments, the dates of the domestic court decisions, the total periods of pre-trial detention, the total periods of the criminal proceedings where relevant, the dates of release and the grounds for continued detention are set out in the appendix hereto. II. RELEVANT DOMESTIC LAW AND PRACTICE 4. A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (Law no.", "5271) (“the CCP”) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). The current practice under the CCP is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13‑15, 8 December 2009). THE LAW I. JOINDER 5.", "Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 6. The applicant in application no. 15306/07 complained under Article 5 § 3 of the Convention that he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power.", "7. The applicants complained under Articles 5 §§ 1 (c), 3 and 5 and 6 § 2 of the Convention that the length of their pre-trial detention had been excessive. The applicant in application no. 31267/07 submitted under Article 6 § 3 (b) of the Convention that he had not had adequate time and facilities for the preparation of his defence on account of the excessive pre‑trial detention. He contended under Article 2 of Protocol No.", "1 to the Convention that he had been denied the right to education due to his pre-trial detention. The applicant in application no. 21014/08 claimed under Article 2 of the Convention that his excessive pre-trial detention had breached his right to life. He further claimed that the postponement by Law no. 5320 of the date of enforcement of Article 102 of the CCP, which regulates the maximum authorised length of pre-trial detention, to 31 December 2010 for certain types of offences including his own, violated Articles 6, 13 and 14 of the Convention.", "The applicant in application no. 62007/08 also submitted that Article 1 of Protocol No. 1 to the Convention had been breached on account of his excessive pre-trial detention. The Court deems it appropriate to examine all these complaints from the standpoint of Article 5 § 3 alone, as they mainly concern the length of the applicants’ pre-trial detention (see Ayhan Işık v. Turkey (dec.), no. 33102/04, 16 December 2008, and Can v. Turkey (dec.), no.", "6644/08, 14 April 2009). 8. The applicant in application no. 15306/07 complained under Article 6 § 3 (b) and (c) of the Convention that he had had no effective remedy to challenge the lawfulness of the length of his pre-trial detention. The Court considers that this complaint must be examined under Article 5 § 4 of the Convention.", "9. In their submissions of 21 December 2009, the applicants in applications nos. 29545/06, 31267/07 and 21014/08 also complained under Article 5 § 4 of the Convention that they had had no effective remedy to challenge the lawfulness of the length of their pre-trial detention. A. Article 5 § 3 of the Convention 1.", "As regards the length of the detention in police custody concerning Sedat Hayta (no. 15306/07) 10. The Court observes that the applicant’s police custody ended on 19 December 1999, whereas the application was lodged with the Court on 10 May 2006 – that is, more than six months later (see Ege v. Turkey (dec.), no. 47117/99, 10 February 2004, and Doğan v. Turkey (dec.), no. 67214/01, 7 June 2005).", "11. It follows that this complaint has been lodged out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2. As regards the length of pre-trial detention 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 13. The Government maintained that the applicants’ detention had been based on the existence of reasonable grounds of suspicion of them having committed an offence, and that their detention had been reviewed periodically by a competent authority, with special diligence, in accordance with the requirements laid down by applicable law. They pointed out that the offences with which the applicants had been charged had been of a serious nature, and that their continued remand in custody had been necessary to prevent crime and to preserve public order.", "14. The Court notes that the shortest duration of pre-trial detention in the present case is more than four years (in application no. 62007/08). In the remaining applications, it is over seven years (see appended table). 15.", "The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no. 11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject and the length of the applicants’ pre-trial detention in the present case (see appended table), the Court finds that in the instant case the length of the applicants’ pre-trial detention was excessive.", "16. There has accordingly been a violation of Article 5 § 3 of the Convention. B. Article 5 § 4 of the Convention 1. As regards applications nos.", "29545/06, 31267/07 and 21014/08 17. The Court notes that the applicants’ pre-trial detention ended on 22 May 2009 in applications nos. 29545/06 and 21014/08 and on 7 May 2007 for the applicant in application no. 31267/07 when the İstanbul Assize Court convicted them, whereas the complaint at issue was raised before the Court for the first time on 21 December 2009 – that is, more than six months later (Canevi and Others v. Turkey (dec.), no. 40395/98, 30 May 2000).", "It follows that this part of the application was introduced out of time and must therefore be rejected in accordance with Article 35 §§1 and 4 of the Convention. 2. As regards application no. 15306/07 18. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 19. As regards the merits of the case, the Government submitted that the applicant had in fact had the possibility of challenging his continued detention by lodging objections. They further stated that the applicant could have sought compensation under Article 141 of the CCP following its entry into force on 1 June 2005.", "20. The applicant maintained his complaint. 21. The Court has already examined the possibility of challenging the lawfulness of pre-trial detention in Turkey in other cases and concluded that the Government has failed to show that the above-mentioned remedies provided for a procedure that was genuinely adversarial for the accused (see, for example, Koşti and Others v. Turkey, no. 74321/01, §§ 19‑24, 3 May 2007, and Şayık and Others v. Turkey, cited above, §§ 28-32).", "The Court notes that the Government have not put forward any argument or material in the instant case which would require the Court to depart from its previous findings. 22. In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention in respect of the applicant in application no. 15306/07. III.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION A. Article 6 § 1 of the Convention 1. As regards the independence and impartiality of the İstanbul State Security Court and the İstanbul Assize Court 23. The applicant in application no. 21014/08 complained under Article 6 § 1 of the Convention that he had not been tried by an independent and impartial tribunal.", "He submitted, in particular, that the judges had been appointed by the Supreme Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu), which had been presided over by the Minister of Justice. 24. The Court observes that the criminal proceedings against the applicant are still pending. The applicant’s complaint under this provision is therefore premature. Consequently, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no.", "36686/07, 26 February 2008). 2. As regards the length of criminal proceedings 25. The applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08 complained that the length of the criminal proceedings against them was incompatible with the reasonable time requirement, laid down in Article 6 § 1 of the Convention.", "The Government disputed this contention. 26. 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.", "27. As regards the merits of the applications, the Government submitted that the length of the proceedings could not be considered to have been unreasonable in view of the complexity of the cases, the number of the accused and the nature of the offences with which the applicants were charged. 28. The Court notes that the shortest duration of the criminal proceedings in the present case is over nine years (see appended table). 29.", "The Court has frequently found violations of Article 6 § 1 of the Convention in applications raising issues similar to the one in the present case (see Bahçeli v. Turkey, no. 35257/04, § 26, 6 October 2009, and Er v. Turkey, no. 21377/04, § 23, 27 October 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court therefore considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention. B. Article 13 of the Convention 30. In his submission of 21 December 2009, the applicant in application no. 31267/07 complained that he had not had an effective remedy in domestic law whereby he could have challenged the excessive length of the criminal proceedings against him.", "31. The Court notes that the criminal proceedings against the applicant ended on 7 May 2009 when the Court of Cassation upheld the relevant judgment of the first-instance court, whereas the complaint in issue was raised before the Court for the first time on 21 December 2009 – that is, more than six months later. It follows that this part of the application was introduced out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. IV. OTHER ALLEGED VIOLATION OF THE CONVENTION 32.", "The applicant in application no. 31267/07 claimed under Article 1 of Protocol No. 12 to the Convention that he had been discriminated against on account of the fact that he had been held in detention during judicial proceedings for an excessive length of time. 33. The Court considers that, as Protocol No.", "12 has not been ratified by the respondent State, the applicant’s complaint in this regard is incompatible ratione personae with the Convention and must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 35. The applicant in application no.", "29545/06 claimed 100,000 euros (EUR) in respect of non-pecuniary damage. 36. The applicant in application no. 15306/07 claimed 60,000 Turkish Liras (TRY) (approximately EUR 30,550) in respect of pecuniary damage. He further claimed TRY 75,000 (approximately EUR 38,185) for non‑pecuniary damage.", "37. The applicant in application no. 30671/07 claimed EUR 20,000 for non‑pecuniary damage. 38. The applicant in application no.", "31267/07 claimed EUR 30,000 for non‑pecuniary damage. 39. The applicant in application no. 21014/08 claimed EUR 5,000 for non‑pecuniary damage. 40.", "The applicant in application no. 62007/08 claimed EUR 50,000 for non‑pecuniary damage and EUR 139,000 for pecuniary damage. 41. The Government contested these claims. 42.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the relevant claims. However, the Court considers that the applicants must have sustained non-pecuniary damage. In the light of the Court’s jurisprudence and ruling on an equitable basis, it makes the following awards under this head in respect of the applicants’ non-pecuniary damage: (i) EUR 14,500 to the applicant in application no. 29545/06; (ii) EUR 11,700 to the applicant in application no. 15306/07; (iii) EUR 15,600 to the applicant in application no.", "30671/07; (iv) EUR 12,700 to the applicant in application no. 31267/07; (v) EUR 5,000 to the applicant in application no. 21014/08; and (vi) EUR 6,400 to the applicant in application no. 62007/08. 43.", "Furthermore, according to the information submitted by the parties, the criminal proceedings against the applicant in application no. 62007/08 are still pending and the applicant in application no. 30671/07 is still detained. In these circumstances, the Court considers that an appropriate means for putting an end to the violations which it has found would be to conclude the criminal proceedings at issue as speedily as possible, while taking into account the requirements of the proper administration of justice (see Yakışan v. Turkey, no. 11339/03, § 49, 6 March 2007).", "B. Costs and expenses 44. The applicant in application no. 29545/06 claimed TRY 12,637 (approximately EUR 6,400) for costs and expenses. In support of his claims the applicant submitted his lawyer’s engagement letter, a receipt for legal fees incurred, a time sheet and a table of costs and expenses.", "45. Referring to the İstanbul Bar Association’s scale of fees, the applicant in application nos. 15306/07 claimed TRY 185,625 (approximately EUR 94,500) for costs and expenses incurred before the domestic courts and before the Court, which included expenditure such as telephone calls, mail, translation fees, stationery, and travel costs. He also submitted receipts for legal fees incurred. 46.", "The applicant in application no. 30671/07 claimed TRY 300 (approximately EUR 155) for costs and expenses. He also claimed EUR 2,000 in respect of his lawyer’s fees. In support of his claims he submitted a time-sheet prepared by his lawyer, his lawyer’s engagement letter and a table of costs and expenses. 47.", "The applicant in application no. 31267/07 claimed EUR 640 for costs and expenses and EUR 1,160 in respect of legal fees. In support of his claims he submitted the Turkish Bar Association’s scale of fees, a table of costs and expenses, and a receipt for the legal fees incurred. 48. The applicant in application no.", "21014/08 claimed EUR 350 for costs and expenses. He also claimed EUR 3,000 in respect of his lawyer’s fees. In support of his claims he submitted his lawyer’s engagement letter, a table of costs and expenses and invoices for postal expenses and stationery. 49. The applicant in application no.", "62007/08 claimed EUR 20,000 for costs and expenses incurred before the domestic courts. He submitted a receipt for legal fees incurred. 50. The Government contested these claims. 51.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, the Court makes the following awards under this head: (i) EUR 1,500 to the applicant in application no. 29545/06; (ii) EUR 1,300 to the applicant in application no. 15306/07; (iii) EUR 500 to the applicant in application no. 30671/07; (iv) EUR 1,160 to the applicant in application no.", "31267/07; (v) EUR 1,000 to the applicant in application no. 21014/08; and (vi) EUR 1,000 to the applicant in application no. 62007/08. C. Default interest 52. The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the complaints concerning the length of pre-trial detention in respect of all applicants, the complaint concerning the lack of a remedy to challenge the lawfulness of the pre-trial detention brought by the applicant in application no. 15306/07, and the complaints concerning the length of criminal proceedings brought by the applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08 admissible and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 5 § 3 of the Convention in respect of all the applicants; 4. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the applicant in application no. 15306/07; 5. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08; 6.", "Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicants: (i) to Mr Turgay Ulu, EUR 14,500 (fourteen thousand five hundred euros) for non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) for costs and expenses; (ii) to Mr Sedat Hayta, EUR 11,700 (eleven thousand seven hundred euros) for non-pecuniary damage and EUR 1,300 (one thousand three hundred euros) for costs and expenses; (iii) to Mr Kamil Yaman, EUR 15,600 (fifteen thousand six hundred euros) for non-pecuniary damage and EUR 500 (five hundred euros) for costs and expenses; (iv) to Mr Metin Yamalak, EUR 12,700 (twelve thousand seven hundred euros) for non-pecuniary damage and EUR 1,160 (one thousand one hundred and sixty euros); (v) to Mr Tamer Tuncer, EUR 5,000 (five thousand euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses; (vi) to Mr Kamil Görkem, EUR 6,400 (six thousand four hundred euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses; (b) that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIreneu Cabral BarretoRegistrarPresident Information concerning the application Date of the arrest Date of the order for pre-trial detention Date of the indictment Date of the judgment(s) of the first-instance court Date of the decision(s) of the Court of Cassation Objections to the pre-trial detention or continued pre-trial detention where relevant Total period of pre-trial detention and of proceedings where relevant (on the basis of the information in the case file) Grounds for continued detention 1 - 29545/06 introduced on 6 July 2006 by Turgay ULU, represented by Nermin Kaplan 29/05/1996 07/06/1996 11/10/1996 1. İstanbul State Security Court -26/04/2002 (E: 1997/127, K:2002/84) 2.", "İstanbul Assize Court – 22/05/2009 (E: 2003/178, K: 2009/121) 1. 12/05/2003 (E:2002/2311, K: 2003/816) (set aside) 2. Pending 11 years and 11 months (length of pre-trial detention) - the state of the evidence - the nature of the offence - strong suspicion of having committed the offence in question - danger of flight - the overall period of pre-trial detention - persistence of the grounds for continued detention indicated in Article 100 of the CCP 2 - 15306/07 introduced on 19 February 2007 by Sedat HAYTA, represented by Ercan Kanar 12/12/1999 19/12/1999 30/12/1999 1. İstanbul Assize Court -24/08/2005 (E:2000/6, K:2005/346) 2. İstanbul Assize Court – 12/03/2008 (E:2006/202, K:2008/53) 1.", "30/05/2006 (E:2006/1276, K:2006/2927) (set aside) 2. 10/02/2009 (E:2008/14070, K: 2009/1341) (upheld) Lodged on: 27/12/2006 Dismissed on: 05/01/2007 (2007/4) 7 years and 5 months (length of pre-trial detention) Released on: 04/03/2008 9 years and 2 months (length of proceedings) - the nature of the offence - the state of the evidence - danger of flight - the overall period of pre-trial detention - gravity of the offence charged - persistence of the grounds for continued detention indicated in Article 100 of the CCP - strong suspicion of having committed the offence charged 3 - 30671/07 introduced on 6 July 2007 by Kamil YAMAN, represented by Filiz Kılıçgün 5/02/1997 19/02/1997 20/05/1997 1. İstanbul State Security Court - 8/02/2002 (E: 1997/253, K: 2002/13) 2. Pending before the İstanbul Assize Court (E: 2002/319) 1. 15/10/2002 (E: 2002/1241, K: 2002/2023) (set aside) 13 years (length of pre-trial detention) - the content of the case file - the state of the evidence - the nature of the offence - the overall period of pre-trial detention - strong suspicion of having committed the offence in question - danger of flight 4 - 31267/07 introduced on 3 July 2007 by Metin YAMALAK 30/03/1999 6/04/1999 26/04/1999 İstanbul Assize Court - 7/05/2007 (E: 1999/153, K: 2007/275) 7/05/2009 (E: 2008/19686, K: 2009/5404) (upheld) 8 years and 1 month (length of pre-trial detention) 10 years and 1 month (length of proceedings) - the nature of the offence - the state of the evidence - the overall period of detention - danger of flight - content of the case file - gravity of the offence charged - strong suspicion of having committed the offence in question - persistence of the grounds for continued detention indicated in Article 100 of the CCP 5 - 21014/08 introduced on 25 March 2008 by Tamer TUNCER, represented by Sevim Akat 3/03/1997 14/03/1997 (the applicant escaped on 7/08/ 1997 and was detained again on 23/05/1998) 8/06/1998 1.", "İstanbul State Security Court -26/04/2002 (E: 1997/127, K:2002/84) 2. İstanbul Assize Court – 22/05/2009 (E: 2003/178, K: 2009/121) 1. 12/05/2003 (E:2002/2311, K: 2003/816) (set aside) 2. Pending 10 years and 4 months (length of pre-trial detention) 13 years and 7 months (length of proceedings) - the state of the evidence - the nature of the offence - strong suspicion of having committed the offence in question - danger of flight - the overall period of pre-trial detention - persistence of the grounds for continued detention indicated in Article 100 of the CCP 6 - 62007/08 introduced on 5 December 2008 by Kamil GÖRKEM 10/06/2001 14/06/2001 25/06/2001 1. Siverek Assize Court - 11/04/2003 (E: 2001/134, K: 2003/54) 2.", "Siverek Assize Court - 14/12/2005 (E: 2004/168, K:2005/273) 3. Siverek Assize Court - 20/07/2009 (E: 2008/179, K: N/A) 1. 4/11/2004 (E:2004/693, K: 2004/3727) 2. 9/05/2008 (E: 2007/4617, K: 2008/3867) 3. Pending 4 years and 1 month (length of pre-trial detention) 9 years and 4 months (length of proceedings) - the state of the evidence - the nature of the offence - length of the sentence envisaged for the crime in issue - danger of flight" ]

[ "FIRST SECTION CASE OF KARAJANOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 2229/15) JUDGMENT STRASBOURG 6 April 2017 FINAL 06/07/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karajanov v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Aleš Pejchal,Robert Spano,Armen Harutyunyan,Tim Eicke,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 14 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "2229/15) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Petar Karajanov (“the applicant”), on 30 December 2014. 2. The applicant was represented by Mr S. Dukovski, on behalf of the Helsinki Committee for Human Rights in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3.", "The applicant alleged that the domestic authorities’ decisions in lustration proceedings against him had been unfair and had violated the principle of the presumption of innocence. He also complained that the proceedings had violated his right to respect for his private life. 4. On 19 May 2015 the complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. It was also decided that priority should be granted to the application under Rule 41.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1936 and lives in Skopje. He was a high-ranking official during the communist era. At the time of the events, he neither held a public office nor was a candidate for such an office.", "A. Findings of the Fact Verification Commission (Lustration Commission) 6. On the basis of a request by a third person and of its own motion, on 27 May 2013 the Fact Verification Commission (“the Commission”) established in lustration proceedings that the applicant had collaborated with State security bodies. Relying on two files from the State Archives, it “established indisputably that [the applicant] gave information ... to State security bodies about individuals ... namely ... he collaborated with the State security services in a conscious, secret, organised and continuous manner as a secret collaborator.” Accordingly, it held that the applicant had fulfilled the condition for restricting his candidacy to or performance of public office. The Commission based its decision on the relevant provisions of the 2012 Lustration Act (see paragraphs 19, 23-26 below) and the Administrative Proceedings Act.", "7. Referring to a report registered as file no. 6825, the Commission established that in 1963, after he had visited his brother in Sweden, the applicant had given information about his brother, his brother’s wife and other people to State security bodies. He also had provided information about other people after he had returned to the city of Gevgelija. The Commission established that the applicant had been engaged by the security services before leaving for Sweden and that they had intended to continue collaborating with the applicant.", "The file further noted that in 1964 the applicant had shared his impressions about his stay in Sweden with his father. 8. On the basis of documents in another file, file no. 2599, the Commission established that the applicant, while editor-in-chief of a newspaper in 1962 and afterwards, had provided information to the security services about a colleague, the colleague’s articles and his relations with other people. 9.", "The Commission’s decision was published on its website on 30 May 2013, in accordance with sections 29 and 31 of the Lustration Act (see paragraphs 25 and 26 below). It contained information about the applicant’s place of birth, his personal identification number and the positions he had held. The decision was served on the applicant on 4 June 2013. B. Administrative-dispute (judicial review) proceedings before the Administrative Courts 10. On 11 June 2013 the applicant challenged the decision in the Administrative Court, arguing that the Commission’s findings based on file no.", "6825 had been wrong since the file had obviously been about another person with the same name and not him. He submitted several documents to show that the lustration decision had been a result of mistaken identity. The documents were his birth certificate, which showed a date of birth that was different from the one in file no. 6825; an inheritance decision, certified by a notary public, attesting that the applicant had a sister rather than a brother; his notarised military card, which showed that in 1963 he had been doing military service in Bosnia and Herzegovina; and a death certificate showing that his father had died in 1962. He argued that he had never visited Sweden and had lived since 1955 in Skopje.", "He also challenged the veracity and authenticity of the documents in file no. 2599 and denied that he had ever collaborated with or provided any information about any colleague to the State security services, let alone that any such collaboration had met the criteria specified in section 18 of the Lustration Act (see paragraph 24 below). In that connection, he submitted that none of the documents in the file had been signed by him. Lastly, he complained about the fact that the decision on the Commission’s website had included his father’s name, despite the fact that the Lustration Act made no provision for the release of such information. He argued that his reputation, dignity, personal information and integrity had been compromised.", "11. In a hearing held in private on 29 January 2014, the Administrative Court dismissed the applicant’s claim. The court held that the Commission had correctly established the facts and applied the relevant law. The court stated: “[the Commission] established that there were documents in the State Archives created by the State security bodies confirming that [the applicant] had collaborated with State security bodies in a conscious, secret, organised and continuous manner and that he had obtained favours when being promoted, as set out in sections 14 and 18 of [the Lustration Act] ... The Commission correctly established that [the files in question] contained information provided by [the applicant], which had been used to restrict and violate the human rights and freedoms of other people on political and ideological grounds ... ” 12.", "As regards the applicant’s complaints of mistaken identity, the court stated: “... the Commission’s decision clearly established collaboration with security bodies by [the applicant], by determining his personal identification number, place of birth and the office that he had held.” 13. As to his arguments that the Commission had erred in finding “conscious, secret, organised and continuous collaboration” with State security bodies, the court held: “[the applicant] was entitled to obtain access to the documents attesting to his collaboration. In case of doubts about their veracity, he could have initiated proceedings before the competent court to prove their inaccuracy, before the impugned decision had been delivered. In addition, the court considers that the above State security service documents on [the applicant’s] secret collaboration were drawn up on the basis of the rules and regulations of those bodies.” 14. Lastly, the court stated: “The court made its decision at a hearing held in private because the Commission had correctly established the relevant facts [on the basis of written material] and [the applicant] had not submitted any evidence that led to different facts.” 15.", "On 7 March 2014 the applicant appealed to the Higher Administrative Court. He reiterated the complaints raised in his action in the Administrative Court and submitted that the latter court had not provided any reasoning regarding his complaint that the publication of the Commission’s decision on its website had violated his right to respect for his private and family life, his reputation and dignity. It had also disregarded his evidence that file no.6825 had not concerned him, but a person with the same name, which had led to facts being wrongly established. He stated that the court had also relied on evidence adduced by the Commission without analysing it in adversarial proceedings in the presence of the applicant or any other relevant witness or expert. He complained that the lower authorities had not explained why they had considered that he had collaborated with the security bodies in an intentional, secret, organised and continuous manner, as set out in the Lustration Act.", "He further complained about the lack of an oral hearing before the Administrative Court and argued that there had been no statutory provision allowing him to request such a hearing. Lastly, he contested the Administrative Court’s explanation about the possible legal avenues he could have used to challenge the veracity of the documents in file no. 2599. In that connection, he submitted that before 4 June 2015 he had not been aware of the existence of documents about his alleged secret collaboration with the security services. Furthermore, his arguments on that point should have been dealt with in the impugned proceedings.", "16. On 12 June 2014 the Higher Administrative Court dismissed the applicant’s appeal and upheld the lower court’s decision. It found no grounds to depart from the facts as they had been established and the reasons given by the Commission and the Administrative Court. It stated: “The Fact Verification Commission only checks whether or not there was collaboration with the security services; there are no adversarial proceedings, the documents created and held by the [security services] are regarded as facts ...” II. DOMESTIC LAW AND PRACTICE A.", "Additional Requirement for Public Office Act (Закон за определување дополнителен услов за вршење на јавна функција, 2008 Lustration Act) 17. Section 13 of the 2008 Lustration Act provided that the name of the person concerned who had been identified by the Lustration Commission as a collaborator had to be published in the Official Gazette after final conclusion of the proceedings. The Act was replaced with the 2012 Lustration Act (see sub-heading B. below). B. Law on determining the criterion for limiting the exercise of public office, access to documents and for publishing information on cooperation with State security bodies (“the Lustration Act”, Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност, Official Gazette no.", "86/2012) 18. Section 1 stated that the Lustration Act regulated the criterion for limiting the exercise of public office, the publication of information on cooperation with State security bodies and the powers of the Fact Verification (Lustration) Commission. 19. Section 3 contained a list of persons subject to the Lustration Act. 20.", "Section 4 provided that people found by the Lustration Commission to have been registered as a secret collaborator or secret informer between 2 August 1944 and the date of entry into force of the Act would be regarded as having met the criterion for limiting their candidacy for or the exercise of public office. Such collaboration was deemed as the operational gathering of information and data (hereinafter “information”) that was subject to processing, storage and use by the State security services, gathered and kept on certain persons, thereby resulting in violations or limitations of human rights and freedoms. 21. Section 4(1) defined collaboration as conscious, secret, organised and continuous cooperation with the State security services, consented to in writing, as a secret collaborator or secret informant. It involved collecting information about an individual, violating their human rights on ideological or political grounds, in return for material benefit for the collaborator or informant, or favours during employment or in getting promotion.", "Under sub-section 3 of the provision, the Lustration Commission was to find that there had not been cooperation with the State security services if it could not establish that there had been conscious, secret, organised and continuous cooperation and activity. 22. Section 5 established the Commission as an autonomous and independent authority financed from the State budget. It was composed of a president, a deputy president and nine other members, elected by Parliament by a qualified two-thirds majority for a five-year term (section 6(1)). 23.", "Section 10 regulated the functioning of the Commission. The Commission was to deliberate in session in the presence of two-thirds of its members and decisions had to be taken by a majority of its members. 24. Section 18(4) defined collaboration as conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written agreement. The person was to have acted as a secret collaborator or secret informant, collecting information regarding an individual, in violation of their human rights, in return for material benefit or favours during employment or in getting promotion.", "25. Under section 29(1), any former holders of public office or of a position of public authority whom the Commission found, after conducting the verification procedure, to have collaborated within the meaning of the Act, were to be deprived of their right to exercise public office or hold positions of public authority during the validity of the law (ten years from the appointment of the Lustration Commission, section 42). Sub-section 2 stated that the Lustration Commission had to publish its decisions of a finding of collaboration with the State security services on its website. That had to be done immediately and in any case no later than three days after completion of the procedure. It also had to submit the decision to Parliament, the Government and the State Electoral Commission.", "26. Under section 31, a decision establishing collaboration with the State security services had to contain the full name and surname, personal identification number, date and place of birth, pseudonyms and documents used as evidence of collaboration. A person subjected to such checks would be informed by the Lustration Commission of the results of its investigation. The Commission’s decision was to be published on its website. The documents used as evidence to confirm collaboration with the State security services were also to be published.", "The Commission’s decisions were subject to a court appeal within eight days of the day of service, based on the principles of priority and urgency. C. Act terminating the Lustration Act (Official Gazette no. 143/2015) 27. The Act repealed the 2012 Lustration Act. All ongoing lustration proceedings were to be concluded.", "The Lustration Commission’s mandate was also to be regarded as expired. It came into force on 1 September 2015. D. Administrative Disputes Act (Закон за управните спорови, Official Gazette nos. 62/2006 and 150/2010) 28. Section 1 of the Administrative Disputes Act states that for the purposes of judicial review a court decides in administrative-dispute proceedings on the lawfulness of decisions (“administrative acts”) by administrative authorities, the Government and other State or public authorities (hereafter “public entities”) when, in the exercise of their public powers, they decide on the rights and obligations of individuals or legal entities in administrative matters.", "29. Section 4 provides that administrative disputes are decided by Administrative Court (at first instance) and by the Higher Administrative Court (on appeal). The Supreme Court can decide upon any extraordinary remedies specified by law. 30. Under section 7-a, if the Administrative Disputes Act does not contain specific provisions on the administrative-dispute procedure, the provisions of the Civil Procedure Act apply mutatis mutandis.", "31. Section 9 provides that administrative-dispute proceedings cannot be instituted if another judicial remedy has been secured. 32. Under section 10, administrative decisions may be contested for lack of jurisdiction, the misapplication of substantive law, incorrect findings of fact or for procedural flaws. 33.", "Section 26 states that an Administrative Court must declare an application for judicial review inadmissible if, inter alia, the contested decision does not constitute an administrative act, or the law rules out the institution of an administrative dispute in that particular case. 34. Section 30, as amended in 2010, no longer entitles a party to the proceedings to request that the Administrative Court hold an oral hearing. According to the amended text, the court, as a rule, decides at a hearing held in private. Section 30-a provides that the court holds a public oral hearing if the case is complex, to clarify matters or establish facts, or if it adduces evidence.", "35. Section 36 provides that an Administrative Court, as a rule, is to decide cases on the basis of the facts established in the administrative proceedings before the public entity whose decision is being contested, or on the basis of facts established by the court itself. The Administrative Court should quash the contested decision and remit the case if it finds that the facts have not been correctly established, or for procedural errors. When the evidence suggests that the actual facts are different from those established by the public entity in the administrative proceedings, the Administrative Court may itself establish the facts and decide the case. In such cases the facts are determined at a hearing in the presence of the parties.", "36. Section 39 provides for appeal against the judgment of an Administrative Court. 37. Section 40 sets out situations where the Administrative Court, having found an action well-founded, does not have to remit the case but can decide it on the merits by a decision entirely replacing the public entity’s contested decision. E. Criminal Code (Official Gazette no.", "39/2004) 38. Article 33 § 1 (3) of the Criminal Code provides that a convicted person can be prohibited from exercising a profession, activity or duty. 39. Under Article 38-b § 1, a court can prohibit a convicted person sentenced to imprisonment or given a suspended sentence from exercising a profession or activity if he or she acted in abuse of the rules of that profession or activity in committing the crime and could be expected to repeat that act of abuse in the commission of a new crime. F. Constitutional Court decision (U.br.42/2008) 40.", "On 24 March 2010 the Constitutional Court declared several provisions of the 2008 Lustration Act, which was replaced by the 2012 Lustration Act, to be invalid. Among other provisions, the court set aside section 13, which had provided for the publication of a collaborator’s name in the Official Gazette after final conclusion of the lustration proceedings (see paragraph 17 above). The court found that such a measure was unnecessary and violated the moral integrity and reputation of the person concerned. It held that the publication of the collaborator’s name in the Official Gazette was disproportionate to the aim of the 2008 Act, namely preventing collaborators with the secret service from holding public office in a democratic society. That aim, the court held, could be achieved by ascertaining the facts and informing the relevant State bodies.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS Parliamentary Assembly Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems 41. The relevant Council of Europe documents are set out in Ivanovski case (see Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, §§ 106-108, 21 January 2016). Further to the extracts cited in Ivanovski case, the Venice Commission amicus curiae of 17 December 2012 read as follows: “D.", "The publication of the names of those persons who are deemed to be collaborators 74. In the Commission’s view, publication prior to the court’s decision is problematic in respect of Article 8 ECHR. The adverse effects of such publication on the person’s reputation may hardly be removed by a later rectification, and the affected person has no means to defend himself against such adverse effects. The latter may only appear to be a proportionate measure necessary in a democratic society when the collaboration is finally verified, not before. Publication should therefore only occur after the court’s decision.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 42. The applicant alleged under Article 6 § 1 of the Convention that he had been deprived of the opportunity to effectively present his case. In that connection, he complained that the impugned proceedings had not been adversarial and had failed to comply with the principle of equality of arms given the authorities’ refusal to consider evidence proposed by him; that there had been no oral hearing before any judicial instance and that the authorities had not provided sufficient reasons for their decisions. Lastly, he complained under Article 6 § 2 of the Convention about the publication of the Commission’s decision on its website before it had become final. Article 6 §§ 1 and 2 of the Convention, in so far as relevant, read as follows: “1.", "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 43. The Court notes that there was no dispute between the parties over the fact that Article 6 was applicable to the lustration proceedings complained of. However, they disagreed whether that Article was applicable under its civil or criminal head. The Government argued for the civil head, while the applicant, relying on the Engel criteria (Engel and Others v. the Netherlands, 8 June 1976, Series A no.", "22, §§ 82-83), stated that, in his view, the consequences of establishing collaboration within the meaning of the Lustration Act were “deterrent and punitive” in nature, which suggested that the criminal head was relevant. He also referred to Article 33 and Article 38-b of the Criminal Code (see paragraphs 38 and 39 above). 44. The Court reiterates that the applicability of Article 6 to lustration-related proceedings depends on the specific circumstances of each case. In Ivanovski, it found that the civil limb of Article 6 was applicable to the lustration proceedings in that case, which had been conducted under the 2008 Lustration Act (see Ivanovski, cited above, § 120).", "The Court notes that the main features of the lustration proceedings regulated under that Act (the administrative nature of the proceedings, the fact that judicial review was carried out by administrative courts on the basis of the rules of administrative and/or civil-law procedure, ibid., § 121 and paragraphs 6 and 30 above) also apply to the impugned proceedings in the present case. The key difference between the 2008 and 2012 Lustration Acts is that the latter did not oblige holders of public office or candidates for such office to submit a written declaration that they had not worked with the security services, but vested the Lustration Commission with the power to scrutinise the past of such people and, on the basis of documentary evidence, to issue a decision confirming such collaboration. The fact that under the 2012 Lustration Act former collaborators with the communist-era security services were not punished for submitting a false declaration is a further element that militates against the applicability of Article 6 under its criminal head to the lustration proceedings (see, by contrast, Matyjek v. Poland (dec.), no. 38184/03, §§ 52 and 53). Furthermore, the Court notes that criminal-law provisions concerning a “prohibition on exercising a profession, activity or duty” referred to by the applicant (see paragraphs 38 and 39 above), were not applied by the domestic authorities.", "For those reasons, it considers that the civil limb of Article 6 is applicable in the present case. 45. Having regard to the above and the consequent conclusion that the Commission’s decision in the applicant’s case did not involve the determination of a criminal charge, the Court considers that publication of the decision before it became final cannot give rise to the application of Article 6 § 2 of the Convention. It follows that that part of the complaint is incompatible ratione materiae with that provision within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 46.", "The Government did not raise any objections as to the admissibility of the remaining complaints under this head. The Court notes that they are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 47. The applicant reiterated that the lustration proceedings had been unfair and at variance with the PACE Resolution and the Guidelines cited above (see Ivanovski, cited above, §§ 106 and 107). 48. The Government submitted that the lustration proceedings in the applicant’s case had been in line with the requirements of Article 6 of the Convention.", "The applicant had used all available means in the administrative proceedings to contest the initial findings of the Commission. That the courts had not given weight to his evidence did not mean that the proceedings had not been adversarial or had violated the principle of equality of arms. Any concerns as to the authenticity of the information in his file should have been decided, as stated by the Administrative Court, in separate proceedings before a competent court and “before the impugned decision had been delivered”. The Government also argued that the applicant had not requested an oral hearing. Furthermore, it had been possible to decide all the issues of fact and law on the basis of documentary evidence and so holding an oral hearing would have been in conflict with the principles of economy and efficiency.", "Lastly, they maintained that the courts had provided sufficient reasons for their decisions. The courts had accepted the documentary evidence on which the Commission had based its decision as authentic and had regarded it as “facts”. 2. The Court’s assessment (a) General principles 49. The Court considers that in cases such as the present one, where the applicant complains of unfairness in the proceedings and supports his allegations by several mutually reinforcing arguments touching on various aspects of Article 6 § 1 of the Convention, the appropriate approach is to examine the fairness of the proceedings complained of taken as a whole (see Kinský v. the Czech Republic, no.", "42856/06, §§ 81-84, 9 February 2012). 50. In that regard, the Court notes that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, and Perić v. Croatia, no. 34499/06, § 17, 27 March 2008).", "51. However, in view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Cudak v. Lithuania [GC], no. 15896/02, § 58, ECHR 2010), the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by the tribunal (see Saliba v. Malta, no. 24221/13, § 64, 29 November 2016 and Donadze v. Georgia, no. 74644/01, §§ 32 and 35, 7 March 2006).", "52. The Court also emphasises that in proceedings before a court of first and only instance, the right to a “public hearing” entails an entitlement to an “oral hearing” under Article 6 § 1 unless there are exceptional circumstances that justify dispensing with such a hearing (see Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002‑V). 53. Lastly, according to the Court’s established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based.", "The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Garcia Ruiz, cited above, § 26; Bochan v. Ukraine, no. 7577/02, § 78, 3 May 2007; and Ajdarić v. Croatia, no. 20883/09, § 34, 13 December 2011). (b) Application of the general principles to the present case 54. The Court will examine different aspects relevant to the present case in turn in order to determine whether the impugned proceedings, seen as a whole, met the requirements of fairness within the meaning of Article 6 of the Convention.", "(i) Right of the applicant to effectively present his case 55. Turning to the circumstances of the instant case, the Court notes that the Commission’s decision was based on documentary evidence about the applicant from the former security services. That evidence formed part of two files, nos. 6825 and 2599. The first file concerned the applicant’s alleged involvement in informing the security services about events related to a visit to Sweden in 1963 and the second was about a colleague of the applicant’s when he was editor-in-chief of a newspaper and afterwards.", "Relying on that evidence, the Commission found that the alleged collaboration had satisfied the qualitative criteria specified in sections 4(1) and 18(4) of the 2012 Lustration Act, namely that it had been “conscious, secret, organised and continuous” (see paragraph 6 above). It is to be noted that the applicant was not involved in the proceedings before the Commission and accordingly could not present arguments in his defence (see, in contrast, Ivanovski, cited above, §§ 35 and 36). In its decision of 12 June 2014 the Higher Administrative Court held that “there are no adversarial proceedings [before the Commission]” (see paragraph 16 above). 56. In the ensuing administrative-dispute proceedings before the administrative courts the applicant advanced two main arguments.", "Firstly, that file no. 6825 had not concerned him and that the Commission’s findings had been the result of mistaken identity. In support he submitted written evidence to refute the Commission’s findings that file no. 6825 had been about him, stating that they had been about another person with the same name (see paragraph 10 above). Secondly, he challenged the authenticity of the evidence in file no.", "2599. He also denied that the alleged collaboration had fulfilled the qualitative criteria mentioned above. 57. The administrative courts accepted the facts as established by the Commission and the reasons given in its decision. They rejected the applicant’s first argument (about mistaken identity), holding that the Commission had identified him by referring in its decision to his personal identification number, his place of birth and the positions he had held under the former regime.", "The Court observes that from the administrative courts’ reasoning it cannot be readily inferred to what extent the courts substantively examined either the actual records about the applicant allegedly held by the security bodies or, importantly, the evidence adduced by the applicant himself. In these circumstances, Article 6 of the Convention required the domestic courts to provide a more substantial statement of their reasons rather than simply saying that “[the applicant] had not submitted any evidence that led to different facts” (see paragraph 14 above). 58. The applicant’s second argument, about the unreliability of the evidence in file no.2599, was rejected on the grounds that he “could have initiated proceedings before the competent court in order to prove their inaccuracy ...” (see paragraph 13 above). The Court notes that the Administrative Court did not specify what kind of proceedings the applicant should have initiated.", "Furthermore, it finds it difficult to accept that he was supposed to institute those proceedings “before the impugned decision [of the Commission] had been delivered”. In that connection, there was nothing to suggest that the applicant had been aware before the Commission’s decision was served on him on 4 June 2013 that the former regime’s security services had held any information on him. In any event, the Court rejected a similar argument raised by the Government in Ivanovski (cited above, §§ 157-162), finding it decisive that the courts at two levels that had examined the applicant’s action for judicial review had exercised full jurisdiction over the facts and law and had examined the case on the merits. It considers that the same reasons apply to the present case. 59.", "The Court considers that such a state of affairs was detrimental to the exercise of the applicant’s right to effectively present his case, within the meaning of Article 6 § 1 of the Convention. (ii) Right to an oral hearing 60. The Court further notes that there was no oral hearing in the presence of the applicant at any stage of the impugned proceedings. While it is true that he did not request such a hearing before the Administrative Court, it is also to be noted that the Administrative Disputes Act, as valid at the relevant time, no longer provided for such an opportunity (see paragraph 34 above). Furthermore, it appears that such a request would have been useless given the findings of the Administrative Court that no such hearing was necessary “since the Commission had correctly established the relevant facts on the basis of [written material]” (see paragraph 14 above).", "The Higher Administrative Court did not reply to the applicant’s complaint on that point (see paragraph 15 above). The Court is not convinced that the disputed issues of fact and law (see paragraph 56 above) could be dealt with better in writing than in oral argument. Those issues were neither technical (see, conversely, Siegl v. Austria (dec.), no. 36075/97, 8 February 2000) nor purely legal (see, conversely, Zippel v. Germany (dec.), no. 30470/96, 23 October 1997).", "61. In view of the foregoing, the Court is not persuaded that there were any exceptional circumstances that justified dispensing with an oral hearing. (iii) Reasoned judgment 62. Lastly, the Court considers that the applicant’s arguments that the alleged collaboration did not meet the qualitative criteria specified in the Lustration Act were decisive for the outcome of the case and therefore required a specific reply. That was the case because collaboration which had not been “conscious, secret, organised and continuous” could not serve for lustration purposes (see section 4(3) of the 2012 Lustration Act, paragraph 21 above).", "Another element was that the collaborator or informant should have obtained “in return [for such collaboration] a material benefit or favours during employment or in getting promotion” (see section 4(1) and 18(4) of the 2012 Lustration Act, paragraphs 21 and 24 above). The Court cannot accept that a mere restatement of those criteria, without pointing to any concrete issue of fact to confirm that the alleged collaboration complied with them, was a sufficient response to the applicant’s submissions. 63. In those circumstances, the Court considers that the domestic courts fell short of their obligation under Article 6 § 1 to give adequate reasons for their decisions. (iv) Conclusion 64.", "Having regard to the above issues, taken together and cumulatively, the Court finds that the applicant’s right to a fair hearing within the meaning of Article 6 § 1 of the Convention was infringed. Accordingly, there has been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 65. The applicant complained that the Commission’s publication of the decision of 27 May 2013 on its website before it had become final had had serious adverse effects on his reputation, dignity and moral integrity and had violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 66. The Government did not submit any objection as to the admissibility of this complaint. 67.", "The Court notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 68. The applicant maintained that the publication of the Commission’s decision on its website before it had become final had been unlawful and not necessary in a democratic society. The removal of such a decision from the Commission’s website if the administrative courts had set it aside would not have offset the adverse effects it had caused. In that connection, he submitted articles from newspapers and online portals after the Commission had posted its decision on its website and before it had been served on him. Lastly, he argued that the impugned publication had not pursued any legitimate aim.", "69. The Government maintained that the impugned publication of the Commission’s decision had not violated the applicant’s Article 8 rights as he had not been prevented from challenging the decision before the administrative courts. They referred to cases in which such decisions had been removed from the Commission’s website after being quashed by the administrative courts. Lastly, they argued that the impugned publication of the decision had aimed to ensure increased transparency, enabling those directly concerned and the wider public to have access to the relevant evidence. That improved the possibilities for alleged collaborators to contest the Commission’s decisions in court.", "It also aimed to prevent any arbitrariness in the Commission’s decision-making. 2. The Court’s assessment (a) Whether there was an interference with the applicant’s right to respect for his private life 70. The Court notes that the Commission’s decision finding that the applicant collaborated with the former regime’s security services and that he consequently fulfilled the criteria for restricting his candidature to public office or the exercise of such office (see paragraph 6 above) was published on the Commission’s website on 30 May 2013. At that time, the decision was not final as it had not been yet served on the applicant (4 June 2013) and was accordingly the subject of an administrative action before the administrative courts.", "71. It is common ground between the parties that the publication of such information constituted an interference with the applicant’s right to respect for his private life. The Court finds no reasons to hold otherwise. In that connection it observes that it has already held that lustration measures directly affect the Article 8 rights of the persons concerned (see Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; Leander v. Sweden, 26 March 1987, § 48, Series A no.", "116; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 35, 7 April 2005; Turek v. Slovakia, no. 57986/00, § 110, ECHR 2006‑II; and Sidabras and Others v. Lithuania, nos. 50421/08 and 56213/08, § 49, 23 June 2015). In the present case, the publicity given to the Commission’s decision further added to its effects on the enjoyment of the applicant’s right to respect for his private life within the meaning of Article 8.", "72. If it is not to contravene Article 8, such interference must be “in accordance with the law” and pursue a legitimate aim under paragraph 2 of that provision. It must also be necessary in a democratic society. (b) Lawfulness 73. The Court notes that sections 29(2) and 31(1) of the Lustration Act provided that a Lustration Commission decision was to be published on its website immediately, but no later than three days after the completion of proceedings or its delivery to the person concerned.", "In those circumstances, the publication of the Commission’s decision on 30 May 2013 was based on the relevant provisions of the Lustration Act, which met the qualitative requirements of accessibility and foreseeability (see Rotaru, cited above, §§ 52, 54 and 55). The Court is therefore satisfied that the interference with the applicant’s private life was in accordance with the law, as required by Article 8 § 2 of the Convention. (c) Legitimate aim 74. The Court has already held that lustration measures are to be regarded as pursuing the legitimate aims of protecting national security, public safety, the economic well-being of the country and the rights and freedoms of others (see Ivanovski, cited above, § 179). However, its examination under this head must be confined to the applicant’s complaint, which did not concern the results of the lustration proceedings against him, but the fact that the Commission’s decision on his collaboration with the former regime’s security services had been published before it had become final.", "75. The Government submitted that the publication of such information ensured greater transparency, public access to documents in the applicant’s file and public scrutiny of the Commission’s decision-making. The Court does not consider that either purpose can be subsumed under any of the aims listed in Article 8 § 2 of the Convention. Furthermore, it does not see how making a non-final Commission decision publicly accessible can be reconciled with the general aims of lustration that the Court has accepted as legitimate (see paragraph 74 above). In that connection, it is to be noted that the applicant was seventy-seven years old when the Commission delivered its decision and held no public office.", "Furthermore, it was not alleged, in the domestic proceedings or before the Court, that he was a candidate for any such office at the time. The Court finds noteworthy that the Venice Commission in its amicus curiae brief on the 2012 Lustration Act also expressed the view that the publication of Lustration Commission findings prior to their review by a court was irreconcilable with Article 8 of the Convention (see paragraph 41 above). The Constitutional Court extended such an approach, albeit regarding necessity, to the publication of lustration results after they had become final (see paragraph 40 above). 76. The Court considers that the lack of a legitimate aim suffices to constitute a violation of Article 8.", "Furthermore, that fact means it does not need to determine whether the impugned measure was “necessary in a democratic society”. 77. There has consequently been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 78.", "The applicant also complained of a lack of an effective remedy with respect to his grievances under Articles 6 and 8 of the Convention. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. 79. The applicant reiterated that the impugned proceedings had been an ineffective remedy for his complaints under Articles 6 and 8. 80.", "The Government contested the applicant’s arguments. 81. Having regard to its findings under Article 6 § 1 and Article 8 (see paragraphs 64 and 77 above), the Court declares the complaint under this head admissible, but considers that it is not necessary to examine whether there has also been a violation of Article 13 (see Ivanovski, cited above, § 191). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 83. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage for the embarrassment he had suffered as a result of his file still being accessible on the Commission’s website and for his mental suffering because he had had the status of a “snitch” (кодош) attached to him as an alleged collaborator with the former regime’s security services. 84. The Government contested the claim as unsubstantiated.", "85. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 under that head, plus any tax that may be chargeable. B. Costs and expenses 86. The applicant also claimed EUR 3,350 for the costs and expenses incurred before the Court.", "That figure included fees for 100 hours of legal work, plus mailing and copying expenses. The applicant submitted an itemised list of costs and other particulars and requested that any award under this head be paid directly to his legal representative. 87. The Government contested the claim as unsubstantiated and excessive. 88.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. This amount is to be paid into the bank account of the applicant’s representative. C. Default interest 89.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Articles 6 § 1, 8 and 13 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the overall unfairness of the lustration proceedings; 3. Holds that there has been a violation of Article 8 of the Convention; 4.", "Holds that there is no need to examine the complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident" ]

[ "FIRST SECTION CASE OF VOGLINO v. ITALY (Application no. 48730/99) JUDGMENT STRASBOURG 22 May 2003 FINAL 22/08/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Voglino v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrP. Lorenzen,MrsN. Vajić,MrE. Levits,MrA. Kovler,MrV.", "Zagrebelsky, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 29 April 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48730/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Cinzia Voglino (“the applicant”), on 16 March 1999. 2. The applicant was represented by Mr A. Barbàra, a lawyer practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings.", "4. The application was 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. 5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed First Section. 6. On 14 March 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicant lives in Grottaferrata (Rome). 8. She is the owner of a flat in Rome, which she had let to B.F.R. 9. In a writ served on the tenant on 4 February 1991, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1991 and summoned her to appear before the Rome Magistrate.", "10. By a decision of 29 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 July 1992. 11. On 7 October 1992, 20 September 1995 and 10 February 2000, the applicant served notice on the tenant requiring her to vacate the premises. 12.", "On 7 December 1992, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 December 1992. 13. Between 15 December 1992 and 25 February 1993, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 14.", "On 13 October 1995, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 October 1995. Between 31 October 1995 and 6 November 1996, the bailiff made six attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 15. On 28 February 2000, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 24 March 2000.", "16. Between 24 March 2000 and 13 July 2000, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as, the applicant was not entitled to police assistance in enforcing the order for possession. 17. On 24 July 2000, the applicant recovered possession of the flat.", "II. RELEVANT DOMESTIC LAW 18. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. THE LAW I.ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She alleged a violation of Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 20. The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 21. The Court has on several previous occasions decided cases raising similar issues as in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no.", "15919/89, 30 November 2000, §§ 33-47). 22. The Court has examined the present case and finds that there are no facts or arguments from the Government, which would lead to any different conclusion in this case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicant has had to wait for approximately seven years and seven months after the first attempt of the bailiff before repossessing the flat. 23.", "Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 25.", "The applicant claimed EUR 12,911.42 for the non-pecuniary damage. 26. The Government submitted that the applicant had failed to adduce evidence of non-pecuniary damage sustained. 27. The Court considers that the applicant must have sustained some non-pecuniary damage.", "Therefore, the Court decides, on an equitable basis, to award EUR 3,000 under this head. B. Costs and expenses 28. The applicant sought reimbursement for her costs and expenses before the Court, which she put at EUR 4,349.94. 29.", "According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,000 is a reasonable sum and awards the applicant that amount. C. Default interest 30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) 3,000 EUR (three thousand euros) for non-pecuniary damage; (ii) 2,000 EUR (two thousand euros) for legal costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 May 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF TASSINARI v. ITALY (Application no. 47758/99) JUDGMENT STRASBOURG 16 October 2003 FINAL 16/01/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tassinari v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrsN. Vajić,MrE. Levits,MrsS. Botoucharova,MrA. Kovler,MrV.", "Zagrebelsky, judges, and Mr E. Fribergh, Section Registrar, Having deliberated in private on 25 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 47758/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Laura Tassinari (“the applicant”), on 16 April 1999. 2. The applicant was represented by Mr E. Senigaglia, a lawyer practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli 3. On 31 January 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in Rome.", "5. She is the owner of a flat in Rome, which she had let to A.D'A.P. 6. In a registered letter of 29 July 1982, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date. 7.", "In a writ served on the tenant on 7 October 1985, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 8. By a decision of 12 December 1985, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1986. 9. On 31 October 1986 and 3 November 1986 the applicant served notices on the tenant requiring her to vacate the premises.", "10. On 25 November 1986 she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 January 1987. 11. Between 15 January 1987 and 12 November 1992 the bailiff made forty attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession.", "12. On 15 October 1987, the applicant instituted civil proceedings against the Ministry of the Interior and the prefect in order to obtain reimbursement of the damages resulted from the refusal or delay to grant her police assistance. The proceedings was declared inadmissible. 13. In May 1989, Mr S.S. reiterated his proposition made in 1987, to rent the flat at a price of 1,100,000 Italian lire (ITL) [568.10 euros (EUR)] for the first year and ITL 1,200,000 [EUR 619.75] for the second year.", "14. On 6 April 1994 the applicant served another notice on the tenant requiring her to vacate the premises. 15. On 11 May 1994 she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 3 June 1994. 16.", "Between 3 June 1994 and 23 October 1998 the bailiff made twenty attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession. 17. On 17 August 1998, the tenant died. 18.", "On 3 November 1998, the applicant recovered possession of the flat. II. RELEVANT DOMESTIC LAW 19. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession.", "The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. A. The system of control of the rents 20. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 21.", "The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 22. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies.", "Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 23. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.", "B. Obligations of the tenant in the case of late restitution 24. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”. 25.", "However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 26. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution.", "The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 27.", "The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 28.", "The applicant complained of her prolonged inability to recover possession of her flat, owing to the lack of police assistance. She alleged a violation of her right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 29.", "The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 30. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48).", "31. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately eleven years and ten months after the first attempt of the bailiff before being able to repossess the flat. Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 33. The applicant sought reparation for the pecuniary damage she had sustained, which she calculated as follows: - EUR 11,785.75, the sum being the loss of rent for the period from 1 June 1987 to 30 May 1989, on the basis of a new lease that she could have stipulated with Mr S.S.; - EUR 37,734.36, the sum being the difference between the market value rent and the rent imposed by law for the period from August 1992 to October 1998; - EUR 39,767.18, for the depreciation of the value of the flat as a consequence of the conduct of the tenant; The applicant stressed that the flat in issue is located in the city centre. 34.", "The Government contested those claims. 35. As regards the first claim for the loss of rent [EUR 11,785.75], the Court must reject it because a loss of rent can only exist after August 1992. As regards the second claim for the loss of rent [EUR 37,734.36], the Court notes that the applicant submitted the above-mentioned amounts on the basis of the difference between the market value rent - as estimated in accordance with the rent proposed by Mr S.S. (EUR 568.10 for the first year of rent and EUR 619.75 for the second year) - and the rent imposed by law (EUR 16,229.19). The applicant also submitted an expert opinion (real estate agent) who estimates the value of the flat in 2001 between ITL 363,000,000 [EUR 187,473.85] and ITL 440,000,000 [EUR 227,241.04].", "Having regard to the means of calculation proposed by the applicant and in the light of the evidence before it and the period concerned, the Court decides to award her on an equitable basis EUR 29,600. As regards the claim for reimbursement for the depreciation of the flat, the Court recalls that the applicant is entitled to recover all the costs and expenses she had sustained directly from the tenant. Consequently, the claim is dismissed. 36. The Court awards a total sum of EUR 29,600 for pecuniary damage and rejects any other claim.", "B. Non-pecuniary damage 37. The applicant claimed EUR 26.855,76 for the non-pecuniary damage. 38. The Government contested the claim. 39.", "The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 3,000 under this head. C. Costs and expenses 40. The applicant also claimed reimbursement of her legal costs and expenses as follows: - EUR 1,296.49 for the costs of the enforcement proceedings; - EUR 2,065.83 for the costs and the expenses of the proceedings that the applicant instituted against the Ministry of the Interior and the prefect in order to obtain reimbursement of the damages resulted from the refusal or delay to grant her police assistance. The applicant recalls that his action was declared inadmissible, the delay in granting her police assistance being in accordance with law.", "- EUR 7,456.78 for the costs and expenses of the eviction proceedings; The applicant also sought reimbursement of her costs and expenses before the Court. She left the matter to the Court's discretion. 41. The Government contested the claims. 42.", "On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,296.49 for the costs of the enforcement proceedings and EUR 2,000 for the costs and expenses before the Court. As regards the costs and expenses incurred in the proceedings against the Ministry of the Interior and the prefect, the Court recalls that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred (see, for example, Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999-V, § 30). In the present case, the delay in granting the applicant police assistance was in accordance with law. The Court considers, therefore, that the institution of the proceedings in issue was not necessary and rejects the claim.", "As regards the eviction proceedings, the Court considers that the costs and expenses of the proceedings on the merits are not related to the violations found. Accordingly, it rejects the claim. 43. The Court awards a total sum of EUR 3,296.49 for legal costs and expenses. D. Default interest 44.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 29,600 (twenty-nine thousand six hundred euros) for pecuniary damage; (ii) EUR 3,000 (three thousand euros) for non-pecuniary damage; (iii) EUR 3,296.49 (three thousand two hundred ninety-six euros and forty-nine cents) for legal costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF BORISOV v. LITHUANIA (Application no. 9958/04) JUDGMENT STRASBOURG 14 June 2011 FINAL 28/11/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Borisov v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,David Thór Björgvinsson,Dragoljub Popović, appointed to sit in respect of Lithuania,Giorgio Malinverni,András Sajó,Işıl Karakaş,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9958/04) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Jurij Borisov (“the applicant”), on 27 February 2004. 2. The applicant was represented by Mr A. Liutvinskas and Mr V. Sirvydis, lawyers practising in Vilnius and Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "Danutė Jočienė, the judge elected in respect of Lithuania, withdrew from the case (Rule 28). The Government accordingly appointed Dragoljub Popović, the judge elected in respect of Serbia, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1, as in force at the material time). 4. The applicant alleged that the decision of 9 January 2004 to deport him from the Republic of Lithuania and the subsequent uncertainty of his situation breached his right to respect for his private and family life under Article 8 of the Convention. 5.", "On 2 May 2007 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (former Article 29 § 3). Having been informed of the case by a letter of 4 May 2007, the Russian Government did not express any wish to intervene under Article 36 § 1 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1956, in the territory of Primor Oblast, now in the Russian Federation. 7. In 1962, the applicant’s father, a military officer in the Soviet Union army, was posted to the territory of Lithuania to perform his military service. The applicant also moved to Lithuania, where he got married in 1977 and where he lives with his wife and daughter, who was born in 1996 and is therefore still a minor. They are both Lithuanian citizens.", "The applicant and his wife also have two grown-up sons. The applicant’s parents are Lithuanian citizens, born in 1926 and 1931, and, like the applicant, they live in Vilnius. 8. On 11 March 1990, at the time of the restoration of the independent State of Lithuania, the applicant was an officer in the Soviet Union army. On 27 May 1991, by an order of the Minister of Defence of the Soviet Union, the applicant was discharged, finishing his military service with the rank of major.", "9. In 1991 the applicant created an enterprise called Avia Baltika, which was engaged in the aviation business and related activities. The applicant is a major shareholder and director. 10. On 1 November 1991, the applicant made a pledge to the Republic of Lithuania and was subsequently granted Lithuanian citizenship.", "On 20 October 1992, the applicant was issued with a Lithuanian passport. 11. On 4 November 1999 the Commission on Questions of Citizenship (Pilietybės reikalų komisija) found that the applicant’s Lithuanian passport had been issued in breach of the applicable legislation because Soviet Army personnel could not be granted Lithuanian citizenship. However, the Commission recommended that the applicant remain a Lithuanian citizen. 12.", "On 11 November 1999 the Migration Department decided to follow the above recommendation and to make an exception by permitting the applicant to keep his Lithuanian passport. 13. At the end of 2000 the applicant applied to the President of the Russian Federation, requesting Russian citizenship. His request was determined by the fact that he conducted business in both the Republic of Lithuania and the Russian Federation. 14.", "On 18 June 2002 the President of the Russian Federation granted the applicant Russian citizenship. On 18 March 2003, on a request by the applicant, the Embassy of the Russian Federation in Lithuania issued him with a Russian passport. 15. In June 2002, the applicant participated in the 2002 Lithuanian Presidential election campaign by providing financial and other support to one of the candidates, Rolandas Paksas (“RP”). RP officially declared to the Central Electoral Commission that the applicant’s enterprise, Avia Baltika, had donated 1,205,000 Lithuanian litas ((LTL), approximately 349,000 euros (EUR)) to RP’s election campaign.", "16. On 5 January 2003, RP was elected President of the Republic of Lithuania. 17. On 24 March 2003, the applicant informed the Minister of the Interior of the Republic of Lithuania in writing that he had acquired citizenship of the Russian Federation. By a decision of 10 April 2003, the Director of the Migration Department found that the applicant had lost his Lithuanian citizenship, since he had acquired the citizenship of another State.", "18. On 24 March 2003, the applicant asked RP to grant him Lithuanian citizenship by way of exception. In his application, the applicant maintained that since 1991 he had been conducting business in Lithuania, that he had created more than 200 jobs, that there were 600 other people working in other enterprises providing services to, or otherwise related to, the enterprise headed by him, that since 1991 Avia Baltika had paid more than LTL 17 million in taxes to the budget of the Republic of Lithuania, and that he had donated about LTL 6 million to charity. The applicant also attached to his application copies of the passports of his relatives, who were Lithuanian citizens. 19.", "In the meantime, the Director of the State Security Department (“the SSD”) informed RP on several occasions that an investigation was being conducted into the activities of the applicant and the Avia Baltika aviation company. On 17 March 2003 the Director of the SSD informed RP that the applicant had sworn to discredit RP in public if the latter did not fulfil his promises given to the applicant during the electoral campaign. 20. On 20 March 2003 an interim commission of the Seimas (the Parliament of the Republic of Lithuania) found that in 2001 the applicant’s company, Avia Baltika, had exported a Mi-8T helicopter to Sudan without a licence. The commission stated that such action “did not violate the legislation of the Republic of Lithuania valid at the relevant time, but it was not compatible with the rules of the European Union embargo or sanctions applied by the United Nations”.", "21. On 11 April 2003 RP, the President of the Republic of Lithuania, issued Decree No. 40 “On Granting Citizenship of the Republic of Lithuania by Way of Exception”, whereby he granted Lithuanian citizenship to the applicant by way of exception, that is, for the applicant’s “special merits” to the Lithuanian State and without applying the general conditions of naturalisation. A. Withdrawal of the applicant’s Lithuanian citizenship 22.", "On 2 December 2003 the Seimas approved the conclusions of its ad hoc Inquiry Commission into Possible Threats to Lithuania’s National Security. The conclusions, as far as relevant, read as follows: “the President’s relations with J. Borisov are specific. Driven by political, economic and personal motives (...), J. Borisov had an influence on the activities of the President’s Office and on the President’s decisions. Thus J. Borisov has secured favourable conditions for his business, which, among other things, includes trading in spare parts for military helicopters with countries supporting terrorism. So far, the President has failed to publicly dissociate himself from J. Borisov and has implicitly vindicated him by his actions.", "The extent of J. Borisov’s influence on the President is made clear by the fact that the President, aware of J. Borisov’s threats, granted him citizenship under an accelerated procedure.” 23. On 30 December 2003 the Constitutional Court found that the President’s decree of 11 April 2003 was in breach of the Law on Citizenship and the Constitution, effectively annulling it. According to the Constitutional Court: “... in the sense of the Law on Citizenship, in general, the merits of a citizen of a foreign state or a stateless person to the State of Lithuania cannot be evaluated merely by the amount of money or the amount of material and other support rendered by the citizen of a foreign state or stateless person to a certain citizen or a group of citizens of the Republic of Lithuania, a State official, a certain enterprise, establishment or organisation or even to the State of Lithuania itself. It does not follow from the Constitution, the Law on Citizenship, or other laws, that citizenship of the Republic of Lithuania can be acquired by financial, material or any other support, i.e. ‘bought’.", "In the context of apparent citizenship relations, merits to the State cannot be evaluated only by the money transferred (donated) to a certain subject or by other support. In terms of the Law on Citizenship, only the activity of the person is to be considered of merit to the Republic of Lithuania, when the person very significantly contributes to strengthening Lithuanian statehood, to the increase of the power of Lithuania and its authority in the international community, and when it is evident that the person has already been integrated into Lithuanian society. Only in such cases may pre-conditions be considered and a decision taken as to whether a citizen of a foreign state or stateless person is of merit to the Republic of Lithuania, as required by the Law on Citizenship.” 24. As regards the applicant’s case, the Constitutional Court found that RP had knowingly ignored, among other facts, that in 1999 the State institutions had already made an exception with regard to the applicant and shown special benevolence towards him (see paragraphs 11 and 12 above). According to information from the SSD, the applicant had sworn to compromise RP if the latter did not fulfil promises given during the electoral campaign (see paragraph 19 above).", "The Constitutional Court concluded: “The fact that, while issuing Decree No. 40 “On Granting Citizenship of the Republic of Lithuania by Way of Exception” on 11 April 2003, whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception, the President of the Republic knowingly disregarded the aforementioned circumstances that are of essential importance in deciding whether to grant citizenship ... (especially when one takes account of the fact that J. Borisov notably supported R. Paksas financially and in other ways when the latter participated in the 2002 Lithuanian Presidential elections), is evidence that the decision of the President of the Republic, R. Paksas, to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception was determined not by certain merits of J. Borisov to the State of Lithuania, but by his notable financial and other support rendered to R. Paksas in the 2002 elections. Thus, the granting of citizenship to J. Borisov by way of exception was but a reward by the President of the Republic, R. Paksas, to J. Borisov for the aforesaid support. Therefore, [the court]... holds that the President of the Republic, R. Paksas, when issuing Decree No. 40 ... was following neither the Constitution of the Republic of Lithuania, nor the laws, nor the interests of the Nation and the State of Lithuania, but his personal interests.", "Thus, in granting citizenship of the Republic Lithuania to J. Borisov by way of exception by Decree No. 40 ... the President of the Republic, R. Paksas, treated this person as a person who sought to acquire citizenship of the Republic of Lithuania in an exceptional manner, and knowingly disregarded the requirement consolidated in Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before State institutions and officials, and the requirement consolidated in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all.” 25. On 31 December 2003 the Constitutional Court’s ruling was published in the State Gazette and the same day the applicant lost his Lithuanian citizenship. 26. On 19 February 2004 the Seimas asked the Constitutional Court to determine whether specific actions of the State President had breached the Constitution.", "The charges included the following: - that the State President had undertaken to perform a number of actions in favour of the applicant in exchange for financial and other support during the electoral campaign, and that the President had acted under the influence of the applicant; - that, as a reward for the applicant’s support, the President had unlawfully granted the applicant Lithuanian citizenship; - that the State President had revealed a State secret by informing the applicant that the secret services were investigating the applicant’s activities and had wiretapped his phone. 27. On 31 March 2004 the Constitutional Court found that the President had committed a gross violation of the Constitution and breached the constitutional oath by: - unlawfully granting Lithuanian citizenship, by the Decree no. 40, to the applicant in return for the latter’s financial and other support, contrary to Article 16 § 1 of the Law on Citizenship and Articles 29 § 1, 82 § 1 and 84 § 1 (21) of the Constitution; - knowingly hinting to the applicant that the law enforcement institutions had been investigating him and tapping his telephone conversations, contrary to Articles 3 § 7, 9 § 2 and 14 § 1 of the Law on Official Secrets, as well as Articles 77 § 2 and 82 § 1 of the Constitution. 28.", "On the basis of the Constitutional Court’s conclusion, on 6 April 2004 RP was impeached and the Seimas removed him from the office of President. The same day the Chairman of the Seimas temporarily took over the President’s duties. B. The criminal proceedings against the applicant 29. On 1 November 2003 the applicant was accused of having threatened the State President (Article 287 § 1 of the Criminal Code in force as of 1 May 2003).", "30. He was convicted by the Vilnius City First District Court on 22 November 2004 and fined LTL 10,000. It was established that in March 2003, and from January to March 2004, the applicant had demanded that the President appoint him as an advisor, grant him Lithuanian citizenship and grant other favours, failing which the applicant threatened to disclose certain information which could damage the President’s reputation. 31. The applicant’s conviction was based on the submissions of ten witnesses questioned at an open hearing, physical evidence, expert submissions and the records of the applicant’s telephone conversations with three persons, secretly made by the SSD in March 2003 upon the courts’ orders.", "On the latter point the Vilnius City First District Court noted that, even though two of the applicant’s interlocutors had not been questioned in court, the records had been obtained lawfully and were a separate piece of evidence from witness testimony. 32. The applicant appealed, alleging that the provision of the Criminal Code under which he had been convicted had only come into force on 1 May 2003, while some of the acts for which he had been convicted had been committed earlier, in March 2003. He further complained - with respect to the same part of the conviction - that the court should not have admitted in evidence the secretly made records of his telephone conversations, because his interlocutors had not been questioned as witnesses at the court hearing. 33.", "On 6 April 2005 the Vilnius Regional Court granted the applicant’s appeal in part, quashing the conviction for those acts committed in March 2003, that is, before the entry into force of Article 287 § 1 of the new Criminal Code. The court did not rule on the question of the admissibility of evidence, as the applicant’s complaints in this respect related to that part of the judgment which had been quashed. 34. The applicant lodged a cassation appeal, essentially alleging errors of fact and law; he did not reiterate his complaints regarding the admissibility of evidence. The prosecution also lodged a cassation appeal, requesting the reinstatement of the first-instance court judgment.", "35. On 18 October 2005 the Supreme Court granted the prosecution’s request and reinstated the judgment of 22 November 2004. The Supreme Court held that the applicant had been rightly convicted for his actions committed in March 2003, because, even at that time, the old Criminal Code had criminalised blackmail (Article 132 § 1). Because the new provision (Article 287 § 1) provided for a less-severe sentence, it prevailed over the older one. 36.", "Before the courts, the applicant was represented by a lawyer. C. Proceedings regarding the deportation of the applicant 37. Following the withdrawal of the applicant’s Lithuanian citizenship, on 2 January 2004 he applied for a permanent residence permit. 38. On 9 January 2004 the Migration Department of the Ministry of the Interior refused the applicant’s request and decided to deport him from Lithuania to the Russian Federation, barring his access to Lithuanian territory for a year.", "The Migration Department’s decision was based on Article 14 § 1 (1) of the Law on the Legal Status of Aliens (currently Article 35 § 1 (1) of the Law) and stipulated that the applicant was a threat to national security. The applicant appealed. 39. On 22 March 2004 the Vilnius Regional Administrative Court quashed the Migration Department’s decision and ordered the latter to review the applicant’s situation again and to adopt a new decision. The deportation proceedings were suspended.", "40. On 29 June 2004 the Migration Department again decided not to issue the applicant with a permanent residence permit, on the ground that he posed a threat to national security. It therefore requested the Vilnius Regional Administrative Court to order the applicant’s deportation from Lithuania. The Migration Department relied on the information provided by the SSD in a letter dated 1 April 2004, in which it had been alleged, inter alia, that the applicant had sought to destabilise and influence political events in Lithuania, that he had threatened the President, and that the company Avia Baltica had sold spare parts for military helicopters to Sudan, disregarding the international arms embargo on that regime. This information had been updated in the SSD’s letters of 11 May and 21 June 2004, maintaining that the threat presented by the applicant persisted.", "The Migration Department based its decision on, inter alia, Articles 35 § 1 (1) and 126 §§ 1 (3) of the Law on the Legal Status of Aliens. 41. On 2 July 2004, before the Vilnius Regional Administrative Court, the applicant challenged the decision to refuse him a permanent residence permit. 42. On 12 August 2004 and then on 25 May 2005, the Vilnius Regional Administrative Court decided to adjourn the examination of the applicant’s appeal until the end of the criminal proceedings against him (see paragraphs 29-36 above).", "43. On 19 August 2004 the applicant asked the Migration Department to issue a temporary residence permit to him. 44. On 10 September 2004 the Migration Department granted the applicant’s request. The applicant was issued with a temporary residence permit, valid until the court resolved the applicant’s administrative case, but not exceeding a period of one year.", "On 1 September 2005, 4 September 2006 and 19 September 2007 the Migration Department issued the applicant with new residence permits of the same duration (until the adoption of the decision in the applicant’s administrative case but not exceeding a year). 45. On 19 December 2005 the Vilnius Regional Administrative Court dismissed the Migration Department’s request that the applicant be deported, ordering the Migration Department to issue a permanent residence permit to him. The court found no evidence that the applicant’s presence in Lithuania could cause a danger to State security. It relied on the fact that the offence of which the applicant had been convicted was not considered “serious” under Lithuanian criminal law and did not fall under the group of “crimes against State independence, territorial unity and constitutional order”.", "Moreover, the court considered that the commercial activities of Avia Baltika could not be directly imputable to the applicant, because the company was a separate legal entity. For the court, taking into consideration the applicant’s family ties to Lithuania, his expulsion would disproportionately affect the applicant’s right to respect for his family life as well as his economic interests. 46. On 28 June 2006 the Chairman of the Seimas, VM, in his address to the General Assembly of Lithuanian judges stated that “it was hard to imagine a State which could allow a foreign citizen to threaten its President and to remain unpunished or at least not to deport him from the country in which he had made the threats” and that “it was bad that our courts had acquitted former President RP. Maybe the courts would also decide to leave [the applicant] free to live in Lithuania[?]”.", "47. On 30 June 2006 the Supreme Administrative Court quashed the decision of 19 December 2005, remitting the case for fresh examination. It noted that the first-instance court had not assessed all the circumstances related, on the one hand, to the applicant’s family and economic ties in Lithuania and, on the other hand, to the threat to national security, possibly arising from the applicant’s presence. On the latter point, the court considered that the threat presented by the applicant could not be assessed only by reference to formal provisions of the criminal law qualifying the offence of which the applicant had been convicted. Moreover, the lower court should have assessed the influence which the applicant had over the company’s commercial transactions and which might have been incompatible with the State’s security policy.", "48. On the same day the Supreme Administrative Court adopted a separate ruling on the remarks which VM had made on 28 June 2006. Invoking Article 6 of the Convention and the Court’s judgments (Daktaras v. Lithuania, no. 42095/98, ECHR 2000‑X, and Butkevičius v. Lithuania, no. 48297/99, ECHR 2002‑II (extracts)), the court emphasised the need to avoid any statements which could raise doubts as to the impartiality and independence of the courts.", "The court pointed out that VM’s speech was not in line with the principle that justice is administered by the courts (Article 109 of the Constitution and Article 3 of the Law on Courts). The text of the ruling was sent to the Seimas for consideration. 49. Having been questioned by members of the Seimas on 12 September 2006, VM assured his colleagues that in truth he was not attempting to influence the courts in any way and he believed that, when adopting its decision, the Vilnius Regional Administrative Court would have disregarded his words. 50.", "On 7 November 2006 the Vilnius Regional Administrative Court, on the request of the applicant’s lawyer, adjourned the proceedings to await the outcome of the present application before the Court. The Migration Department appealed. 51. On 14 December 2006 the Supreme Administrative Court quashed the decision of 7 November 2006 as unfounded, noting, inter alia, that the European Court of Human Rights had not yet declared the applicant’s case admissible. The administrative proceedings resumed.", "52. By a letter of 4 January 2007, JR, a member of the Seimas, who at that time was the deputy head of the political faction of the Homeland Union Party (Tėvynės Sąjunga) in the Parliament, wrote to the Minister of the Interior, to whom the Migration Department was subordinate. JR asked the Minister whether the Vilnius Regional Administrative Court had indeed suspended proceedings in the applicant’s case because the applicant had lodged an application with the European Court of Human Rights. For JR, such a decision by a court would clearly be unlawful, as it was not provided for under domestic law and especially in a case dealing with the deportation of a foreign national presenting a threat to national security. JR asked the Minister whether the Migration Department had appealed against such a “clearly unlawful” decision of the first-instance court.", "JR also asked the Minister to explain, if no appeal had been lodged, why this was the case and what measures would be taken in connection with “the failure of the Migration Department’s officials to fulfil their duty to protect the State’s interests”. 53. On 23 April 2007 the applicant’s lawyer asked the Vilnius Regional Administrative Court to suspend the applicant’s case and to ask the Constitutional Court to clarify certain questions. The court granted that request; however, on 22 May 2007 the Constitutional Court refused to accept the referral as it was deemed unreasoned. 54.", "By a decision of 26 June 2007, the Vilnius Regional Administrative Court again dismissed the Migration Department’s request to deport the applicant from Lithuania and ordered it to issue him with a permanent residence permit. In reaching this conclusion the court observed that the applicant had been convicted of a minor offence (už baudžiamąjį nusižengimą) and only a fine had been imposed on him. It referred to the Court’s case-law (Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX; Boughanemi v. France, 24 April 1996, Reports of Judgments and Decisions 1996‑II) in which the Court had found a violation of Article 8 § 1 of the Convention even in such cases where a person to be deported had systematically been committing crimes or had committed major offences for which he had been imprisoned.", "The Vilnius Regional Administrative Court also observed that the applicant had never been criminally charged with regard to the other grounds to deport him, namely, that his company had exported a military helicopter to Sudan. Taking into account the Seimas’ conclusion that such an export did not breach Lithuanian legislation (see paragraph 20 above), there were no grounds to rule that the episode proved that the applicant was a threat to national security. The court also emphasised that, at the hearing, the SSD had not provided any sufficiently serious and verified information to show that the applicant was a danger to national security. Moreover, there was no information in the case file that since 2004 the applicant had taken part in any illegal activities. 55.", "Next, the Vilnius Regional Administrative Court turned to the applicant’s family situation, noting that his wife, daughter and parents had lived in Lithuania for decades and were Lithuanian citizens. For the court, had the family been forced to move to the Russian Federation to follow the applicant, it would have caused them serious hardship. Alternatively, had the applicant been sent to his country of origin, these family relationships would have been broken. 56. Lastly, when assessing whether the applicant’s expulsion was necessary in a democratic society and proportionate to the legitimate aim pursued, the Vilnius Regional Administrative Court turned to the criteria enumerated by the Court in the case of Üner v. the Netherlands ([GC], no.", "46410/99, § 57, ECHR 2006‑XII). It found that not one single criterion had been fully satisfied to justify the applicant’s deportation. This was even more so when those criteria were taken as a whole. In sum, taking into account the strict criteria of Article 8 of the Convention, the nature of the crime committed by the applicant, the level of his integration into Lithuania and his family’s situation, it was not proportionate or necessary to deport the applicant. 57.", "The Migration Department appealed. 58. On 16 April 2008 the Supreme Administrative Court remitted the case for fresh examination. It noted that the lower court had thoroughly analysed the Strasbourg Court’s practice with regard to Article 8 of the Convention. Yet, the Vilnius Regional Administrative Court had wrongly interpreted and applied domestic legal norms when deciding on the applicant’s possible threat to Lithuania’s national security.", "In particular, the fact that the applicant had, in the criminal proceedings, been convicted of a minor offence and had been punished only by a fine was not sufficient to rule out the possibility that he was a threat to national security. Moreover, the lower court had not properly examined the data presented by the SSD, had not examined all the evidence in the case and had not given proper reasons for its decision. In sum, from the decision of the first-instance court it was not clear whether the applicant’s presence in Lithuania had in the past posed, and still posed a real threat to Lithuania’s national security. 59. On 27 October 2008 the Vilnius Regional Administrative Court adopted a separate ruling in the proceedings, changing the procedural status of the SSD from that of a third party to plaintiff.", "The ground for this change was an amendment to Article 1401 of the Law on the Legal Status of Aliens, adopted on 16 December 2006. 60. By a letter of 5 November 2008, the SSD informed the court that the Migration Department was the proper plaintiff in the case. The SSD also noted that it concurred with the Migration Department’s request to remove the applicant from Lithuania. 61.", "On 24 November 2008 the Vilnius Regional Administrative Court dismissed the Migration Department’s request to deport the applicant from Lithuania, and ordered the Migration Department to issue the applicant with a permanent residence permit. The Migration Department and the SSD appealed. 62. On 7 December 2009 the Supreme Administrative Court quashed the lower court’s decision. The court found that, by changing the procedural position of the parties on 27 October 2008, the Vilnius Regional Administrative Court had wrongly interpreted the amended Article 1401 of the Law on Legal Status of Aliens.", "It had therefore breached administrative procedure, which did not allow that court to analyse all the claims in the case. The Supreme Administrative Court also noted that it was well aware of the fact that the administrative proceedings had already started in 2004 and that, “had the case been returned for fresh examination one more time, it could have been a reason [for the applicant] to appeal to an international court, claiming that the hearing in his case before the [domestic] courts may possibly have taken too long”. However, if the Supreme Administrative Court had adopted a final decision without having answered all the claims, it would have formed a wrong legal precedent for future judicial practice. 63. The Supreme Administrative Court also noted that the lower court had failed to properly evaluate all the evidence in the case.", "The case was returned for a fresh examination. 64. On 29 January 2010 the Vilnius Regional Administrative Court adopted a new decision, noting that it was essential to look into the grounds for the applicant’s deportation retrospectively – how pertinent those grounds were in 2004, when the Migration Department took its decision, and whether they still remained relevant in 2010. For the court, the danger that the applicant posed to the State of Lithuania stemmed from his close personal relationship with former President RP. Given the Constitutional Court’s conclusions in the rulings of 30 December 2003 and 31 March 2004 (see paragraphs 24 and 27 above), it was legitimate to state that the applicant had had significant influence on RP, when the latter was the President of Lithuania.", "Such actions by the applicant, when mainly for his own economic interests he had a strong influence over the Head of State and the political processes in Lithuania, had to be evaluated as presenting a threat to Lithuania’s national security. In this connection the court noted the Seimas’s conclusions to the same effect (see paragraph 22 above). 65. The Vilnius Regional Administrative Court nonetheless noted that, after RP’s impeachment on 6 April 2004, the Chairman of the Seimas had been entrusted to temporarily act as the Head of State. As the evidence presented by the Migration Department and the SSD showed, all the circumstances pointing to the applicant’s threat to national security were related to his close personal relationship with RP.", "Consequently, once RP had lost his Presidential powers, the applicant had lost his opportunity to influence the Head of State and political processes in Lithuania. 66. The Vilnius Regional Administrative Court further noted that, even though at the beginning of RP’s term in office Lithuania’s national security guarantees in the foreign and international spheres were rather delicate, on 16 March 2004 Lithuania had joined the North Atlantic Treaty Organisation and its national security with regard to defence had become significantly stronger. A new step in Lithuania’s security was accession to the European Union on 1 May 2004. As a result, when the Migration Department had taken its decision on 29 June 2004 to remove the applicant from the territory of Lithuania, the latter had posed no clear and present danger to national security.", "The court also noted that, at the hearing of 20 January 2010, the representative of the SSD had testified that, after RP’s impeachment, no actions of the applicant that could pose a threat to national security had been established. 67. Lastly, when addressing the applicant’s personal and family situation, the court observed that the applicant had permanently lived in Lithuania where all his family – wife, daughter and retired parents – resided. Admittedly, and as argued by the Migration Department, the applicant often went abroad for business; however, that did not mean that he did not have a relationship with his wife and fourteen-year-old daughter, for whom the applicant played a very important role. There were no reasons to doubt the genuineness of the applicant’s marriage.", "Moreover, regarding the aforementioned factual circumstances, except for the applicant’s permanent residence in Lithuania, none had been disputed by the parties. The court also noted that, since 1991, the companies headed by the applicant had paid more than 17 million litas in taxes to the State budget. 68. Relying on the above, the Vilnius Regional Administrative Court concluded that the applicant’s request that a permanent Lithuanian residence permit be issued to him was grounded. The request to deport the applicant from Lithuania was dismissed.", "69. The Migration Department appealed. 70. On 23 June 2010 the Supreme Administrative Court found for the applicant and ended the court proceedings. It noted that in 2004, when the decision not to grant the applicant a residence permit was taken, the applicant had indeed posed a danger to national security.", "Only upon the lapse of a certain period of time could one ascertain whether such a threat had ceased to exist. The decision whether to deport the applicant had to be decided at present; the situation could not be assessed merely retrospectively. Taking into account the requirements of Article 8 of the Convention, a very serious threat would be necessary to outweigh the applicant’s obvious and unquestionable connections with Lithuania. The case-file did not contain any evidence about the applicant’s current threat; the only possible threat was related to the events of 2003-2004. In the light of the above considerations, the State Security Department’s request that the applicant be deported was dismissed.", "71. The Supreme Administrative Court also noted that “if the applicant was of the view that the examination of the case at issue has continued too long and therefore his rights that were guaranteed by the European Convention on Human Rights had been breached, he was entitled to claim compensation for damage in accordance with the procedure provided for by law”. 72. After the above court decision, the applicant addressed the Migration Department with a request that he be issued with a permanent residence permit. On 13 August 2010 the Migration Department issued the applicant with such a permit.", "D. The private prosecution for alleged defamation 73. On 18 May 2004 the applicant asked the prosecutors and the Inspector of Journalistic Ethics to conduct an inquiry into an article about his activities, published by a journalist, ML, in a national daily newspaper. He alleged that the statements made by ML amounted to the criminal offence of defamation. 74. The article allegedly recounted ML’s interview with an anonymous person, JL, who maintained that the applicant was connected to the Russian intelligence service, the GRU.", "75. On 24 May 2004 the prosecution refused to initiate criminal proceedings, and advised the applicant to bring his claim by way of a private prosecution. 76. On 8 July 2004 the applicant brought a private criminal prosecution against ML, alleging defamation. 77.", "ML was acquitted by the Vilnius City Third District Court on 11 October 2004, because the court found no evidence of a crime. 78. On 30 December 2004 the Inspector of Journalistic Ethics replied to the applicant, opining that ML had violated the applicant’s “honour and dignity”. At the same time, the Inspector addressed the editor of the daily newspaper concerned, asking him to publish a denial of the statements about the applicant’s connections to the GRU. According to the applicant, this was not done.", "79. On 20 January 2005 the Vilnius Regional Court dismissed the applicant’s appeal. That decision was final. The court noted that ML had only recounted his interview with JL, whose opinion, including the impugned statement about the applicant’s connections to the Russian intelligence service, had been cited in the article. There was no evidence that the journalist had known that the information given by JL had been incorrect, or that he had intended to defame the applicant.", "If it appeared that the information was false, JL could be held criminally responsible, but not the journalist who had interviewed him. 80. On 20 April 2005 the applicant’s lawyer addressed the Supreme Court, requesting that the appellate decision be quashed and the proceedings reopened on the basis of newly discovered facts. He alleged that, following the publication of the appellate decision, one of the appellate judges had declared his former relations with the USSR State Security Committee, the KGB. In the applicant’s view, that affiliation could have affected the judge’s impartiality in the case.", "81. On 30 May 2005 the Supreme Court advised the applicant that his request should be addressed to the prosecutor. The Court has no information as to whether the applicant ever lodged such a request. II. RELEVANT DOMESTIC LAW AND PRACTICE 82.", "Article 16 § 1 of the Law on Citizenship, as in force until 1 January 2005, provided that the President may grant Lithuanian citizenship by way of exception - that is, without applying the usual conditions for naturalisation - to citizens of foreign states who are “of merit” to the Republic of Lithuania. 83. Article 2 of the Law on Legal Status of Aliens, as in force since 30 April 2004, defines “an alien” as a person other than a national of the Republic of Lithuania, irrespective of whether he or she is a foreign national or a stateless person. 84. Article 35 § 1 (1) of the Law provides that an alien is not to be issued with a Lithuanian residence permit if his or her residence in the country may be a threat to public security, public order or public health.", "Under Article 126 § 1 (3), an alien can be expelled if his or her presence on Lithuanian territory represents a threat to State security or public order. The decision to deport such a person is to be taken by the Vilnius Regional Administrative Court (prior to 30 April 2004, it was the Migration Department). 85. Pursuant to Article 128 of the Law, when making a decision to deport an alien, account is to be taken of the period of his or her lawful stay in Lithuania, his or her family relationship with persons residing in Lithuania, social and economic ties with the country and the type and extent of the danger of the infringement of law committed by that individual. The execution of a decision to deport an alien from Lithuania is suspended if it has been appealed against in court.", "Article 133 of the Law provides that a deported alien, whose entry and stay in the country would constitute a threat to national security, may be prohibited from entering Lithuania for a fixed or indefinite period. 86. On 16 December 2006 the Seimas amended Article 1401 of the Law on the Legal Status of Aliens by providing that it was the function of the SSD to request the Vilnius District Administrative Court to annul an alien’s right to reside in Lithuania and to deport him or her, if that alien posed a threat to national security. 87. Article 132 of the old Criminal Code, in force until 30 April 2003, provided for criminal liability for blackmail.", "This offence required the performance of certain acts in accordance with the perpetrator’s instructions, with the threat that, in the event of failure, the perpetrator would, inter alia, disclose sensitive information liable to damage the reputation of the blackmailed person. 88. Article 287 § 1 of the new Criminal Code, in force since 1 May 2003, provides for criminal liability if a person, by using mental coercion, demands that a public official carry out certain actions in his or her favour. 89. Article 154 of the new Criminal Code provides criminal liability for defamation.", "According to Articles 407 and 408 of the Code on Criminal Procedure, defamation is a crime to be prosecuted by private prosecution, that is to say, by the person defamed. Under Article 367 § 3 of the Code, in cases of private prosecution a cassation appeal is not possible. 90. Article 109 of the Constitution and Article 3 of the Law on Courts stipulate that justice is only administered by the courts. While administering justice, the judge and courts are independent.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 91. The applicant complained that his right to respect for private and family life, as guaranteed by Article 8 of the Convention, had been breached in view of his proposed deportation and the uncertainty of his situation owing to judicial proceedings which started in 2004 and ended only in 2010. Invoking Article 6 of the Convention, the applicant further argued that the delay in resolving his case had been caused by political pressure on the courts. 92.", "The Court considers that all these complaints are in essence related to an alleged violation of the right to respect for private and family life guaranteed by Article 8 of the Convention, on which the Court will concentrate its examination in this case, and which reads in so far as relevant as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, ...” A. The parties’ submissions 1. The Government 93.", "The Government argued that there was nothing uncertain in the applicant’s situation in connection with the administrative case concerning his expulsion from the Republic of Lithuania. Contrary to the Court’s judgment in Shevanova v. Latvia (no. 58822/00, 15 June 2006), where the applicant had undergone a period of seven years of uncertainty and insecurity owing to her illegal stay in Latvia, the applicant in the instant case had been residing in Lithuania legally, that is, his stay had been regularised ever since the final loss of Lithuanian citizenship. In particular, by the decisions of the Migration Department of 10 September 2004, 1 September 2005, 4 September 2006 and 19 September 2007, the applicant had been issued with one-year, temporary residence permits until the end of the examination of his administrative case. On that basis he could legally reside in the country.", "94. For the Government, it was very important to clarify the circumstances under which the applicant had arrived at the present situation. On this point they noted that the applicant had been a Lithuanian citizen from 1991 to 2003, when he himself had refused Lithuanian citizenship after having received a passport from the Russian Federation. Subsequently, the applicant had asked the President of the Republic of Lithuania to grant him Lithuanian citizenship by way of exception. The President had granted that request.", "However, as established afterwards by the Constitutional Court, the applicant had in fact “bought” the Lithuanian passport, because citizenship had been granted for financial and other support rendered by the applicant to the President during the electoral campaign. As a result, the President’s decree had been declared null and void. In addition, by the final decision of 18 October 2005 the Supreme Court had convicted the applicant of a crime against the constitutional order of the Republic of Lithuania, namely, blackmailing the President. In the view of the Government, the applicant, by causing harm to Lithuanian society, by violating Lithuanian laws and by threatening the State’s constitutional order, whilst at the same time demonstrating disrespect for the State of Lithuania and its citizenship, was expected to undergo at least some inconveniences. 95.", "The Government further argued that neither the domestic courts nor other State institutions participating in the court proceedings for the applicant’s deportation could be blamed for delays. The Government admitted that, normally in cases regarding alleged violations of Article 8 of the Convention, the passage of time could have irremediable consequences for the applicant’s family. However, in the instant case, the passage of time had had no negative impact on the applicant’s private and family life. Quite the opposite, it was a well thought-out strategy, chosen by the applicant and his lawyers, expecting that the lapse of time would possibly render the applicant’s threat to national security less significant. It was true that the administrative proceedings in the applicant’s case had started already in 2004.", "Nonetheless, the delays had been caused by the necessity to await the outcome of the criminal case against the applicant (see paragraph 42 above), and the applicant’s or his lawyers’ requests to suspend the administrative proceedings until his case had been heard before the European Court of Human Rights, or to make interpretative requests to the Constitutional Court (see paragraphs 50 and 53 above). 96. The Government also submitted that, owing to his frequent business trips abroad, the applicant usually spent more than half a year outside Lithuania, away from his wife and daughter. Accordingly, the gravity of the applicant’s situation could not be compared to the gravity of the situations in other cases involving immigration questions which the Court had examined under Article 8 of the Convention. 97.", "In sum, the events leading to the possible deportation of the applicant were preconditioned by his own unlawful conduct. Moreover, the fact that, pending the administrative litigation, the applicant had never faced a real risk of deportation and could still legally reside in Lithuania with his family meant that he had been afforded the possibility of leading his private and family life without too big a burden. 98. Lastly, in their letter of 27 August 2010 the Government pointed out that on 23 June 2010 the Supreme Court had ended the administrative litigation, adopting a decision in the applicant’s favour. The Migration Department had issued the applicant with a permanent residence permit.", "If the applicant was of the view that the duration of the administrative proceedings at issue caused him certain inconveniences, he could file a claim for damages pursuant to the rules of domestic law. 2. The applicant 99. The applicant argued that the decision to deport him from Lithuania, linked to the coercive deprivation of Lithuanian citizenship, was in breach of his right to respect for his family life, guaranteed by Article 8 of the Convention. He submitted that he had lived in Lithuania since 1962, where he had completed his secondary education, married and had children.", "He also observed that since 1991 he had run a business in Lithuania and paid taxes. 100. Even assuming that he had represented a threat to national security in 2004, when he had been accused of having significant influence over the State President, that threat could not be interpreted as being permanent. Many years have passed since then and no new evidence has surfaced. No new charges have been brought against him to prove his continuous danger to the Lithuanian State.", "As a result, and taking into account the Court’s case-law as to the need to establish whether the offence which a person had committed may give rise to certain fears that he constituted a danger to public order and security for the future (see Boultif, cited above, § 51), it was not proportionate to deport him from the country. 101. As to what was at stake for him, the applicant submitted that he lived in Vilnius with his wife and daughter, to whose upbringing and education he contributed, and that both were Lithuanian citizens. His retired parents, also holders of Lithuanian passports, lived in Vilnius. As the applicant’s lawyer had mentioned during the administrative proceedings, except for their knowledge of the Russian language, neither his wife nor his daughter had any links to the Russian Federation.", "In addition, the applicant disagreed with the Government that there was no interference with his right to respect for family life on account of the fact that he spent quite a significant amount of time on business trips abroad. That circumstance had been assessed in the decision of 29 January 2010 by the Vilnius Regional Administrative Court and dismissed as irrelevant. 102. Neither did the applicant share the Government’s view that his situation had been regularised by issuing him with temporary residence permits. In fact, such residence permits were granted only by way of exception and until the administrative courts had decided his case.", "Such status hardly ensured legal certainty; on the contrary, it made the applicant’s private and family life dependent not on his alleged threat to national security, but on the hearing of his case in court. The applicant pointed out that on three occasions the Vilnius Regional Administrative Court had found that the applicant posed no danger to national security and had prohibited his expulsion from Lithuania. Yet, despite the absence of proof of the applicant’s actual and present threat, the Migration Department had abused its procedural right by repeatedly lodging appeals to the Supreme Administrative Court. 103. The applicant also argued that his situation was not so different from the facts in the aforementioned Shevanova case.", "Admittedly, the decision to deport him had not been enforced. Yet, entirely analogous actions of the State authorities had put him in an undefined and insecure situation. 104. Lastly, the applicant submitted that his unpredictable and insecure situation had been incited by political pressure on the Supreme Administrative Court, which had failed to remain impartial in the applicant’s case. In this connection, the applicant referred to the statements by VM to the General Assembly of Judges (see paragraph 46 above), noting that, after that speech, the Supreme Administrative Court had quashed the decision of the Vilnius Regional Administrative Court, which had been in the applicant’s favour (see paragraph 47 above).", "As another illustration of political pressure, the applicant drew the Court’s attention to the letter of parliamentarian JR (see paragraph 52 above), who directly interfered with the actions of the Government by requesting that a minister, to whom the Migration Department is subordinate, provide explanations, as well as urging the Migration Department to relentlessly challenge the court decisions favourable to the applicant. B. The Court’s assessment 105. The Government submitted, among other arguments, that during the whole period at issue the applicant was afforded the opportunity to lead his normal and family life. Most importantly, the administrative proceedings in connection with the decision to expel the applicant from Lithuania had come to an end.", "The applicant was issued with a permanent residence permit. The Government could be understood as arguing that the applicant may no longer claim to be a “victim” of a violation of Article 8 of the Convention. 106. For its part, the Court finds the applicant’s complaint about a violation of his rights under Article 8 of the Convention admissible. However, the Court does not consider it necessary to rule on whether the applicant can still claim to be a “victim” of a violation of Article 8.", "In the light of the decisions of 23 June 2010 and 13 August 2010 (see paragraphs 70-72 above), the Court considers that there is no longer any justification for examining the merits of the case, for the reasons set out below. 107. The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ...the matter has been resolved...”. To be able to conclude that this provision applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002).", "In the present case, that entails first of all establishing whether the risk of the applicant being deported persists; after that, the Court must consider whether the measures taken by the authorities constitute adequate redress in respect of the applicant’s complaint (see Sisojeva and Others v. Latvia [GC], no. 60654/00, § 97, ECHR 2007‑II). 108. With reference to the first question, the Court observes that the authorities’ request for the applicant’s deportation has been dismissed by a final court decision and that, as matters stand, he therefore faces no real and imminent risk of being deported. In this connection the Court points to the Supreme Administrative Court’s decision of 23 June 2010 affirming the applicant’s close family links to Lithuania and explaining that the applicant may not be considered as posing a threat to national security merely on the basis of the events of 2003-2004.", "The Court also finds that the measure indicated by the Lithuanian Government, the permanent residence permit granted to the applicant on 13 August 2010, allows him to remain in Lithuania, maintain his relationship with his wife, children and parents and thus to exercise freely in that country his right to respect for his private and family life, as guaranteed by Article 8 of the Convention and interpreted in the Court’s case‑law (see, mutatis mutandis, Sisojeva and Others, cited above, §§ 98 and 102). 109. In short, the material facts complained of by the applicant have ceased to exist. It therefore remains to be determined whether regularisation of his stay is sufficient to redress the possible effects of the situation of which he complained to the Court. 110.", "In the instant case the Court acknowledges that from the time when the Migration Department refused the applicant’s request for a permanent residence permit and decided to deport him from Lithuania on 9 January 2004 the applicant experienced a lengthy period of insecurity and legal uncertainty in Lithuania. That period lasted six years and seven months. The Court observes that the expulsion of a person who possesses strong personal or family ties in the host country may give rise to serious issues under Article 8 of the Convention (see, for example, Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193; Amrollahi v. Denmark, cited above, § 27). 111.", "As regards the facts of the instant case, the Court notes that the applicant’s father moved to Lithuania in 1962, when the applicant was six years old. Until 2004, when the applicant was forty-eight years old, he continued to live in Lithuania; the applicant has been married for twenty-seven years of his life in Lithuania and has conceived two sons there, who are now adults, and a daughter, who is still a minor and lives with her parents. The applicant’s parents live in Lithuania. As noted by the Vilnius Regional Administrative Court, since being discharged from the Soviet Army in 1991, the applicant has created a private business and paid taxes (see paragraph 67 above). Accordingly, the Court has no doubt that, during all this time in Lithuania, the applicant has forged the personal, social and economic ties that make up the private and family life of every human being (see Slivenko v. Latvia [GC], no.", "48321/99, § 96, ECHR 2003‑X). 112. Assessing further, the Court notes with deep concern that the decision making in the applicant’s case was politicised (see paragraphs 46 and 52 above). Neither can the Court fail to observe that the Supreme Administrative Court chose to remit the case for fresh examination two times on somewhat contrived grounds (see, in particular, paragraphs 58 and 62 above), thus continuing to keep the applicant and his family in a state of uncertainty. Even so, and whilst regretting that the Lithuanian authorities did not find an earlier solution to the matter, the Court does not consider that these facts on their own make the measure regularising the applicant’s stay in Lithuania inadequate in view of the applicant’s personal situation, as it appears that pending the administrative litigation he was effectively able to remain in Lithuania on the basis of temporary residence permits (see, mutatis mutandis, Kaftailova v. Latvia (striking out) [GC], no.", "59643/00, § 53, 7 December 2007). Consequently, at no stage was the applicant actually deported or otherwise restricted in the enjoyment of his private and family life in Lithuania. This reduces considerably the extent of the redress which needs to be afforded in the present case. Lastly, the Court notes the Supreme Administrative Court’s suggestion to the effect that the applicant could address the domestic courts with a claim for damages, should he consider that the administrative proceedings had lasted too long. 113.", "Consequently, and in the light of all the relevant circumstances of the case, the Court considers that the regularisation arrangements granted to the applicant by the Lithuanian authorities constitute an adequate and sufficient remedy for his complaint under Article 8 of the Convention. 114. Having regard to all the above considerations, the Court concludes that both conditions for the application of Article 37 § 1 (b) of the Convention are met in the instant case. The matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.", "Accordingly, this part of application should be struck out of the Court’s list of cases. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 115. The applicant complained, under Article 6 § 1 of the Convention, that the proceedings before the Constitutional Court, whereby he had been deprived of his Lithuanian citizenship, had been unfair. He further argued that he had had no remedy, in accordance with Article 13 of the Convention, to challenge the loss of Lithuanian citizenship following the decision of the Constitutional Court of 30 December 2003.", "In the same connection, the applicant also complained under Article 14 of the Convention that he had been discriminated against as a person of Russian ethnicity, to the extent that he had automatically lost Lithuanian citizenship following the acquisition of a Russian passport. 116. With respect to the applicant’s complaints regarding the decision of the Constitutional Court to withdraw his Lithuanian citizenship, the Court recalls that Article 6 § 1 of the Convention does not apply to proceedings regulating a person’s citizenship, as such proceedings do not involve either the “determination of his civil rights and obligations or of any criminal charge against him” within the meaning of that provision. Consequently, Article 6 § 1 does not apply to these proceedings (see S. v. Switzerland (dec.), no. 13325/87, DR 59, 15 December 1988, and Šoć v. Croatia (dec.), no.", "47863/99, 29 June 2000). It follows, that the applicant’s complaint is to be rejected as being incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 of the Convention. Similarly, the Court notes that the Convention does not guarantee the applicant any right to citizenship (see Makuc and Others v. Slovenia (dec.), no. 26828/06, § 208, 31 May 2007). Hence, without an arguable claim under Article 13 of the Convention, the applicant’s complaint thereunder must also be rejected as being incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 of the Convention.", "117. The Court reiterates that Article 14 of the Convention has no independent existence because it solely has effect in relation to “the enjoyment of the rights and freedoms” safeguarded by the Convention and its Protocols. Given that the Court has found the applicant’s citizenship complaint to be incompatible with the provisions of Article 6 § 1, so too the complaint under Article 14 must be similarly rejected, pursuant to Article 35 §§ 3 and 4 of the Convention. 118. In the context of the criminal proceedings against him, the applicant complained that the principle of the presumption of innocence and the requirement of impartiality on the part of the courts had not been respected because, at the time of those proceedings, a number of publications about him and his activities had been printed in the press.", "The applicant also alleged that one of the appellate court judges could not be considered impartial because, during the Soviet period, that judge had had relations with the Soviet intelligence agencies. The applicant invoked Article 6 §§ 1 and 2 of the Convention in this respect. 119. Having analysed the documents presented to it, the Court finds that the applicant did not properly raise the above-mentioned issues during the domestic proceedings. Consequently, this part of the application must be dismissed for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.", "120. Invoking Article 6 the Convention and in the context of the same criminal proceedings, the applicant further argued that the Lithuanian courts had incorrectly admitted in evidence and wrongly assessed the secret recordings of his telephone conversations, because two out of three of his interlocutors had not been heard by the court at an open hearing. The applicant next alleged that the charges against him were not specific enough to enable him to prepare his defence, as required by Article 6 § 3 of the Convention; in particular, they did not specify who had been the purported victims of his acts. Lastly, the applicant complained, under Article 7 of the Convention, that there had been no legal basis for his conviction in respect of the acts carried out in March 2003. 121.", "The Court has examined the complaints raised above as submitted by the applicant. It notes that the applicant’s pleas have been addressed and examined by the Lithuanian court’s, whose decisions do not seem arbitrary. Having regard to all the material in its possession, the Court finds that the complaints raised above do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 122.", "In the context of criminal proceedings in relation to his purported defamation claim and, invoking Article 8 of the Convention, the applicant complained that his right to respect for his private life had been breached. The applicant contended that, in the proceedings against ML, the courts had incorrectly interpreted and applied domestic law and the Convention, and had failed to strike a fair balance between his rights under Article 8 and the journalist’s right to impart information, guaranteed by Article 10 of the Convention. 123. In the same connection and relying on Article 13 of the Convention, the applicant alleged that he had had no effective remedy to protect his right to respect for privacy. In particular, the applicant complained that the prosecutor had refused to institute criminal proceedings against ML, that the Inspector of Journalistic Ethics had failed to examine his complaint within the time-limits set by law, and that the courts had not instituted – of their own motion – separate criminal proceedings against the person who had allegedly given information to ML.", "The applicant did not consider that a private criminal prosecution was an effective remedy, inter alia, because a cassation appeal was not available in such proceedings, whereas the case of a prosecution by a public prosecutor could be examined at three levels of jurisdiction. 124. The applicant also invoked Article 14 in conjunction with his Article 13 complaints, alleging that he had suffered discrimination on the grounds of his ethnic and social origin, as well as on the grounds of his political views. 125. The Court notes that the applicant has raised various complaints regarding alleged defamation by the press and seems to imply that the State failed to properly prosecute and punish the journalist.", "In this connection, it must be recalled that the Convention does not grant the right for an applicant to have third parties prosecuted or sentenced for a criminal offence (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Furthermore, the Court observes that the prosecutors refused to institute criminal proceedings for defamation but indicated the possibility of a private criminal prosecution, a remedy which the applicant pursued. The mere fact that the outcome of those criminal proceedings was not in the applicant’s favour, does not render them ineffective. Moreover, the Court finds nothing discriminatory in leaving private defamation cases to two levels of jurisdiction compared to the extra protection afforded to the public interest at three levels of jurisdiction in a prosecution brought by the State.", "The protection of the public interest represents an objective and reasonable basis for that difference. Finally, the Court finds that there was nothing arbitrary or discriminatory in the decisions of the domestic courts. Consequently, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. COSTS AND EXPENSES 126.", "Rule 43 § 4 of the Rules of Court provides: “When an application has been struck out, the costs shall be at the discretion of the Court. ...” 127. The Court points out that, unlike Article 41 of the Convention, which comes into play only if the Court has previously found “that there has been a violation of the Convention or the Protocols thereto”, Rule 43 § 4 allows the Court to make an award solely for costs and expenses (see Sisojeva and Others, cited above, § 132). 128. The applicant noted that litigation costs before the domestic courts and the Court had been substantial, but did not itemise them or submit any documents to substantiate them.", "129. The Government submitted that no sum should be awarded to the applicant, because the applicant had not specified his claims for legal costs and expenses. 130. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Pisano, cited above, §§ 53-54). In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum.", "Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example, Lavents v. Latvia, no. 58442/00, § 154, 28 November 2002). 131. In the instant case and in the absence of any supporting documentation, the Court makes no award for costs and expenses. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the applicant’s complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible; 2. Declares that the matter giving rise to the applicant’s complaint under Article 8 of the Convention has been resolved and decides to strike the application out of its list of cases in so far as it relates to that complaint. Done in English, and notified in writing on 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident" ]

[ "FIFTH SECTION CASE OF OLAECHEA CAHUAS v. SPAIN (Application no. 24668/03) JUDGMENT [Extracts] STRASBOURG 10 August 2006 FINAL 11/12/2006 In the case of Olaechea Cahuas v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of MrP. Lorenzen, President, Mrs S. Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrR.", "Maruste,MrJ. Borrego Borrego,MrsR. Jaeger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 10 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24668/03) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Peruvian national, Mr Adolfo Héctor Olaechea Cahuas (“the applicant”), on 6 August 2003.", "2. The applicant was represented by Ms Nuala Mole, of the Aire Centre (London). The Spanish Government (“the Government”) were represented by their Agent, Mr I. Blasco Lozano, Head of the Legal Department for Human Rights at the Ministry of Justice. 3. On 18 October 2005, under the provisions of Article 29 § 3 of the Convention, the Fourth Section decided to examine the merits of the application at the same time as its admissibility.", "4. On 1 April 2006 the application was assigned to the newly constituted Fifth Section (Rules 25 § 5 and 52 § 1 of the Rules of Court). 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1944 and currently lives in Peru. A. The proceedings in Spain 7. On 3 July 2003 the applicant, a suspected member of the Shining Path (Sendero Luminoso) organisation, a terrorist group founded in 1970 whose aim is to transform Peru’s political system by armed force into a communist proletarian regime, was arrested in Almería (Spain) under an international arrest warrant issued by the Peruvian authorities, following a routine police check of the lists of guests registered at hotels in that province.", "The applicant was taken into custody pending a ruling on his extradition. 8. In a decision of 3 July 2003 central investigating judge no. 6 of the Audiencia Nacional asked the applicant for his views on the extradition, in keeping with Article 17 of the bilateral extradition treaty of 28 June 1989 between the Republic of Peru and the Kingdom of Spain. 9.", "On 7 July 2003 the extradition hearing requested by central investigating judge no. 6 was held. The applicant agreed to the “simplified extradition” procedure (immediate return to the requesting country) and the application of the “special” rule (under which he could be tried only in respect of the offence for which extradition was requested). The extradition request was based on a terrorist offence. 10.", "At the hearing of 7 July 2003 the applicant declared that although he had agreed to simplified extradition, the Peruvian Government were required to guarantee his personal safety, his life, his health and his well-being, in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time, as he considered the charges against him unfounded. The Peruvian press having launched a campaign against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press. 11. The preliminary hearing provided for in Article 504 bis 2 of the Code of Criminal Procedure was also held on 7 July 2003, following which the applicant was detained with a view to his extradition. 12.", "In a decision of 9 July 2003 the examining judge, noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing, called for the application of the measures provided for in Article 10 of the bilateral treaty between Peru and Spain and stated that in such cases it was for Spain, through its Ministry of Justice, to obtain the guarantees provided for in that provision from the Peruvian authorities. The extradition would be conditional on the official communication of those guarantees by the ministry, to enable the examining judge to reach a decision in the extradition proceedings. 13. On 10 July 2003 the applicant appealed against the decision of 7 July 2003 ordering his detention. The appeal was dismissed on 17 July 2003.", "On 23 July 2003 the applicant filed an appeal against that ruling. 14. In a decision of 18 July 2003 the Audiencia Nacional authorised the the applicant’s extradition for trial by the Peruvian judicial authorities on the charge of terrorism. It stressed the content of the diplomatic note from the Peruvian Embassy, which read as follows: “Concerning the guarantee that the accused will not be subjected to punishment causing physical harm, or to inhuman or degrading treatment, we would remind the Spanish authorities that as Peru is party to the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the International Covenant on Civil and Political Rights, the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity, as well as the guarantees of physical, psychological and moral integrity enshrined in the main human rights protection instruments. ... 1.", "Article 140 of the Peruvian Constitution provides: “The death penalty may be applied only for the crime of treason to the country in time of war, and for acts of terrorism ... According to Legislative Decrees no. 25475 and no. 921, the acts of terrorism with which the accused, Adolfo Olaechea Cahuas, is charged are not punishable by death. 2.", "However, the crime of terrorism referred to in Article 3 (a) of Legislative Decree no. 25475 is punishable by life imprisonment. In order to facilitate the extradition in accordance with Article 10 § 2 of the extradition treaty, it is guaranteed that even if the accused is found guilty in a fair trial, he will not be sentenced to life imprisonment but to the sentence immediately below that. 3. A fair trial is likewise guaranteed under the judicial safeguards enshrined in the Constitution, international human rights instruments and domestic law.” 15.", "In the aforementioned decision of 18 July 2003 the examining judge requested that the Spanish Ministries of Justice and Foreign Affairs be informed of the extradition measure and stated that the agreement of the Council of Ministers was not needed for the extradition. 16. On 24 July 2003 the applicant lodged an appeal to have the decision of 18 July 2003 overturned and the ordinary extradition procedure applied, under which the Criminal Division of the Audiencia Nacional would decide on his extradition. 17. In an order of 4 August 2003 the investigating judge dismissed the appeal.", "He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable. B. The proceedings before the Court 18. On 6 August 2003 the applicant requested the application of the measures provided for in Rule 39 of the Rules of Court, to have his extradition to Peru suspended. He relied on Articles 3, 5 and 6 of the Convention.", "19. On the same day the Vice-President of the Fourth Section of the Court decided to apply Rule 39 of the Rules of Court and invited the Spanish Government not to extradite the applicant before the Chamber had examined the case at its meeting of 26 August 2003. The Government’s Agent and the Permanent Delegation of Spain to the Council of Europe were informed of that decision by telephone at 7 p.m., with subsequent confirmation by fax. 20. On 7 August 2003 the Spanish Government sent the Court a decision of investigating judge no.", "6 of the Audiencia Nacional, to whom the Court’s request concerning the temporary suspension of the extradition had been transmitted. In it the judge rejected the request for the application of Rule 39 for the following reasons: “The applicant agreed to the extradition of his own free will, being fully aware of the consequences. That being so, the decision ordering his extradition is final and no appeal lies against it. Furthermore, the Peruvian authorities have provided the guarantees requested by the Spanish courts. Finally, the applicant applied to the European Court of Human Rights without exhausting the remedies available to him in Spanish law.” 21.", "On 7 August 2003 the applicant was extradited to Peru, where he was incarcerated. 22. On 8 August 2003 the Court asked the Spanish Government, in accordance with Rule 39 § 3 of the Rules of Court, what steps had been taken to ensure the application of the interim measure indicated. 23. Having received no reply from the Spanish Government, on 2 September 2003 the Court communicated the application under Articles 3, 6 and 34 of the Convention.", "24. In November 2003 the applicant was granted conditional release by the Peruvian anti-terrorism authorities for lack of sufficient evidence that he was a member of the Shining Path. The applicant’s freedom was restricted by an order prohibiting him from leaving Lima and Peru or changing his place of residence without the authorisation of a judge, and obliging him to report to the judge once a week. The decision of the anti-terrorism authorities also indicated that as the criminal charges against the applicant were maintained, the proceedings against him remained open pending new developments in the investigation. 25.", "In January 2004 the Peruvian authorities asked the Spanish authorities to extend the extradition charges so that the applicant could be tried in Peru for financing the Shining Path terrorist group from abroad. Following that request a hearing before the Audiencia Nacional was scheduled for 13 February 2004. 26. On 22 January 2004 the applicant once again asked the Court to apply Rule 39 and ask the Spanish Government to suspend the hearing until it had ruled on his application. 27.", "On 27 January 2004 the Fourth Section of the Court considered that the circumstances underlying the applicant’s request were not of the kind to which, in the Court’s practice, Rule 39 was applied. The request was accordingly dismissed. 28. The hearing went ahead as planned and, by a decision of 25 February 2004, the Audiencia Nacional allowed the requested extension. The applicant lodged an amparo appeal against that judgment which is still pending before the Constitutional Court.", "29. Following the judgment handed down by the Grand Chamber on 4 February 2005 in the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the applicant requested permission to submit additional pleadings to the Court. The Court agreed and the Government were informed. In April 2005 the parties submitted their observations.", "... THE LAW ... III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 63. Lastly, the applicant relied on Article 34 of the Convention, alleging that the failure to comply with the interim measure indicated in accordance with Rule 39 of the Rules of Court had prevented the Court from effectively examining his application. He based his arguments on the case of Mamatkulov and Askarov, cited above.", "The relevant provisions read as follows: Article 34 of the Convention “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court “1.The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2.Notice of these measures shall be given to the Committee of Ministers. 3.The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. Admissibility 64. 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 this complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. The merits 65. The Government pointed out that in normal circumstances they complied with the measures indicated by the Court.", "Their failure to do so in the instant case was owed to the fact that the applicant had requested the interim measure too late, and had not given the Spanish authorities time to take the necessary steps to avoid the extradition. The application had been made on 6 August, whereas the applicant’s transfer was scheduled for the next day. The Government considered that there was no violation of Article 34 where, as in the instant case, they were given less notice than could objectively be considered necessary and reasonable. 66. The applicant pointed out that, in view of the Court’s practice in the matter, if he had requested the interim measure before 6 August, his request would have been disallowed because the date of his extradition had not yet been set.", "He was not convinced by the Government’s argument that they had not had enough time, alleging that two or three hours’ notice would have sufficed to take the necessary steps to prevent his extradition. 67. The Court notes that the fact that the Government failed to comply with the measures indicated by the Court by virtue of Rule 39 of its Rules of Court raised the question whether the respondent State had failed to honour its commitment, under Article 34 of the Convention, not to hinder the applicant’s right of application. 68. In the present case the Court must analyse the Government’s response in both instances to the interim measures indicated.", "69. First of all, upon receipt of notification of the decision to apply Rule 39 of the Rules of Court, the domestic authorities sent the Court a court decision confirming the correctness of the extradition. That attitude revealed implicit disregard for the interim measure adopted by the Court (see paragraphs 18-20 above). 70. Secondly, the Court points out that in their observations on the subject the Government justified their failure to comply with the measure by arguing that they had not had enough time to suspend the extradition.", "It should be noted in this connection that upon receiving notification of the decision to apply the interim measure to suspend the extradition, the Government transmitted the request to the competent court then relayed that court’s negative reply to the Court. It would not have taken any longer for the Government, the domestic authority, to order the suspension of the extradition in compliance with the measure indicated by the Court. That being so, the justification given for non-compliance with the measure cannot be accepted. 71. Having established the Government’s failure to comply with the interim measure, the Court must establish whether the non-compliance constitutes a violation of Article 34 of the Convention.", "Here the Court must refer to the way in which the principles embodied in its case-law on the matter have developed. 72. In its above-cited Mamatkulov and Askarov Grand Chamber judgment the Court departed from its earlier case-law (see, amongst other authorities, Cruz Varas and Others v. Sweden, judgment of 20 March 1991, series A no. 201, pp. 29-30, and Čonka and Others v. Belgium (dec.), no.", "51564/99, 13 March 2001) concerning the nature of the interim measures adopted under Rule 39 of the Rules of Court. After stating that “the Court applies Rule 39 only in restricted circumstances” (paragraph 103), the Court went on to explain that “Interim measures [had] been indicated only in limited spheres” and that “in practice the Court applie[d] Rule 39 only if there [was] an imminent risk of irreparable damage” (paragraph 104). It concluded with the assertion that “A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34” (paragraph 128). 73. That conclusion was qualified in the Shamayev and Others v. Georgia and Russia judgment (no.", "36378/02, §§ 473 and 478, ECHR 2005-III), where the Court held: “The fact that the Court was able to complete its examination of the merits of [the] complaints against Georgia does not mean that the hindrance to the exercise of that right did not amount to a breach of Article 34 of the Convention”. 74. Lastly, in the Aoulmi v. France judgment (no. 50278/99, § 100, ECHR 2006-...) the Court examined the Government’s submission “that the applicant’s expulsion had taken place before the delivery of the Mamatkulov and Askarov judgment and ... that the Court was required to reach its findings with reference to the applicable legal context at the time of the impugned measure”. The Court’s conclusion in that judgment is clear and leaves no room for doubt: “[The Court] stresses that ... even though the binding nature of measures adopted under Rule 39 had not yet been expressly asserted at the time of the applicant’s expulsion, Contracting States were nevertheless already required to comply with Article 34 and fulfil their ensuing obligations” (paragraph 111).", "That was the first time the Court used the adjective “binding” in reference to interim measures. 75. In spite of the principles established in the three judgments mentioned above, one question remains unanswered: should a Contracting State’s obligation to comply with interim measures be linked with a subsequent finding that the effective exercise of the right of individual application has been hindered? 76. In the above-cited case of Mamatkulov and Askarov (§ 127), the fact was that “the applicants were hindered in the effective exercise of their right of individual application guaranteed by Article 34 of the Convention, which the applicants’ extradition rendered nugatory”.", "77. In the case of Shamayev and Others (cited above, § 478), the Court found that “the difficulties faced by [certain of the applicants] following their extradition to Russia were of such a nature that the effective exercise of their right under Article 34 of the Convention was seriously obstructed”. 78. In the Aoulmi case, cited above, “Counsel for the applicant pointed out that he had not been able to make contact with his client since his removal to Algeria” (§ 93), which prompted the Court to find that “the applicant [had] been hindered in the effective exercise of his right of individual application” (§ 110). 79.", "However, it appears from the documents submitted by the parties in the instant case that after having been extradited in spite of the interim measures indicated by the Court, the applicant had been placed in a Peruvian prison then granted conditional release three months later, and that he had constantly been in touch with his counsel in London. It is therefore not possible to conclude that the applicant’s right to an effective remedy was hindered in the same way as in the cases cited above. 80. However, that fact, which became known after the decision to apply the interim measure had been taken, does not mean that the Government complied with their obligation not to hinder in any way the effective exercise of the right enshrined in Article 34. That Article is closely linked to Rule 39 of the Rules of Court, which provides for the Court to determine whether or not there is a “risk of irreparable damage [to the aplicant] through the acts or omissions of the respondent State” (see the Mamatkulov and Askarov judgment, cited above, § 108) and consequently whether such an act or omission might “hinder the effective exercise of an individual applicant’s right of application” (see the Aoulmi judgment, cited above, § 111).", "81. More particularly, the Court wishes to point out that an interim measure is provisional by nature and the need for it is assessed at a given moment because of the existence of a risk that might hinder the effective exercise of the right of individual application protected by Article 34. If the Contracting Party complies with the decision to apply the interim measure, the risk is avoided and any potential hindrance of the right of application is eliminated. If, on the other hand, the Contracting Party does not comply with the interim measure, the risk of hindrance of the effective exercise of the right of individual application remains, and it is what happens after the decision of the Court and the government’s failure to apply the measure that determines whether the risk materialises or not. Even in such cases, however, the interim measure must be considered to have binding force.", "The State’s decision as to whether it complies with the measure cannot be deferred pending the hypothetical confirmation of the existence of a risk. Failure to comply with an interim measure indicated by the Court because of the existence of a risk is in itself alone a serious hindrance, at that particular time, of the effective exercise of the right of individual application. 82. In the light of the evidence in its possession, the Court finds that in failing to comply with the interim measures indicated under Rule 39 of its Rules of Court, Spain failed to honour its commitments under Article 34 of the Convention. 83.", "Consequently, there has been a violation of that provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 85.", "The applicant claimed 29,132.84 euros (EUR) for the non-pecuniary damage allegedly sustained. 86. In respect of pecuniary damage he claimed EUR 90,000, to cover in particular the wages lost when deprived of his liberty, the expenses incurred by his wife travelling from Spain or the United Kingdom to Peru to visit him, and the personal items the Peruvian authorities allegedly consfiscated from him. 87. The Government considered that amount excessive and left the issue to the Court’s discretion.", "They emphasised in particular the lack of any causal link between the damages claimed by the applicant and the Spanish authorities’ participation in the extradition procedure. 88. Being unable to establish any causal link, on the basis of the information in the case file, between the alleged pecuniary losses and the violation of the Convention found, the Court dismisses that part of the applicant’s claim. 89. However, in the light of the findings in the Mamatkulov and Askarov case cited above, the Court considers that the applicant undeniably sustained non-pecuniary damage as a result of the violation by Spain of Article 34 of the Convention, and that the simple finding of failure by the respondent State to honour its commitments under Article 34 does not suffice to repair that damage.", "90. Making an assessment on an equitable basis, as is required by Article 41, the Court accordingly awards the applicant EUR 5,000 in respect of non-pecuniary damage. ... FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 34 of the Convention; ... 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage ... ... Done in French, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekP. Lorenzen,RegistrarPresident" ]

[ "THIRD SECTION CASE OF EILDERS AND OTHERS v. RUSSIA (Application no. 475/08) JUDGMENT STRASBOURG 3 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Eilders and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 475/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, Ms Elena Viktorovna Eilders (née Zabelina, formerly Davydova), Ms Galina Pavlovna Zabelina, and Mr Viktor Aleksandrovich Zabelin (“the applicants”), on 21 November 2007.", "2. The applicants were represented by Mr M. Krylovskiy, a lawyer practising in Tambov. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicants alleged, in particular, a breach of their property rights.", "4. On 16 September 2016 the complaint concerning the applicants’ right to peaceful enjoyment of their possessions was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1971 and lives in Leverkusen, Germany.", "She is the daughter of the second and third applicants who were born in 1943 and 1942 respectively and lived in Tambov, Russia. The second applicant Ms Galina Zabelina died in 2013. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7.", "On 25 April 2007 Mr P.Z., the brother of the first applicant and the son of the second and third applicants, was charged with large-scale fraud; his name was placed on the list of fugitives from justice. He was accused of embezzling the assets of the companies under his management. The wronged companies filed a claim for compensation in respect of pecuniary damage. 8. On 12 May 2007 a senior operational officer from the Federal Security Service sent a letter to the investigator in charge of P.Z.’s case to inform him that “according to the available information, the real estate property owned by [the first applicant] (four flats) and by [the second applicant] (one flat) had been purchased at the expense of their close relative P.Z.” 9.", "On 22 May 2007 the investigator asked the Basmannyy District Court in Moscow to authorise attachment of the applicants’ property, including three flats owned by the first applicant, a flat owned by the second applicant, and a car owned by the third applicant. He referred to undisclosed sources allegedly confirming that all that property had been purchased by P.Z. 10. On 24 May 2007 the District Court issued the requested writs of attachment. It observed that, “according to the information from the investigation”, P.Z.", "had used the stolen money to purchase the property which he had registered in the name of his family members. It considered therefore necessary to attach the property which the District Court described as being owned by P.Z. The District Court explained that the application for writs was to be granted because “it [had been] lodged in the framework of a criminal case by the competent official and with the prosecutor’s approval, it [was] well-reasoned and [complied] with the requirements of the Code of Criminal Procedure”. 11. The applicants filed an appeal.", "They produced evidence showing that they had paid for the impugned property out of their pocket and that the link to P.Z. was the investigator’s conjecture without basis in fact. They were not defendants in any criminal proceedings or respondents in any civil claim and there were no legal grounds for attaching their property. 12. On 13 August 2007 the Moscow City Court rejected their appeals, stating that the District Court had “carefully reviewed the materials enclosed with the investigator’s request and reached the justified conclusion that there were sufficient grounds for seizing” the listed property.", "13. The attachment of the applicants’ property has remained in place to date. II. RELEVANT DOMESTIC LAW 14. For a summary of provisions relating to attachment of property in criminal proceedings, see Uniya OOO and Belcourt Trading Company v. Russia (nos.", "4437/03 and 13290/03, § 242, 19 June 2014). THE LAW I. AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF MS GALINA ZABELINA 15. In the observations on the admissibility and merits of the application, Mr Viktor Zabelin and Ms Elena Eilders indicated their intention to pursue the proceedings also on behalf of their late wife and mother, Ms Galina Zabelina. 16.", "The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or close family members who expressed the wish to pursue the proceedings before it (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). It observes that the complaints raised by all the applicants were substantially similar and that the situations they complained about affected them in an equal measure. It therefore accepts that Mr Zabelin and Ms Eilders may pursue the application in so far as it was lodged by late Ms Zabelina (see Zabelin and Zabelina v. Russia, no. 55382/07, § 13, 4 October 2016, and Khuzhin and Others v. Russia, no.", "13470/02, § 71, 23 October 2008). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 17. The applicants complained that the attachment of their property had been in breach of Article 1 of Protocol No.", "1 which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 18. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 19. The Government submitted that they were unable to provide information about the grounds relied upon by the investigator in support of his application for the writ of attachment because the relevant materials had been destroyed after the end of the five-year keeping period. Nevertheless, they asserted that the courts had meticulously examined those materials and reached the well-founded conclusion that they had been sufficient grounds for attaching the applicants’ property.", "20. The applicants pointed out that, for the materials to be “meticulously examined in court”, the court should have been presented with at least some evidence that the property had been paid for by P.Z., but there had been none. The investigator’s assertion that the Federal Security Service knew that it was so did not qualify as evidence within the meaning of the Code of Criminal Procedure. The writs of attachment did not refer to any evidence and no such references were contained in the investigator’s applications, copies of which the applicants had produced before this Court. Moreover, the courts disregarded the applicants’ evidence capable of rebutting the investigator’s allegations and corroborating their position that the property had not been purchased at P.Z.’s expense.", "Finally, the applicants submitted that the attachment had not been lifted to date. 21. The Court reiterates that the attachment of an applicant’s assets does not deprive him or her of the possessions, but provisionally prevents him or her from using them and from disposing of them, with a view to securing a possible award of damages in favour of the creditor. It involves an interference with the applicant’s right to peaceful enjoyment of his or her possessions and amounts to the control on the use of property which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 (see Maniscalco v. Italy (dec.), no.", "19440/10, §§ 53-54, 2 December 2014, and Rafig Aliyev v. Azerbaijan, no. 45875/06, § 118, 6 December 2011). 22. The Court further reiterates that, although the second paragraph of Article 1 of Protocol No. 1 contains no explicit procedural provisions, it has been its constant requirement that the domestic proceedings afford the aggrieved individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Rummi v. Estonia, no.", "63362/09, § 104, 15 January 2015; Denisova and Moiseyeva v. Russia, no. 16903/03, § 59, 1 April 2010; Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV; and AGOSI v. the United Kingdom, 24 October 1986, § 55, Series A no. 108). 23.", "The Court observes that, in issuing the writs of attachment on 24 May 2007, the District Court referred to a number of factual elements, such as the buying of the property by P.Z., the use of stolen money to finance the transaction, and its subsequent registration in the applicants’ name (see paragraph 10 above). The District Court did not explain how it had reached those conclusions, which “information from the investigation” had been produced before it to corroborate them or why it had considered that the application for writs of attachment had been “well-reasoned” (compare Rummi, cited above, § 83). The preliminary materials, including the communication from the Federal Security Service and the investigator’s application (see paragraphs 8 and 9 above), did not contain any corroboration of those assertions, either. 24. The applicants asked the appeal court to review their evidence showing that they had paid for the property with their money and that they had been its legitimate owners (see paragraph 11 above).", "However, the Moscow City Court, in rejecting their appeal, made no mention of that evidence and did not subject the investigator’s assertions or the District Court’s uncorroborated conclusion to any meaningful scrutiny (compare Rummi, cited above, § 85). The applicants were thus denied the opportunity of obtaining a judicial review of the measures interfering with their property rights. 25. There has accordingly been a violation of Article 1 of Protocol No. 1.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 27. The applicants asked the Court to require the Government to pay compensation, without specifying the amount claimed. 28.", "The Government reiterated that Article 41 was to be applied in accordance with the Court’s case-law. 29. The Court reiterates that it has accepted to examine claims in respect of non-pecuniary damage for which applicants did not quantify the amount, “leaving it to the Court’s discretion” (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017, with further references). Making its own assessment, the Court awards the applicants jointly 6,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.", "30. The Court further notes that no claim in respect of pecuniary damage or costs and expenses has been made. 31. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides that Mr Zabelin and Ms Eilders may pursue the application in so far as it was lodged by the late Ms Zabelina; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicants, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF PANAHLI v. AZERBAIJAN (Application no. 48255/11) JUDGMENT STRASBOURG 19 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Panahli v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 26 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48255/11) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Nemat Ahad oglu Panahli (Nemət Əhəd oğlu Pənahlı - “the applicant”), on 25 July 2011.", "2. The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. On 10 June 2016 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1962 and lives in Baku. 5. He was the chairman of the Azerbaijani National Statehood Party.", "6. In December 2010 the applicant sold his car to a certain E.R., who encountered a number of technical problems with it. 7. On 7 January 2011 E.R. contacted the applicant and they agreed to meet on the same day.", "During the meeting E.R. expressed his dissatisfaction with the car and requested that the applicant return his money and take the car back. The applicant got angry, started to insult E.R. and then assaulted him together with a certain C. 8. A passer-by intervened and stopped the altercation.", "E.R. reported the incident to the police on the same day. 9. On 8 January 2011 criminal proceedings were instituted against the applicant by the Nasimi District Police Office under Article 221.3 (hooliganism) of the Criminal Code. The investigator’s decision stated that at around 8.30 p.m. on 7 January 2011 the applicant and a certain C. had insulted and assaulted E.R.", "on the street in Baku. 10. On 8 January 2011 the police compiled a record of the applicant’s arrest as a suspect. 11. On 10 January 2011 the applicant was charged under Articles 127.2.3 (deliberate infliction of less serious injury to health) and 221.3 (hooliganism) of the Criminal Code.", "12. On the same day the Nasimi District Court, relying on the charges brought against the applicant and an application from the prosecutor to apply the preventive measure of remanding the applicant in custody, ordered his detention pending trial for a period of two months. The court justified the application of the preventive custodial measure by the gravity of the offences imputed to him, the risk of his reoffending and the likelihood that he might abscond if released. 13. On 12 January 2011 the applicant appealed against that decision, stating that there was no justification for the application of the preventive measure of remand in custody and that the court had failed to substantiate the necessity for his detention pending trial.", "He also submitted that the court had failed to take account of his personal situation and to consider the possibility of another preventive measure, such as house arrest or release on bail. 14. On 17 January 2011 the Baku Court of Appeal dismissed the appeal, finding that there were no grounds to quash the first-instance decision. 15. On 2 March 2011 the prosecutor in charge of the criminal case applied to the court for an extension of the applicant’s pre-trial detention for a period of one month.", "He submitted that more time was needed to complete the investigation. 16. On 3 March 2011 the Nasimi District Court extended the applicant’s detention pending trial by one month, until 8 April 2011. The court justified its decision by the need for more time to carry out further investigative actions, the complexity of the criminal case and the likelihood that the applicant might abscond and obstruct the investigation if released. 17.", "On 4 March 2011 the applicant appealed against that decision, arguing that the first-instance court had failed to substantiate its decision on his continued detention. 18. On 9 March 2011 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 3 March 2011. 19. No further extension decisions are available in the case file.", "20. On 17 June 2011 the Nasimi District Court found the applicant guilty on all counts and sentenced him to six years’ imprisonment. 21. The applicant was released from serving the remainder of his sentence by a presidential pardon issued on 17 March 2016. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 22. The relevant provisions of the Code of Criminal Procedure concerning the application of the preventive measure of remand in custody and pre-trial detention are described in detail in the Court’s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010). The relevant decisions of the Plenum of the Supreme Court concerning the application of the preventive measure of remand in custody and pre-trial detention are described in detail in the Court’s judgment in Allahverdiyev v. Azerbaijan (no.", "49192/08, §§ 31-32, 6 March 2014). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 23. Relying on Articles 5 and 13 of the Convention, the applicant complained that the domestic courts had failed to justify the need for his detention and provide reasons for its continuation. The Court considers that this complaint falls to be examined solely under Article 5 § 3 of the Convention, which reads: “3.", "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 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 parties’ submissions 25. The applicant maintained his complaint, arguing that the domestic courts had failed to provide relevant and sufficient reasons for his pre-trial detention. 26.", "The Government submitted that the domestic courts had given sufficient and relevant reasons for the applicant’s pre-trial detention. They further submitted that the applicant had failed to ask the domestic courts to consider the possibility of the application of an alternative preventive measure. 2. The Court’s assessment 27. The Court refers to the summaries of its case-law set out in the Allahverdiyev judgment (cited above, §§ 51-55), which are equally pertinent to the present case.", "28. As regards the period to be taken into consideration for the purposes of Article 5 § 3, in the present case this period commenced on 8 January 2011, when the applicant was arrested, and ended on 17 June 2011, when the first-instance court convicted him. Thus, the applicant’s pre-trial detention lasted five months and nine days in total. 29. The Court observes that the applicant’s detention was first ordered when he was brought before the judge at the Nasimi District Court on 10 January 2011.", "That decision was upheld by the Baku Court of Appeal on 17 January 2011. His detention was subsequently extended by the Nasimi District Court’s decision of 3 March 2011 for a period of one month. That decision was upheld by the Baku Court of Appeal’s decision of 9 March 2011. 30. The Court observes that both the Nasimi District Court and the Baku Court of Appeal used a standard template when ordering and extending the applicant’s pre-trial detention (see paragraphs 12-18 above).", "In particular, the Court notes that both courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the applicant’s case. They failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev, cited above, §§ 191-94, and Muradverdiyev, cited above, §§ 87-91). 31. The Court further observes that the domestic courts also relied on irrelevant grounds when they extended the applicant’s pre-trial detention. In particular, they substantiated their decisions by stating that more time was needed to complete the investigation.", "However, the Court reiterates that under Article 5 § 3 grounds such as the need to implement further investigative measures, or the fact that proceedings have not yet been completed, do not correspond to any of the acceptable reasons for detaining a person pending trial (see Allahverdiyev, cited above, § 60). 32. The Court also cannot accept the Government’s argument that the applicant failed to apply to the domestic courts for the application of other preventive measures in place of pre-trial detention. It is clear from the applicant’s appeal dated 12 January 2011 against the Nasimi District Court’s detention order of 10 January 2011 that he expressly complained about the first-instance court’s failure to consider the possibility of other preventive measures, such as house arrest or release on bail (see paragraph 13 above). 33.", "In view of the foregoing considerations, the Court concludes that by using a standard formula, which merely listed the grounds for detention without addressing the specific facts of the applicant’s case, and by relying on irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the applicant’s pre-trial detention. 34. Accordingly, there has been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION 35.", "In observations dated 16 November 2016, lodged with the Court in reply to the Government’s observations of 30 September 2016, the applicant complained under Article 5 § 1 of the Convention that his arrest and detention had not been based on a reasonable suspicion that he had committed a criminal offence. In the same observations he complained under Article 5 § 4 of the Convention that he had not had at his disposal an effective procedure by which he could challenge the lawfulness of his pre‑trial detention because the domestic courts had not properly assessed his arguments in favour of release. 36. The Government did not make any comment on those issues. 37.", "Having examined the applicant’s initial submissions in his application lodged with the Court on 25 July 2011, the Court notes that he only complained about the domestic courts’ failure to justify his pre-trial detention and did not raise the above-mentioned complaints. He raised them for the first time in his observations of 16 November 2016, which were lodged in reply to those of the Government. Taking into consideration that the date of the “final decision” for the purposes of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is to be taken as the date on which the charge is determined by a court at first instance, which was 17 June 2011 in the present case, the Court notes that these complaints were lodged with the Court out of time and do not comply with the six‑month rule (compare Zayidov v. Azerbaijan, no. 11948/08, § 49, 20 February 2014). 38.", "Accordingly, the complaints must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40.", "The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. 41. The Government did not submit any comment regarding the non‑pecuniary damage claimed by the applicant. 42. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 43. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. In support of his claim, he submitted a contract with his lawyer.", "He also asked the Court to order the payment of the compensation in respect of costs and expenses directly into his representative’s bank account. 44. The Government did not make any comment regarding the costs and expenses claimed by the applicant. 45. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and to its case-law, as well as the amount of work done by the representative, the Court considers it reasonable to award the sum of EUR 1,000 in respect of costs and expenses, to be paid directly into the bank account of the applicant’s representative. C. Default interest 46. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 5 § 3 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s representative’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginAndré PotockiActing Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF AKSAKAL v. TURKEY (Application no. 37850/97) JUDGMENT STRASBOURG 15 February 2007 FINAL 09/07/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aksakal v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrC. Bîrsan,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 37850/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Halis Aksakal (“the applicant”), on 3 November 1995. 2. The applicant, who had been granted legal aid, was represented by Reyhan Yalçındağ and Cihan Aydın, lawyers practising in Diyarbakır, and Lucy Claridge, Tim Otty, Anke Stock, Philip Leach and Mark Muller, lawyers practising in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant alleged that State security forces had destroyed his home and possessions and had forced him to leave his place of residence with no possibility of return and that he had been denied an effective remedy in domestic law in violation of Articles 3, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No.", "11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "6. By a decision of 1 July 2003, the Court declared the application partly admissible. 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1963 and lives in Diyarbakır. He was living in Görbeyli village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows.", "A. The applicant's version of the facts 9. Until April 1994 the applicant lived in Görbeyli, a village of Lice district in Diyarbakır province, in the then state-of-emergency region of Turkey. The village which was situated some 3 km from Lice district comprised approximately eighty households before 1995. In 1995 terrorist activity was a major concern in this area.", "Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). 10. On 5 May 1995, at around 10 a.m., the applicant heard an explosion which seemed to come from a place under the control of the army. Following the explosion a group of reinforcement soldiers from Lice came to the area and entered the applicant's village. The soldiers told the inhabitants that one soldier had died and two soldiers had been injured in the explosion which had been caused by the explosion of a grenade in the hand of a soldier.", "11. The soldiers then rounded up the villagers beside the primary school and split them into two groups, one of women and children and the other of the men. They apprehended Süleyman Şanlı, aged 67, in the fields and stripped him naked and inflicted ill-treatment upon him before the villagers. The soldiers then beat the men of the village using clubs. At the same time, another group of soldiers entered the village and started destroying the villagers' possessions.", "All the windows and doors of their houses were broken. The soldiers took those goods which might be of use to them. In the meantime, the beating of the men continued. Before leaving the village, the soldiers told the villagers that they would return in three days and if the villagers were still there, they would kill them all. As it was spring and their crops were not yet ready for harvest, the inhabitants did not leave the village.", "They rather set about fixing their houses and other property. 12. On 12 May 1995 the soldiers arrived in the village, they assembled the villagers in the school yard and beat them as before. The soldiers demolished the houses and killed many of the livestock in the village. 13.", "In the second half of June 1995 the soldiers raided the village again and razed it to the ground, including the vineyards, orchards and forestry. 14. The applicant filed complaints with the offices of the State of Emergency Regional Governor, the Diyarbakır Chief Public prosecutor and the Diyarbakır Provincial Regiment Command. The applicants' fellow villagers' request to return and cultivate their lands was rejected by the authorities. 15.", "Meanwhile, the applicant has submitted to the Court a report prepared by the Human Rights Association in Diyarbakır, entitled “The Burned and Evacuated Settlement Units”. This report gives the list of villages or settlements which were allegedly evacuated or destroyed by the security forces. The applicant's village appears on this list as having been burned down on 15 May 1995. 16. Another report entitled, “The Destruction of Villages in Southeast Turkey, prepared by Medico International and the Kurdish Human Rights project in June 1996, provides background information on the destruction of villages in South-east Turkey and makes suggestions on the steps to be taken in order to address the immediate humanitarian needs and long term strategies to remedy the problems of internally displaced persons.", "17. The applicant has also furnished the Court with photocopies of four photographs showing four houses in ruins allegedly in Sexan (Görbeyli) village. However, it is not possible to determine the exact cause of the current state of these houses from these photos. B. The Government's version of the facts 18.", "On 5 June 1995 the applicant and two members of the village elders' council, namely Mehmet Şanlı and Alaattin Altan filed a petition with the Lice Public Prosecutor's office, for submission to the Diyarbakır Chief Public Prosecutor's office, complaining that the security forces had evicted the inhabitants of their village and destroyed their property. They asked the judicial authorities to conduct an investigation into the events and to prosecute those responsible for the destruction of their property. 19. In letters dated 15 December 1995 the Lice Chief Public Prosecutor asked the Lice District Gendarme Command and the Diyarbakır Chief Public Prosecutor to carry out an investigation into the allegations made by the applicant and his two other fellow villagers. 20.", "In a letter of 23 January 1996 the Diyarbakır Chief Public Prosecutor requested the Security Directorate to summon the complainants to his office in order to hear evidence from them. 21. The investigation conducted by the Security Directorate to find out the address of Alaattin Altan did not yield any result. Halis Aksakal could only be found at the end of four months' search. 22.", "On 25 April 1996 the Diyarbakır Public Prosecutor took statements from the applicant, who reiterated his allegations and asked the judicial authorities to prosecute the security forces who perpetrated the impugned acts. He further informed the prosecutor that Mehmet Şanlı had returned to his village and that Alaattin Altan worked in Van. 23. Meanwhile, in a letter of 7 February 1996 the Gendarmerie Commander replied to the Lice Chief Public Prosecutor's letter and informed him that, contrary to the allegations, no houses had been burned on 15 May 1996 and that no one had applied to the command with such allegations. 24.", "On 18 May 1996 the Lice Chief Public prosecutor issued a decision of non-jurisdiction and transferred the case-file to the Lice District Governor's office in accordance with the Law on Prosecution of Civil Servants. Thereupon, Deputy to the Diyarbakır Governor, who was then in charge of the case, asked the Diyarbakır Gendarmerie Command to appoint an investigator to carry out the preliminary investigation. 25. The preliminary investigation was carried out by Captain Hacı İlbas, who was at the relevant time the Gendarmerie Unit Commander in Lice. On 29 July 1996 Inspector İlbas took statements from five inhabitants of Gürbeyli, including the muhtar of the village.", "The villagers all stated that, on 15 May 1995, following a road block by members of the PKK, a clash had erupted between the security forces and the PKK militants. After the clash, the security forces had carried out a house search in Görbeyli and other neighbouring villages. The witnesses all claimed that the security forces had not inflicted any damage to their property, that no houses had been burned down and that the inhabitants had not been forced to leave the village. Furthermore, they all noted that the complainants, including the applicant, had all been living in Diyarbakır and that they could return to the village if they wished. 26.", "In his investigation report dated 12 August 1996, Inspector İlbaş concluded that the applicant's allegations were groundless. He found it established that on 15 May 1995 members of the PKK had blocked the Lice-Kulp road and kidnapped one person. Consequently, the security forces had intervened and during the clashes three PKK terrorists had been killed, following which the security forces had carried out searches in the villages in the region with due respect to the citizens. 27. On 10 October 1996, having regard to the inspector's report, the Lice District Administrative Council issued a decision of non-prosecution in respect of the security forces.", "28. On 6 March 1997, the Regional Administrative Court upheld the District Administrative Council's decision of non-prosecution. II. RELEVANT DOMESTIC LAW 29. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no.", "26973/95, §§ 37-49, 24 July 2003), Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002) and Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No.", "1 30. The applicant alleged that his forced eviction from Görbeyli village and destruction of his house and possessions by the State security forces had given rise to breaches of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which read in so far as relevant as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life [and] his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 31. The applicant submitted that his eviction from his family home and deliberate destruction of his property by the State security forces constituted a violation of his right to peaceful enjoyment of his possessions and his right to respect for his family life. He also claimed that the circumstances surrounding the destruction of his property and his eviction from his village also amounted to inhuman and degrading treatment.", "32. The Government denied the factual basis of the applicant's complaints and submitted that they were unsubstantiated. The investigation conducted by the authorities had revealed that the applicant's village had never been evacuated or burned down by the security forces. The applicant had left his village of his own free will. Furthermore, there existed no obstacle preventing the applicant to return to his village.", "33. The Court is confronted with a dispute over the exact cause of the events giving rise to the present application. Accordingly, it must primarily have regard to the general situation prevailing in the region at the time of the alleged events. In this connection it observes that at the relevant time violent confrontations had taken place between the security forces and members of the PKK in the state-of-emergency region of Turkey. This two‑fold violence resulting from the acts of the two parties to the conflict forced many people to flee their homes.", "Moreover, the national authorities had evicted the inhabitants from a number of settlements to ensure the safety of the population in the region (Doğan and Others, cited above, § 142). Yet the Court has also found in numerous similar cases that security forces deliberately destroyed the homes and property of certain applicants, depriving them of their livelihood and forcing them to leave their villages in the state-of-emergency region of Turkey (see, among many others, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV; Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998‑II; Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997‑VIII; Bilgin v. Turkey, no. 23819/94, 16 November 2000, and Dulaş v. Turkey, no. 25801/94, 30 January 2001). 34.", "This being so, it is to be pointed out that both the European Commission of Human Rights and the Court have previously embarked on fact finding missions in similar cases in Turkey where the State security forces were allegedly the perpetrators of the unlawful destruction of property (see, among many others, the above cited judgments of Akdivar and Others and Yöyler; and İpek v. Turkey, no. 25760/94, ECHR 2004‑...). In those cases, the main reason which prompted the Convention institutions to have recourse to such an exercise was their inability to establish the facts in the absence of an effective domestic investigation. 35. It is a matter of regret for the Court that it is unable to attempt to establish the facts of the present case by embarking on a fact finding exercise of its own.", "However, it considers that such an exercise would not yield sufficient evidence capable of establishing the true circumstances of the case, given that the passage of a substantial period of time, almost eleven years in the instant case, makes it more difficult to find witnesses to give testimony and takes a toll on a witness' capacity to recall events in detail and with accuracy (see İpek, cited above, § 116). Accordingly, the Court must reach its decision on the basis of the available evidence submitted by the parties (see Pardo v. France, judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28, cited in Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004). 36.", "As noted earlier, the applicant has submitted reports concerning the evacuation and destruction of villages in south-east Turkey with a view to substantiating his allegations (see paragraphs 16 and 17 above). However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt.” Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161). 37. In this context, the Court notes that the applicant did not submit any independent eye-witness statement in relation to the burning down of his house and possessions by the security forces.", "Nor did he give any particulars as to the identity of the soldiers involved in the alleged events or when and how he was prevented by the authorities from returning to his village. Furthermore, it does not appear that the applicant intervened in the proceedings which were commenced by the Lice Public Prosecutor's office or that he pursued his case subsequent to the lodging of a complaint with the prosecuting authorities. The applicant has offered no explanation for his failure to follow up the investigation conducted by the authorities. Moreover, the Court also finds no evidence in the file which would rebut the Government's submissions and the findings of the national authorities, in particular, the testimonies obtained from the applicant's fellow villagers (see paragraph 26 above). 38.", "In the light of the above and having regard to the applicant's failure to corroborate his allegations, the Court does not find it established to the required standard of proof that the applicant's house was burned down or that he was forcibly evicted from his village or prevented from returning there by the State security forces. 39. Against this background, the Court concludes that there has been no violation of Articles 3 and 8 of the Convention or Article 1 of Protocol No. 1. II.", "ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 40. The applicant complained that he had been denied access to all effective remedies in violation of Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” and Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Article 6 § 1 of the Convention 41. The applicant submitted that his right of access to a court to assert his civil rights had been denied on account of the failure of the authorities to conduct an effective investigation into his allegations. In his opinion, without such an investigation, he would have had no chance of obtaining compensation in civil proceedings.", "42. The Government maintained that the applicant had failed to pursue the remedies available in domestic law. Had the applicant filed a civil action, he would have enjoyed effective access to a court. 43. The Court notes that the applicant did not bring an action before the civil courts for the reasons given in the admissibility decision of 1 July 2003.", "It is therefore impossible to determine whether the national courts would have been able to adjudicate on the applicant's claims had he initiated proceedings. In the Court's view, the applicant's complaints mainly pertain to the lack of an effective investigation into the deliberate destruction of his family home and possessions by the security forces. It will therefore examine this complaint from the standpoint of Article 13, which imposes a more general obligation on States to provide an effective remedy in respect of alleged violations of the Convention (see Selçuk and Asker, cited above, § 92). 44. The Court therefore finds it unnecessary to determine whether there has been a violation of Article 6 § 1 of the Convention.", "B. Article 13 of the Convention 45. The applicant complained under Article 13 of the Convention that he had no effective remedy available in respect of his grievances under the Convention. 46. The Government contended that there had been no shortcomings in the investigation and that the authorities had conducted an effective inquiry into the applicant's allegations.", "47. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Dulaş and Yöyler, both cited above, §§ 65 and 87 respectively).", "48. The Court recalls that on the basis of the evidence collected in the present case, it has not found it proved to the required standard of proof that the applicant's house was destroyed by the State security forces as alleged (see paragraphs 31-40 above). This does not however mean, for the purposes of Article 13, that his complaints fall outside the scope of its protection (see D.P. and J.C. v. the United Kingdom, no. 38719/97, 10 October 2002, § 136).", "These complaints were not declared inadmissible as manifestly ill-founded and therefore necessitated an examination on the merits. Furthermore, in its admissibility decision of 1 July 2003, the Court had already concluded that the applicant had been absolved from pursuing any further remedy in domestic law given the lack of a thorough and effective investigation into his complaints. 49. That said, the Court reiterates that, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision is not a prerequisite for the application of the Article (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).", "Accordingly, having regard to its findings in the admissibility decision and to its conclusion that the applicant's allegations could not be discarded as being prima facie untenable (see paragraphs 36 and 37 above), the Court considers that the applicant's complaints raised arguable claims of violations of the Convention for the purposes of Article 13 of the Convention (see, mutatis mutandis, insofar as the applicability of Article 6 of the Convention was at stake, Mennitto v. Italy [GC], no. 33804/96, § 27, ECHR 2000-X). 50. Turning to the particular circumstances of the case, the Court notes that subsequent to the applicant's criminal complaint to the authorities, an investigation was carried out by a gendarme officer, who was appointed as an investigator by the Commission on the Prosecution of Civil Servants attached to the Lice Administrative Council (see paragraph above). The gendarme captain conducted an on-site inspection, took statements from five witnesses, who were all inhabitants of Görbeyli, and concluded that the applicant's allegations were unfounded (see paragraph 27 above).", "Relying on the findings and conclusion of the gendarme captain, the Administrative Council decided that no proceedings should be brought against the security forces and village guards (see paragraph 28 above). 51. However, the Court notes that there were serious defects in the investigation conducted by the authorities. In this connection, it points out that the investigating authorities did not consider visiting the scene of the incident in order to verify whether the applicant's house or any other house in Görbeyli was indeed burned down, as alleged by the applicant. They were rather content to rely on the information given by the Gendarmerie authorities that no houses were burned down in Görbeyli (see paragraph 24).", "The gendarme officer in charge of the investigation did not attempt to take statements from members of the security forces who conducted operations in and around Görbeyli village subsequent to the clashes on 15 May 1995. 52. In any event, the Court has already found in a number of cases that investigations carried out by local administrative councils could not be regarded as independent since they were composed of civil servants, who were hierarchically dependent on the governor, and an executive officer was linked to the security forces under investigation (see Güleç v. Turkey, no. 21593/93, § 80, Reports 1998-IV; Yöyler and İpek, both cited above, §§ 93 and 207 respectively). The appointment of a gendarme officer as the investigator in a case where gendarmes were alleged to have been the perpetrators of the destruction of the property, and serious doubts about the credibility of his investigation, do not permit the Court to reach a different conclusion in the present case.", "53. In these circumstances, it cannot be said that the authorities have carried out a thorough and effective investigation into the applicant's allegations of the destruction of his house in Görbeyli. 54. Accordingly, there has been a violation of Article 13 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 3, 6, 8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 55. The applicant maintained that, because of his Kurdish origin, he had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1. Article 14 provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 56.", "The applicant argued that the destruction of his family home and possessions was the result of an official policy, which constituted discrimination due to his Kurdish origin. 57. The Court has examined the applicant's allegation in the light of the evidence submitted to it, but considers it unsubstantiated. There has therefore been no violation of Article 14 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 58. The applicant alleged that the interference or restrictions complained of have been imposed for purposes incompatible with the Convention. He invoked Article 18 of the Convention, which reads: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 59. The Court points out that it has already examined this allegation in the light of the evidence submitted to it, and found that it was unsubstantiated. Accordingly, no violation of this provision has been established.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 61. The applicant claimed a total amount of 164,734.11 euros (EUR) in respect of the pecuniary damage suffered by him as a result of the destruction of his house and his inability to regain his economic activities since April 1994. 62. The Government submitted that no just satisfaction should be paid to the applicant since there had been no violation of the Convention.", "They contended, in the alternative, that should the Court find a violation of any of the provisions of the Convention, the amounts claimed by the applicant were speculative and did not reflect the economic realities of the region. 63. The Court reiterates that there must be a causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings (see amongst others, the Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285-C, pp. 57‑58, §§ 16-20).", "However, the Court recalls that in the instant case it was not established to the required standard of proof that the applicant's house was burned down or that he and his family were forcibly evicted from their village by the State security forces (see paragraph 39 above). Accordingly, there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage claimed by the applicant. It therefore dismisses the applicant's claim under this head. B. Non-pecuniary damage 64. The applicant claimed a total amount of EUR 35,000 in respect of non-pecuniary damage.", "He referred in this regard to the pain and poverty he had suffered following his forced eviction from his village and the destruction of his house and possessions in Görbeyli. 65. The Government maintained that this amount was excessive and unjustified. 66. The Court has found that the national authorities had failed to carry out an effective and thorough investigation into the applicant's complaints in breach of Article 13 of the Convention (see paragraphs 45-54 above).", "Accordingly, an award should be made in respect of non-pecuniary damage. Taking into account the seriousness of the allegations and deciding on an equitable basis the Court awards the applicant EUR 4,000 to be converted into Turkish liras at the rate applicable at the date of payment (see Nuri Kurt v. Turkey no. 37038/97, § 132, 29 November 2005 and Artun and Others v. Turkey, application no. 33239/96, § 88, 2 February 2006). C. Costs and expenses 67.", "The applicant claimed a total of EUR 14441.90 for fees and costs in the preparation and presentation of his case before the Convention institutions. This sum included fees and costs incurred by his lawyers in Turkey and the United Kingdom (EUR 6,769.9 for his lawyers in Turkey and 5,211.66 pounds sterling (GBP) for his lawyers in the United Kingdom, in respect of legal work and expenses such as telephone calls, postage, translation and stationary). 68. The Government maintained that this claim was excessive and unsubstantiated. They argued that no receipt or any other document had been produced by the applicant to prove their claim.", "69. The Court would point out that the applicant has only partly succeeded in making out his complaints under the Convention. Yet, the present case involved complex issues of fact and law that required detailed examination. That said, the Court reiterates that only legal costs and expenses that have been necessarily and actually incurred can be reimbursed under Article 41 of the Convention. Having regard to the details of the claims submitted by the applicant, the Court awards him the sum of EUR 3,000, exclusive of any value-added tax that may be chargeable, less EUR 630 received by way of legal aid from the Council of Europe.", "D. Default interest 70. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1; 2.", "Holds that it is not necessary to determine whether there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that there has been no violation of Article 14 of the Convention, in conjunction with Articles 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1; 5. Holds that there has been no violation of Article 18 of the Convention; 6.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, according to Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, exclusive of any value-added tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement and to be paid into the applicant's bank account in Turkey; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Holds (a) that the respondent State is to pay the applicant's representatives, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), in respect of costs and expenses, exclusive of any value‑added tax that may be chargeable, less EUR 630 (six hundred thirty euros) granted by way of legal aid, to be converted into pounds sterling at the rate applicable at the date of settlement and paid into the representatives' sterling bank account in the United Kingdom; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KEKELIDZE v. GEORGIA (Application no. 2316/09) JUDGMENT STRASBOURG 17 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Kekelidze v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President,Lәtif Hüseynov,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 11 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 2316/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Gocha Kekelidze (“the applicant”), on 15 December 2008.", "2. The applicant was represented by Ms D. Tchanidze, a lawyer practising in Batumi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. 3. On 7 May 2013 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1977 and lives in Batumi. A. The applicant’s arrest and alleged ill-treatment 5.", "On 2 September 2008 at 10.05 a.m. the applicant was arrested (together with his friend Z.B.) in Batumi on suspicion of possession of illegal drugs, by members of the Special Operations Unit (სოდის სამმართველო) of the Ministry of Internal Affairs (“the MIA”). According to the report of his detention and personal search, he physically resisted the arrest. As a result he sustained injuries to his face and both legs when being forced out of his car and on to the ground. The applicant signed this report without making any written comments.", "6. At 5:35 p.m. on the same day the applicant underwent an external visual examination at the Batumi no. 1 temporary detention centre. A report drawn up thereafter recorded multiple injuries on the applicant’s body, including bruises and abrasions on his face and head, both legs, and the waist area, and black and swollen eyes. A note was made to the effect that the applicant could not remember in what circumstances he had sustained those injuries and that he had no complaints about the arresting officers.", "7. Soon afterwards an ambulance was called for the applicant. He was pre-diagnosed as suffering from possible concussion and was recommended for a transfer to a medical establishment. An hour later an ambulance was called again. After the applicant had been examined, he was diagnosed with a closed head injury and concussion; bruises were noted on his chest and waist area and it was recommended that he undergo inpatient treatment in a hospital neurosurgery department.", "8. At 10.10 p.m. the applicant was taken to Batumi hospital. After a brain tomography examination and other medical check-ups the diagnosis of a head injury was not confirmed. He was diagnosed instead with a fracture of the maxillary sinus on the right side, multiple bruises, and excoriations on his face and body. He was then taken back to the temporary detention centre.", "B. The investigation into the applicant’s allegations of ill-treatment 9. On the same night the applicant’s lawyer called the hotline of the office of the Prosecutor General of Georgia, complaining that the applicant had been ill-treated. On 4 September 2008 criminal proceedings were initiated under Article 118 § 2 of the Criminal Code of Georgia (causing less serious bodily injury). On the same date the investigator dealing with the case ordered a forensic examination of the applicant.", "Having visually examined the applicant, the medical expert concluded on 10 September 2008 that the applicant had multiple scratches and bruises all over his body and face, as well as black eyes and a fracture of the right maxillary sinus. He noted that the injuries could have been sustained on 2 September 2008 by the impact of a hard blunt object, and cumulatively belonged to the category of less serious bodily injuries causing long-lasting damage to health. 10. On 4 September 2008 the applicant was questioned in connection with the circumstances of his arrest. He maintained his allegations of ill treatment, claiming that he had been beaten during the arrest as well as after he was transferred to the Special Operations Unit at the MIA.", "He further dismissed the accusation that he had resisted arrest as untrue. On 6 September 2008 the investigator questioned two employees of the Batumi no. 1 temporary detention centre. They both confirmed that the applicant had had multiple injuries when he had arrived at the detention centre, and that in reply to their question he had claimed that he had sustained those injuries during the arrest. He had not provided any additional details, and had not made any complaints against the arresting police officers.", "11. On 17 November 2008 the investigator decided to continue the investigation under Article 333 § 1 of the Criminal Code of Georgia (abuse of power). In the meantime, on 15 November 2008, the applicant’s lawyer lodged a complaint with the General Prosecutor’s Office denouncing the investigation as ineffective. He complained about the fact that no identification parade had been carried out: this would have allowed the applicant to identify the police officers who had ill-treated him during the arrest. Nor was this done in respect of the time after he was transferred to the Special Operations Unit, where he had stayed for about seven hours.", "He also noted that he had requested footage from the video surveillance cameras in the street where the arrest operation had taken place, but that his request had received no response. By a letter of 15 January 2009 the prosecutor dealing with the case informed the applicant’s lawyer that the investigation was still pending, and that in view of the conflicting evidence it was impossible to establish whether the force used against the applicant during the arrest had been proportionate or not. The applicant’s lawyer was also informed that the surveillance cameras in question had not been working on the day of the applicant’s arrest, so no video recording could have been obtained. 12. According to the Government, at the time they submitted their observations the investigation of the applicant’s allegations of ill-treatment was still pending.", "C. The applicant’s conviction 13. According to the bill of indictment, the applicant was charged with various drug offences under Article 260 § 3 (a) and Article 273 of the Criminal Code. On 18 March 2009 the Batumi City Court convicted the applicant as charged and sentenced him to fourteen years and three months’ imprisonment and a fine. His conviction was confirmed by the Kutaisi Court of Appeal and the Supreme Court of Georgia on 23 September and 18 November 2009 respectively. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 14. The applicant complained that he had been ill-treated by police during the arrest, and that no effective investigation had been conducted in this respect. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 16. The applicant maintained his allegations of ill-treatment, stressing particularly the severity of the injuries he had sustained as a result.", "He submitted that at least ten armed police officers had been involved in his arrest, and that he had not resisted them, as it would have been senseless to do so. 17. The Government did not dispute that force had been used against the applicant during the arrest. They challenged, however, with reference to the report on the applicant’s arrest and personal search, the veracity of his statement that he had not resisted the arrest. While emphasising the fact that he had duly signed that report, they also noted that none of the eyewitnesses had corroborated the applicant’s version of the events.", "The Government further submitted that the degree of force used had been no more than an adequate and proportionate response to the applicant’s vigorous resistance against the officers concerned. 18. As regards the investigation, the Government claimed that it was prompt, adequate and effective. The proceedings had started immediately after the prosecutor’s office had received a report via the hotline. All the investigative measures had been conducted by the prosecutor’s office, with the investigators having no institutional affiliation with the Special Operations Unit of the MIA that had arrested the applicant.", "The forensic examination of the applicant was ordered on 4 September 2008, two days after the arrest. It concluded that the applicant’s various injuries cumulatively belonged to the category of less serious bodily injuries causing long-lasting damage to his health. Against this background, and emphasising that the applicant had been granted effective access to the investigative process, the Government asked the Court to find no violation of Article 3 of the Convention. 2. The Court’s assessment (a) The general principles 19.", "The relevant general principles were recently summarised by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151-53 and 182-85, ECHR 2012, and Mikiashvili v. Georgia, no. 18996/06, §§ 69-72, 9 October 2012). (b) Application of these principles to the circumstances of the current case (i) Alleged ill-treatment of the applicant during the arrest 20.", "The Court observes that in the course of the investigation into the applicant’s allegations, the relevant investigation authorities advanced an account of the origin of the applicant’s injuries, explaining that the injuries had been sustained by him in the course of his arrest and that the police officers had not used force against the applicant after the arrest. In view of this explanation, advanced by the domestic authorities themselves and maintained by the Government in the current proceedings, the Court will assess whether the use of force during the applicant’s arrest was excessive, presuming that that use of force resulted in all the injuries in issue. 21. The Court observes that there is objective medical evidence showing that at the time of his arrest the applicant sustained multiple injuries to his body and face. He also sustained a fracture to the right maxillary sinus.", "It is not disputed between the parties that the applicant sustained those injuries in the context of his arrest. It should thus be determined under the substantive limb of Article 3 of the Convention whether the use of physical force was “strictly necessary”, having regard to the applicant’s conduct. 22. The Court notes that in the present case the police acted in the context of a pre-planned operation. There were more than ten armed police officers involved.", "The applicant was suspected of possession of illegal drugs (see the relevant police report cited in paragraph 5 above). There was no indication, and the Government did not plead to the contrary, that the applicant posed a threat to the police officers. Furthermore, according to the relevant police reports, the applicant did not attempt to run away. He was forced out of his car and pushed immediately to the ground. At no stage was it claimed that any of the police officers were injured, a factor which might have been relevant to assessing whether in fact the applicant had resorted to violence.", "In such circumstances, particularly given the pre-planned nature of the operation (see in this respect Balçık and Others v. Turkey, no. 25/03, § 32, 29 November 2007, and Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000‑XII) and the fact that the police officers clearly outnumbered the unarmed applicant and his friend, the nature and scale of the injuries sustained by the applicant do not appear commensurate with the circumstances of his arrest. 23. Three police officers questioned in the course of the proceedings claimed that the applicant had resisted the arrest.", "They did not, however, provide details of the alleged confrontation, failing to specify how exactly the applicant had resisted them (see Davitidze v. Russia, no. 8810/05, § 93, 30 May 2013). They claimed that the applicant had continued the resistance even after being forced to the ground. While this could serve as a plausible explanation for the applicant’s multiple bruises and scratches in the area of his knees and elbows (the applicant was wearing shorts and a short-sleeved shirt during the arrest), questions remain as to the applicant’s black and swollen eyes and the fracture of his face. In this connection the Court cannot overlook the fact that the applicant was never charged with resisting police officers (see paragraph 13 above).", "In such circumstances, the official version, namely that the applicant had sustained all the multiple injuries as a result of proportionate use of force used to suppress his resistance, does not appear convincing to the Court. 24. To conclude, having regard to the specific circumstances of the special operation in which the applicant was arrested, and also having regard to the nature and seriousness of his injuries and the defects in the domestic investigation (see paragraphs 26-32 below), the Court concludes that it has not been convincingly shown by the Government that the officers’ recourse to physical force, which resulted in significant injuries, was not excessive. The consequence of such use of force was injuries which caused suffering to the applicant of a nature amounting to inhuman treatment (see Mikiashvili, § 76; Rehbock, § 77; and Davitidze, § 96, all cited above). 25.", "The Court thus concludes that the circumstances of the case disclose a breach of Article 3 of the Convention on account of the excessive use of force against the applicant. (ii) Alleged lack of an effective investigation 26. The Court notes at the outset that the applicant’s injuries and his related allegations against the police officers were sufficiently serious to reach the “minimum level of severity” required under Article 3 of the Convention. Furthermore, in view of the requirement that any use of physical force by State officials during an arrest must never be excessive and must be essential in the particular circumstances, the Court considers that the above facts called for an investigation of the applicant’s allegations of ill‑treatment in order to establish all relevant circumstances of the use of physical force against him. 27.", "It should be acknowledged that the investigation was initiated promptly, as soon as the incident was reported by the applicant’s lawyer (see, by contrast, Mikiashvili, cited above, § 79). The forensic examination of the applicant, and the examination of three of the arresting police officers, were also conducted within a couple of days (see paragraphs 9 and 10 above). The investigation was conducted by the Prosecutor’s Office, a body independent of the MIA. The Court, however, has serious doubts about the thoroughness of the investigation. 28.", "Thus, no serious effort was made to verify the applicant’s allegations by obtaining additional evidence and searching for further witnesses. Although the incident took place in daylight in the central part of Batumi, the investigator simply limited himself to questioning the applicant, his friend, the three arresting officers and two employees of the Batumi temporary detention centre. None of the other police officers involved in the operation or any potential eyewitnesses were identified or questioned. Given that the applicant from the very outset consistently challenged the official version of his resisting the arrest, that omission, in the Court’s view, remains inexplicable. 29.", "Neither did the investigation aim to assess the correlation between the injuries sustained by the applicant and the intensity of the resistance shown, if any. The forensic examination carried out within the scope of the proceedings simply described the applicant’s injuries and concluded that they could have been caused as a result of the impact of a blunt object. The examination did not look at the issue of whether the applicant could have sustained all those injuries while lying restrained with his face to the ground. This aspect of the case merited particular attention, given that the applicant was never charged with resisting arrest. 30.", "Furthermore, the applicant alleged that the beatings continued after he was transferred to the Special Operations Unit of the Ministry of Internal Affairs, where he stayed, according to the case file, for about seven hours. This allegation by the applicant was, however, left outside the scope of the investigation. According to the relevant evidence, the proceedings were entirely focused on the arrest operation itself and the use of force during that operation. 31. Lastly, the investigation into the applicant’s allegations has been pending for more than ten years (see paragraph 12 above).", "The Government did not provide the Court with any explanations in that respect. As the Court has emphasised on previous occasions, although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 323, ECHR 2014 (extracts), and Bouyid, cited above, § 133). The Court cannot overlook the fact that nothing has been done in the current proceedings since November 2008. It is obvious that in view of the time that has elapsed it would be impossible to make up for the shortcomings of the investigation identified above.", "32. Having regard to the above-mentioned failings, the Court finds that the investigation into the applicant’s ill-treatment was not thorough, adequate or effective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. II. THE REMAINDER OF THE APPLICATION 33.", "The applicant complained of a violation of Article 5 of the Convention on account of his allegedly unlawful pre-trial detention. He also challenged under Article 6 of the Convention the outcome of the criminal proceedings conducted against him. 34. The Court finds, in light of all the material in its possession, that the applicant’s submissions under Article 5 and Article 6 § 1 of the Convention do not disclose any appearance of an arguable issue under this provision and must be declared inadmissible as being manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 36. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint concerning the applicant’s alleged ill-treatment and the lack of effective investigation in that regard admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of the substantive aspect of Article 3 of the Convention; 3. Holds that there has been a violation of the procedural aspect of Article 3 of the Convention. Done in English, and notified in writing on 17 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoSíofra O’LearyDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF VALKOVA v. BULGARIA (Application no. 48149/09) JUDGMENT STRASBOURG 10 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Valkova v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President,Yonko Grozev,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 4 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48149/09) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Rayna Nikolaeva Valkova (“the applicant”), on 28 July 2009.", "2. The applicant was represented by Mr B. Mihaylov, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice. 3. On 23 March 2017 the President of the Section to which the case has been allocated decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government of Bulgaria.", "The application was communicated to the Government on 5 April 2017. 4. On 23 February 2018 the Government submitted a unilateral declaration in which they acknowledged a violation of Article 6 § 1 of the Convention as a result of the applicant not having had access to a court in connection with her civil claim. They also offered to pay a lump sum covering any and all damage sustained by the applicant and invited the Court to strike the case out of its list of cases. 5.", "On 7 May 2018 the Government’s unilateral declaration was examined by the Court, which decided not to accept it. The applicant was thereafter invited to submit a claim for just satisfaction. The Government were given an opportunity to comment on it. On 17 August 2018 the Government filed observations on the case after their related request had been allowed by the President of the Section. The applicant commented on those observations on 10 October 2018.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1979 and lives in Sofia. 7. The applicant’s grandfather owned part of a real estate.", "He donated his part to the applicant’s cousins in 1997. The applicant’s grandfather died on 16 January 2003. 8. On 13 February 2004 the applicant brought proceedings under section 30 of the Inheritance Act 1949 before the Sofia District Court. She claimed that, by donating his part in the immovable property in 1997, her grandfather had infringed her right to a “reserved share” in his inheritance, given that the immovable property in question represented his entire estate.", "In a decision of 2 March 2005 the court upheld her claim by diminishing the part of the estate donated to the applicant’s cousins and restoring the applicant’s “reserved share” in her grandfather’s inheritance. 9. Following an appeal by the other party, on 20 September 2007 the Sofia City Court quashed the first instance court’s judgment and rejected the applicant’s claim for restoration of her “reserved share” in her grandfather’s estate. In particular, referring to Interpretative Decision No. 1 of 4 February 2005 by the Supreme Court of Cassation (“SCC”), the court found that the applicant had not complied with the statutory requirements for claiming her reserved share.", "The court held that, given that her cousins to whom the real estate had been donated could not be considered “heirs-at-law”, the applicant should have claimed the reserved share of the inheritance by means of an “inventory”. 10. Following a cassation appeal brought by the applicant, on 24 March 2009 the SCC upheld the Sofia City Court’s findings in full in a final decision. II. RELEVANT DOMESTIC LAW AND PRACTICE 11.", "The statutory conditions for claiming a “reserved share” in an inheritance and their interpretation by the domestic courts, including Interpretative Decision No. 1 adopted by the SCC on 4 February 2005, have been set out in the case of Petko Petkov v. Bulgaria (no. 2834/06, §§ 14-19, 19 February 2013). In particular, since the adoption of the said domestic interpretative decision, claiming an inheritance through an “inventory” has been considered a pre-requisite for bringing a claim against all successors by deed or will, save for those with immediate priority of succession. That decision did not envisage any interim rules or transition period for its application to pending proceedings.", "12. Pursuant to Article 303 § 1 (7) of the Code of Civil Procedure of 2007 (“the CCP”), civil proceedings may be reopened when a judgment of the European Court of Human Rights establishes that the Convention has been violated and when a fresh examination of the case is necessary in order to eliminate the consequences of the violation. The interested party may make the request no later than six months after the judgment has become final (Article 305 § 2 of the CCP). The request is examined by the SCC (Article 307 of the CCP). Following the final judgment of the Court in the case of Petko Petkov, cited above, the proceedings at the national level were reopened.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. The applicant complained under Article 6 § 1 about having been deprived of access to a court as a result of the domestic courts’ refusal to hear her inheritance claim on the basis of a newly adopted interpretative decision introducing a new procedural requirement with which the applicant could not comply. Article 6 § 1 of the Convention provides as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 14. The Court observes that the applicant had a statutory right in domestic law (under the Inheritance Act 1949), arising at the time of her grandfather’s death, to claim the reduction of the dispositions made by him during his lifetime if they happened to infringe her entitlement to a “reserved share”.", "Consequently, the claim brought by the applicant falls within the scope of Article 6 of the Convention under its civil head. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions of the parties 15. The Government emphasised that, as the present case only concerned lack of access to a court, the Court had to limit its examination to that issue and not deal with the question of the inheritance claim, since competent to pronounce on the applicant’s civil claim were only the national jurisdictions. They referred in that connection to the situation of the applicant in the case of Petko Petkov, cited above, pointing out that he had been able to have his inheritance claim heard by the national jurisdictions after the judgment of the Court in his application had become final. The Government also stated that reopening of the proceedings at the national level was not possible if the case were resolved by a friendly settlement between the parties, or via a unilateral declaration of the Government (see paragraph 12 above).", "16. The Government then submitted that they maintained their unilateral declaration even at this stage of the procedure. They pointed out in that connection that a judgment by the Court finding a violation of the applicant’s right of access to a court risked interfering with the principle of legal certainty. The reason was that the events at the origin of the present application had taken place many years earlier and the final domestic judicial decision had been that of the SCC of 24 March 2009. Thereafter, bona fides third parties might have acquired property rights over the estate in question and a reopening of the proceedings as a result of the Court’s judgment would pose a threat to their lawfully acquired rights.", "Also, given the lapse of time, it was highly likely that the files of this case were either archived or even destroyed. The Government underlined that reopening of proceedings which had ended with a final judgment had to be distinguished according to the type of proceedings: in that sense, in the criminal or administrative law context one of the parties was always the State or an administrative authority and therefore the risk of interfering with bona fides third parties’ rights was minimal. 17. The applicant agreed with the Government that the likelihood of success for her if the proceedings were reopened at the national level was minimal, in particular because, even if the estate had not been transferred to third parties, under domestic law those who have held it in good faith for a certain number of years acquired the right of ownership. 2.", "The Court’s assessment 18. The Court notes that the second instance court and the SCC, in applying a new interpretation of the procedure for inheritance, dismissed the applicant’s claim on the ground that she had not claimed the inheritance through the preparation of an “inventory” (see paragraphs 9 and 10 above). 19. It therefore falls to the Court to ascertain whether the procedural restriction applied by the court in the domestic final judgment was clear, accessible and foreseeable within the meaning of the Court’s case-law, whether it pursued a legitimate aim and whether it was proportionate to that aim (see, mutatis mutandis, Lupaş and Others v. Romania, nos. 1434/02, 35370/02 and 1385/03, § 67, ECHR 2006-XV (extracts)).", "20. The Court has already had the opportunity to examine this question in the case of Petko Petkov, cited above in paragraph 11. The Court found in that case that when the applicant had brought his claim domestically he could reasonably have expected that his uncle would be considered by the courts as an “heir-at-law” and that the requirement to list the property comprising the estate in an “inventory” would accordingly not apply to his case. The new interpretative decision adopted by the SCC in the meantime had changed the scope of the term “heir-at-law” to exclude the applicant’s uncle from that category. That new interpretation had not only prevented the applicant from having his claim determined by a court, but it also had become an unsurmountable obstacle to any future attempts on his part to recover his reserved share, given that the time-limit for preparing an “inventory” had long expired (see Petko Petkov, cited above, §§ 7 and 14).", "21. In the present case, similarly to the situation in Petko Petkov, the applicant had applied to court to have her “reserved share” determined about a year before the adoption of the new interpretative decision by the SCC. Consequently, it was impossible for her to have complied with that newly adopted procedural requirement, given that the applicable law only gave applicants three (at the most six) months to resort to an “inventory”, counted from the moment of learning about the death of the relative whose heirs they were. The applicant’s grandfather had died more than two years before the adoption of the interpretative decision in question. Accordingly, the Court finds that the application to the applicant’s case of the new procedural requirement prevented her from having her claim determined by a court in those proceedings or in any future proceedings, given that the time-limit for complying with the new requirement had long expired.", "Such a situation runs contrary to the right of an effective access to a court under Article 6 (see, similarly, Petko Petkov, cited above, § 34). 22. The foregoing considerations are sufficient to enable the Court to conclude that there has been a breach of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed 47,325 euros (EUR) in respect of pecuniary damage representing the current market value of the ”reserved share” of her grandfather’s inheritance. Alternatively, she asked to be awarded compensation for the inability to peacefully use her “reserved share” of the inheritance, which she estimated at EUR 300 per month counted from the date of her bringing her related claim before the domestic courts, namely 13 April 2004. Finally, the applicant stated that, even if the Court were to find a violation of the Convention, she would not be able to recover her property or bring a related claim domestically.", "The reason for this was that the other heirs have held the whole real estate in good faith for many years and have thus acquired ownership rights over it by virtue of adverse possession. 25. The applicant further claimed EUR 20,000 in respect of non‑pecuniary damage for the anxiety and suffering which she had endured as a result of having been deprived of her share in the inheritance. 26. The Government contested these claims.", "They pointed out that the amount in respect of pecuniary damage was unjustified and did not correspond to that usually awarded under the Court’s practice in respect of breaches of the right of access to a court. In addition the Government emphasised that an award under Article 41 was only due if the matter could not be resolved at the national level. They explained that that was not the case in the applicant’s situation given that, if a violation of Article 6 § 1 were established by the Court, the applicant was entitled under national law to seek reopening of the proceedings, following which the national courts would decide on her claim. As regards the applicant’s claim in respect of non-pecuniary damage, the Government considered it exaggerated and unjustified. 27.", "The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 of the Convention, since this was the issue examined by it. The Court does not discern any causal link between the violation found and the applicant’s claim in respect of pecuniary damage. In that connection, the Court cannot speculate about what the outcome of the proceedings would have been had her claim been examined domestically in conformity with Article 6 § 1 of the Convention. Accordingly, it dismisses the claim for damages for pecuniary loss. 28.", "The above said, the Court considers that the applicant must have suffered non-pecuniary damage for which the finding of a violation does not constitute sufficient reparation. Ruling on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 29. The applicant also claimed EUR 5,235.33 for the costs and expenses incurred before the domestic courts in the proceedings for restoring her “reserved share” in the inheritance.", "30. The Government submitted that the amount sought for costs and expenses was exaggerated and entirely unjustified as no document in relation to it had been presented. 31. The Court reiterates that, as regards the costs and expenses incurred in the domestic proceedings, it will uphold such claims only in so far as they relate to the violations it has found (see Avdić and Others v. Bosnia and Herzegovina, nos. 28357/11, 31549/11 and 39295/11, § 51, 19 November 2013; Duraliyski v. Bulgaria, no.", "45519/06, § 45, 4 March 2014, and Penchevi v. Bulgaria, no. 77818/12, § 88, 10 February 2015). There is no evidence that the applicant incurred any costs and expenses before the domestic authorities in seeking redress in connection with the violation of the Convention found in the present case. Accordingly, the Court rejects this claim. 32.", "The Court notes furthermore that no claim has been made in respect of the costs and expenses incurred in the proceedings before it and accordingly does not award any amount in that respect. C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoGabriele Kucsko-StadlmayerDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF RĂDUCANU v. ROMANIA (Application no. 17187/05) JUDGMENT STRASBOURG 12 June 2012 FINAL 12/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Răducanu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 22 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17187/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Nicolae Răducanu (“the applicant”), on 29 April 2005. 2. The applicant was represented by Ms Nicoleta Tatiana Popescu, a lawyer practising in Bucharest and by APADOR-CH (the Association for the Defence of Human Rights in Romania – the Helsinki Committee), an association based in Bucharest. The Romanian Government (“the Government”) were represented successively by their Agent, Mr Răzvan-Horaţiu Radu and their co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 3.", "As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). 4. The applicant alleged, in particular, that the material conditions of detention in Ploieşti Prison and the lack of adequate medical care for the venous thromboses in his legs had breached his rights guaranteed by Article 3 of the Convention. 5. On 15 June 2010 the President of the Third Section decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1958 and lives in Ploieşti, Romania. 7.", "On 27 February 1997 the Prahova Prosecutor’s Office brought criminal proceedings against the applicant for first degree murder following the death of a third party whom the applicant had stabbed. 8. On 4 March 1997 the applicant was detained pending trial at the Prahova Police Department. 9. On 6 June 1997 the Prahova Prosecutor’s Office committed the applicant for trial before the Prahova County Court on charges of first degree murder.", "10. By a judgment of 7 October 1997 the Prahova County Court convicted the applicant and sentenced him to twenty-two years’ imprisonment on the basis of documentary, testimonial, expert and forensic evidence. The applicant appealed against the decision. 11. By a judgment of 13 January 1998 the Ploieşti Court of Appeal dismissed the applicant’s appeal on the merits and upheld the judgment of 7 October 1997.", "The applicant allegedly appealed on points of law (recurs) against the judgment to the Court of Cassation. 12. On 11 February 1998 the Registry of the Court of Cassation informed the applicant, following his enquiry, that there was no file concerning him pending before the said court. The judgment of 13 January 1998 was final. 13.", "On 19 March 1997 the applicant was detained in Ploieşti Prison. The applicant served his prison sentence in that prison until 2 December 2008 when he was transferred to other prison facilities in Romania; he did not return to Ploieşti Prison. 14. Between 19 March 1997 and 2 December 2008 the applicant was transferred repeatedly from Ploieşti Prison to other prison facilities for medical examinations and treatment or in order to appear before domestic courts. For example, he spent time in Colibaşi Prison Hospital (from 19 May to 4 June 2004), Jilava Prison Hospital (from 10 to 20 November 2000; 26 January to 13 February 2001; 18 October to 21 November 2005; 6 to 17 July, 21 to 31 August, 7 September to 13 November, and 14 to 20 December 2007; and from 4 to 17 March 2008) and Rahova Prison Hospital (from 29 March to 6 April, 14 to 20 June, and 11 to 17 October 2005; 22 to 28 August 2006; and from 19 to 22 February 2008).", "15. According to his medical file, between 4 March 1997 and 1 October 2010 the applicant was examined and was provided treatment and a special diet for various medical conditions including venous thromboses in civilian hospitals and in Ploieşti, Jilava, Rahova, Dej, Colibaşi and Mărgineni Prison Hospitals. 16. According to a record made on 10 November 2000 in the applicant’s medical file by the examining doctor, he had been suffering from venous thromboses for four years and had received treatment for the condition. 17.", "Forensic medical reports produced by the Mina Minovici Forensic Institute and by the Prahova County Forensic Medical Service on 14 May 2001 and 17 July 2003 respectively stated that the applicant was suffering from venous thromboses in his legs, an acute ulcer for which no surgery was recommended, and antisocial personality disorder. They concluded that these conditions could be treated in prison hospitals. 18. The forensic medical reports produced by the Târgovişte County Forensic Medical Service and by the Mina Minovici Forensic Institute on 3 November 2004 and 30 November 2005 respectively noted that the applicant was suffering inter alia from peripheral vascular disease and chronic venous thromboses. They concluded that he could be treated in prison hospitals, and consequently, his temporary release from prison on medical grounds was unjustified.", "The report of 3 November 2004 recommended that the peripheral vascular disease be monitored in a cardiovascular clinic if the applicant’s medical condition so required. 19. In a letter of 12 June 2006 to the Court the applicant stated, inter alia, that he was in danger of losing his legs. He argued that he had become ill after he was detained because of the poor food and inappropriate detention conditions in Ploieşti Prison. In addition, he contended that the conditions of detention in Prahova Police Department were inhuman, but he failed to provide any additional information.", "20. In a letter of 18 September 2006 to the Court the applicant stated that on an unspecified date in 1999 he had developed thromboses in his legs. The applicant alleged that he had developed the condition on account of the detention conditions in Ploieşti Prison, in particular the lack of physical exercise, overcrowding, lack of water and poor nutrition. He also informed the Court that the lack of medication had aggravated his condition and that although he had been transferred several times from Ploieşti Prison to civilian and prison hospitals across the country for treatment and surgery, the lack of medicines and budget to pay for the medical expenses had made it impossible for him to be treated. 21.", "In the same letter of 18 September 2006 the applicant contended that his condition had reached the final stage of development and that his legs might have to be amputated. 22. The forensic medical reports produced by the Prahova County Forensic Medical Service and by the Mina Minovici Forensic Institute on 24 May and 9 August 2007, respectively, stated that the applicant was suffering from inter alia chronic venous thromboses in his legs. The reports concluded that he could be treated both in prison and civilian hospitals and that his medical condition could not justify his temporary release from prison. 23.", "On 14 September 2011 the Government informed the Court that on 6 September 2011 there were a total of 578 beds in Ploieşti Prison for 619 detainees, resulting in an occupancy rate of 107.09%. 24. On an unspecified date the applicant brought proceedings against the Ploieşti Prison authorities seeking temporary release from prison on account of his family situation. 25. By a judgment of 20 January 1999 the Prahova County Court dismissed the applicant’s action on the ground that he could not provide for his family in the short period of time allowed by law for staying the execution of a sentence and the State could provide support for his family if needed.", "The applicant’s appeal and appeal on points of law against the judgment were dismissed as ill-founded by the Ploieşti Court of Appeal on 1 March 1999 and by the Court of Cassation on 30 June 1999 respectively. 26. On an unspecified date in 2003 the applicant brought proceedings against the Ploieşti Prison authorities seeking temporary release from prison on medical grounds. 27. By a judgment of 17 December 2003 the Ploieşti Court of Appeal dismissed the applicant’s action on the ground that according to the forensic medical reports available in the file his medical problems could be treated in prison hospitals.", "It does not appear from the evidence available in the file that the applicant appealed on points of law (recurs) against the judgment. 28. On 30 August 2004 the applicant brought proceedings against the Mărgineni Prison authorities seeking temporary release from prison on medical grounds. 29. By a judgment of 11 February 2005 the Ploieşti Court of Appeal dismissed the applicant’s action against the Mărgineni Prison authorities seeking temporary release from prison on the ground that according to the forensic reports available in the file his medical condition could be treated in prison hospitals.", "Moreover, although the problems with his legs required check-ups in civilian cardiovascular clinics, the Mărgineni Prison authorities could take the applicant to those check-ups whenever his state of health required it. It does not appear from the evidence available in the file that the applicant appealed on points of law against the judgment. 30. On an unspecified date in 2005 the applicant brought proceedings against the Ploieşti Prison authorities seeking temporary release from prison on medical grounds. 31.", "By a judgment of 5 September 2005 the Ploieşti Court of Appeal dismissed the applicant’s action against the Ploieşti Prison authorities seeking temporary release from prison for medical reasons on the ground that the applicant had withdrawn his request after he had been notified of the conclusion of the medical forensic report produced in his case. It does not appear from the evidence available in the file that the applicant appealed on points of law against the judgment. 32. On an unspecified date in 2005 the applicant brought proceedings against the Ploieşti Prison authorities seeking temporary release from prison on medical grounds. 33.", "By a judgment of 27 March 2006 the Ploieşti Court of Appeal dismissed the applicant’s action on the ground that the detailed medical examinations he had undergone between 19 October and 30 November 2005 at Bucharest Prison Hospital and at the C.C. Iliescu Institute for Cardiovascular Diseases, as well as the forensic report produced by the Mina Minovici Forensic Institute, had established that his medical condition could be treated in prison hospitals. The applicant did not lodge an appeal on points of law against the judgment. 34. On an unspecified date in 2006 the applicant brought proceedings against the Ploieşti Prison authorities seeking temporary release from prison on account of his family situation.", "35. By a final judgment of 11 May 2006 the Prahova County Court dismissed the applicant’s action on the ground that his allegation that his family lacked any income was contradicted by the social services’ report available in the file. 36. On unspecified dates in 2007 and 2008 the applicant brought two more sets of proceedings against the Ploieşti Prison authorities seeking temporary release from prison on medical grounds. He argued, inter alia, that his medical problems could not be treated in prison hospitals and that he needed to be released so he could have access to adequate treatment in civilian hospitals.", "37. By a final judgment of 18 February and a judgment of 27 November 2008 respectively, the Ploieşti Court of Appeal and the Prahova County Court dismissed the applicant’s actions on the ground that according to the forensic medical reports produced on 24 May 2007 by the Prahova County Forensic Medical Service and on 9 August 2007 by the Mina Minovici Forensic Institute the applicant could be treated in prison hospitals. It does not appear from the evidence available in the file that the applicant appealed against the judgment of 27 November 2008. 38. On unspecified dates in 2003, 2004 and 2008 the applicant contested the enforcement of the judgment of 13 January 1998 on the grounds that the domestic authorities had influenced the witnesses against him, that he had committed the offence of which he had been convicted under special attenuating circumstances, and that the sentence he had received was disproportionately high in relation to the seriousness of the offence.", "39. The applicant’s actions were dismissed by final judgments of the Prahova County Court on 13 January 2003 and 27 March 2008 and of the Ploieşti Court of Appeal on 23 February 2004 on the ground that the reasons raised by him were not among those recognised by law for contesting the enforcement of a judgment. 40. On an unspecified date in 2004 the applicant brought proceedings against the governor of Ploieşti Prison contesting the ten days he was made to spend in isolation as a disciplinary measure. 41.", "By a final judgment of 8 April 2004 the Prahova County Court allowed on the merits the applicant’s action against the governor of Ploieşti Prison and reduced his punishment to seven days in isolation. 42. By final judgments of 6 and 20 April 2004 the Ploieşti District Court dismissed the criminal proceedings brought by the applicant against third parties for abuse of trust on the ground that the parties had reconciled. 43. On an unspecified date in 2005 the applicant brought proceedings seeking conditional release on account of the fact that he had served the amount of his sentence lawfully required to qualify for conditional release and that his medical condition did not allow him to continue serving his sentence.", "44. By a judgment of 19 July 2005 the Ploieşti District Court dismissed the applicant’s action for conditional release on the ground that he had not served the amount of his sentence lawfully required to quality for conditional release. The applicant appealed on points of law against the judgment. 45. By a final judgment of 24 August 2005 the Prahova County Court dismissed the applicant’s appeal on points of law against the judgment of 19 July 2005 on the ground that he had expressly withdrawn his appeal.", "46. By an interlocutory judgment of 26 January 2009 the judge responsible for the execution of prison sentences attached to Mărgineni Prison dismissed on the merits the applicant’s action contesting the decisions of the Ploieşti and Mărgineni Prison Commissions on the Execution of Prison Sentences, delivered on 17 June and 19 December 2008 respectively, not to change the applicant’s detention regime from a closed one to a semi-open one. The applicant’s appeal against the interlocutory judgment was dismissed as ill-founded by a final judgment of the Dâmboviţa District Court on 19 March 2009. II. RELEVANT DOMESTIC LAW AND PRACTICE 47.", "The relevant provisions of Law no. 23/1969 on the execution of sentences are described in Năstase-Silivestru v. Romania, (no. 74785/01, §§ 23-25, 4 October 2007). 48. Government Emergency Ordinance no.", "56 of 25 June 2003 regarding the rights of prisoners stated, in section 3, that prisoners had the right to bring legal proceedings before a court concerning measures taken by prison authorities in connection with their rights. Emergency Ordinance no. 56/2003 was repealed and replaced by Law no. 275 of 20 July 2006 on the execution of sentences. It restates the content of section 3 mentioned above in its Article 38, which provides that a judge shall have jurisdiction over complaints by convicted prisoners against measures taken by prison authorities (see also Petrea v. Romania, no.", "4792/03, §§ 21-23, 29 April 2008; Gagiu v. Romania, no. 63258/00, § 42, 24 February 2009; and Măciucă v. Romania, no. 25763/03, § 14, 26 May 2009). Civil Code 49. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused that damage.", "Case-law of the domestic courts 50. The Government submitted approximately one hundred and fourteen judgments delivered by the domestic courts across the country in respect of proceedings brought by detainees against various prison facilities on the basis of Emergency Ordinance no. 56/2003 and Law no. 275/2006 seeking adequate medical treatment, better treatment during transfer to courts, non‑smoking accommodation, confidentiality of correspondence, stamps and envelopes, the discontinuance of disciplinary actions taken against them, visiting rights, conjugal visits, dental treatment, religious rights, adequate hygiene conditions, appropriate diets, a prohibition on welding beds to the floor, extended exercise rights, washing, working rights, access to a personal computer and telephone conversations. 51.", "Approximately one hundred and four of the judgments submitted by the Government were final and approximately twenty of them allowed in full or in part the actions lodged by the detainees by relying on the provisions of the domestic legislation concerning the execution of prison sentences and the evidence available in the files. The actions allowed by the domestic courts mainly concerned disciplinary proceedings opened against detainees, access to adequate medical treatment, visiting rights, the right to petition, the right to confidentiality of correspondence, the right to daily physical exercise (final judgment of 19 June 2007 of the Arad District Court), the right to wash twice a week (final judgment of 7 October 2008 of the Arad District Court), the organisation of properly ventilated designated smoking areas (final judgment of 27 June 2008 of the Piteşti District Court) and the right to dental treatment. 52. Six of the judgments submitted by the Government addressed the issue of overcrowding. All six judgments dismissed the detainees’ complaints in respect of overcrowding for the following reasons: they were detained in cells of five and six people measuring 18.8 sq.", "m and 21.76 sq. m respectively (final judgments of 10 March 2009 and 3 March 2008 of the Bucharest and Giurgiu District Courts respectively); the cell met the minimum legal requirement of 6 cubic metres per person (final judgment of 2 October 2007 of the Bucharest District Court); the courts could not hold the prison administration liable in respect of overcrowding taking into account the size of the prison and the large number of detainees housed there (final judgment of 12 May 2010 of the Bucharest District Court); the detainee was sharing a cell with twelve other inmates and the domestic legislation did not provide for a minimum number of square metres that had to be ensured for a group of detainees (final judgment of 17 September 2010 of the Bistriţa District Court); and the detainee was subject to the prison’s internal rules harmonised with the decision of 11 January 2006 of the Committee of Ministers of the Council of Europe (final judgment of 4 September 2007 of the Bucharest District Court). III. REPORTS ON THE CONDITIONS OF DETENTION IN ROMANIAN PRISONS 53. The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania (no.", "22088/04, §§ 73-76, 6 December 2007), and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). 54. The CPT report published on 11 December 2008, following a visit to different police detention facilities and prisons in Romania, including Ploieşti, conducted from 8 to 19 June 2006, indicated overcrowding as a persistent problem. The same report concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited, the conditions of detention could be qualified as inhuman and degrading.", "In respect of Ploieşti Prison the report stated that detainees’ living space was restricted to 1.5 sq. m per person and that some of them had to share a bed. The cells were poorly ventilated and measures had to be taken to remedy the low standards of kitchen hygiene and detainees’ complaints concerning poor nutrition. Detainees had access to thirty minutes of physical exercise per day, half the recommended one hour, and the shower facilities were unacceptable. 55.", "In the same report, the CPT declared itself gravely concerned by the fact that a lack of beds remained a constant problem, not only in the establishments visited but at national level, and that this had remained the case since its first visit to Romania in 1999. The CPT welcomed the changes introduced in domestic legislation providing for personal space of 4 sq. m (8 cubic meters) for each prisoner. The CPT therefore recommended that the Romanian authorities take the necessary measures to ensure compliance with this requirement, as well as to ensure that each detainee had his or her own bed. THE LAW I.", "PRELIMINARY OBSERVATION 56. The Government submitted that in the applicant’s letters of 12 June 2006 (received by the Court on 14 June 2006) he had briefly mentioned his poor state of health and given further details only in his letter of 18 September 2006 (received by the Court on 22 September 2006). On both occasions, however, he had failed to complain of a violation of Article 3 of the Convention and had not informed the Court that he wanted to raise such a complaint. In any event, the Government contended that if the Court considered that the applicant had lodged a complaint under Article 3 of the Convention, the date that complaint had been lodged before the Court was 12 June 2006 and not 29 April 2005. 57.", "The applicant did not submit observations on this point. 58. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it. A complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on (see, mutatis mutandis, Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no.", "172; Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I; and Eugenia Lazăr v. Romania, no. 32146/05, § 60, 16 February 2010). 59. In the present case, the Court notes that in his letter of 12 June 2006 the applicant, for the first time, referred expressly to his poor state of health and considered the inappropriate detention conditions responsible for his condition (see paragraph 19 above). Moreover, in his letter of 18 September 2006 he reiterated his statement and provided additional details about the conditions of detention in Ploieşti Prison and the general lack of adequate medical treatment for the venous thromboses in his legs (see paragraph 20 above).", "In these circumstances and having regard to the wording of the applicant’s letters, the Court considers that, although he did not expressly state it, the applicant lodged a complaint concerning the material conditions of detention in Ploieşti Prison and the general lack of adequate medical treatment for the venous thrombosis in his legs and that he relied in substance on Article 3 of the Convention. 60. However, the Court shares the Government’s view that the date of introduction of the said complaint before it was 12 June 2006. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 61.", "The applicant complained about the physical conditions of his detention in Ploieşti Prison and of the general lack of adequate medical treatment for the venous thromboses in his legs. He alleged, in particular, overcrowding, a lack of water, a lack of physical exercise and poor nutrition. Moreover, he complained that during detention he had been diagnosed with venous thrombosis in his legs and that he had not been treated adequately because of a lack of medicines and budget to pay for the medical expenses. He relied in substance on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Complaint concerning the material conditions of detention in Ploieşti Prison 1.", "Admissibility a) Non-exhaustion of domestic remedies (i) Submissions of the parties 62. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained to the authorities about the conditions of his detention on the basis of Emergency Ordinance no. 56/2003 and subsequently on the basis of Law no. 275/2006. In addition, they pointed out that the applicant could have lodged a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code seeking compensation for the alleged damage.", "The Government considered both remedies to be effective, sufficient and accessible. 63. The Government submitted a set of domestic decisions in support of their observations (see paragraphs 50-52 above). They further submitted that the Court had implicitly recognised that a general tort law action represented an effective remedy in its decision in Stan v. Romania ((dec.), no. 6936/03, 20 May 2008).", "64. The applicant disagreed. (ii) The Court’s assessment 65. The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, overcrowding and poor nutrition. In this respect, it notes that in recent applications lodged against Romania and concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal actions suggested by the Government, including a general tort law action, do not constitute effective remedies (see Petrea, cited above, § 37; Eugen Gabriel Radu v. Romania, no.", "3036/04, § 23, 13 October 2009; Iamandi v. Romania, no. 25867/03, § 49, 1 June 2010; and Lăutaru v. Romania, no. 13099/04, § 84, 18 October 2011). 66. The Court further notes that the final domestic decisions submitted by the Government in support of their plea of non-exhaustion relate mainly to specific rights of prisoners, such as the right to medical assistance or the right to receive visits.", "Among the domestic decisions submitted by the Government only six of them relate to structural issues such as overcrowding and they were all dismissed without additional consideration of the point the detainees relied upon concerning the lack of individual space. 67. The Court also notes that although two of the judgments submitted by the Government allowed actions brought by detainees in respect of physical exercise and washing rights, they remain isolated examples and fail to prove with any certainty the existence of an effective remedy in this respect (see mutatis mutandis Melnitis v. Latvia, no. 30779/05, § 53, 28 February 2012). 68.", "The Court therefore concludes that the judgments submitted by the Government do not indicate how the legal actions proposed by them could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16 July 2009, and Ogică v. Romania, cited above, § 35). 69. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Ploieşti Prison. b) Six months (i) Submissions of the parties 70.", "The Government submitted that the applicant’s complaint about the material conditions of detention in Ploieşti Prison in respect of the period prior to 11 October 2005, when the applicant was transferred to Rahova Prison Hospital, had been introduced too late. They therefore proposed that this part of the application be declared inadmissible. 71. The applicant disagreed. (ii) The Court’s assessment 72.", "The Court notes that it has already examined the application of the six-month rule in similar cases (see Seleznev v. Russia, no. 15591/03, § 35, 26 June 2008). By relying on relevant case-law, it established that it would not consider detention conditions as a continuous situation in circumstances where the complaint concerned an episode, treatment or a particular detention regime attached to an established period of detention. On the other hand, the situation would be considered continuous where the complaint concerned general issues and detention conditions that remained similar in spite of the detainee’s transfer (see Seleznev, cited above, § 36). 73.", "The Court notes in the present case that the applicant complained about the detention conditions in Ploieşti Prison. In particular, he complained of overcrowding, a lack of water and poor nutrition. It also notes that on 11 October 2005 the applicant was transferred to prison hospitals, where he spent approximately one month and two weeks (until 30 November 2005). He did not complain about the material conditions of detention in those hospitals. However, having regard to the length of the applicant’s detention in Ploieşti Prison, the relative short duration of the applicant’s transfer to prison hospitals and the fact that he returned to Ploieşti Prison after his transfer, the Court cannot conclude that his transfer on 11 October 2005 brought significant changes to his detention conditions and that there was therefore no continuous situation (see mutatis mutandis Eugen Gabriel Radu, cited above, § 24).", "74. It therefore rejects the Government’s preliminary objection that the applicant’s complaint about the material conditions of detention in Ploieşti Prison in respect of the period prior to 11 October 2005 was introduced too late. 75. Lastly, the Court notes that the applicant’s complaint concerning the material conditions of detention in Ploieşti Prison 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) Submissions of the parties 76. The applicant, by relying on the CPT’s findings and recommendations following its visit to Ploieşti Prison in 2006, argued that the material conditions of detention, in particular overcrowding, poor nutrition, lack of water and lack of physical exercise, amounted to inhuman and degrading treatment. 77.", "The Government submitted that the records concerning the cells in which a person was imprisoned are preserved only for two years. Moreover, the cells of Ploieşti Prison had been renumbered and the entire prison had been reorganised. Consequently they could provide only general information in respect of the applicant’s conditions of detention. 78. They argued that in Ploieşti Prison the applicant had been detained in cells measuring 33.22 sq.", "m. Each cell had at least one window, two sinks with running cold water, and a toilet and shower separated by walls and a door. The cells also had a storage area for food. Detainees could wash once a week and from 2006 this increased to twice a week. Warm water was available based on a set schedule. Physical exercise was organised in accordance with the law, taking into account the detainees’ detention regimes.", "Detainees had access to social and educational activities, and psychological counselling. The food was prepared in accordance with the legally approved quality norms and the quality of the food was assessed daily by the prison’s doctor, the duty officer and a representative of the detainees. Lastly, they contended that the prison had not been overcrowded for the period the applicant was detained there. (b) The Court’s assessment (i) Relevant principles 79. The Court reiterates that under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well‑being are adequately secured (see Valašinas v. Lithuania, no.", "44558/98, § 102, ECHR 2001‑VIII, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 80. A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether detention conditions described are “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, 7 April 2005).", "81. In previous cases where applicants had at their disposal less than 3 sq. m of personal space, the Court has found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many others, Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Ciorap v. Moldova, no. 12066/02, § 70, 19 June 2007; Lind v. Russia, no.", "25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Brânduşe v. Romania, no. 6586/03, § 50, 7 April 2009; Petrea, cited above, §§ 49-50; Răcăreanu v. Romania, no. 14262/03, §§ 49-52, 1 June 2010; and Ali v. Romania, no. 20307/02, § 83, 9 November 2010).", "82. The Court observes that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009, and Lăutaru, cited above, § 96). (ii) Application of the above principles to the present case 83.", "The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees, as well on account of the lack of physical exercise and poor nutrition (see, among others, Coman v. Romania, no. 34619/04, § 59, 26 October 2010; Lăutaru, cited above, § 102 and Onaca v. Romania, no. 22661/06, § 41, 13 March 2012). 84. In the case at hand, the Government failed to put forward any argument that would allow the Court to reach a different conclusion.", "85. The Court further notes that the applicant’s description of the overcrowding, lack of physical exercise and poor nutrition corresponds to the findings made by the CPT report in respect of Ploieşti Prison (see paragraph 54 above). 86. Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court concludes that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Ploieşti Prison.", "87. Taking this finding into account, the Court does not consider it necessary to examine the remaining issues of his complaint concerning the material conditions of detention. B. Complaint concerning the alleged lack of medical treatment for venous thromboses Admissibility 88. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained before domestic courts in respect of the lack of adequate medical treatment for the venous thromboses in his legs on the basis of Emergency Ordinance no.", "56/2003 and subsequently on the basis of Law no. 275/2006. 89. The applicant disagreed and argued that the remedies indicated by the Government were ineffective. 90.", "The Court has already had the opportunity to examine a similar objection raised by the Government in the case of Petrea, cited above. It concluded that before the entry into force of Emergency Ordinance no. 56/2003, on 25 June 2003, there had been no effective remedy for the situation complained about by the applicant. However, after that date, others in the applicant’s situation had had an effective remedy in respect of their complaints of a lack of medical treatment, even if their applications were already pending with the Court at the relevant time (see Petrea, cited above, §§ 35-36). 91.", "The Court sees no reason to depart in the present case from the conclusions it reached in Petrea. 92. In respect of the period prior to the entry into force of Emergency Ordinance no. 56/2003 the Court notes that, in spite of the applicant’s allegations, the available material does not indicate that the applicant was denied medication necessary for his condition or that there was a lack of budget to pay for the medical expenses. Moreover, there is no indication in the file that the venous thromboses in his legs became more serious between March 1997 and June 2003.", "Furthermore, according to the applicant’s medical file, he was examined regularly by prison and civilian doctors, his condition was monitored and he was regularly prescribed and administered medication during his detention. 93. Consequently, the Court finds no evidence in the file of a potential breach of the applicant’s right to receive medical treatment during detention for the period before the entry into force of Emergency Ordinance no. 56/2003. 94.", "In respect of the period after the entry into force of Emergency Ordinance no. 56/2003 and subsequently of Law no. 275/2006, the applicant should have lodged complaints of a lack of medical treatment with the domestic courts. His repeated requests for temporary release do not satisfy these conditions (see Răcăreanu v. Romania, no. 14262/03, § 41, 1 June 2010).", "95. It follows that the applicant’s complaint concerning a lack of adequate medical treatment is manifestly ill-founded for the detention period prior to the entry into force of Emergency Ordinance no. 56/2003 and of Law no. 275/2006, and is inadmissible for non-exhaustion of domestic remedies for the detention period after the entry into force of the above-mentioned domestic legislation. Consequently, it must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 96. The applicant complained under Article 3 of the Convention about the material conditions of detention while he was in the custody of the Prahova Police Department. Moreover, he complained under Articles 6 §§ 1 and 3 (d) of the Convention that the criminal proceedings brought against him for murder had been unfair in so far as the witnesses for the prosecution had mostly been relatives of the victims, the domestic courts had misinterpreted the applicable legal provisions and lacked impartiality, and he had not been able to have witnesses examined in his defence. Lastly, the applicant complained in substance under Article 8 of the Convention that he had been unable to contact his family while he was in the custody of the Prahova Police Department.", "97. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 99. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 100.", "The Government considered the sum claimed by the applicant to be excessive. They submitted that a finding of a violation would constitute sufficient just satisfaction in the case. 101. The Court notes that it has found a violation of Article 3 in the present case. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis and having regard to the particular circumstance of the case, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage. B. Costs and expenses 102. The applicant also claimed EUR 6,403 for the costs and expenses incurred before the Court by his representatives, to be paid directly to them as follows: (i) the applicant submitted a contract for legal assistance concluded with his lawyer, Ms Nicoleta Tatiana Popescu, and a detailed document indicating that the lawyer worked fifty-four and a half hours in preparing the case, the hourly fee for each type of activity and the precise dates when the work was done. The total fees requested by the lawyer amounted to EUR 6,103; (ii) APADOR-CH (the Association for the Defence of Human Rights in Romania – the Helsinki Committee) also requested EUR 300 for technical support and correspondence.", "103. The Government disputed the number of hours spent by the applicant’s representatives on the present case and contended that they were excessive given the lawyer’s substantial experience and the reduced complexity of the case. They further submitted that the applicant had not submitted any proof in support of the correspondence fees he claimed and that the Helsinki Committee had repeatedly provided support in similar cases. 104. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and are reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no.", "23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part. 105. In the present case, having regard to the above criteria, the itemised list submitted by the applicant, the familiar nature of the issue dealt with, and the work of the lawyer from 29 July 2010 when she took over the case until today, the Court awards the following amounts: EUR 2,000 to Ms Nicoleta Tatiana Popescu and EUR 150 to the Romanian Helsinki Committee, to be paid separately into a bank account indicated by each of the applicant’s representatives.", "C. Default interest 106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 3, in so far as it concerns the material conditions of detention in Ploieşti Prison, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 9,000 (nine thousand euros) to the applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,150 (two thousand one hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, into a bank account indicated by each representative as follows:(a) EUR 2,000 (two thousand euros) to Ms Nicoleta Tatiana Popescu; and (b) EUR 150 (one hundred and fifty euros) to the Romanian Helsinki Committee; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "SECOND SECTION CASE OF ŞAMAN v. TURKEY (Application no. 35292/05) JUDGMENT STRASBOURG 5 April 2011 FINAL 05/07/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Şaman v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Ireneu Cabral Barreto,David Thór Björgvinsson,Dragoljub Popović,András Sajó,Işıl Karakaş, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 March 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35292/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Sultan Şaman (“the applicant”), on 1 September 2005. 2. The applicant was represented by Mr Z. Değirmenci, a lawyer practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 6 October 2009 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the fairness of the criminal proceedings under Article 6 § 3 (c) and (e) of the Convention in conjunction with Article 6 § 1 to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1974 and at the time of lodging her application was serving a prison sentence in Buca Prison.", "5. On 19 February 2004 the applicant was taken into police custody by police officers from the Denizli Security Directorate, upon intelligence reports that she was a member of the illegal organisation PKK/KONGRA‑GEL (the Kurdistan Workers' Party). When she was arrested, the applicant was in possession of a fake identity card. 6. On the same day the applicant was examined by a doctor, who noted that there was no sign of ill-treatment on her body.", "The applicant was subsequently taken to the Denizli Security Directorate for interrogation. 7. According to a form dated 19 February 2004 which explained an arrested person's rights, the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer. The applicant marked this form with her fingerprint and stated that she did not want to be represented by a lawyer. Subsequently, a police officer prepared a further report, in which it was stated that although the applicant had been reminded of her right to legal assistance she had expressed her wish to defend herself in person.", "The applicant marked this report with her fingerprint as well. 8. On 20 February 2004 the applicant was questioned by the police in the absence of a lawyer. Before the questioning commenced the applicant was once again reminded of her right to have legal assistance, but she refused. In her police statement the applicant gave a detailed account of her involvement in the illegal organisation.", "9. On 20 and 21 February 2004 respectively, the applicant was examined by a medical doctor. The medical reports indicated that there was no sign of ill-treatment on her body. 10. On 21 February 2004 the applicant was taken before the public prosecutor.", "During her questioning, the applicant was represented by a lawyer, Mr A.O. from the Denizli Bar Association, and she availed herself of her right to remain silent. The prosecutor questioned the applicant about the fake identity card that had been found on her during her arrest and the applicant accepted that she had been using a fake identity paper. The lawyer left the public prosecutor's office without signing the applicant's statement, stating that although the applicant had expressed her wish to remain silent, the prosecutor had continued asking questions. 11.", "The same day, the applicant was questioned by the investigating judge, again in the absence of a lawyer. Before the judge, the applicant retracted her police statement, stating that it had been taken under duress. When asked about her involvement in the illegal organisation, the applicant accepted that when she was a teenager she had joined the PKK and moved to Iraq. She denied however having taken part in any terrorist activity. She stated that she had come back to Turkey to benefit from the Reintegration of Offenders into Society Act (Law no.", "4959). After the questioning was over, the investigating judge remanded the applicant in custody. 12. On 8 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act (Law no. 3713).", "13. The proceedings commenced before the Izmir State Security Court and during the proceedings the applicant was represented by a lawyer. At the request of the applicant, the State Security Court gave permission to the applicant to have the assistance of an interpreter. In its decision the first‑instance court noted that the applicant was capable of expressing herself in Turkish; however, in order not to hinder her right to defence and to comply with Article 6 § 3 of the Convention, she was given leave to use an interpreter. 14.", "In her defence submissions before the Izmir State Security Court, the applicant retracted the statements she had made during the preliminary investigation stage. She alleged that she had been forced to fingerprint her statement. According to the applicant, as she was illiterate, she could not understand the content of the document. She went on to deny the accusations against her and explained that when she was a teenager she had escaped to Iraq for family reasons and that she had stayed in a refugee camp there. 15.", "On 1 October 2004, the applicant's representative brought to the attention of the Izmir State Security Court that the applicant, being of Kurdish origin, had a limited knowledge of Turkish and that during her police custody she had not had the assistance of a lawyer or an interpreter. 16. During the trial, the Izmir State Security Court took into consideration the police statements of three people who had also been charged with membership of the PKK. These three people testified that the applicant was a member of the PKK. 17.", "In the meantime, Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolished State Security Courts. The case against the applicant was therefore transferred to the Izmir Assize Court. 18. On 26 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced her to twelve years and six months' imprisonment.", "In convicting her, the court had regard to the applicant's police statement and the statements of three witnesses who had confirmed that the applicant was a member of the PKK. 19. The applicant appealed. In her appeal, she alleged that her right to legal assistance during police custody had been breached in so far as she had been denied the assistance of a lawyer. 20.", "On 14 March 2005 the Court of Cassation upheld the judgment of the first-instance court. 21. On 13 June 2005 the Izmir Assize Court re-examined the case in the light of the new Criminal Procedure Code which entered into force in 2005. It found the applicant guilty as charged but reduced her sentence to six years and three months' imprisonment. II.", "RELEVANT DOMESTIC LAW 22. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, 27 November 2008). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO A LAWYER AND AN INTERPRETER 23.", "The applicant complained that, during her custody period her defence rights had been violated on account of the lack of access to a lawyer and an interpreter. Relying on Article 6 § 3 (c) and (e) of the Convention, the applicant stated that the lack of access to a lawyer or interpreter during her questioning by the police, the public prosecutor and the investigating judge respectively had hindered her defence rights, as she was illiterate and had a poor knowledge of the Turkish language. The relevant provisions, in so far as relevant, read: Article 6 “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” A. Admissibility 24.", "The Government maintained that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention, since at no stage of the proceedings had she relied on the fact that she had been deprived of her right to legal assistance and an interpreter during police custody. 25. In the present case, the Court observes from the documents in the case file that in her defence submissions dated 1 October 2004, the applicant's representative brought to the attention of the Izmir State Security Court that the applicant, being of Kurdish origin, had a poor knowledge of Turkish and that while she was in police custody she had not had the assistance of a lawyer or an interpreter. As a result, the Court considers that the applicant can be considered to have exhausted the domestic remedies in compliance with Article 35 § 1 of the Convention. Consequently, it rejects the Government's preliminary objection.", "26. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 27. The applicant reiterated that she was of Kurdish origin and illiterate, and that she had left Turkey when she was twelve years old. She therefore stated that she could not understand Turkish well enough and that her defence rights had been violated during her police custody as she was deprived of the assistance of a lawyer and an interpreter. 28. The Government submitted that the applicant's access to a lawyer had not been hindered at any stage of the criminal proceedings.", "They maintained that before each questioning the applicant had been reminded of her rights as an accused, including her right to be assisted by a lawyer. They drew the Court's attention to the fact that the applicant had refused legal assistance and that this had been confirmed by the reports which had been fingerprinted by the applicant. 29. The Court observes that the applicant's complaint that her defence rights were violated is twofold, raising issues of access to a lawyer and an interpreter during her police custody. The Court will examine these complaints together, as they are closely linked.", "30. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus Article 6 - especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Salduz, cited above, § 50). As the Court has already held in its previous judgments, the right set out in paragraph 3 (c) of Article 6 of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 (see Imbrioscia v. Switzerland, 24 November 1993, § 37, Series A no. 275, and Salduz, cited above, § 50).", "The Court further recalls that the investigation stage is of crucial importance for the preparation of criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered (Salduz, cited above, § 54). The Court has also held that, in the context of application of paragraph 3 (e), the issue of the defendant's linguistic knowledge is vital and that it must also examine the nature of the offence with which the defendant is charged and any communications addressed to him by the domestic authorities, in order to assess whether they are sufficiently complex to require a detailed knowledge of the language used in court (see Hermi v. Italy [GC], no. 18114/02, § 69, ECHR 2006‑XII). Finally, the Court has ruled that the assistance of an interpreter should be provided during the investigation stage unless it can be demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict this right (see Diallo v. Sweden (dec.), no. 13205/07, § 25, 5 January 2010).", "31. In view of the above principles, the Court is called on to examine the nature of the accusations against the applicant and to assess whether they are sufficiently complex to require a detailed knowledge of the language in which she was questioned. The Court notes that the applicant is Kurdish‑speaking, with a limited knowledge of Turkish. This fact is also confirmed by the decision of the State Security Court to authorise her to have an interpreter during the trial. It is also undisputed that she is illiterate.", "Although she apparently gave a detailed account of her involvement in an illegal organisation, the Court observes that she made those self‑incriminating statements without an interpreter and also without the assistance of a lawyer. Taking into account the importance of the investigation stage as reiterated above, the Court is not convinced that the applicant had a sufficient understanding of the questions she was being asked or that she was able to express herself adequately in Turkish, and certainly not to a level which would justify reliance on her statements as evidence against her at the trial. 32. With regard to the lack of legal assistance, the Court observes that neither the letter nor the spirit of Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards (see Pishchalnikov v. Russia, no.", "7025/04, § 77, 24 September 2009). A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007). 33.", "The Court recalls that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of Article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to questioning. However, the Court strongly indicates that additional safeguards are necessary when the accused declines the right to a counsel, because if an accused has no lawyer he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected (see Pishchalnikov, cited above, § 78). 34. Turning to the particular circumstances of the instant case, the Court observes that as regards the lack of access to a lawyer during the applicant's custody, the present case differs from Salduz, cited above, as in 2004 when the applicant was arrested the domestic legislation had already been amended by Law no.", "4928, adopted on 15 July 2003. Consequently, the restriction on an accused's right of access to a lawyer in proceedings before State Security Courts had already been lifted. As a result, when the applicant was arrested on 19 February 2004, she had the right of access to a lawyer from the moment she was taken into custody. Despite this amendment in the Turkish legislation, the Court notes that in the instant case the applicant did not benefit from the assistance of a lawyer during the preliminary investigation stage. When questioned by the police, the public prosecutor and the investigating judge respectively, the applicant gave self-incriminating statements and signed the reports with her fingerprint.", "The Court notes that the applicant was accused of being a member of an illegal organisation, which is a very serious charge, and faced a heavy penalty. 35. Against this background, and taking into account its above finding that the applicant had an insufficient knowledge of Turkish, the Court considers that, without the help of an interpreter, she could not reasonably have appreciated the consequences of accepting to be questioned without the assistance of a lawyer in a criminal case concerning the investigation of particularly grave criminal offences (see Talat Tunç, cited above, § 60). Consequently, it cannot find that the applicant waived her right to a lawyer in a knowing and intelligent way. Furthermore, the Court considers that additional protection should be provided for illiterate detainees with a view to ensuring that the voluntary nature of a waiver is reliably established and recorded.", "In the present case, however, no specific measures of this kind were envisaged. 36. In view of the foregoing, the Court considers that even though the applicant had the assistance of a lawyer and an interpreter during her trial before the first-instance court and subsequently before the appeal court, the absence of an interpreter and a lawyer during her police custody irretrievably affected her defence rights. 37. The Court therefore concludes that there has been a violation of Article 6 § 3 (c) and (e) of the Convention in conjunction with Article 6 § 1 in the present case.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38. The applicant alleged under Article 6 § 1 of the Convention that generally State Security Courts were not independent and impartial. 39. Firstly, the Court observes that following the amendments made by Law no.", "4390 on 22 June 1999, the military judge sitting on the bench of the Izmir State Security Court was replaced by a civilian judge. Thus, no military judge participated in the applicant's trial. Secondly, with regard to the applicant's general complaint about the independence and impartiality of the State Security Courts, the Court observes that she has failed to substantiate this claim. The Court therefore concludes that the applicant cannot be regarded as having been deprived of a fair hearing on account of the composition of the court (see Sever and Aslan (dec.), no. 33675/02, 12 April 2007).", "40. In the light of the foregoing, the Court rejects this complaint as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.", "She further claimed EUR 4,250 for legal fees (corresponding to 8.5 hours' work) 42. The Government contested the claims. 43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have suffered some non-pecuniary damage and therefore, taking into account the circumstances of the present case, and ruling on an equitable basis, it awards her EUR 1,800 in respect of non-pecuniary damage.", "44. The Court further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should she so request (see Salduz, cited above, § 72). 45. As regards costs and expenses, the Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Taking into account the awards made in comparable cases (see Bolukoç and Others v. Turkey, no.", "35392/04, § 47, 10 November 2009; Gürova v. Turkey, no. 22088/03, § 21, 6 October 2009; and Salduz, cited above, § 79), the Court finds it reasonable to award EUR 1,000 under this head. 46. 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 lack of legal assistance and an interpreter for the applicant admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 3 (c) and (e) of the Convention in conjunction with Article 6 § 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 1,800 (one thousand eight hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 5 April 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise Tulkens Registrar President" ]

[ "FIFTH SECTION CASE OF NIKOLAY VOLKOGONOV AND IGOR VOLKOGONOV v. UKRAINE (Application no. 40525/05) JUDGMENT STRASBOURG 28 November 2013 This judgment is final. It may be subject to editorial revision. In the case of Nikolay Volkogonov and Igor Volkogonov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President,Ann Power-Forde,Helena Jäderblom, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 5 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "40525/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Nikolay Viktorovich Volkogonov and Mr Igor Nikolayevich Volkogonov (“the applicants”), on 29 October 2005. 2. The applicants, who had been granted legal aid, were represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from the Ministry of Justice. 3.", "On 27 September 2012 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1955 and 1991 respectively and live in Molodyozhnoye. A. First episode 5.", "On 17 January 2001 at 9 p.m. police officer S. accompanied by another police officer, Z. and, a private person, P. entered the first applicant’s house and claimed that he was to appear before a civil court. According to the first applicant, he asked officer S. to present his authority to act on the court’s behalf, to stop disturbing his family and to leave his home. In reply officer S. several times punched the first applicant in the face and chest. 6. The same day the first applicant called an ambulance.", "The doctor diagnosed the first applicant as having high blood pressure. According to the first applicant they also recorded concussion and bruises on his face. According to the case-file materials, in particular the decisions of the domestic courts, the doctor of ambulance could not recollect seeing any injuries on the applicant’s face during that visit. 7. On 18 January 2001 the first applicant’s wife wrote a complaint to the Simferopol District Prosecutor’s Office (the SDPO) requesting them to investigate the allegedly unlawful actions of officer S. 8.", "On 19 January 2001 the first applicant underwent a forensic medical examination which found two bruises, one on his right shoulder and another near his left eye. These injuries were classified as minor bodily injuries. 9. On 2 February 2001 the SDPO refused to institute criminal proceedings against officer S. The first applicant complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (the Crimea Prosecutor’s Office), which quashed the above decision on 7 March 2001 for incompleteness of the investigation. 10.", "On 20 March 2001 the SDPO again refused to institute criminal proceedings against officer S. This decision was quashed by the Simferopol Central District Court (the District Court) on 25 February 2002 for failure to explain the origin of the injuries of the first applicant. 11. Between April 2002 and August 2005 the prosecutor eleven times refused to institute criminal proceedings against officer S. and all these decisions were quashed by the higher prosecutors or the court for failure to conduct all necessary investigative actions. 12. On 13 January 2003 the first applicant lodged a civil claim in the Simferopol Zaliznychnyy District Court against the Simferopol District Police Department seeking compensation for non-pecuniary damage caused by the unlawful actions of officer S. According to the applicant the claim was not examined.", "13. On 20 December 2003 police officer S. died in a traffic accident. 14. On 8 September 2005 the SDPO refused again to institute criminal proceedings against officer S. for lack of corpus delicti in his actions. 15.", "On 22 March 2006 the District Court quashed the decision of the SDPO for incompleteness of the investigation. 16. On 27 April 2006 the Court of Appeal of the Autonomous Republic of Crimea (the Crimea Court of Appeal) overruled the decision of the first-instance court and rejected the first applicant’s complaint. It noted that the investigator had conducted all necessary activities and the first applicant’s complaints were unsubstantiated. The court noted that it had not been established that officer S. inflicted any bodily harm on the first applicant.", "It also noted that the doctor, who had seen the first applicant on 17 April 2001, could not confirm any bodily injuries and that bruises on the soft tissue of the applicant’s face had been recorded only on 19 April 2001. The court noted that police officer S. had been invited to the house by the first applicant’s mother who wanted the first applicant to be summoned in civil proceedings concerning the division of property after the death of the first applicant’s father. The first applicant’s mother also denied any violence by officer S. towards the applicant. Furthermore, officer S. had died and therefore it was impossible to question him further. There were no independent witnesses who could confirm that the first applicant had been injured.", "17. On 26 June 2006 the Supreme Court upheld the decision of the appellate court. B. Second episode 18. On 25 October 2005 Mrs V, who was the wife of the first applicant and the mother of the second applicant, was hit by a car driven by Mr B. and died as a result.", "Mr B. called the ambulance and waited for the authorities to arrive. The police examined the car and the scene of accident with a forensic expert and in the presence of the first applicant. The police further questioned Mr B. and his passenger, Mr S. Police investigator Sl. asked Mr B. to take a alcohol test which showed that Mr B. was sober. 19.", "On 26 October 2005 the forensic medical examination of Ms V. began. 20. On 31 October and 22 November 2005 police investigator Sk. further examined the scene of accident. 21.", "On 17 November the police ordered a forensic examination of the scene of the traffic accident. 22. On 29 November 2005, in the light of that inquiry, the police refused to institute criminal proceedings into the road traffic accident which had caused the death of Ms V. This decision of the police was cancelled by the Simferopol Prosecutor’s Office on the same day. The prosecutor instructed the police investigator to complement the case-file with a forensic medical expert report, to establish and question eyewitnesses to the accident, and to conduct technical expert examination to establish how the accident happened. 23.", "Between December 2005 and February 2006 the police conducted a number of investigative actions, including forensic examinations and questioning. 24. On 25 February 2006 a criminal investigation was instituted into the accident. The applicants maintained an investigation was begun only on 16 March 2006. 25.", "According to the first applicant, in April 2006 the second applicant was admitted to a psychiatric hospital as a result of the accident. 26. In March and April 2006 the police made further investigative steps, including additional technical forensic examination. 27. On 25 April 2006 police investigator Gr.", "decided to terminate the criminal proceedings, having found no corpus delicti in the actions of Mr B. during the accident. 28. On 11 May 2006 the decision of 25 April 2006 was quashed by the Simferopol Prosecutor’s Office and the criminal case was remitted for further investigation. The prosecutor ordered additional technical examinations, which were carried out in June 2006. 29.", "On 8 June 2006 the police investigator closed the criminal case. This decision was quashed by the Simferopol Prosecutor’s Office on 22 June 2006. 30. On September 2006 the investigator ordered another technical examination which was conducted in December 2006. 31.", "On 28 December 2006 the investigator closed the case again. That decision was quashed on 11 January 2007 by the Simferopol Prosecutor’s Office. 32. In July 2007 the investigator further questioned additionally Mr B. and ordered another technical expert examination which was ready on 27 September 2007. 33.", "On 17 November 2007 the police investigator closed the criminal case. That decision was quashed by the Simferopol Prosecutor’s Office on 23 November 2007. 34. Between December 2007 and January 2009 investigator Gr., later replaced by investigator Mk., further questioned a number of witnesses and ordered two more technical expert examinations. 35.", "On 20 January 2009 the investigator terminated the criminal proceedings for lack of corpus delicti in the actions of Mr B. 36. On 26 January 2009 the first applicant challenged the decision of 20 January 2009 to the Simferopol Kyivskiy District Court 37. On 29 April 2009 the Simferopol Kyivskiy District Court quashed the decision of the Crimea Police Department to close the criminal case concerning the death of Ms V. and indicated that the investigators had failed to follow the instructions previously given to them when the case had been returned for further investigation. 38.", "On 1 June 2009 the investigation was resumed. 39. Between June 2009 and November 2011 police investigator Mg., later replaced by police investigator Kr. and then by police investigator Gr., questioned a number of witnesses, ordered several technical and medical expert examinations and conducted a further reconstruction of the events at the scene of accident. 40.", "On 10 January 2010 the first applicant lodged a civil claim with the Simferopol Zaliznychnyy District Court against the Simferopol District Police Department and the State Treasury seeking moral damages for the ineffective investigation of the death of his wife Ms V. 41. On 20 August 2010 the Simferopol Zaliznychnyy District Court rejected the civil claim as unsubstantiated. This decision was upheld by the Crimea Court of Appeal and the Higher Specialised Civil and Criminal Court respectively on 8 November and 30 December 2010. 42. On 12 October 2010 the applicants were recognised as aggrieved parties in the case and, on 13 October, as civil claimants.", "43. On 17 November 2011 the investigator instituted criminal proceedings against Mr B. for a violation of road traffic rules which caused death. 44. On 28 November 2011 the criminal case against Mr B. was transferred to the Simferopolsky District Court. 45.", "On 23 December 2011 the district court held a preparatory hearing, during which the applicants lodged civil claims which the defendant did not oppose. It was established that Mr B. had driven a car with a technical fault to the left brake, of which Mr B. must have been aware. Driving in the dark he saw Ms V., who was crossing the road and tried to stop the car, but due to the above technical deficiency, the car turned right, left the road and hit Ms V. who, by that time, was no longer on the road. The defendant Mr B. admitted his guilt and asked to benefit from an amnesty as he had three minor children. The court allowed Mr B.’s request and amnestied him on the ground that he had three minor children, that the crime had been committed unintentionally, that he had been sober at the time of the accident and had not left the scene of the accident.", "The court did not examine the civil claims of the applicants. 46. On 14 February and 6 November 2012 respectively the Crimea Court of Appeal and the Higher Specialised Civil and Criminal Court upheld the decision of the first instance court. 47. There is no information as to whether the applicants resubmitted their civil claims within separate proceedings.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 48. The applicants complained that the investigation into the road traffic accident that caused death of their next of kin (§§ 18 – 47 above) had been lengthy and ineffective. They relied on Articles 2 and 13 of the Convention. 49.", "The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 2 of the Convention, which is the relevant provision (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law...” A. Admissibility 50. 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 51. The applicants considered investigation into the death of Ms V. ineffective and unreasonably long.", "They considered that the case was not so complex as to take so long to be determined. They further noted the numerous remittals of the criminal case for further investigation and contended that the failure of the police to follow the instructions given by the prosecutor proved that the investigation was not conducted with the necessary diligence. They further considered that the investigative authorities had excluded them from the process of investigation and ignored their complaints and motions, and in addition they had been recognised as aggrieved parties only five years after the accident. Their civil claim against the police for ineffective investigation was rejected. 52.", "The Government maintained that the domestic authorities had done everything possible to establish the circumstances of the traffic accident which had caused the death of Ms V. In particular, the authorities had demonstrated due diligence and initiative in investigating the accident. The Government noted that immediately after the accident the investigative authorities took a number of important steps to establish the facts of the case, including examination of the scene of accident, medical and technical forensic examinations and questioning of the driver and passenger of the car which had hit Ms V. They noted that the investigation had conducted a large number of complex forensic examinations which took a lot of time. The Government considered that the numerous remittals of the case for additional investigation did not mean that the investigation was ineffective, because the investigators followed all instructions of the prosecutors and took all necessary investigative actions. The Government further maintained that the applicants were sufficiently involved in the proceedings, they participated in some investigative actions and one of the technical forensic examinations had been conducted upon the motion of the first applicant. They concluded that as a result of the investigation Mr B. was found responsible for violation of road traffic rules causing death and that the domestic authorities had established all the circumstances of death of Ms V. 53.", "The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it lays down a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation applies in the context of any activity in which the right to life may be at stake, including deaths resulting from road traffic accidents, and calls for an effective judicial system which can determine the cause of death and bring those responsible to account (see Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, with further references). 54.", "The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih v. Slovenia [GC], no. 71463/01, § 195, ECHR 2009-...). 55. In line with the above, while the identification and punishment of those responsible for a death and the availability of compensatory remedies to the applicant are important criteria in the assessment of whether or not the State has discharged its Article 2 obligation (see, among other authorities, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007, and Fedina v. Ukraine, cited above, §§ 66-67), in a number of recent cases before the Court the finding of a violation has largely been based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see, for example, Šilih v. Slovenia [GC], cited above, § 211; Dvořáček and Dvořáčková v. Slovakia, no.", "30754/04, § 70, 28 July 2009; and Antonov v. Ukraine, no. 28096/04, §§ 50-51, 3 November 2011). 56. The Court has stated on a number of occasions that, although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity was not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see Vo v. France [GC], no.", "53924/00, § 90, ECHR 2004‑VIII). 57. The Court also underlines that it would be inappropriate and contrary to its subsidiary role under the Convention to attempt to establish the facts of this case on its own, duplicating the efforts of the domestic authorities, which are better placed and equipped for that purpose (see, for example, McShane v. the United Kingdom, no. 43290/98, § 103, 28 May 2002). Following its well‑established practice, it will confine its examination of this application to an evaluation of the domestic investigation into the matter as regards its overall compliance with the aforementioned standards.", "58. Turning to the facts of the present case, the Court notes that, having learned about the violent death of Mr V., the authorities instituted criminal proceedings and took a number of measures aimed at discharging their positive obligation under Article 2 of the Convention. A number of investigative actions, including an on-site reconstruction of the events, questioning, and various forensic examinations, were conducted during the following months. The fact that the authorities, having established the facts of the case and the criminal liability on the part of the driver in a final and binding decision of the court, amnestied him does not render the investigation ineffective. In particular, once the criminal liability of Mr B. was established by the judicial decision, it was open for the applicants to resubmit their claims for damages with a civil court, which they apparently have not done.", "59. At the same time, the Court observes that the accident and the death of Ms V. occurred in October 2005, whereas the final decision concerning Mr B.’s liability was taken in November 2012 – more than seven years later. It notes that despite the substantial number of investigative measures taken, the investigation was criticised by the national authorities themselves for a lack of efficiency (see paragraph 38 above). Furthermore, the criminal proceedings in question were marked by numerous referrals for additional investigation caused, inter alia, by the investigator’s failure to follow the instructions of the supervisory authorities (ibid). The criminal proceedings in question were also marked by numerous changes of investigator and an unusually high number of repeated expert examinations.", "It may be that in certain circumstances a repeated expert examination might be required to clarify the circumstances of the case. In the present case, however, the fact that the same type of forensic examination was ordered several times (see paragraphs 23, 26, 28, 30, 32 and 39 above) within the same criminal case suggests a lack of a comprehensive approach to the collection of evidence during the pre-trial investigation phase. The Court considers that a delay of seven years in bringing to accountability the person responsible for the death of the applicants’ next of kin was incompatible with the State’s obligation under Article 2 of the Convention to carry out an effective investigation of suspicious deaths. 60. There has therefore been a violation of the procedural limb of Article 2 of the Convention in the present case.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 61. The first applicant complained under Articles 3, 8 and 13 of the Convention that on 17 January 2001 police officer S. had come to his home and beaten him and the domestic authorities had failed to investigate that incident. He further complained under Article 6 § 1 that the domestic courts had failed to examine his civil claim against the police, by which he sought compensation for the actions of police officer S. against the first applicant. Both applicants complained that the protracted investigation into the death of Ms V. caused them serious moral suffering in breach of Article 3 of the Convention.", "62. The Court finds that the applicants’ submissions and the case-file materials in its possession do not disclose any appearance of a violation of the above provisions. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicants claimed 100,000 euros (EUR) each in respect of non-pecuniary damage. 65. The Government considered those claims excessive.", "66. The Court awards the applicants jointly EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 67. The applicants also claimed UAH 75,040.10 (approximately EUR 6.867) for the costs and expenses incurred before the Court, comprising UAH 74,923.20 for legal representation and UAH 116.90 in respect of postal expenses.", "68. The Government objected to the amount claimed for legal costs. They noted that the lawyer represented the applicant for very short period of time and that the communicated issue was of a straightforward nature. They considered that the amount was exaggerated and should be rejected. At the same time, they left the issue of compensation for postal expenses to the Court’s discretion.", "69. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 1,500 for legal representation, less the sum of EUR 850 received by way of legal aid, plus any value-added tax that may be chargeable to the applicant. It also awards in full the claimed amount of postal expenses. Thus, the Court awards the applicants EUR 661 (EUR 650 for legal costs and EUR 11 in respect of the postal expenses).", "C. Default interest 70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the procedural limb of Article 2 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 2 of the Convention; 3.", "Holds: (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 661 (six hundred and sixty-one euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. ZupančičDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF KUŹNIAK v. POLAND (Application no. 13861/02) JUDGMENT STRASBOURG 10 October 2006 FINAL 10/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kuźniak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 19 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13861/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Henryk Kuźniak (“the applicant”), on 25 July 2001. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 26 August 2005 the President of the Fourth Section decided to communicate the complaint concerning the length of the proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1950 and lives in Konin, Poland. 5. On 5 October 1990 the applicant’s former wife instituted before the Konin District Court (Sąd Rejonowy) civil proceedings in which she requested division of their matrimonial property. The applicant was a party to these proceedings. 6.", "Until 19 January 1993 the court held several hearings and ordered the preparation of expert opinions. 7. On 7 September 1993 the court held a hearing. Five further hearings were held prior to 7 December 1993. 8.", "On 13 September 1994 the next hearing was held. In 1994 the District Court held in total four hearings. 9. Between 7 January 1995 and 21 December 1995 no hearings were held. In 1996 the court held hearings in February, September and December.", "10. Subsequently the District Court held hearings at regular intervals. It held three hearings in 1997 and six in 1998. 11. Between 4 March and 9 December 1999 no hearings were held.", "12. In 2000 the court held four hearings. On 24 March 2000 the Konin District Court gave a decision in which it divided the property in question. 13. Both parties appealed against that decision.", "14. On 17 November 2000 the Konin Regional Court (Sąd Okręgowy) held a hearing. 15. On 1 December 2000 the Konin Regional Court dismissed the appeals. The reasoned decision was notified to the applicant on 6 February 2001.", "The decision was final as the domestic law did not provide for a possibility to lodge a cassation appeal with the Supreme Court. II. RELEVANT DOMESTIC LAW 16. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.", "In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 17. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1.", "A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 18. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no.", "61444/00, §§ 34‑46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 12‑23, ECHR 2005-.... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 20.", "The Government contested that argument. 21. The Court notes that the period to be taken into consideration began not on 5 October 1990 when the proceedings were initiated, but on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 1 December 2000.", "It thus lasted 7 years and 7 months for two levels of jurisdiction. A. Admissibility 22. The Court firstly notes that the Government raised a preliminary objection that the applicant had not exhausted remedies available under Polish law. They maintained that from 17 September 2004, when the 2004 Act had come into force, the applicant had a possibility of lodging a claim for compensation for damage suffered due to the excessive length of proceedings with the Polish civil courts under Article 417 of the Civil Code read together with Section 16 of the 2004 Act. 23.", "However, the Court has already found that the civil action relied on cannot be regarded with a sufficient degree of certainty as an effective remedy in cases where the three-year limitation period for the State’s liability in tort expired before the entry into force of the 2004 Act on 17 September 2004 (see Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005, Barszcz v. Poland, no. 71152/01, § 45, 30 May 2006). The present case belongs to this group of applications as the proceedings at issue ended on 1 December 2000, which is more than three years before the 2004 Act had come into force. It follows that the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed. 24.", "The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 25.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 26. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "27. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 28.", "The applicant further complained that the proceedings in his case were “unfair”. 29. However, the Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). 30.", "The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing. Assessing the civil proceedings in the applicant’s case as a whole, it finds no indication that they were unfairly conducted. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 32. The applicant did not claim any particular sum in respect of pecuniary and non-pecuniary damage. He left that matter to the Court’s discretion and asked the Court to award him just satisfaction in the amount it finds appropriate. 33.", "The Government asked the Court to rule that a finding of a violation would constitute in itself sufficient just satisfaction. In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case‑law in similar cases and national economic circumstances. 34. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 4,200 euros (EUR) in respect of non-pecuniary damage.", "B. Costs and expenses 35. The applicant did not claim any particular sum in respect of costs and expenses incurred before the domestic courts and the Court. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 10 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF TÜM HABER SEN AND ÇINAR v. TURKEY (Application no. 28602/95) JUDGMENT STRASBOURG 21 February 2006 FINAL 21/05/2006 In the case of Tüm Haber Sen and Çınar v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Jean-Paul Costa, President,Ireneu Cabral Barreto,Rıza Türmen,Karel Jungwiert,Volodymyr Butkevych,Danutė Jočienė,Dragoljub Popović, judges, and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 31 January 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28602/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Tüm Haber Sen, a trade union, and a Turkish national, Mr İsmail Çınar (“the applicants”), on 21 August 1995. 2.", "The applicants were represented by Mr D. Selimoğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicants alleged, in particular, that the dissolution of Tüm Haber Sen and the enforced cessation of its activities had infringed their right to freedom of association, guaranteed under Article 11 of the Convention. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 13 November 2003, the Chamber declared the application partly admissible. 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed Second Section (Rule 52 § 1). THE FACTS 8. Tüm Haber Sen is a trade union, now dissolved, which was active between 1992 and 1995. The application was lodged by its former president, İsmail Çınar, a Turkish national who was born in 1954 and lives in Istanbul. A.", "The circumstances of the case 9. On 16 January 1992 Tüm Haber Sen was formed when its founding document was lodged with the Istanbul Governor's Office, in application of Article 51 of the Constitution. Its statutes referred, inter alia, to the right to conclude collective-bargaining agreements. The founders of Tüm Haber Sen were 851 public-sector contractual staff working in the communications field, in particular for the post office (PTT) and the telecommunications service (Türk Telecom). When it was dissolved the trade union had 40,000 members and 55 local branches.", "10. On 20 January 1992 the Istanbul Governor's Office applied to the Şişli public prosecutor's office, seeking the suspension of Tüm Haber Sen's activities and the trade union's dissolution on the ground that State employees could not form trade unions. It referred in its complaint to Article 51 of the Constitution, section 1 of the Trade Union Act (Law no. 2821) and sections 22 and 27 of the State Employees Act (Law no. 657).", "11. In a notice of 3 February 1992, the Principal Public Prosecutor called on the Fourth Civil Division of the Şişli District Court to suspend the trade union's activities and to order its dissolution on the ground that under the positive law State employees, who were subject to Law no. 657, were not entitled to form trade unions. 12. In their written observations submitted to the District Court on 26 March 1992, the trade union's representatives argued that the legal provisions in force did not expressly prohibit the formation of trade unions by civil servants and that an obstacle to the exercise of trade-union rights would be in breach of Turkey's international commitments as a signatory to the European Convention on Human Rights, the conventions of the International Labour Organisation, and the European Social Charter.", "13. On 15 December 1992 the District Court suspended the trade union's activities and ordered that it be dissolved. 14. The trade union's representatives appealed to the Court of Cassation. 15.", "On 14 February 1994 the Court of Cassation quashed the District Court's judgment and referred the case back to it. In its reasoning, it stated that the fact that the words “trade union” appeared in the association's title did not make it a trade union in the technical sense, namely that it would be authorised to call strikes and to enter into collective agreements. At the most, the association could be considered as a professional organisation which aimed to protect the interests of its members, who worked in a specified sector. 16. Before the District Court, the representatives of Tüm Haber Sen argued that it ought to be considered as a trade union which was authorised to call strikes and to enter into collective agreements.", "On 9 November 1994 the District Court, having examined the arguments submitted by the trade union's representatives, upheld its initial judgment. 17. The trade union's representatives again submitted an appeal on points of law. 18. In a judgment of 24 May 1995, the Court of Cassation, sitting as a full court and ruling at last instance, ordered the dissolution of Tüm Haber Sen.", "It considered that implementation of the right to form trade unions, as set out in the Constitution, required the enactment of a general principles act. In the absence of any statutory provisions governing the legal status of trade unions for civil servants or public-sector contractual workers, the applicant trade union could not claim to have any legal status. Nor could it be considered as an association or as some form of professional organisation, since its leaders expressly presented it as a full trade union. In spite of Turkey's ratification of International Labour Conventions nos. 87 (on freedom of association and protection of the right to organise) and 151 (on protection of the right to organise and the procedures for determining the conditions of employment in the civil service) on 12 July 1993, the Court of Cassation, sitting as a full court, considered that the trade union could not rely on the conventions in question, since they were not directly applicable in domestic law and the legislature had not yet enacted implementing legislation.", "19. The judgment was served on the trade union's representatives on 8 June 1995. 20. Between 26 June 1995 and 2 August 1995, all of Tüm Haber Sen's branches and sections were dissolved on the orders of the Ministry of the Interior. B.", "Relevant domestic law 21. The relevant provisions of the Constitution read as follows: Article 51(prior to the amendment of 3 October 2001) “Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in their labour relations. In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation is not in conformity with law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or the association of unions. Everyone shall be free to become a member of or withdraw from membership of a union.", "No one shall be compelled to become a member, remain a member, or withdraw from membership of a union. Workers and employers cannot hold concurrent memberships in more than one trade union or employers' association. Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union. In order to hold a leadership position in a trade union or federation of trades unions, it is necessary to have worked as an employee for at least ten years. The status, administration, and functioning of trades unions and federations of trades unions should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” Article 51(as amended by Law no.", "4709 of 3 October 2001) “Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations, and to join and withdraw from such entities of their own free will. No one shall be compelled to become a member or withdraw from membership of a union. The right to form a union may only be restricted by law and for the purposes of safeguarding national security and public order and preventing crime, and for the protection of public health and public morals and the rights and freedoms of others. The formalities, conditions and procedures to be applied in exercising the right to form a union shall be established by law. It is not permitted to hold membership of more than one trade union simultaneously within the same sector of employment.", "The scope of the rights in this area of civil servants who do not have the status of salaried employee, and the exceptions and limitations applicable to them, shall be established by law in line with the nature of the tasks entrusted to them. The statutes, administration and functioning of trade unions and their higher bodies should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” Article 53(prior to the amendment of 23 July 1995) “Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work. The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law. It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.” Article 53(as amended by Law no. 4121 of 23 July 1995) “Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work.", "The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law. The unions and federations of unions which the public employees mentioned in the first paragraph of Article 128 will be entitled to found and which do not fall under the scope of the first and second paragraphs of the same Article and also Article 54, may appeal to judicial authorities on behalf of their members and may hold collective-bargaining meetings with the administration in accordance with their aims. If an agreement is reached as a result of collective bargaining, a text of the agreement shall be signed by the parties. This text shall be presented to the Council of Ministers so that administrative or judicial arrangements can be made. If such a text cannot be concluded by collective bargaining, the points of agreement and disagreement shall also be submitted by the relevant parties for consideration by the Council of Ministers.", "The regulations for the execution of this Article shall be set out in legislation. It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.” Article 128 “The fundamental and permanent functions required by the public services that the State, State economic enterprises and other public corporate bodies are assigned to perform, in accordance with principles of general administration, shall be carried out by public servants and other public employees. The qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other matters related to their status shall be regulated by law. The procedure and principles governing the training of senior administrators shall be specially regulated by law.” 22. Section 22 of the State Employees Act (Law no.", "657) of 14 July 1965, which was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972, stated that civil servants were authorised to establish and join trade unions and professional organisations, in accordance with the procedures set out in special laws. Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities. Section 1 of Law no. 4275 of 12 June 1997 restored the above provision and supplemented it with a number of conditions.", "The text now provides: “Civil servants shall be authorised to establish trade unions and other federations of professional organisations and to join them in accordance with the procedures set out in the Constitution and by special laws.” Section 27 provides: “Civil servants are forbidden ... to organise, call or spread propaganda about strikes. Civil servants may not take part in a strike ... may not support or encourage strike action.” 23. Article 2 of Convention no. 87 of 1948 (of the International Labour Organisation) concerning Freedom of Association and Protection of the Right to Organise provides: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” 24. Article 5 of the European Social Charter provides: “The right to organise With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom.", "The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 25. The applicants complained that the dissolution of Tüm Haber Sen and the enforced cessation of its activities had been ordered in spite of the applicability in domestic law of international treaties which guaranteed the right to organise. They relied on Article 11 of the Convention, the relevant parts of which provide: “1.", "Everyone has the right to ... freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ..., for the prevention of disorder or crime ... This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. The parties' submissions 26.", "The applicants alleged that the Court of Cassation had, through its case-law, previously granted association status to trade unions founded by civil servants. In the instant case, Tüm Haber Sen had been stripped of that status. Its dissolution, following its conclusion of a collective-bargaining agreement, amounted to a violation of its right to freedom of association, guaranteed by the international treaties to which Turkey was a party. 27. The Government emphasised, firstly, that Turkish legislation, while granting public-sector employees the freedom to set up associations to defend their rights, did not guarantee trade-union freedom in the public sector, covering the rights to strike and to conduct collective bargaining.", "They noted, secondly, that the trade union's representatives had argued from the outset before the national courts that their association was a trade union of public-sector employees and that the concept of trade union included the rights to strike and to collective bargaining. Referring to National Union of Belgian Police v. Belgium (27 October 1975, § 39, Series A no. 19) and Schmidt and Dahlström v. Sweden (6 February 1976, § 34, Series A no. 21), they asserted that Article 11 of the Convention did not secure any particular treatment of trade-union members by the State or the right to conclude collective-bargaining agreements. They alleged that the Convention's requirement was that trade unions be authorised to strive for the protection of their members' interests through means that the State was free to determine.", "In the instant case, the decision to dissolve Tüm Haber Sen had been intended to prevent unlawful unionisation, and the interference had been justified in terms of Article 11 § 2 of the Convention. B. The Court's assessment 1. General principles 28. The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police, cited above, § 38, and Swedish Engine Drivers' Union v. Sweden, 6 February 1976, § 39, Series A no.", "20). The words “for the protection of his interests” which appear in Article 11 § 1 are not redundant and the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard (see National Union of Belgian Police, cited above, §§ 39-40, and Swedish Engine Drivers' Union, cited above, §§ 40-41). Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard (see National Union of Belgian Police, cited above, §§ 38-39; Swedish Engine Drivers' Union, cited above, §§ 39-40; and Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 42, ECHR 2002-V).", "29. The Convention makes no distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer. Article 11 is not an exception to that rule. On the contrary, paragraph 2 in fine of this provision clearly indicates that the State is bound to respect the freedom of assembly and association of its employees, subject to the possible imposition of “lawful restrictions” in the case of members of its armed forces, police or administration. Article 11 is accordingly binding upon the “State as employer”, whether the latter's relations with its employees are governed by public or private law (see Swedish Engine Drivers' Union, cited above, § 37).", "2. Application of these principles to the present case (a) Whether there has been an interference 30. The applicants considered that the suspension of Tüm Haber Sen's activities and its dissolution constituted a violation of their rights under Article 11 of the Convention. The Government argued that there had been no interference since, in their opinion, the domestic courts had penalised the applicant trade union on the ground that it laid stress on its supposed legal attributes to strike and to conduct collective bargaining, attributes which fall outside the scope of Article 11 of the Convention. 31.", "The Court notes that, at the material time, civil servants were not entitled to set up or join trade unions. The Court of Cassation, sitting as a full court, interpreted the fact that neither the Constitution nor the legislation set out a clear status for trade unions for civil servants as a prohibition of such unions. In the absence of statutory provisions governing the application of International Labour Organisation Conventions nos. 87 and 151, it also held that Turkey's ratification of those texts was insufficient to grant trade-union rights to civil servants. 32.", "The Court also notes that, when the domestic courts examined the case and gave their decision dissolving the applicant trade union, the latter had not engaged in any collective bargaining, entered into any collective agreements or even organised a strike. It follows that Tüm Haber Sen was dissolved solely on the ground that it had been founded by civil servants and its members were civil servants. (b) Whether the interference was justified 33. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims. 34.", "The Court notes that the impugned interference was in accordance with the national law as interpreted by the plenary Court of Cassation. The Court can thus accept that the measure in question, in so far as it sought to prevent a discrepancy between legislation and practice, was intended to prevent disorder. 35. As to whether the interference was “necessary in a democratic society”, the Court reiterates that lawful restrictions may be imposed on the exercise of trade-union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association.", "In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998-IV). 36. In the instant case, the Government's arguments provide no explanation as to how the absolute prohibition on forming trade unions, imposed on civil servants and public-sector contract workers in the communications field by Turkish law as applied at the time, met a “pressing social need”. The mere fact that “the legislation did not provide for such a possibility” is not sufficient to warrant a measure as radical as the dissolution of a trade union. 37.", "The Court considers that, at the material time, at least two arguments militated in favour of a strict interpretation of the limitation on civil servants' entitlement to form trade unions. 38. In the first place, Turkey had already ratified International Labour Organisation Convention no. 87. Article 2 of that convention secured to all workers, without any distinction between the public and private sectors, the unrestricted right to establish and join trade unions.", "If the Turkish courts ultimately decided that they could not apply that provision in the instant case, it was on the ground that, at the material time, the Turkish parliament had not yet enacted legislation on the implementation of Convention no. 87. 39. Furthermore, although Turkey was one of only two States (the other being Greece) that had not yet accepted Article 5 of the European Social Charter, the Committee of Independent Experts had construed that provision – which afforded all workers the right to form trade unions – as applying to civil servants as well. The Court can only subscribe to this interpretation by a particularly well-qualified committee.", "It also notes that Article 5 of the European Social Charter sets out conditions for the possibility of forming trade-union organisations for members of the police and the armed forces. By converse implication, this Article must be considered as applying without restriction to other categories of State employees. 40. Accordingly, in the absence of any concrete evidence to show that the founding or the activities of Tüm Haber Sen represented a threat to Turkish society or the Turkish State, the Court is unable to accept that an argument based solely on an absolute statutory provision was sufficient to ensure that the trade union's dissolution complied with the conditions in which freedom of association may be restricted. In view of the lack of clear legislative provisions on the subject at the relevant time and the broad manner in which the courts interpreted the restrictions on civil servants' trade-union rights, the respondent State failed, at the material time, to comply with its obligation to secure the enjoyment of the rights enshrined in Article 11 of the Convention.", "That failing amounted to a violation of the provision in question. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 11 41. Finally, the applicants alleged that, when deciding their case, the national authorities had not taken into consideration the international treaties which granted civil servants the right to form trade unions. They relied on Article 13 of the Convention taken in conjunction with Article 11.", "Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 42. Having regard to its findings under Article 11 of the Convention, the Court does not consider it necessary to examine this complaint separately. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 44.", "The applicants did not submit any claim for just satisfaction after the decision on admissibility, despite having been informed by a letter of 2 July 1999 that, under Rule 60 of the Rules of Court, any claim for just satisfaction under Article 41 of the Convention must be set out in the written observations on the merits. Accordingly, as the applicants have failed to reply within the time-limit stipulated in the letter accompanying the admissibility decision, the Court holds that no amount shall be awarded in this case (see Willekens v. Belgium, no. 50859/99, § 27, 24 April 2003, and Roobaert v. Belgium, no. 52231/99, § 24, 29 July 2004). FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 11 of the Convention; 2. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention taken in conjunction with Article 11. Done in French, and notified in writing on 21 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJean-Paul Costa Deputy Registrar President" ]

[ "CASE OF OSMAN v. THE UNITED KINGDOM (87/1997/871/1083) JUDGMENT STRASBOURG 28 October 1998 In the case of Osman v. the United Kingdom[1], The European Court of Human Rights, sitting, in accordance with Rule 51 of Rules of Court A[2], as a Grand Chamber composed of the following judges: MrR. Bernhardt, President,MrThór Vilhjálmsson,MrJ. De Meyer,MrI. Foighel,MrR. Pekkanen,MrJ.M.", "Morenilla,SirJohn Freeland,MrA.B. Baka,MrM.A. Lopes Rocha,MrL. Wildhaber,MrG. Mifsud Bonnici,MrJ.", "Makarczyk,MrD. Gotchev,MrP. Jambrek,MrK. Jungwiert,MrP. Kūris,MrU.", "Lōhmus,MrJ. Casadevall,MrT. Pantiru,MrV. Toumanov, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 27 July and 24 September 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 22 September 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 23452/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by two British nationals, Mrs Mulkiye Osman and her son, Ahmet Osman, on 10 November 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 2, 6, 8 and 13 of the Convention.", "2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30). 3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Ryssdal, the then President of the Court (Rule 21 § 4 (b)). On 25 September 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr R. Macdonald, Mr A.B.", "Baka, Mr L. Wildhaber, Mr K. Jungwiert, Mr J. Casadevall and Mr V. Toumanov (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal as President of the Chamber following the latter’s death (Rule 21 § 6, second sub-paragraph). 4. As President of the Chamber at the time (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 5 and 24 March 1998 respectively, the applicants having been granted an extension by the President of the Chamber of the deadline for submission of their memorial.", "The applicants filed with the registry on 9 April and 8 June 1998 further details of their claims for just satisfaction under Article 50 of the Convention. The Government’s observations in reply to these claims were filed with the registry on 18 June 1998. 5. In accordance with the decision of the new President of the Chamber, Mr Bernhardt, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 June 1998. The Court had held a preparatory meeting beforehand.", "There appeared before the Court: (a)for the GovernmentMrM. Eaton, Deputy Legal Adviser,Foreign and Commonwealth Office,Agent,MrJ. Eadie, Barrister-at-Law,MrS. Freeland, Barrister-at-Law,Counsel,MsR. Davies, Home Office,MrP.", "Edmundson, Home Office,Advisers; (b)for the CommissionMrC.L. Rozakis,Delegate; (c)for the applicantsMrB. Emmerson, Barrister-at-Law,MrN. Ahluwalia, Barrister-at-Law,MrA.B. Clapham, Barrister-at-Law,Counsel,MrsN.", "Mole,MsL. Christian, Solicitor,Advisers. The Court heard addresses by Mr Rozakis, Mr Emmerson and Mr Eadie. 6. Following deliberations on 26 June 1998 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51).", "7. The Grand Chamber to be constituted included ex officio Mr Bernhardt, the President of the Court, who was elected to this office following the death of Mr Ryssdal, and Mr Thór Vilhjálmsson, the Vice‑President, who was elected to this office in succession to Mr Bernhardt, together with the other members and the four substitutes of the original Chamber, the latter being Mr I. Foighel, Mr J. Makarczyk, Mr M.A. Lopes Rocha and Mr R. Pekkanen (Rule 51 § 2 (a) and (b)). On 28 June 1998 the President, in the presence of the Registrar, drew by lot the names of the eight additional judges needed to complete the Grand Chamber, namely Mr J. De Meyer, Mr J.M.", "Morenilla, Mr G. Mifsud Bonnici, Mr D. Gotchev, Mr P. Jambrek, Mr P. Kūris, Mr U. Lōhmus and Mr T. Pantiru (Rule 51 § 2 (c)). Subsequently Mr Macdonald, a member of the original Chamber, withdrew from the Grand Chamber, being unable to take part in the further consideration of the case. 8. On 26 June 1998, having consulted the Agent of the Government and the Delegate of the Commission, the President acceded to the applicants’ request for legal aid (Rule 4 of the Addendum to Rules of Court A). 9.", "Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicants, the Grand Chamber decided on 27 July 1998 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the original Chamber (Rules 38 and 51 § 6). AS TO THE FACTS A.The applicants 10. The applicants are British citizens resident in London. The first applicant, Mrs Mulkiye Osman, was born in Cyprus in 1948. She is the widow of Mr Ali Osman who was shot dead by Mr Paul Paget-Lewis on 7 March 1988.", "The second applicant, Ahmet Osman, is her son, born in England in 1972. He was a former pupil of Paul Paget-Lewis at Homerton House School. Ahmet Osman was wounded in the shooting incident which led to the death of his father. The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paul Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. There is disagreement between the applicants and the respondent State on essential aspects of the circumstances leading to the tragedy.", "The applicants have disputed in this respect the completeness of the facts as found by the Commission. B.The events to the end of March 1987 1.The initial complaints against Paget-Lewis 11. In 1986 the headmaster of Homerton House School, Mr John Prince, noticed that one of his teaching staff, Paul Paget-Lewis, had developed an attachment to Ahmet Osman, a pupil at the school. According to a statement which he made to the police on 10 March 1988, Mr Prince indicated that he “made a point of personally keeping an eye on the situation”. As a result of this attachment, Paget-Lewis informed Mr Prince that he intended to leave the school and become a supply teacher.", "Mr Kenneth Perkins, a deputy head teacher, spoke with Paget-Lewis and managed to persuade him to remain at the school. 12. In January 1987 Mrs Green, the mother of Leslie Green, another pupil at the school and the applicants’ neighbour, telephoned Mr Fleming – another deputy head teacher – to complain that Paget-Lewis had been following her son home after school and harassing him. She alleged that Paget-Lewis had been spreading rumours that her son had engaged in deviant sexual practices and that he objected to her son’s friendship with Ahmet Osman. Mrs Green made a formal complaint to this effect to Mr Prince on 2 March 1987.", "2.The various interviews regarding the complaints (a)Leslie Green 13. On 3 March 1987 Mr Perkins interviewed Leslie Green, who confirmed that Paget-Lewis had been following him and had been spreading rumours of a sexual nature about him because of his friendship with Ahmet Osman. (b)Ahmet Osman 14. Also on 3 March 1987 Mr Fleming interviewed Ahmet Osman. In the typed record of this interview dated 6 March 1987, Ahmet confirmed that Paget-Lewis had warned him about Leslie Green, accusing Leslie of sexual misconduct with another boy at the school.", "Ahmet also reported to Mr Fleming during the interview that on one occasion Paget-Lewis had followed Leslie and himself home in his car. He also stated that Paget-Lewis had asked him to come and see him in his classroom at lunch times, apparently to learn Turkish, and that Paget-Lewis had taken photographs of him and given him money, a pen and a Turkish dictionary. However, he later took the pen and deliberately snapped it in half during a lesson. (c)Paget-Lewis 15. On 6 March 1987 Mr Perkins interviewed Paget-Lewis.", "In the course of the interview Paget-Lewis stated that he had a special relationship with Ahmet Osman which had developed over a period of a year and which Leslie Green was trying to disrupt and that he was so upset on one occasion that he confronted Leslie and accused the boy of being a sexual deviant. He admitted that he had followed Leslie home on one occasion and had waited outside his parents’ house for 45 minutes. Paget-Lewis mentioned to Mr Perkins that he had told Leslie Green that he would become “very angry” if anything happened to his relationship with Ahmet, although he indicated to Mr Perkins that this was not to be seen as a threat. He also acknowledged that he had given Ahmet money and presents, and had taken photographs of him for “sentimental reasons”. In a later memorandum dated 5 May 1988, Mr Perkins described Paget-Lewis as having been in a highly irrational state during this interview and unwilling to admit that his behaviour displayed a serious lack of wisdom and professionalism.", "16. On 9 March 1987 Paget-Lewis submitted a written statement to Mr Perkins regarding the complaint made by Mrs Green. In his memorandum of 5 May 1988 (see paragraph 15 above) Mr Perkins stated that he found the statement “disturbing” since it showed clearly that Paget-Lewis was “overpoweringly jealous” of the friendship between Ahmet Osman and Leslie Green and provided clear evidence that he “was not in control of his emotions”. Leslie was presented as devious, malicious and an evil influence. Mr Perkins again interviewed Paget-Lewis on his written statement during which he pointed out his concerns about the content of the statement and suggested to Paget-Lewis that he seek psychiatric help.", "Mr Perkins informed Mr Prince of everything which had happened up until that date. 17. Prior to 13 March 1987 Mr Prince had an informal discussion with Paget-Lewis in which he admitted telling pupils at the school that Leslie Green had engaged in acts of oral sex with Ahmet Osman in revenge for rumours spread by Leslie concerning his relationship with Ahmet. On 13 March 1987 Mr Prince formally interviewed Paget-Lewis on the basis of the notes of the interview between Paget-Lewis and Mr Perkins. The contemporaneous notes taken of the meeting reveal that Paget-Lewis admitted that he had become attached to Ahmet Osman; that he had accused Leslie Green of trying to turn Ahmet against him; and that he had parked outside Leslie’s house to show that he was not to be scared away.", "Paget-Lewis denied that he had accused Leslie of deviant sexual practices. The notes of the meeting conclude with the sentence “the situation has now escalated and Mr Prince has no confidence in his own ability to contain it”. (d)Leslie Green and his mother 18. Mr Prince was informed on 16 March 1987 in an interview with Leslie Green and his mother that Paget-Lewis had been spying on Ahmet Osman and that Paget-Lewis had told Ahmet that “he knew where his mother worked and how much money she earned and that if Ahmet left school, he would find him”. (e)Ahmet Osman 19.", "During this period another deputy head teacher, Mr Youssouf, also interviewed Ahmet Osman on a number of occasions. These interviews revealed that Paget-Lewis had told Ahmet that he would be able to find him if he left the school. Paget-Lewis claimed to have discovered Ahmet’s previous address and the name of his previous school and said he had visited the area and had spoken to his former neighbours. (f)The Osman family 20. On 17 March 1987 Mr Prince met with the Osman family to explain his concerns about the interest Paget-Lewis had taken in Ahmet.", "He explained that the school was quite satisfied that nothing improper had taken place between Paget-Lewis and Ahmet. He told them that the school would monitor the situation closely to ensure that Ahmet would be safe. Ahmet was told never to be alone with Paget-Lewis. During this meeting Ahmet’s mother expressed her wish that her son should be transferred to another school. 3.Contacts between the school and the police during this period 21.", "According to the diary of Mr Prince between 3 March 1987 and 17 March 1987 he met with PC Williams on four occasions. The applicants state that during these meetings information concerning Paget-Lewis’ conduct towards Ahmet Osman was passed on to the police. The Government state that PC Williams had no recollection of being told about the presents which Paget-Lewis had given to Ahmet or that Paget-Lewis had followed Ahmet home. PC Williams did not keep any record of the meetings, nor did he make any report concerning the nature and extent of the information that was communicated to him, or if he did no such record now exists. The Government stress that all concerned were satisfied that there was no sexual element to Paget-Lewis’ attachment to Ahmet and the matter could be dealt with internally by the school.", "4.The graffiti incident 22. By 17 March 1987 graffiti had appeared at six locations around the school which read “Leslie, do not forget to wear a condom when you screw Ahmet or he will get Aids.” The words had been written with spray paint and a stencil. 23. Following the discovery of the graffiti, Mr Perkins interviewed Paget-Lewis and asked him if he was responsible. He denied this.", "However, Mr Perkins noted in his report that Paget-Lewis knew the precise wording and the exact locations of all the graffiti. 5.The stolen files 24. On 19 March 1987 a further discussion took place between Mr Prince and the Osman family regarding Ahmet’s transfer to another school. For his safety Mr Prince told Ahmet not to give his new school address to anyone from Homerton House. While attempting to arrange his transfer, Mr Youssouf discovered that the files relating to Ahmet and Leslie Green had been stolen from the school office.", "The file relating to staff disciplinary matters was also found to be missing. Mr Perkins considered that the stolen files were the likely source of the information that Paget-Lewis had acquired about Ahmet Osman’s previous address and school (see paragraph 19 above). He subsequently questioned Paget-Lewis, who denied any involvement in the theft and denied having made any comments about Ahmet’s previous address and school or visiting the area in which Ahmet used to live. 25. On 23 March 1987 Ahmet Osman was transferred to a different school, but owing to curriculum difficulties he had to return to Homerton House fourteen days later.", "C.The events between April 1987 and August 1987 1.Paget-Lewis changes name 26. On 14 April 1987, Paget-Lewis changed his name by deed poll to Paul Ahmet Yildirim Osman. On 1 May 1987, Mr Prince wrote to the Inner London Education Authority (ILEA) informing them that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of Ahmet Osman. He also stated that he was of the opinion that Paget-Lewis should be removed from the school as soon as possible. 2.Further contacts between the school and the police 27.", "On 4 May 1987 Mr Prince spoke with two police officers, Detective Chief Inspector Newman and Detective Inspector Clarke. According to the applicants during this meeting the headmaster informed them of the missing files and the graffiti incident and discussed the fact that Paget-Lewis’ real name was Ronald Stephen Potter. He had previously changed his name by deed poll to name himself after a pupil called Paget-Lewis whom he had taught at Highbury Grove School. The Government state that the two police officers have no recollection of having been informed of these matters. 3.The contacts with the ILEA 28.", "Following his letter of 1 May 1987 (see paragraph 26 above), Mr Prince wrote to the Head of Discipline at ILEA in a letter dated 8 May 1987 stating that while he believed Paget-Lewis needed medical help, his continued presence in the school jeopardised the welfare, safety and education of the pupils. An internal memorandum from the Head of Discipline at ILEA dated the same day makes reference to “a fear that [Paget-Lewis] might seek to take the boy out of the country” and that the police are investigating the complaint that “he has removed certain files about the matter from the school”. Undated notes written by the same official between 14 April and 8 May 1987 indicate that it was feared that Ahmet Osman may be harmed and that by changing his name Paget-Lewis may abscond with the boy. The notes refer to the fact that the police had stated that Mr Prince should contact them if Ahmet goes missing for more than an hour. In addition, the police would investigate the disappearance of the missing files, search Paget-Lewis’ home and check up on his background.", "The Government deny that the police said that they should be contacted if Ahmet went missing or that they intended to search Paget-Lewis’ house. 4.The conclusions of the ILEA psychiatrist following the first meeting with Paget-Lewis 29. On 19 May 1987 Paget-Lewis was seen by Dr Ferguson, the ILEA psychiatrist. Dr Ferguson was provided with, inter alia, the documents showing Paget-Lewis’ change of name; the records of the interviews conducted in March 1987; and the memorandum prepared by Mr Perkins on 5 May 1987 (see paragraph 15 above). Dr Ferguson reported: “This teacher must indeed give cause for concern.", "He does not present ill in formal terms, nor does he seem sexually deviant. He does have personality problems, and his judgment regarding his friendship with a pupil is reprehensibly suspect.” Dr Ferguson recommended that Paget-Lewis remain teaching at the school but that he should receive some form of counselling and psychotherapy. 5.The attacks on the applicants’ property 30. On or about 21 May 1987, a brick was thrown through a window of the applicants’ house. The police were informed and a police officer was sent to the house and completed a crime report.", "On two occasions in June 1987 the tyres of Ali Osman’s car were deliberately burst. Both incidents were reported to the police, but no police records relating to the offences can be found. 6.Dr Ferguson’s further interviews with Paget-Lewis 31. On 1 June 1987 Mr Prince requested Paget-Lewis to take sick-leave. On 2 June 1987 Paget-Lewis was examined again by Dr Ferguson.", "He described a continuing strong urge to speak with Ahmet Osman and said that he felt angry that Ahmet seemed content with the situation of non-contact. Dr Ferguson concluded that under the circumstances, Paget-Lewis should remain away from Homerton House and was designated temporarily unfit to work. Paget-Lewis subsequently informed Mr Perkins that he would be taking medical leave for the remainder of the school term. He then left Homerton House and did not return again. 32.", "On 16 June 1987, following a further interview with Paget-Lewis, Dr Ferguson recommended that he should no longer teach at Homerton House and that transfer on medical grounds was strongly and urgently recommended. 7.Mrs Green’s further complaints against Paget-Lewis 33. On 4 June 1987 Mrs Green telephoned Mr Perkins making further complaints about Paget-Lewis following her son. She also informed him that she had sent her son to stay with her sister. 8.Paget-Lewis’ suspension from teaching duties and subsequent reinstatement 34.", "On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation for “unprofessional behaviour” towards Ahmet Osman. He submitted a statement dated 6 July 1987 in which, inter alia, he admitted taking photographs of Ahmet and giving him money but denied stealing files or painting graffiti. He accused Mr Perkins of lying about him and said that Mr Perkins has stated his intention of breaking him. 35. On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding and severely warning him but lifting the suspension.", "The letter also stated that he was not to return to Homerton House. Shortly afterwards he began working as a supply teacher at two other local schools, Haggerston School and Skinners School. D.The events between August 1987 and December 1987 1.The criminal damage to the Osmans’ property 36. In August or September 1987, a mixture of engine oil and paraffin was poured on the area outside the Osman family home. On 18 October 1987, the windscreen of Ali Osman’s car was smashed.", "During November 1987, in a series of incidents, the applicants’ front door lock was jammed with superglue, dog excrement was smeared on their doorstep and on their car, and on more than one occasion the light bulb was stolen from the light in the outside porch. Around this time all the windows of their car were also broken. All these incidents were reported to the police and on two occasions Ali Osman visited Hackney police station to discuss the vandalism and criminal damage to his property. 37. At some point during November 1987, PC Adams visited the Osmans’ home and then spoke to Paget-Lewis about the acts of vandalism.", "In a later statement to the police, Paget-Lewis alleged that he told PC Adams that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane. The Government deny that this was said, and refer to the fact that during the interview with PC Adams Paget-Lewis denied any involvement in the acts of vandalism and criminal damage. No detailed records were made by PC Adams of his contacts with Paget-Lewis or the Osman family. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor’s Department. 2.The vehicle collision involving Paget-Lewis 38.", "On 7 December 1987 a car driven by Paget-Lewis collided with a van in which Leslie Green was a passenger. According to the driver of the van, Paget-Lewis claimed that his accelerator had jammed and that he could not help what happened. After the police arrived at the scene of the accident they cautioned Paget-Lewis, and provided him with a form requesting him to produce his driving documents. 39. On 10 December 1987 Paget-Lewis attended Hackney police station and produced his driving documents for inspection.", "Since he failed to produce a road worthiness (MOT) certificate for his car he was cautioned by the police. 40. In a statement taken by the police on 22 December 1987 from the driver of the van that had been allegedly rammed by Paget-Lewis, the driver recalled that after the accident Paget-Lewis had said: “I’m not worried because in a few months I’ll be doing life.” 3.Contacts between Detective Sergeant Boardman and ILEA 41. On 8 December 1987, following the collision incident, Detective Sergeant Boardman contacted ILEA stating that he wished to interview Paget-Lewis and the headmaster. The applicants state that Detective Sergeant Boardman assured ILEA that the Osman family would be protected.", "The Government deny that such an assurance was given. An ILEA memorandum dated 8 December 1987 referred to the harassment of the Osman family and Paget-Lewis’ alleged admission of responsibility for the van collision saying that Leslie Green had lured Ahmet Osman away from his affections. It noted that the police were pursuing enquiries but that if nothing was heard the matter should be “chased”. It concluded with the note “Families getting police protection”. 4.Detective Sergeant Boardman interviews the Green and the Osman families and visits the school 42.", "On 9 December 1987 Detective Sergeant Boardman took a detailed statement from Leslie Green and his mother concerning, inter alia, the fact that Paget-Lewis had followed Leslie home, the acts of harassment and the graffiti which had appeared at the school. In his statement Leslie claimed that Paget-Lewis had threatened to “get him” whether it took “thirty days or thirty years”. He also said that he had not been to school for two weeks as he was afraid to travel there and that he had moved in with his aunt, so as to be safe from Paget-Lewis. 43. On 14 December 1987 Detective Sergeant Boardman visited Homerton House and inspected the graffiti.", "A police photographer took photographs of the graffiti. 44. On or about 15 December 1987 Detective Sergeant Boardman visited the Osman family and discussed the criminal damage and Paget-Lewis’ relationship with Ahmet. The applicants allege that Detective Sergeant Boardman told the family that he knew Paget-Lewis was responsible for the acts of vandalism, and gave them assurances that he would cause the incidents to stop. The Government deny that Detective Sergeant Boardman said that he knew Paget-Lewis was responsible, and that he gave assurances as to the family’s safety.", "5.Detective Sergeant Boardman’s report on the case 45. In his report on the case which was completed on or about 15 December 1987, Detective Sergeant Boardman observed: “It should be pointed out at this stage that there is no evidence to implicate Paget-Lewis in either of these offences [the graffiti at the school] or the acts of vandalism against Osmans’ address, although there is no doubt in everybody’s mind that he was in fact responsible and this was just another example of his spite.” 6.Paget-Lewis is interviewed by ILEA officers 46. On 15 December 1987 Paget-Lewis was interviewed by officers of ILEA at his own request. An ILEA memorandum dated the same day recorded that Paget-Lewis felt in a totally self-destructive mood, stating that it was all a symphony and the last chord had to be played. He admitted being deeply in debt and as a result was selling all his possessions.", "He blamed Mr Perkins for all his troubles but would not do a “Hungerford”[3] in a school but would see him at his home. The memorandum stated that the concerns of ILEA should be passed on to the police and noted that a call was made to Detective Sergeant Boardman, who was unavailable. Nevertheless, a detailed message was left with the receptionist. One of the officers of ILEA recalled later in a statement dated 9 March 1988 that Paget-Lewis spoke in a manner which was very disturbing, said that he blamed Mr Perkins for the loss of his job, that he knew where he lived and that he was going to do something though not at the school. The other officer recalled in her statement of 9 March 1988 that Paget-Lewis had stated that he was going to do something that would be “a sort of Hungerford”.", "She recalled that as a result of this conversation she informed the police and the school that she considered that the head and deputy head were at risk of violence. Although the applicants state that the content of the interview was passed on to the police, the Government deny that mention was made of the “Hungerford” reference or that there was any suggestion that the Osmans might be in danger. 7.Detective Sergeant Boardman’s reaction to the ILEA message and the decision to arrest Paget-Lewis 47. On 15 December 1987 after receiving the message of the officer of ILEA (see paragraph 46 above), Detective Sergeant Boardman sent a telex to the local police station near Mr Perkins’ home referring to the fact that vague threats had been made and that the school authorities were very concerned. He asked them to pay casual attention to the address, giving a brief description of Paget-Lewis and the registration number of his car.", "48. On 16 December 1987 Detective Sergeant Boardman contacted ILEA with a view to tracing Paget-Lewis and was provided with his address. He requested the official at ILEA to ask Paget-Lewis to contact the police. On the same day, Detective Sergeant Boardman met with Mr Prince and Mr Perkins. The applicants state that he assured Mr Prince that the police would undertake the necessary measures to protect both Mr Perkins and the applicants.", "A diary entry of Mr Prince dated 16 December 1987 refers to Detective Sergeant Boardman and contains a heading “OSMAN/PERKINS/POLICE PRESENCE ARRANGED” and a note that ILEA had called “to finalise arrangements re protection for Perkins/Osman families”. According to the Government no assurance of protection was given. Detective Sergeant Boardman received the impression from his meetings with Mr Prince and Mr Perkins that Paget-Lewis was angry at being removed from the school but that the anger was directed against the deputy head, who in any case did not feel in danger. 49. On 17 December 1987 Detective Sergeant Boardman and other police officers arrived at Paget-Lewis’ house with the intention of arresting him on suspicion of criminal damage.", "Paget-Lewis was absent. The police were unaware that he was teaching at Haggerston School that day. 50. On 18 December 1987 pursuant to the request of the police, ILEA sent a letter to Paget-Lewis requesting him to contact Detective Sergeant Boardman. The same day ILEA informed the police that Paget-Lewis had not attended Haggerston School.", "He did not return to the school again. E.The events between January 1988 and October 1988 1.Attempts to trace the whereabouts of Paget-Lewis 51. In early January 1988 the police commenced the procedure of laying an information before the Magistrates’ Court with a view to prosecuting Paget-Lewis for driving without due care and attention. In addition, Paget-Lewis’ name was put on the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage. 52.", "On 8 January an officer of ILEA rang Detective Sergeant Boardman for an update on the case but he was unavailable. Three days later he returned her call saying there had been no progress. 53. Between January and March 1988 Paget-Lewis travelled around England hiring cars in his adopted name of Osman and was involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there.", "54. On 17 January 1988 Paget-Lewis broke into a car parked near a clay-pigeon shoot near Leeds in Yorkshire and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, because there was nothing to connect the incident to Paget-Lewis the theft did not come to the attention of the Metropolitan police dealing with the case. 2.Paget-Lewis is sighted near the Osman home 55.", "On 1, 4 and 5 March 1988 Leslie Green saw Paget-Lewis wearing a black crash helmet near the applicants’ home. According to the applicants, Mrs Green informed the police on each occasion, but her calls were not returned. The Government accept that, on 5 March 1988, Detective Sergeant Boardman received a message which stated “phone Mrs Green” but since there was no phone number on the note he did not connect the message with the mother of Leslie Green. 3.The fatal shootings and the arrest of Paget-Lewis 56. On 7 March 1988 Paget-Lewis was seen near the applicants’ home by a number of people.", "At about 11 p.m. Paget-Lewis shot and killed Ali Osman and seriously wounded Ahmet. He then drove to the home of Mr Perkins where he shot and wounded him and killed his son. 57. Early the next morning Paget-Lewis was arrested. On being arrested he stated “why didn’t you stop me before I did it, I gave you all the warning signs?” 58.", "Later that day Paget-Lewis was interviewed by the police. According to the record of the interview, Paget-Lewis said that he had been planning the attacks ever since he lost his job, and for the previous two weeks he had been watching the Osmans’ house. Although he considered Mr Perkins as his main target, he also regarded Ali and Ahmet Osman as being responsible for his losing his position at Homerton House. Paget-Lewis stated that he had been hoping in the back of his mind that the police would stop him. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmet Osman kneel down in the kitchen, turning out the light and shooting at them.", "He denied that on earlier occasions he had damaged the windows of the Osmans’ house but admitted that he had let down the tyres of their car as a prank. He also denied responsibility for the graffiti and taking the files from the school office. 4.Paget-Lewis is convicted of manslaughter 59. On 28 October 1988 Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on grounds of diminished responsibility (see paragraph 73 below). He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section 41 of the Mental Health Act 1983.", "F.Judicial proceedings against the police for negligence 60. An inquest was held into the death of Ali Osman after the conclusion of the criminal proceedings. Since a person had been convicted in connection with the death, the Coroner did not hold a full inquest (section 16 of the Coroner’s Act 1988). 61. On 28 September 1989 the applicants commenced proceedings against, inter alios, the Commissioner of Police of the Metropolis alleging negligence in that although the police were aware of Paget-Lewis’ activities since May 1987 they failed to apprehend or interview him, search his home or charge him with an offence before March 1988.", "Orders for discovery of documents were made on 24 April 1990. 62. On 19 August 1991 the Metropolitan Police Commissioner issued an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action. The High Court judge dismissed the application. 63.", "On 7 October 1992 the Court of Appeal upheld the appeal by the Commissioner (Osman and another v. Ferguson and another [1993] 4 All England Law Reports at p. 344). In its judgment, the court held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit. 64. Lord Justice McCowan found, inter alia: “In my judgment the plaintiffs [the applicants] have therefore an arguable cause that as between [the second applicant] and his family, on the one hand and the investigating officers, on the other, there existed a very close degree of proximity amounting to a special relationship.” 65. However, having regard to the judgment of the House of Lords in the case of Hill v. Chief Constable of West Yorkshire (see paragraphs 90–92 below), from which he found no relevant distinction, he considered that the matters in issue were failures in investigation of crime and thus public policy doomed the action to failure.", "He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply. He found that Lord Keith in the Hill case had treated public policy as a separate point that is not reached unless there is a duty of care. The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts, if proved, were sufficient to establish a relationship sufficiently proximate to found a duty of care. Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants’ claim was accordingly struck out.", "66. The Court of Appeal refused leave to appeal to the House of Lords and the application to the House of Lords for leave to appeal was refused on 10 May 1993. G.The Commission’s findings of fact 67. The domestic courts had not established the full facts of the case since Paget-Lewis pleaded guilty to the charges against him and a full inquest was not conducted into the death of Ali Osman (see paragraph 60 above). Furthermore, the applicants’ civil action against the police was struck out as showing no reasonable cause of action (see paragraph 65 above).", "Having examined the submissions and materials of the parties especially as regards the facts in dispute the Commission proceeded to the establishment of the facts of the case. Its findings may be summarised as follows. 68. As to the four meetings which took place between the police and the school between 3 March and 17 March 1987 (see paragraph 21 above), the Commission was satisfied that the police were made aware of the substance of the events and of the school’s concerns about the disturbing attachment which Paget-Lewis was showing towards Ahmet Osman as well as Paget-Lewis’ worrying reaction towards Leslie Green. Furthermore, Mr Prince had in all probability informed Detective Inspectors Newman and Clarke on 4 May 1987 (see paragraph 27 above) about the graffiti incident, the theft of the school files and Paget-Lewis’ change of name, even if both officers had no recollection of having been told about the first two matters.", "Like the meetings between PC Williams and Mr Prince, no police notes appear to have been taken. However, the Commission did not find it established that at this stage the police had made any commitment to searching Paget-Lewis’ home or were seriously concerned about the possibility of Paget-Lewis kidnapping Ahmet. These hypotheses emerge from the memoranda drawn up by ILEA officers around this time (see paragraph 28 above) and were probably based on the contacts which the officers had with Mr Prince and not on any direct contact between the officers and the police. 69. While all the vandalism on the Osmans’ home and property between May and November 1987 had been reported to the police and the family had informed the police of its concern that Paget-Lewis was behind the attacks, the only step taken during that period was to invite Paget-Lewis to the police station for an interview (see paragraph 37 above).", "In the Commission’s opinion, little reliance could be placed on Paget-Lewis’ later assertions that he told PC Adams during the interview that he was in danger of doing something criminally insane. No police notes or records of this meeting which took place on an unspecified date could be traced. 70. Following the alleged ramming incident (see paragraph 38 above), the police immediately interviewed the Greens and the Osmans and photographed the graffiti at the school (see paragraphs 42 and 43 above). Although Detective Sergeant Boardman in his undated report (see paragraph 45 above) had stated that there was no evidence that Paget-Lewis was responsible for the graffiti and the attacks on the Osmans’ home the police had nevertheless taken the view that he was presenting a sufficient threat that formal steps should be taken against him.", "Thus the decision was taken on 16 December 1987 to arrest Paget-Lewis on suspicion of criminal damage. The Commission was also satisfied that there was no evidence that Paget-Lewis had made any direct or indirect threats against the Osmans during his meeting with ILEA officers on 15 December 1987 (see paragraph 46 above). It placed greater weight on the contemporaneous notes of the meeting rather than on the statement of one of the officers taken several months later that Paget-Lewis threatened at the meeting to commit a “Hungerford massacre”. According to the notes of the meeting, Paget-Lewis is reported as having stated that he would not do a “Hungerford” at the school but would see the deputy at home. In the Commission’s view, this would explain why the police requested that a casual watch should be kept on Mr Perkins’ address.", "Furthermore, despite the wording of the ILEA memorandum of 8 December and of Mr Prince’s rather cryptic diary entry on 16 December 1987 (see paragraphs 41 and 48 above) it seemed unlikely that the police had referred to or promised police protection to the Osman family especially since none was in fact envisaged or provided. The school authorities had probably received this impression from the assurances given by the police that the necessary measures were being taken to deal with the situation including the vague threats made against Mr Perkins. 71. The Commission did not find it established that the letter sent by the ILEA to Paget-Lewis at the request of the police following the failed arrest attempt on 17 December 1987 caused Paget-Lewis to disappear (see paragraph 50 above). It was also satisfied that the police took no further active steps to trace the whereabouts of Paget-Lewis from 18 December 1987 to March 1988 apart from placing his name on the Police National Computer in January 1988.", "In addition, there were no contemporaneous records to support the assertion that Mrs Green had informed the police about Paget-Lewis being seen by her son around the Osman home in early March 1988 (see paragraph 55 above). It may have been the case that Mrs Green merely left a message with the police station that Detective Sergeant Boardman should ring her back. In that event, it was not surprising that Detective Sergeant Boardman had not been able to make a connection between a Mrs Green and the Paget-Lewis file since the case had been dormant for three months. ii.relevant domestic law A.The criminal law 1.Murder 72. The offence of murder is committed if a person of sound mind unlawfully kills any human being with malice aforethought.", "The mental element of murder, “malice aforethought”, is established if it is proved that there was, on the part of the accused, an intention to kill, an intention to cause grievous bodily harm or an intention to do an act knowing it to be highly probable that the act will cause death or grievous bodily harm. The sentence for murder is life imprisonment. 2.Manslaughter 73. The offence of manslaughter is committed if the victim is unlawfully killed by a person who, by reason of abnormality of mind, suffered from diminished responsibility – i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts.", "The sentence of manslaughter is imprisonment for life or for any shorter term. B.Criminal procedure 1.Search warrants 74. The power to obtain a warrant to search for items that have been used, or are intended for use, in committing criminal damage is governed by section 6(1) of the Criminal Damage Act 1971 which provides: “If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse – (a)to destroy or damage property belonging to another; or (b)to destroy or damage any property in a way likely to endanger the life of another, the Justice of the Peace may grant a warrant authorising any constable to search for and seize that thing.” 2.Police powers of arrest and detention 75. In order for an arrest to be lawful it must first satisfy either section 24 or 25 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”). 76.", "Under section 24 a police officer may arrest any person whom he has reasonable grounds to believe is guilty of an arrestable offence. All offences which carry a maximum sentence of five years’ imprisonment or more are considered arrestable offences (section 24(1)). 77. Under section 25 a police officer may arrest without warrant any person whom he has reasonable grounds to suspect is guilty of a non-arrestable offence provided that one of the general interest conditions apply. These include: (a) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as a name is in fact his real name (section 25(3)(a)); (b) that the constable has reasonable grounds to believe that an arrest is necessary to prevent the relevant person causing physical injury to any person or causing loss or damage to property (section 25(3)(d)(i) and (ii)); (c) that the constable has reasonable grounds to believe that an arrest is necessary to protect a child or other vulnerable person from the relevant person (section 25(3)(e)).", "78. In determining whether the available information is sufficient to give rise to a reasonable suspicion, the test to be applied is that laid down by the House of Lords in Hussein v. Chang Fook Kam [1970] Appeal Cases at p. 942: “Suspicion in its ordinary meaning is a state of conjuncture or surmise where proof is lacking: ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end.” 3.The decision to charge 79. Where a person is arrested for an offence without a warrant, or under a warrant not endorsed for bail, the custody officer at the police station where he is detained after his arrest must determine whether he has sufficient evidence to charge the person for the offence for which he has been arrested (section 37(1)(b) of the 1984 Act). In reaching this decision the custody officer must have “reasonable and probable” cause to prosecute.", "In Hicks v. Faulkner [1878] 8 Queen’s Bench Division at p. 167, Judge Hawkins interpreted this requirement to mean: “… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser to the conclusion that the person was probably guilty of the crime imputed.” 80. The custody officer is not required to be sure that the accused person is guilty before charging him (Tempest v. Snowden [1952] 1 King’s Bench Reports at p. 130). Nor is it necessary for a charging officer to believe that the prosecution will result in a conviction (Dawson v. Vasandau [1863] 11 Weekly Reporter at p. 516). The charging officer is simply required to make an assessment of whether there is sufficient evidence to withstand examination in the course of “a fair and impartial trial” (Glinski v. McIver [1962] Appeal Cases at p. 726). 81.", "If the custody officer does not have sufficient evidence to charge, the arrested person must be released either on bail or without bail. However, if the custody officer has reasonable grounds to believe that the suspect’s detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, the custody officer may authorise the suspect’s further detention (section 37(2) of the 1984 Act). 4.Pattern of offending 82. In determining whether to bring criminal charges against a person, the custody officer may take into account evidence disclosing a pattern of offending. However, in D.P.P.", "v. P. [1991] 2 Appeal Cases at p. 447 the House of Lords stated that admissibility of such evidence is to be determined by the degree of its probative worth. The Lord Chancellor, Lord Mackay of Clashfern, said: “… the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime… Once the principle is recognised that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative weight to outweigh its prejudicial effect must in each case be a question of fact and degree.” (at p. 460) He continued: “Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.” (at p. 462) 5.Bail 83. Section 38 of the 1984 Act provides that where an arrested person is charged with an offence, the custody officer shall order his release from police detention, either on bail or without bail, unless, inter alia, his name or address cannot be ascertained; detention is necessary for the person’s own protection or to prevent him causing physical injury to any other person or damage to property; or the person arrested will fail to appear in court to answer bail.", "84. If the custody officer decides not to release the defendant, he must be produced before a Magistrates’ Court within 24 hours after his arrest who shall either commit him in custody or release him on bail. Pursuant to section 13 of Schedule 1 Part 1 to the Bail Act 1976: “The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would – (a)fail to surrender to custody, or (b)commit an offence while on bail, or (c)interfere with witnesses or otherwise obstruct the course of justice, either in relation to himself or any other person.” In taking this decision the Magistrates’ Court is required, pursuant to section 9 of Schedule 1 Part 1, to have regard to such of the following considerations as appear to it to be relevant, namely: “(a) the nature and seriousness of the offence…; (b) the character, antecedents, associations and community ties of the defendant; (c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings; (d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.” C.Mental health 85. Section 136 of the Mental Health Act 1983 provides: “(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person, or for the protection of other persons, remove that person to a place of safety… (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” 86. Both the Magistrates’ Court and the Crown Court have the power to remand an accused person to a specified hospital for the preparation of a report on his mental condition.", "Section 35(2) defines an accused person as follows: “(a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned; (b) in relation to a Magistrates’ Court any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section.” If these requirements are met the court may, pursuant to section 35(3), remand the accused person to a hospital for a report if: “(a) the court is satisfied on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail…” 87. The Crown Court may remand an accused person to a specified hospital for treatment, if it is satisfied on the evidence of two medical practitioners that he is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be so detained (section 36(1)). 88. Following conviction for an offence punishable with imprisonment, both the Magistrates’ Court and the Crown Court have the power under section 38(1) to make an interim hospital order, where: “… the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners (a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case…” Pursuant to section 37(2) both the Magistrates’ Court and the Crown Court may also admit an offender to a hospital if: “(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that… (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition… (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.” D.Actions against the police for negligence 89. In the case of Dorset Yacht Co. Ltd v. the Home Office ([1970] Appeal Cases at p. 1004), the owners of a yacht damaged by borstal boys who had escaped from the supervision of prison officers sought to sue the Home Office alleging negligence by the prison officers.", "The House of Lords held that in the particular case a duty of care could arise. Lord Diplock said: “I should therefore hold that any duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture.” 90. In the case of Hill v. Chief Constable of West Yorkshire ([1989] Appeal Cases at p. 53), the mother of a victim of the Yorkshire Ripper instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found: “The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly to identify and apprehend an unknown one.", "Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Secretary in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up a deficiency.", "The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.” 91. While he considered this sufficient to dispose of the appeal, Lord Keith went on to set out public-policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime. “Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.", "From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do.", "The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.” 92.", "Lord Templeman commented: “... if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.", "This action is misconceived and will do more harm than good.” 93. In Swinney and another v. the Chief Constable of Northumbria ([1997] Queen’s Bench Reports at p. 464), the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into with the result that the document was stolen, came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff’s claim in negligence against the police was struck out but allowed on appeal by the High Court judge. The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime.", "The Court of Appeal dismissed the appeal. In his judgment Lord Justice Hirst referring to the cases of Dorset Yacht and Hill (see paragraphs 89–92 above) stated that he could not accept a claim of blanket immunity for the police in this case, but that there were other considerations of public policy in this case, namely, the need to protect springs of information, to protect informers and to encourage them to come forward. On the facts of the case, it was arguable that the police had assumed a responsibility of confidentiality towards the plaintiff. The case should therefore proceed to trial. 94.", "Lord Justice Ward held that it was arguable that: “There is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude. It is fair, just and reasonable that the law should impose a duty, there being no overwhelming dictate of public policy to exclude the prosecution of this claim. On the one hand there is, as more fully set out in Hill v. the Chief Constable ... an important public interest that the police should carry out their difficult duties to the best of their endeavours without being fettered by, or even influenced by, the spectre of litigation looming over every judgment they make, every discretion they exercise, every act they undertake or omit to perform, in their ceaseless battle to investigate and suppress crime. The greater good rightly outweighs any individual hardship.", "On the other hand it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected...” 95. The police have been held liable in negligence or failure in their duties in other cases. In Kirkham v. the Chief Constable of Manchester ([1989] 2 Queen’s Bench Reports at p. 283), the Court of Appeal upheld a finding of liability in negligence under the Fatal Accidents Act 1976 where the police had taken a man into custody, knew he was a suicide risk but did not communicate that information to the prison authorities.", "The man, diagnosed as suffering from clinical depression had committed suicide in remand prison. The police, which had assumed responsibility for the man, had owed a duty of care, which they had breached with the result that his death had ensued. 96. In Rigby and another v. Chief Constable of Northamptonshire ([1985] 2 All England Law Reports at p. 986), the High Court found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs’ premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was fire‑fighting equipment available to put the fire out at an early stage.", "No equipment had been present at the time and the fire had broken out and spread very quickly. Negligence was also found in Knightley v. Johns and others ([1982] 1 All England Law Reports at p. 301) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic, thereby leading to a further accident. 97. In R. v. Dytham ([1979] 1 Queen’s Bench Reports at p. 722), where a police officer stood by while a man died outside a club in a murderous assault, the Court of Appeal upheld the conviction of the officer for wilful neglect to perform a duty. PROCEEDINGS BEFORE THE COMMISSION 98.", "The applicants applied to the Commission on 10 November 1993, complaining that there had been a failure to protect the lives of Ali and Ahmet Osman and to prevent the harassment of their family, and that they had no access to court or effective remedy in respect of that failure. The applicants relied on Articles 2, 6, 8 and 13 of the Convention. 99. The Commission declared the application (no. 23452/94) admissible on 17 May 1996.", "In its report of 1 July 1997 (Article 31), it expressed the opinion that there had been no violation of Article 2 of the Convention (ten votes to seven); that there had been no violation of Article 8 of the Convention (ten votes to seven); that there had been a violation of Article 6 § 1 of the Convention (twelve votes to five); and that no separate issue arose under Article 13 of the Convention (twelve votes to five). The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment[4]. FINAL SUBMISSIONS TO THE COURT 100. The applicants maintained in their memorial and at the hearing that the facts of the case disclosed breaches by the respondent State of its obligations under Articles 2, 6, 8 and 13 of the Convention. They requested the Court to find accordingly and to award them just satisfaction under Article 50.", "The Government for their part requested the Court to find that there had been no breach of any of the Articles relied on by the applicants. AS TO THE LAW i.alleged violation of article 2 of the convention 101. The applicants asserted that by failing to take adequate and appropriate steps to protect the lives of the second applicant and his father, Ali Osman, from the real and known danger which Paget-Lewis posed, the authorities had failed to comply with their positive obligation under Article 2 of the Convention, which provides as relevant: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "…” 102. The Government maintained that the facts of the case did not bear out the applicants’ allegation and for that reason there had been no breach of Article 2. The Commission agreed with the Government’s arguments. A.Arguments of those appearing before the Court 103. The applicants contended that a most careful scrutiny of the events leading to the tragic shooting incident revealed that the police were several times put on notice that the lives of Ali and Ahmet Osman were at real risk from the threat posed by Paget-Lewis.", "Despite the clear warning signals given the police failed to take appropriate and adequate preventive measures to secure effective protection for their lives from that risk. While disagreeing with the standard of care formulated by the Government (see paragraph 107 below), they submitted that even on the basis of that overly-strict standard the obvious inadequacy of the police response over a period of fourteen months must be considered to amount to a grave dereliction of the authorities’ duty to protect life and a substantial contributing factor to the death of Ali Osman and the wounding of the second applicant. 104. The applicants argued that by May 1987 the police, on the basis of their contacts with the headmaster of the school, Mr Prince (see paragraphs 21 and 27 above) must be taken to have been fully aware that Paget-Lewis was an unbalanced, obsessive and aggressive individual who had stalked Ahmet Osman, taken photographs of him, plied him with gifts and even assumed his name. Further, they were plainly made aware that Paget-Lewis was strongly suspected of being responsible for the graffiti incident and the theft of the school files.", "However, these warning signs were never taken seriously by the police even though they must have known of Mr Prince’s assessment of the situation, in particular his view that Paget-Lewis was psychologically unbalanced (see paragraph 26 above). In spite of the existence of compelling circumstantial evidence linking Paget-Lewis with the theft of the school files and the spraying of graffiti close to the school (see paragraphs 22 and 24 above), the police did not investigate these matters further. The applicants further submitted that this inertia on the part of the police in the face of clear indications that the life of a vulnerable child was at real risk from the danger posed by Paget-Lewis was compounded by their failure to apprehend the significance of the eight reported attacks on the home and property of the Osman family between May and November 1987 marking an escalation in an already life-threatening situation. In brief, nothing was done to establish that Paget-Lewis was the author of this campaign of harassment and intimidation threatening the security of the family. It was only on 17 December 1987, and ten days following the ramming incident (see paragraph 38 above), that a decision was finally taken to arrest Paget-Lewis.", "Even then the police seriously mishandled the situation by giving Paget-Lewis the opportunity to avoid arrest and abscond, and then failing to inform the Osman family of this occurrence and to keep a watch on their home. 105. The applicants emphasised that Paget-Lewis had on three separate occasions stated that he intended to commit a murder and each of his statements came to the attention of the police (see paragraphs 37, 40 and 46 above). However, the police once again failed to take seriously what was conclusive proof that the lives of the Osman family were at risk from an unstable, obsessive, disturbed and dangerous individual. The fact that no records were ever kept of the police visits to the school in March and May 1987 nor of the attacks on the home and property of the family confirmed in the applicants’ view the casual and careless approach of the authorities to the investigation of a very grave threat to life and explained their failure to make use of their powers to prevent that threat from materialising by arresting Paget-Lewis on suspicion of being responsible for the graffiti incident, the theft of the school files or the attacks on the Osmans’ home, or searching his home for evidence of his involvement in these offences or by having him compulsorily admitted to a psychiatric hospital for assessment.", "106. For the above reasons, the applicants concluded that the authorities had failed in the circumstances to comply with their positive obligation under Article 2 of the Convention. They further contended that there had never been any effective official investigation into the authorities’ failure in this respect. Their civil action in negligence against the police founded on the successful invocation by the Metropolitan Police Commissioner of the rule of police immunity (see paragraph 63 above). In their view, this gave rise to a separate violation of Article 2.", "2.The Government 107. The Government did not dispute that Article 2 of the Convention may imply a positive obligation on the authorities of a Contracting State to take preventive measures to protect the life of an individual from the danger posed by another individual. They emphasised however that this obligation could only arise in exceptional circumstances where there is a known risk of a real, direct and immediate threat to that individual’s life and where the authorities have assumed responsibility for his or her safety. In addition, it had to be shown that their failure to take preventive action amounted to gross dereliction or wilful disregard of their duty to protect life. Finally, it must be established on sound and persuasive grounds that there is a causal link between the failure to take the preventive action of which the authorities are accused and that that action, judged fairly and realistically, would have been likely to have prevented the incident in question.", "108. On that basis, and having regard to the facts of the instant case, the Government argued that the police could not be taken at any relevant time to have appreciated that Paget-Lewis represented a real and immediate threat to the lives of the Osman family. He had never threatened either Ali or Ahmet Osman in word or deed and both before and after his arrest he had consistently denied that he had been responsible for the theft of the school files, the graffiti in the area around the school and the acts of vandalism on the home and property of the family. Significantly, the Inner London Education Authority (“ILEA”), after investigating the complaints against Paget-Lewis, considered that a reprimand was sufficient action and he was allowed to assume teaching duties in another school. The fact that Dr Ferguson, the ILEA psychiatrist, had concluded on the basis of a complete case file that Paget-Lewis was fit to teach (see paragraph 29 above) confirmed that the latter manifested no clear signs of mental illness which would have suggested that he posed a real and immediate danger to the lives of the Osmans.", "109. In the Government’s submission, the police response at each stage of the events in the light of their knowledge and information at the relevant times was reasonable. At no time was there sufficient evidence on which to lay charges against Paget-Lewis on suspicion of having committed acts of criminal damage or to search his home to secure proof of such. Detective Sergeant Boardman conducted a complete review of the case file in December 1987 but was forced to concede that, in the absence of a confession statement, there was no evidence on which to lay charges against Paget-Lewis. 110.", "The Government averred that the weakness of the applicants’ case before the Court lay not only in their assessment of the police action from the standpoint of hindsight but also in their erroneous interpretation of certain events in order to impute to the police knowledge of the danger posed by Paget-Lewis to the Osman family or to accuse them of gross negligence. In this latter respect they challenged, inter alia, the applicants’ unfounded assertions that the police had promised protection to the family on the basis of the ILEA memorandum of 8 December 1987 (see paragraph 41 above) or that the ILEA letter of 17 December 1987 caused Paget-Lewis to abscond before he could be arrested (see paragraph 50 above) or that no police records had been kept of the incidents reported to them (see paragraph 105 above). As to the latter allegation, they pointed to the fact that Detective Sergeant Boardman was fully apprised of the entire case file in December 1987 (see paragraph 109 above). 3.The Commission 111. Having regard to its own findings in this case (see paragraphs 67‑71 above), the Commission considered that there were no factors which, judged reasonably, rendered it foreseeable at the time with any degree of probability that Paget-Lewis would carry out an armed attack on the Osman family.", "While noting that it was to be regretted that the police did not keep or preserve records of their meetings with the school and ILEA officials and with Paget-Lewis himself, it did not consider that this failure prevented a proper assessment of the risk to the Osman family or posed an obstacle to effective steps being taken; nor did the failure to take any additional investigative steps suggest any seriously defective response to the threat posed by Paget-Lewis as perceived at the time. The Commission concluded that the circumstances of the case did not disclose any fundamental disregard by the police of the duties imposed by law in respect of the protection of life. 112. As to the applicants’ argument that their inability to sue the police in negligence amounted to a breach of Article 2 (see paragraph 106 above), the Commission was not satisfied that the limited nature of the exclusion of a duty of care in relation to negligence actions against the police (see paragraphs 90–97 above) demonstrated any lack of protection to the right to life in the domestic law of the respondent State. 1.As to the establishment of the facts 113.", "The Court notes that there was never any independent judicial determination at the domestic level of the facts of the instant case. The Commission on the basis of the pleadings of the parties and the hearing which it held in the case made its own findings on the course of events in the case up until the time of the armed attack by Paget-Lewis on Ali and Ahmet Osman on 7 March 1988 (see paragraphs 67–71 above). According to the applicants, the Commission overlooked in its findings of fact the importance of certain events which they claim have a bearing on the level of knowledge which can be imputed to the police in respect of the seriousness of the danger which Paget-Lewis represented for the lives of the Osman family (see paragraph 10 above). 114. The Court observes that it is called on to determine whether the facts of the instant case disclose a failure by the authorities of the respondent State to protect the right to life of Ali and Ahmet Osman, in breach of Article 2 of the Convention.", "In addressing that issue, and having due regard to the Commission’s role under the Convention in the establishment and verification of the facts of a case, it will assess this issue in accordance with its usual practice in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, § 160; and the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 51, § 173). 2. As to the alleged failure of the authorities to protect the rights to life of Ali and Ahmet Osman 115.", "The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.", "116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.", "The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. On the above understanding the Court will examine the particular circumstances of this case.", "117. The Court observes, like the Commission, that the concerns of the school about Paget-Lewis’ disturbing attachment to Ahmet Osman can be reasonably considered to have been communicated to the police over the course of the five meetings which took place between 3 March and 4 May 1987 (see paragraphs 21 and 27 above), having regard to the fact that Mr Prince’s decision to call in the police in the first place was motivated by the allegations which Mrs Green had made against Paget-Lewis and the school’s follow-up to those allegations. It may for the same reason be reasonably accepted that the police were informed of all relevant connected matters which had come to light by 4 May 1987 including the graffiti incident, the theft of the school files and Paget-Lewis’ change of name. It is the applicants’ contention that by that stage the police should have been alert to the need to investigate further Paget-Lewis’ alleged involvement in the graffiti incident and the theft of the school files or to keep a closer watch on him given their awareness of the obsessive nature of his behaviour towards Ahmet Osman and how that behaviour manifested itself. The Court for its part is not persuaded that the police’s failure to do so at this stage can be impugned from the standpoint of Article 2 having regard to the state of their knowledge at that time.", "While Paget-Lewis’ attachment to Ahmet Osman could be judged by the police officers who visited the school to be most reprehensible from a professional point of view, there was never any suggestion that Ahmet Osman was at risk sexually from him, less so that his life was in danger. Furthermore, Mr Perkins, the deputy headmaster, alone had reached the conclusion that Paget-Lewis had been responsible for the graffiti in the neighbourhood of the school and the theft of the files. However Paget-Lewis had denied all involvement when interviewed by Mr Perkins and there was nothing to link him with either incident. Accordingly, at that juncture, the police’s appreciation of the situation and their decision to treat it as a matter internal to the school cannot be considered unreasonable. Like the Commission (see paragraph 68 above), the Court is not persuaded either that the ILEA official’s memorandum and internal notes written between 14 April and 8 May 1987 are an accurate reflection of how the discussions between Mr Prince and the police officers wound up (see paragraph 28 above).", "118. The applicants have attached particular weight to Paget-Lewis’ mental condition and in particular to his potential to turn violent and to direct that violence at Ahmet Osman. However, it is to be noted that Paget-Lewis continued to teach at the school up until June 1987. Dr Ferguson examined him on three occasions and was satisfied that he was not mentally ill. On 7 August 1987 he was allowed to resume teaching, although not at Homerton House (see paragraph 35 above). It is most improbable that the decision to lift his suspension from teaching duties would have been made if it had been believed at the time that there was the slightest risk that he constituted a danger to the safety of young people in his charge.", "The applicants are especially critical of Dr Ferguson’s psychiatric assessment of Paget-Lewis. However, that assessment was made on the basis of three separate interviews with Paget-Lewis and if it appeared to a professional psychiatrist that he did not at the time display any signs of mental illness or a propensity to violence it would be unreasonable to have expected the police to have construed the actions of Paget-Lewis as they were reported to them by the school as those of a mentally disturbed and highly dangerous individual. 119. In assessing the level of knowledge which can be imputed to the police at the relevant time, the Court has also had close regard to the series of acts of vandalism against the Osmans’ home and property between May and November 1987 (see paragraphs 30, 36 and 37 above). It observes firstly that none of these incidents could be described as life-threatening and secondly that there was no evidence pointing to the involvement of Paget-Lewis.", "This was also the view of Detective Sergeant Boardman in his report on the case in mid-December 1987 having interviewed the Green and Osman families, visited the school and taken stock of the file (see paragraphs 42–45 above). The completeness of Detective Sergeant Boardman’s report and the assessment he made in the knowledge of all the allegations made against Paget-Lewis would suggest that even if it were to be assumed that the applicants are correct in their assertions that the police did not keep records of the reported incidents of vandalism and of their meetings with the school and ILEA officials, this failing could not be said to have prevented them from apprehending at an earlier stage any real threat to the lives of the Osman family or that the irrationality of Paget-Lewis’ behaviour concealed a deadly disposition. The Court notes in this regard that when the decision was finally taken to arrest Paget-Lewis it was not based on any perceived risk to the lives of the Osman family but on his suspected involvement in acts of minor criminal damage (see paragraph 49 above). 120. The Court has also examined carefully the strength of the applicants’ arguments that Paget-Lewis on three occasions communicated to the police, either directly or indirectly, his murderous intentions (see paragraph 105 above).", "However, in its view these statements cannot be reasonably considered to imply that the Osman family were the target of his threats and to put the police on notice of such. The applicants rely in particular on Paget-Lewis’ threat to “do a sort of Hungerford” which they allege he uttered at the meeting with ILEA officers on 15 December 1987 (see paragraph 46 above). The Government have disputed that these words were said on that occasion, but even taking them at their most favourable to the applicants’ case, it would appear more likely that they were uttered with respect to Mr Perkins whom he regarded as principally to blame for being forced to leave his teaching post at Homerton House. Furthermore, the fact that Paget-Lewis is reported to have intimated to the driver of the car with which he collided on 7 December 1987 that he was on the verge of committing some terrible deed (see paragraphs 38 and 40 above) could not reasonably be taken at the time to be a veiled reference to a planned attack on the lives of the Osman family. The Court must also attach weight in this respect to the fact that, even if Paget-Lewis had deliberately rammed the vehicle as alleged, that act of hostility was in all probability directed at Leslie Green, the passenger in the vehicle.", "Nor have the applicants adduced any further arguments which would enhance the weight to be given to Paget-Lewis’ claim that he had told PC Adams that he was in danger of doing something criminally insane (see paragraph 37 above). In any event, as with his other cryptic threats, this statement could not reasonably be construed as a threat against the lives of the Osman family. 121. In the view of the Court the applicants have failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the applicants have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative steps following his disappearance, it cannot be said that these measures, judged reasonably, would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it.", "As noted earlier (see paragraph 116 above), the police must discharge their duties in a manner which is compatible with the rights and freedoms of individuals. In the circumstances of the present case, they cannot be criticised for attaching weight to the presumption of innocence or failing to use powers of arrest, search and seizure having regard to their reasonably held view that they lacked at relevant times the required standard of suspicion to use those powers or that any action taken would in fact have produced concrete results. 122. For the above reasons, the Court concludes that there has been no violation of Article 2 of the Convention in this case. 3.As to the alleged breach by the authorities of a procedural obligation under Article 2 123.", "The Court considers that the essence of the applicants’ complaint under this head (see paragraph 106 above) concerns their inability to secure access to a court or other remedy to have an independent assessment of the police response to the threat posed by Paget-Lewis to the lives of the Osman family. The Court considers it appropriate therefore to consider this grievance in the context of the applicants’ complaints under Articles 6 and 13 of the Convention (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 48, § 160). II.alleged violation of article 8 of the convention 124. The applicants contended that the failure of the police firstly to bring an end to the campaign of harassment, vandalism and victimisation which Paget-Lewis waged against their property and family and secondly, and in particular, to avert the wounding of the second applicant constituted a breach of Article 8 of the Convention, which stipulates: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 125. The applicants maintained that they could not have been expected to obtain a civil injunction to prevent Paget-Lewis from intimidating their family and attacking their home and property since any such request would have been futile. They pleaded in this respect that they would have been unable to provide a court with any proof that Paget-Lewis was responsible for the acts of vandalism given that the police had never taken any steps to investigate the incidents which they had reported. At the hearing the applicants informed the Court that their main complaint under Article 8 concerned the failure of the police to secure the second applicant’s personal safety, an issue which the Commission had not addressed.", "In the applicants’ submission, even if it were to be accepted that the police could not have foreseen that Paget-Lewis would have carried out a near-fatal attack on the life of Ahmet Osman, the risk of some harm being caused to him was nevertheless foreseeable. In their view that was in itself sufficient to engage the responsibility of the authorities under Article 8. 126. The Commission found that the applicants’ complaints concerning the failure of the authorities to protect their home and property against the attacks allegedly perpetrated by Paget-Lewis did not give rise to a breach of Article 8 since in its view it would have been open to the applicants to seek an injunction against Paget-Lewis. As to the complaint that the police failed to protect the second applicant’s physical integrity, the Delegate of the Commission informed the Court at the hearing that the Commission had in fact addressed this grievance.", "For the reasons which led it to conclude that there had been no violation of Article 2, it found that the complaint under Article 8 could not be sustained either. 127. The Government agreed with the Commission on both points. 128. The Court recalls that it has not found it established that the police knew or ought to have known at the time that Paget-Lewis represented a real and immediate risk to the life of Ahmet Osman and that their response to the events as they unfolded was reasonable in the circumstances and not incompatible with the authorities’ duty under Article 2 of the Convention to safeguard the right to life.", "In the Court’s view, that conclusion equally supports a finding that there has been no breach of any positive obligation implied by Article 8 of the Convention to safeguard the second applicant’s physical integrity. 129. As to the applicants’ contention that the police failed to investigate the attacks on their home with a view to ending the campaign of harassment against the Osman family, the Court reiterates that the police had taken the view that there was no evidence to implicate Paget-Lewis and for that reason charges could not be laid against him. It is to be noted in this respect that Paget-Lewis was questioned by PC Adams sometime in November 1987, but he denied all responsibility. Detective Sergeant Boardman also confirmed in his report that there was no evidence on which to mount a prosecution case against Paget-Lewis (see paragraph 45 above).", "In the light of new developments in the case, an attempt was in fact made to arrest and question Paget-Lewis on 17 December 1987 on suspicion of criminal damage including with respect to the acts of vandalism directed at the applicants’ home and property (see paragraph 49 above). However, that attempt failed. 130. The Court concludes accordingly that the facts of the case do not disclose the breach by the authorities of any positive obligation under Article 8 of the Convention. III.alleged violation of article 6 § 1 of the conventon 131.", "The applicants alleged that the dismissal by the Court of Appeal of their negligence action against the police on grounds of public policy amounted to a restriction on their right of access to a court in breach of Article 6 § 1 of the Convention, which provides to the extent relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing … by [a] ... tribunal...” 132. The Commission agreed with the applicants’ arguments in this respect. The Government however contended that the applicants could not rely on Article 6 § 1, maintaining in the alternative that there had been no breach of that provision in the circumstances of the case. 133. The Government maintained that the applicants could not rely on any substantive right in domestic law to sue the police for their alleged failure to prevent Paget-Lewis from shooting dead Ali Osman and seriously wounding the second applicant.", "They explained that whether or not the police can be considered to owe a plaintiff a duty of care in a particular context depended not only on proof of proximity between the parties and the foreseeability of harm but also on the answer to the question whether it was fair, just and reasonable to impose a duty of care on the police. The Court of Appeal had answered the latter question in the negative, being satisfied that there were no other public-policy considerations which would have led it to reach a different conclusion. Accordingly, since the applicants had failed to establish an essential ingredient of the duty of care under domestic law they did not have any substantive right for the purposes of the applicability of Article 6 § 1. Any other conclusion would result in the impermissible creation by the Convention institutions of a substantive right where none in fact existed in the domestic law of the respondent State. 134.", "The applicants replied that the Court of Appeal had accepted their proposition that there was a special relationship of proximity between them and the police since the police knew that Paget-Lewis was conducting a campaign of victimisation against the Osman family and that the second applicant was especially at risk from the threat posed by Paget-Lewis to his life. The applicants maintained that although they had established all the constituent elements of the duty of care, the Court of Appeal was constrained by precedent to apply the doctrine of police immunity developed by the House of Lords in the Hill case (see paragraph 90 above) to strike out their statement of claim. In their view the doctrine of police immunity was not one of the essential elements of the duty of care as was claimed by the Government, but a separate and distinct ground for defeating a negligence action in order to ensure, inter alia, that police manpower was not diverted from their ordinary functions or to avoid overly cautious or defensive policing. 135. The Commission agreed with the applicants that Article 6 § 1 was applicable.", "It considered that the applicants’ claim against the police was arguably based on an existing right in domestic law, namely the general tort of negligence. The House of Lords in the Hill case modified that right for reasons of public policy in order to provide an immunity for the police from civil suit for their acts and omissions in the context of the investigation and suppression of crime. In the instant case, that immunity acted as a bar to the applicants’ civil action by preventing them from having an adjudication by a court on the merits of their case against the police. 136. The Court recalls at the outset that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.", "In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters constitutes one aspect only (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no.18, p. 18, § 36). 137. The Court notes with reference to this fundamental principle that the respondent Government have disputed the applicability of Article 6 § 1 to the applicants’ claim. They allege that the applicants did not have any substantive right under domestic law given that the Court of Appeal, in application of the exclusionary rule established by the House of Lords in the Hill case (see paragraph 65 above), dismissed their civil action against the police as showing no cause of action. 138.", "The Court would observe that the common law of the respondent State has long accorded a plaintiff the right to submit to a court a claim in negligence against a defendant and to request that court to find that the facts of the case disclose a breach of a duty of care owed by the defendant to the plaintiff which has caused harm to the latter. The domestic court’s enquiry is directed at determining whether the constituent elements of a duty of care have been satisfied, namely: whether the damage is foreseeable; whether there exists a relationship of proximity between the parties; and whether it is fair, just and reasonable to impose a duty of care in the circumstances (see paragraphs 94 and 133 above). It is to be noted that the latter criterion, which has been relied on by the Government in support of their contention that the applicants have no substantive right under domestic law, is not of sole application to civil actions taken against the police alleging negligence in the investigation and suppression of crime, but has been considered and applied in other spheres of activity. The House of Lords in the Hill case declared for the first time that this criterion could be invoked to shield the police from liability in the context of the investigation and suppression of crime (see paragraphs 90–92 above). Although the applicants have argued in terms which suggest that the exclusionary rule operates as an absolute immunity to negligence actions against the police in the context at issue, the Court accepts the Government’s contention that the rule does not automatically doom to failure such a civil action from the outset but in principle allows a domestic court to make a considered assessment on the basis of the arguments before it as to whether a particular case is or is not suitable for the application of the rule.", "They have referred to relevant domestic case-law in this respect (see paragraph 94 above). 139. On that understanding the Court considers that the applicants must be taken to have had a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the Court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of Article 6 § 1 of the Convention. 140.", "For the above reasons, the Court concludes that Article 6 § 1 is applicable. It remains to be determined whether the restriction which was imposed on the exercise of the applicants’ right under that provision was lawful. 141. According to the applicants the public-interest considerations invoked by the House of Lords in the Hill case as justification for the police immunity rule and on which the Government have based their case could not be sustained. Thus, the argument that exposing the police to actions in negligence would result in a significant diversion of manpower from their crime-suppression function sits ill with the fact that the immunity is limited to negligence actions involving the investigation and suppression of crime and not to cases of assault or false imprisonment which could equally be said to give rise to a diversion of manpower.", "As to the contention that the threat of liability for negligence would lead to defensive or over-cautious policing, they maintained that this consideration has never been invoked to protect other vital public services such as hospitals, ambulances and the fire brigade from negligence actions. They also disputed the validity of the argument that a negligence action against the police would have the undesirable effect of reopening closed investigations in order to ascertain whether they had been conducted competently. In their submission if a negligent investigation has resulted in a wholly preventable death there are cogent reasons to re-examine the conduct of the police. The applicants further contended, inter alia, that the imposition of liability in negligence on the police in respect of the investigation and suppression of crime would serve to enhance standards among officers, especially where the activity in question concerned the protection of the right to life. 142.", "In their alternative submission the applicants asserted that even if it could be said that the immunity pursued a legitimate aim or aims, its operation offended against the principle of proportionality. They reasoned in this respect that the immunity was complete and as such did not distinguish between cases where the merits were strong and those where they were weak. In the instant case, involving the protection of a child and the right to life and where the damage caused was grave, the requirements of public policy could not dictate that the police should be immune from liability. Furthermore, the combined effect of the strict tests of proximity and foreseeability provided limitation enough to prevent untenable cases ever reaching a hearing and to confine liability to those cases where the police have caused serious loss through truly negligent actions. 143.", "The Government replied that the exclusionary rule which defeated the applicants’ civil action pursued the legitimate aim or aims outlined by the House of Lords in the Hill case, in particular the avoidance of defensive policing and the diversion of police manpower (see paragraph 91 above). In the Government’s view it was central to the reasoning of the House of Lords in the Hill case that the imposition of a duty of care in the context in question carried with it a real risk that effective policing for the benefit of the public at large would be undermined. 144. Further, the rule was a proportionate response to the attainment of those aims and fell well within the respondent State’s margin of appreciation. They emphasised that the exclusion was not a blanket exclusion of liability but a carefully and narrowly focused limitation which applied only in respect of the investigation and suppression of crime, and even then not in every case (see paragraph 93 above).", "Thus, in the instant case, the Court of Appeal had considered that there were no competing public-policy considerations at stake which would have outweighed the general public-policy consideration that it would not be fair, just and reasonable to impose a duty of care on the police. 145. The Government further stressed in defence of the proportionality of the restriction on the applicants’ right to sue the police that they could have taken civil proceedings against Paget-Lewis. Moreover, they had in fact sought to sue Dr Ferguson but subsequently abandoned their action against him. In either case they had full access to a court.", "146. The Commission accepted that the impugned rule may be considered to pursue the legitimate aims suggested by the Government (see paragraph 143 above). However, it agreed with the essence of the applicants’ arguments for countering the Government’s justification for the application of the rule (see paragraphs 141 and 142 above). The Commission noted, in particular, that the applicants claimed to have satisfied the proximity component of the duty of care, which had not been satisfied by the plaintiff in the Hill case. However, they were denied the opportunity of establishing the factual basis of their claim in adversarial proceedings through the operation of an immunity rule which, moreover, did not distinguish between negligence having trivial effects and that, as in this case, with catastrophic results.", "147. The Court recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.", "Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, most recently, the Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom judgment of 10 July 1998, Reports 1998-IV, p. 1660, § 72). 148. Against that background the Court notes that the applicants’ claim never fully proceeded to trial in that there was never any determination on its merits or on the facts on which it was based. The decision of the Court of Appeal striking out their statement of claim was given in the context of interlocutory proceedings initiated by the Metropolitan Police Commissioner and that court assumed for the purposes of those proceedings that the facts as pleaded in the applicants’ statement of claim were true. The applicants’ claim was rejected since it was found to fall squarely within the scope of the exclusionary rule formulated by the House of Lords in the Hill case.", "149. The reasons which led the House of Lords in the Hill case to lay down an exclusionary rule to protect the police from negligence actions in the context at issue are based on the view that the interests of the community as a whole are best served by a police service whose efficiency and effectiveness in the battle against crime are not jeopardised by the constant risk of exposure to tortious liability for policy and operational decisions. 150. Although the aim of such a rule may be accepted as legitimate in terms of the Convention, as being directed to the maintenance of the effectiveness of the police service and hence to the prevention of disorder or crime, the Court must nevertheless, in turning to the issue of proportionality, have particular regard to its scope and especially its application in the case at issue. While the Government have contended that the exclusionary rule of liability is not of an absolute nature (see paragraph 144 above) and that its application may yield to other public-policy considerations, it would appear to the Court that in the instant case the Court of Appeal proceeded on the basis that the rule provided a watertight defence to the police and that it was impossible to prise open an immunity which the police enjoy from civil suit in respect of their acts and omissions in the investigation and suppression of crime.", "151. The Court would observe that the application of the rule in this manner without further enquiry into the existence of competing public-interest considerations only serves to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounts to an unjustifiable restriction on an applicant’s right to have a determination on the merits of his or her claim against the police in deserving cases. In its view, it must be open to a domestic court to have regard to the presence of other public-interest considerations which pull in the opposite direction to the application of the rule. Failing this, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case. It is to be noted that in the instant case Lord Justice McCowan (see paragraph 64 above) appeared to be satisfied that the applicants, unlike the plaintiff Hill, had complied with the proximity test, a threshold requirement which is in itself sufficiently rigid to narrow considerably the number of negligence cases against the police which can proceed to trial.", "Furthermore, the applicants’ case involved the alleged failure to protect the life of a child and their view that that failure was the result of a catalogue of acts and omissions which amounted to grave negligence as opposed to minor acts of incompetence. The applicants also claimed that the police had assumed responsibility for their safety. Finally, the harm sustained was of the most serious nature. 152. For the Court, these are considerations which must be examined on the merits and not automatically excluded by the application of a rule which amounts to the grant of an immunity to the police.", "In the instant case, the Court is not persuaded by the Government’s argument that the rule as interpreted by the domestic court did not provide an automatic immunity to the police. 153. The Court is not persuaded either by the Government’s plea that the applicants had available to them alternative routes for securing compensation (see paragraph 145 above). In its opinion the pursuit of these remedies could not be said to mitigate the loss of their right to take legal proceedings against the police in negligence and to argue the justice of their case. Neither an action against Paget-Lewis nor against Dr Ferguson, the ILEA psychiatrist, would have enabled them to secure answers to the basic question which underpinned their civil action, namely why did the police not take action sooner to prevent Paget-Lewis from exacting a deadly retribution against Ali and Ahmet Osman.", "They may or may not have failed to convince the domestic court that the police were negligent in the circumstances. However, they were entitled to have the police account for their actions and omissions in adversarial proceedings. 154. For the above reasons, the Court concludes that the application of the exclusionary rule in the instant case constituted a disproportionate restriction on the applicants’ right of access to a court. There has accordingly been a violation of Article 6 § 1 of the Convention.", "IV.alleged violation of article 13 of the convention 155. The applicants complained that they had no effective remedy enabling them to have an adjudication on their claim that the authorities had not done all that was required of them under Article 2 to protect the lives of Ali and Ahmet Osman. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 156. The applicants submitted that the only effective mechanism in the circumstances for holding the authorities accountable for their failure in the instant case to comply with their positive obligation under Article 2 of the Convention would have been a civil action in negligence against the police. However the pursuit of that remedy was blocked when the Court of Appeal accepted the Metropolitan Police Commissioner’s plea of police immunity and struck out their statement of claim.", "157. The Commission considered that no separate issue arose under Article 13 in view of its finding of a violation of Article 6 § 1 of the Convention. The Government invited the Court to follow this view should it be minded to find a breach of Article 6 § 1. 158. The Court agrees with the Commission’s opinion on this complaint having regard to its own conclusion that the applicants’ rights under Article 6 § 1 have been violated.", "It recalls in this respect that the requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6 (see, most recently, the above-mentioned Tinnelly and Others judgment, pp. 1662–63, § 77). v.application of article 50 of the convention 159. The applicants claimed just satisfaction under Article 50 of the Convention, which provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A.Pecuniary and non-pecuniary damage 160. The applicants in their memorial requested the Court to award them compensation for pecuniary and non-pecuniary loss calculated by reference to the appropriate level of compensation which would have been payable in the domestic courts if their claim had been permitted to proceed and had succeeded in full.", "161. In their supplementary submissions received at the registry on 9 June 1998 the applicants provided detailed estimates of what each of them might have been expected to receive from a domestic court by way of compensation. They indicated however that these were only to be seen as guidance for the benefit of the Court and that they were content for the Court to make its own assessment of the appropriate level of just satisfaction in accordance with its established principles. 162. The Government maintained in their primary submission that the applicants’ detailed claims should be rejected since they were submitted out of time and were in any event unsubstantiated and inflated.", "In the alternative, they considered that a finding of a violation of any or all of the Articles of the Convention invoked by the applicants would in itself constitute sufficient just satisfaction. 163. The Delegate of the Commission did not comment on this branch of the Article 50 issue. 164. The Court notes that it conducts its assessment of what an applicant is entitled to by way of just satisfaction in accordance with the principles laid down in its own case-law under Article 50 and not by reference to the principles or scales of assessment used by domestic courts.", "The applicants accept this to be the case (see paragraph 161 above). The Court does not consider it necessary therefore to answer the Government’s objections to the admissibility of their supplementary submissions. In any event, the Court cannot speculate as to the outcome of the domestic proceedings had the applicants’ statement of claim not been struck out. It considers nevertheless that the applicants were denied the opportunity to obtain a ruling on the merits of their claim for damages against the police. Deciding on an equitable basis it awards each of the applicants the sum of 10,000 pounds sterling (GBP).", "165. The applicants claimed a total amount of GBP 46,976.78 by way of costs and expenses incurred in bringing their case before the Convention institutions. They provided details of the number of lawyers who worked on the case, the hourly rates charged and the nature of the work involved as well as disbursements. The applicants were in receipt of legal aid from the Council of Europe. 166.", "The Government considered, inter alia, that the details supplied by the applicants showed a considerable overlap between the time spent by the solicitors and legal advisers on the case and the time spent by counsel. They contended that the claim should be reduced on that account. They suggested that a sum of GBP 27,216.43 would represent a more reasonable claim in the circumstances, this amount being subject to any award of legal aid by the Council of Europe and to apportionment to reflect anything other than a finding of violation of each of the Articles under which a complaint has been made. 167. The Delegate of the Commission did not comment on this limb of the Article 50 claim either.", "168. Having regard to the specifications provided by the applicants, to the fact that their complaints under Articles 2 and 8 have not been substantiated and to equitable considerations, the Court awards the applicants the sum of GBP 30,000 together with any value-added tax that may be chargeable, less the 28,514 French francs already paid in legal aid by the Council of Europe. C.Default interest 169. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. for these reasons, the court 1.Holds by seventeen votes to three that there has been no violation of Article 2 of the Convention; 2.Holds by seventeen votes to three that there has been no violation of Article 8 of the Convention; 3.Holds unanimously that Article 6 § 1 of the Convention is applicable in this case and has been violated; 4.Holds by nineteen votes to one that it is unnecessary to examine the applicants’ complaints under Article 13 of the Convention; 5.Holds unanimously (a) that the respondent State is to pay the applicants, within three months, 10,000 (ten thousand) pounds sterling each by way of compensation for loss of opportunity; (b) that the respondent State is to pay the applicants, within three months, 30,000 (thirty thousand) pounds sterling in respect of costs and expenses together with any value-added tax that may be chargeable, less 28,514 (twenty-eight thousand five hundred and fourteen) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment; (c) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; 6.Dismisses by nineteen votes to one the remainder of the applicants’ claim for just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 October 1998. Signed: Rudolf Bernhardt President Signed: Herbert Petzold Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the following separate opinions are annexed to the judgment: (a) concurring opinion of Mr Foighel; (b) concurring opinion of Sir John Freeland; (c) concurring opinion of Mr Jambrek; (d)partly dissenting, partly concurring opinion of Mr De Meyer joined by Mr Lopes Rocha and Mr Casadevall; (e)partly dissenting, partly concurring opinion of Mr Lopes Rocha. Initialled: R. B. Initialled: H. P. CONCURRING OPINION OF JUDGE FOIGHEL I agree with the conclusion of the majority that there has been no violation of Article 2 of the Convention in this case. I also agree with that there has been a violation of Article 6 § 1 on account of the disproportionate impact of the restriction on the applicants’ rights of access to a court guaranteed by that Convention provision (see paragraph 154 of the judgment). However, as regards the prior issue of the applicability of Article 6 § 1, I have based myself on a different line of reasoning to that used by the Court.", "In the first place, and irrespective of whether the domestic rule which defeated the applicants’ civil action in this case is framed in terms of a substantive or procedural bar, the applicants had first and foremost a Convention right under domestic law to submit their claim to a court and to have a determination on it. The fact that the applicants’ claim failed to get off the ground does not displace the right guaranteed them by Article 6 § 1 of the Convention. In my view, what is decisive for the applicability of Article 6 § 1 in this case is that the applicants had a right to a determination on their claim that their rights to life should have been protected by the police, which claim could not be considered devoid of merit from the outset. In my opinion, the fact that they were adjudged by the Court of Appeal in application of the rule in the Hill case to have no cause of action, or as the Government have formulated it, no substantive right to sue the police, is irrelevant for the purposes of the applicability of Article 6 § 1. That decision is an issue which is independent of the question of the applicability of Article 6 § 1.", "I am of course aware that the Court up until now has understood the expression “civil rights” in Article 6 § 1 as rights which exist under domestic law. For me, however, this does not exclude other rights whose existence cannot be a matter of doubt. The fundamental nature of an applicant’s right to submit a civil claim to a court cannot be determined exclusively by domestic-law considerations on whether or not such a right exists in a particular set of circumstances. In this respect, I would recall that the Court has stressed on occasions that it is sufficient for an applicant to show that there are at least arguable grounds which point to the recognition of the right at issue under domestic law (see, inter alia, the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 49, § 65), and in the final analysis it is for the Court in the exercise of its supervisory jurisdiction and on the basis of Convention criteria to rule on whether the applicant has shown this to be the case.", "I would also note that the requirement that there be a dispute (contestation) over a civil right in order to bring Article 6 § 1 into play has been construed by the Court in its case-law to cover not only disputes concerning the scope of a right but also its very existence under domestic law (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, § 55). Furthermore, and of even greater importance, is the fact that the domestic law of the Contracting States must secure the enjoyment of the rights and freedoms laid down in the Convention and its Protocols (see Article 1 of the Convention). This includes the right to life. In the instant case, the applicants have relied on a civil action against the police to establish that their right to life was breached on account of the culpable failure of the police to prevent the tragedy which befell them.", "In my view that right, derived from the Convention, secures them in consequence their right to the protection of Article 6 § 1 of the Convention. For the above reasons, I have been led to conclude that Article 6 § 1 is applicable in this case. CONCURRING OPINION OF JUDGE Sir John FREELAND 1. To the reasons given in the judgment for the finding of a violation of Article 6 § 1, I would add only briefly in explanation of my own vote in that sense. 2.", "I so voted because of the way in which, in practice, the public-policy exception from liability enunciated by the House of Lords in Hill v. Chief Constable of West Yorkshire (see paragraphs 90–92 of the judgment) operated in this case to block the claims of the applicants in their actions against the police in negligence. I accept, as indeed does paragraph 150 of the judgment, that the aim of the exception is legitimate in terms of the Convention; and I also accept that the exception may in other cases be applied proportionately to that aim. The difficulty for me arises primarily from the fact that in the present case it appears to have been applied as if conferring on the police a blanket exemption from liability in negligence so far as concerns their function in the investigation and suppression of crime, to the exclusion of any examination by the court of considerations which might pull in another direction. 3. In this latter respect the present case stands in marked contrast to the later Court of Appeal case of Swinney and another v. Chief Constable of Northumbria Police Force (see paragraphs 93 and 94 of the judgment), where the court had regard to the possible existence of other, and countervailing, considerations of public policy – in particular, as relevant in the circumstances of that case, the need to preserve the springs of information, to protect informers, and to encourage them to come forward.", "The court also considered it arguable, on the facts pleaded in that case, that there had been a voluntary assumption of responsibility by the police (a similar argument has been advanced by the applicants in the present case). 4. I also note that in the Hill case the plaintiff lost her action on two grounds, either of which would have been enough to defeat it – first, the absence of the necessary proximity and, secondly, the public-policy exception. In the present case, however, McCowan LJ, with whom Simon Brown LJ agreed, expressed the view that the plaintiffs had an arguable case that there existed a very close degree of proximity amounting to a special relationship (the third member, Beldam LJ, preferred to express no opinion on the point at that stage); and the court proceeded to strike out the claim against the police on the sole ground of the public-policy exception. 5.", "The weight thus attached to the exception in this case, together with its broad reach and the exclusive application given to it, combined in my view to produce a disproportionate limitation on the applicants’ right of access to court. I therefore concurred in the conclusion stated in paragraph 154 of the judgment. For me the exception, operating in this way, is an inappropriately blunt instrument for the disposal of claims raising human rights issues such as those of the present case. CONCURRING OPINION OF JUDGE JAMBREK 1.I agreed with the Court’s unanimous conclusion that Article 6 § 1 of the Convention is applicable to the applicants’ claim and with the reasons given in the judgment in support thereof. 2.However, in my opinion, a more extensive interpretation of the term “civil rights and obligations” than the one applied by the Court in this case and in its case-law in general, would only require the Court to be satisfied that a right existed under domestic law – in the instant case, a right derived from the general tort of negligence or the duty of care owed by the police to the plaintiff.", "The only condition for the Court’s recognition of a right as a “civil” right, thereby guaranteeing an applicant the right of access to a domestic court as protected by Article 6 § 1, would be that the right at issue is recognised in the national legal system as an individual right within the sphere of general individual freedom. Seen in these terms, the right of everyone to a fair trial by a court of law would also protect the individual in his or her relations with the authorities of the State. 3.Had the Court taken this interpretation of the term “civil rights” as its starting-point, it would not have been necessary for it to examine in the instant case whether the exclusionary rule imposed on the exercise of the right operated in an absolute manner or whether it allowed the domestic courts to make a considered assessment as to whether a particular case should be allowed to proceed to a consideration on the merits before a domestic court and thus guaranteeing a plaintiff access to a court for this purpose (see paragraph 138 of the judgment). Nor would it have been necessary for the Court to establish whether the applicants could arguably claim that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule in the Hill case (see paragraph 139 of the judgment). 4.My reasoning has been informed by the dissenting opinions of Mr Melchior and Mr Frowein in the decision of the European Commission of Human Rights in the Benthem case (Article 31 report of 8 October 1983) and by Judge van Dijk’s chapter on “The interpretation of ‘civil rights and obligations’ by the European Court of Human Rights – one more step to take” in Franz Matscher and Herbert Petzold (eds.", "), Protecting Human Rights: The European Dimension – Studies in Honour of Gerard J. Wiarda, Köln, Carl Heymanns Verlag KG, 1988, pp. 131–43. 5.In the Sporrong and Lönnroth v. Sweden case (judgment of 23 September 1982, Series A no. 52), the Court ruled that, since the applicants’ case could not be heard by a tribunal competent to determine all the aspects of the matter, there had for that reason been a violation of Article 6 § 1 of the Convention (p. 31, § 87). In its Golder v. the United Kingdom judgment (21 February 1975, Series A no.", "18) the Court also stressed (p. 17, § 35) that the guarantees embodied in Article 6 § 1 of the Convention could be frustrated by national legislators if the right to a court were not considered to be implied in that provision: “... a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government.” The situation as described in the facts of the present case comes close to the concerns expressed by the Court in this quotation. 6.I therefore also agree with Judge van Dijk’s assessment that if the Court were to take this additional step, and thereby no longer restrict the meaning of “civil rights and obligations” to “private rights and obligations”, the certainty and foreseeability of its case-law would be enhanced. Furthermore, if “civil rights and obligations” were to be understood as “all those rights which are individual rights under the national legal system and fall within the sphere of general individual freedom” (see, supra, the dissenting opinion of Mr Melchior and Mr Frowein in the Benthem case), the Court’s case-law would conform better to the object and purpose of Article 6 and of the Convention as a whole, that is to say respect for the requirement of the rule of law as interpreted by the Court in, for example, the Klass and Others v. Germany case (judgment of 6 September 1978, Series A no. 28) wherein it held (pp. 25–26, § 55): “The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.” PARTLY dissenting, PARTLY concurring OPINION OF JUDGE DE MEYER joined byjudgeS lopes rocha and casadevall In this sad case there was enough evidence that for several months before 7 March 1988 the authorities of the respondent State were well aware of the strange and worrying behaviour of Mr Paget-Lewis.", "Both ILEA[1] and the police[2] knew, at least since the spring of 1987[3], that he was obsessed with Ahmet Osman. They knew that he was harassing the Osman family and the Green family[4], and that he was increasingly threatening them as well as Mr Perkins[5]. They knew that some harm had already been caused[6]. From December 1987 they could have had hardly any doubts that further, more serious, harm was to be foreseen[7]. They took, however, almost no action to avert impending danger and to protect those concerned[8].", "They should have taken Mr Paget-Lewis into custody before it was too late in order to have him cared for properly. Instead they let things go until he killed two persons and wounded two others. Mr Paget-Lewis himself asked the police arresting him why they did not stop him before he acted as he did and reminded them that he had given all the warning signs[9]. He was right. In my view, therefore, the authorities of the respondent State, by failing to do what they should have done[10], have violated the applicants’ right to life and also their right to private and family life.", "There was of course also a violation of the applicants’ right to a court, since the Osmans were denied any possibility to have their claims concerning the failures of the police properly examined by a tribunal. Whether or not they could rely on any substantive right thereto in domestic law is irrelevant, since they were asserting that they were the victims of a violation of fundamental (and therefore also civil[11]) rights, which had to be secured to them under the Convention[12], notwithstanding anything to the contrary in domestic law or practice, and since their right to have their case heard in court was also such a right[13]. It was likewise irrelevant whether the immunity of the police was or was not absolute, since the very principle of such immunity is not acceptable under the rule of law. The refusal to consider the applicants’ action was therefore an obvious denial of justice[14]. NOTES partly DISSENTING, partly CONCURRING opinion of judge lopes rocha (Translation) I regret that I am unable to share the majority’s view that there has been no violation of Articles 2 and 8 of the Convention.", "My interpretation of the facts – which is the same as Judge De Meyer’s – leads me to conclude that the police underestimated the danger Mr Paget-Lewis presented for the life and physical integrity of Mr Ahmet Osman and, in all probability, of his close relatives. In my opinion, it is not possible to say, as the Government did, that there was no causal link between the failure to take preventive action, of which the authorities are accused, and the events that occurred. A quite different approach is required to determine liability for an omission from that required to determine liability for an act. The former must be determined according to generally accepted rules. It has to be decided whether the assault originated from the failure to take a particular measure or measures where the assailant’s previous behaviour already pointed to a likelihood that he would act aggressively towards someone of whom he was particularly fond.", "In the instant case, there was strong evidence of aggressive behaviour on the part of Mr Paget-Lewis suggesting that at the first opportunity he would act violently. It should not be forgotten that he displayed rather strange traits of personality and was known to the police, although there was some doubt over whether he was homosexual. Given, too, the professional experience one is entitled to expect of them, the police could legitimately be required to exercise caution and to take measures to protect the people at risk. Failure to take such measures renders the police and the State concerned liable. There has therefore been a breach of the aforementioned Articles.", "[1]Notes by the Registrar . The case is numbered 87/1997/871/1083. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [2].", "Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [3]. Hungerford was the scene of a 1987 massacre in which a gunman killed sixteen persons before committing suicide.", "[4]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry. [1]. The management of Homerton House School noticed since 1986 Mr Paget-Lewis’ “attachment” to Ahmet Osman (Government’s memorial, § 1.5) and they were informed in January 1987 that he was harassing Leslie Green (ibid., § 1.7).", "They viewed the events seriously (Commission’s report, § 96 (b) and investigated the matter in March 1987. Mr Prince’s letter of 1 May 1987 to Mrs May (Annex A to applicants’ memorial, no. 4, p. 17) shows that the problem was known at the headquarters of ILEA before May 1987. [2]. Mr Prince met with PC Williams on 3, 9, 13 and 17 March 1987 (see the extracts of his diary, Annex A to applicants’ memorial, no.", "1, pp. 1–10). The Government admit that, on these occasions, “no doubt the substance of the concerns was made known to PC Williams” (Government’s memorial, § 1.13). [3]. Commission’s report, § 96 (a)–(b).", "[4]. Ibid., §§ 20–25. [5]. The graffiti incident, the theft of the files and Mr Paget-Lewis’ change of name occurred already in March-April 1987 (ibid., §§ 27, 28, 29 and 96 (c)). Then followed, in May‑November 1987, the “vandalising attacks” on the home and car of the Osman family, for which “there was no doubt in everybody’s mind he was in fact responsible” (ibid., §§ 32, 33, 37, 39 and 96 (d), Government’s memorial, § 1.42, and Detective Sergeant Boardman’s memo of 16 December 1987, Annex D to Government’s memorial, p. 5, § 18), and also on the Green family (Annex A to applicants’ memorial, no.", "7, pp. 24–26, and Annex B to Government’s memorial, pp. 37–38), on 7 December 1987 the ramming of the van in which Leslie Green was a passenger and Mr Paget-Lewis’ statement to Mr Prince that “in a few months” he would “be doing life” (Commission’s report, §§ 41 and 96 (e), Annex A to applicants’ memorial, loc. cit., and Annex B to Government’s memorial, pp. 41–42), on 15 December 1987, at the meeting with Mr David and Mrs May, Mr Paget-Lewis’ saying that he would “not do a ‘Hungerford’ in a school”, but “see Perkins at home” (Commission’s report, §§ 47 and 96 (f), and Annex A to applicants’ memorial, no.", "8, pp. 27–29), on 18 December 1987 his disappearance from school (Commission’s report, §§ 53 and 96 (g)), between January and March 1988 his roaming around and being involved in “a number of accidents” (ibid., § 58), and finally on 1, 4 and 5 March 1988 his presence in a crash helmet near the applicants’ home (ibid., §§ 60 and 96 (j)). All these facts were known to the police before 7 March 1988. [6]. Commission’s report, §§ 32–33, 37, 39 and 41.", "See also Mrs Green’s statement to Detective Sergeant Boardman on 9 December 1987 (Annex B to Government’s memorial, pp. 37–38). [7]. Commission’s report, § 47. See the ILEA memorandum dated 15 December 1987 (Annex A to the applicants’ memorial, no.", "8, pp. 27–29) relating the meeting of Mr Paget-Lewis with Mrs May and Mr David. According to that document, Mr Paget-Lewis had “spoken in the following terms: He feels in a totally self-destructive mood … it is all a symphony and the last chord has to be played … he is deeply in debt and is selling all his possessions … Nick Perkins is the cause of all his troubles, has said he is sexually deviant … He wouldn’t do a ‘Hungerford’ in a school, but will see Perkins at home”. The memorandum adds that this information was passed on to the police. See also the statement of Mr Prince to Detective Sergeant Boardman on 22 December 1987 (Annex B to the Government’s memorial, pp.", "41–42). According to that statement, Mr Paget-Lewis had said, immediately after the collision of 9 December 1987: “I’m not worried about all this because in a few months I’ll be doing life.” After the shootings, he recalled, in one of his statements to Detective Sergeant Boardman on 8 March 1988, that he had earlier warned the police (PC Adams) that “there was a danger of me doing something criminally insane unless things were mended between me and the Osmans”. (Annex B to Government’s memorial p. 77). It is rather obvious that these utterances ought to have been taken more seriously. [8].", "In December 1987, after the van incident, the police decided to arrest Mr Paget-Lewis, but, having not found him at his home, they did not even try to find him at his school before he disappeared. They took no further steps to trace him, except for asking ILEA to request him to contact Detective Sergeant Boardman and putting him in January 1988 on their National Computer. It is most surprising that they could not get hold of him whilst he was travelling around in hired cars and getting involved in several accidents (Commission’s report, §§ 50, 52, 57, 58 and 96 (h)–(i)). [9]. Commission’s report, § 62.", "See also his statement to Detective Sergeant Boardman on 8 March 1988 (Annex B to Government’s memorial, p. 98). [10]. A few months ago, in another case (McLeod v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-V, p. 1964), the representative of the Government of the United Kingdom observed that “there is a pressing social need to prevent disorder or crime” ant that more “particularly, in circumstances where there is a genuine and reasonable belief that there is a risk of disorder or crime, there is then a pressing social need to take steps to prevent it”. He added that “it is much more desirable to prevent such disorder or crime than to await its development and only then take steps to contain it” (see the verbatim record of the hearing held on 18 May 1998, Doc. Cour/Misc(98) 355, at p. 20).", "[11]. See, mutatis mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998‑V, p. 1964, § 59, and my separate opinion concerning the Pierre-Bloch v. France case, judgment of 21 October 1997, Reports 1997-VI, p. 2228. [12]. Articles 1, 2 and 8 of the Convention. [13].", "Articles 1 and 6 of the Convention. [14]. The dismissal of their civil action was also a violation of Article 13 of the Convention, as they were thereby denied what would have been “an effective remedy before a national authority” and it has not been shown, or even alleged, that any other remedy of that kind was available. Such a remedy had indeed to be ensured to them “notwithstanding that the violation ha[d] been committed by persons acting in an official capacity”." ]

[ "FIRST SECTION CASE OF SELMANI AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 67259/14) JUDGMENT STRASBOURG 9 February 2017 FINAL 09/05/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Selmani and Others v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Ledi Bianku, President,Mirjana Lazarova Trajkovska,Kristina Pardalos,Linos-Alexandre Sicilianos,Robert Spano,Armen Harutyunyan,Pauliine Koskelo, judges,and Abel Campos, Section Registrar, Having deliberated in private on 10 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "67259/14) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Macedonian nationals, Mr Naser Selmani, Mr Toni Angelovski, Ms Biljana Dameska, Ms Frosina Fakova, Ms Snežana Lupevska and Ms Nataša Stojanovska (“the applicants”), on 3 October 2014. All of the applicants live in Skopje. 2. The applicants were represented by Mr F. Medarski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.", "3. The applicants complained under Article 6 of the Convention of the lack of an oral hearing before the Constitutional Court and, under Article 10, about their forcible removal from the Parliament gallery from where they had been reporting on the parliamentary session of 24 December 2012. 4. On 9 September 2015 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Events in the national Parliament on 24 December 2012 5. The applicants were accredited journalists who were authorised to report from the national Parliament. On 24 December 2012 parliamentary proceedings were held on the Budget Act for 2013. The applicants, together with other journalists, were reporting from the Parliament gallery, which was situated above the plenary hall (“the chamber”) where members of parliament (MPs) were seated.", "The debate on the approval of the State budget attracted considerable public and media attention, owing to the conflict between opposition and ruling party MPs as to whether or not statutory procedure had been complied with. During the proceedings, opposition MPs approached the President of Parliament (“the Speaker”) and started creating noise by, inter alia, slapping his table. Soon thereafter, Parliament security officers entered the chamber. They pulled the Speaker out of the chamber and started forcibly removing the opposition MPs. At the same time, other security officers (four officers, according to the Government) entered the gallery and started removing the applicants and other journalists.", "The Government stated that the security officers had informed those in the gallery that they had to leave for security reasons. The applicants denied that the reasons for their removal had been explained to them. Whereas some journalists complied with those orders, the applicants refused to leave, as the situation in the chamber was escalating and they felt that the public had the right to be kept informed as to what was going on. However, the security officers forcibly removed the applicants from the gallery. 6.", "The Government submitted that according to official records (a copy of which was not provided) on that occasion the first applicant had forcibly removed the identification badge from one security officer and had injured him in his chest and leg. The applicants denied that they had injured any officer and submitted that no official document had been drawn up regarding the identity of the officer in question, the nature and severity of the injury or the alleged assailant. The Government further alleged that the applicants had been allowed to follow the events in the parliamentary chamber via a live broadcast in the Parliament’s press room and the adjacent hall. The applicants contested that there had been live stream while the ejection of the opposition MPs had been ongoing, given that the cameras had allegedly been turned against the walls. 7.", "At the same time, two opposing groups congregated in front of the Parliament building. According to the Government, several people were injured in those protests. No further information was provided. B. Subsequent events 1.", "Public reaction of the Speaker 8. In a letter of 26 December 2012 addressed to the media, the Speaker stated, inter alia: “Having regard to the announcements (најави) that the opposition would not allow the Budget Act to be adopted and that there would be protests and incidents, I requested, under section 43 of the Parliament Act, that the Parliament security service ensure proper work at the session. I would like to underline that the Parliament security service arranges and implements necessary measures to be taken ... having regard to the fact that the gallery is part of the plenary hall, the Parliament security service considered (донело оценка) that the gallery should be vacated in order to avoid an incident of a larger scale. As Speaker, I regret that such a measure regarding the journalists was taken ...” 2. Findings of the Department for Control and Professional Standards (“the DCPS”) within the Ministry of the Interior 9.", "On 26 December 2012 the Association of Journalists (represented by its president, the first applicant) sent a letter to the DCPS claiming that the forcible removal of the journalists had violated their rights under Article 10 of the Convention. In the letter, the journalists pushed for proceedings to be brought against those responsible for authorising and carrying out their removal from the gallery. 10. In a letter dated 6 January 2013, the DCPS informed the applicants that a group of MPs had surrounded the Speaker during the incident of 24 December 2012, and had attempted to physically confront him. They had also insulted and threatened him, whilst at the same time damaging technical equipment.", "Owing to the security risk, the Speaker had been removed to a place of safety. However, the disturbance in the chamber had continued. In the circumstances, the Speaker had requested, under section 43 of the Parliament Act (“the Act”, see paragraph 17 below), that the Parliament’s security service restore order so that the discussions could continue. Journalists had been asked to leave the gallery until order was restored. The letter further stated: “An MP who had been involved in the disturbance in the chamber and other people who could have disturbed the journalists in the performance of their tasks were in the gallery.", "In the meantime, there was information that the protests [in front of the Parliament building] could escalate and that police cordons could be violently broken. All that threatened the security in the Parliament. For these reasons, the journalists were asked to leave the gallery and to continue following the events from the press room, at a designated area. Most of the journalists understood the seriousness of the situation and complied with that request. A smaller group of people in the gallery, including [the applicants], confronted the security officers, disregarded their orders and resisted actively and passively.", "As a result, a [security] officer sustained an injury to his leg.” 11. The DCPS concluded that the law enforcement powers employed had not gone beyond the limit of what was acceptable, and that excessive force had not been used. 3. Findings of an ad hoc commission of inquiry 12. On 14 June 2013 the President of the State set up an ad hoc commission of inquiry regarding the events in the national Parliament of 24 December 2012.", "It was composed of five national members, two of whom were MPs. It further included two non-national observers appointed by the European Union. On 26 August 2013 the commission drew up a report, the relevant part of which reads as follows: “V - Legal qualifications ... 5. The absence of appropriate guidelines on dealing with such situations, including the absence of a strategy to deal with media in crisis, led to a situation in which journalists were removed from the Parliament gallery, which violated their rights to freedom of public information (слобода на јавно информирање) and publicity in the work of Parliament. Parliament should be particularly attentive and open with respect to the freedom of the press to report and to apply the best European practices in this matter ...” C. Proceedings before the Constitutional Court 13.", "The applicants lodged a constitutional complaint with the Constitutional Court in which they alleged a violation of their rights under Article 10 of the Convention. They submitted that the parliamentary debate and the related events regarding the approval of the State budget had been of particular public interest. The intervention of the Parliament security officers and the removal of the applicants from the gallery had been neither “lawful” nor “necessary in a democratic society”. With regard to the lawfulness of the measures taken, the applicants argued that section 43 of the Act could not be interpreted as allowing the forcible removal of journalists from the gallery by Parliament security officers. In any event, that provision had not been sufficiently foreseeable.", "As to the necessity of the measures, they argued that at the critical time, they had been in the gallery and had had no contact with the Speaker or MPs. Accordingly, they had not and could not have contributed to the disturbance in the chamber. Furthermore, they contested the DCPS’s arguments that there had been unauthorised people in the gallery and that the protests in front of the Parliament building had justified their forcible removal (see paragraph 10 above). They urged the court to hold a public hearing (јавна расправа) in accordance with Article 55 of the Rules of the Constitutional Court (see paragraph 24 below) and to find a violation of Article 16 of the Constitution (see paragraph 16 below) and Article 10 of the Convention. 14.", "At a hearing held on 16 April 2014 in the absence of the parties, the Constitutional Court dismissed the applicants’ complaint. The relevant parts of the decision read as follows: “On the basis of evidence submitted with the constitutional complaint and the reply of the Parliament of the Republic of Macedonia, the court has established the following facts: ... There was an increased interest on the part of the public and the media in (the parliamentary proceedings) given the importance of the State budget and the fact that before the proceedings, namely in November and December, there had been long, intense and sometimes tense discussions between opposition and ruling party MPs regarding the draft Budget ... On 24 December 2012 ... before the plenary debate of Parliament started, there was a disturbance by a group of MPs who started destroying technical equipment in the chamber. They prevented access to the podium, surrounded the Speaker, preventing him from carrying out his duties, whilst at the same time insulting and threatening him. Due to the security risk, the Speaker was taken out of the chamber by security personnel.", "The disturbance in the chamber continued. Under section 43 of the Parliament Act, the Speaker ordered police officers responsible for parliamentary security to restore order in the chamber and enable the debate to start in an orderly manner. The security personnel considered it necessary to vacate the gallery, in order to ensure the safety of those in the gallery and in the chamber. All those in the gallery, including [the applicants], were asked to leave for security reasons and to follow the events from the press centre. Most of the journalists complied with that instruction.", "A smaller group of people, including [the applicants], confronted the security officers, disregarded their orders, and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg. [The applicants] and other journalists, after having been removed from the gallery, remained in the Parliament building and were able to follow the live broadcast of the debate from other premises [the press centre, in a hall adjacent to the gallery]. At the same time, in front of the Parliament building, two opposing groups of people gathered. Several people were injured.", "The plenary debate of the Parliament of 24 December 2012 was public and it was entirely broadcast live on national television and streamed on the Parliament website. When the debate was over, the video material was made available to the public on that website ... ... The above provisions of the Parliament Act [see paragraph 17 below] and the Rules of Parliament [see paragraph 23 below] ... provide that the Speaker is responsible for maintaining order in the Parliament. In the event of disorder, he or she can take several measures (warning, denial of the right to speak, exclusion of MPs). Provisions regarding order during parliamentary proceedings concern all those participating in the session.", "The court considers that the removal of [the applicants] from the gallery amounted to an interference with their freedom to carry out their professional duties and to inform the public about events that were of considerable interest for the citizens of the Republic of Macedonia – the events in Parliament regarding the approval of the State budget for 2013, in which the public had significant interest in following and being informed about. ... The legal ground for the impugned measure was section 43 of the Parliament Act, which specified who was responsible for keeping order in the Parliament building – a special security unit, and which authorised the Speaker to decide and take measures in the event of disturbance of that order by MPs and other external persons participating in the work of Parliament. As to the necessity of the measure ... it has to be examined in the light of the concrete circumstances of the case, namely the events that took place inside the Parliament building, namely in the chamber, as well as the disorder outside the Parliament building. The strained atmosphere in the chamber, which prevented a regular and normal start of the proceedings, has to be taken into account.", "In this connection it is to be noted ... that a larger group of MPs assaulted the Speaker, who was immediately removed from the chamber by security officers. There were a number of incidents, including damage to furniture, which culminated in objects being thrown in the chamber – some in the direction of the gallery. In such circumstances, the Parliament security service considered that in order to protect the journalists in the gallery, they should be moved to a safer place where they would not be in danger. Such an assessment should not be viewed as conflicting with the journalists’ right to attend parliamentary proceedings and report on events that they witnessed. In fact, the journalists – most of them on the same day – submitted and published their reports in the evening editions of their newspapers, which implies that there was no violation of their freedom of expression.", "The actions of the security officers constitute standard practice for these and similar situations in case of endangerment, i.e. protection of media representatives while reporting from places of crises, demonstrations and other potentially dangerous events ... The fact that the journalists had been present within and outside the Parliament building since the morning of 24 December 2012, and were reporting on the events as they occurred, confirms that, notwithstanding the indications and expectations that discussion about the approval of the Budget would be tense, they were allowed access to the Parliament building and the gallery in order to carry out their function and inform the public about the debate. Accordingly, there was no preconceived idea to prevent the journalists from reporting on the debate. After they left the gallery, [the applicants] and other media representatives were allowed to remain in the parliamentary press centre ... from where they could have followed the live broadcast on the Parliament website and on the dedicated TV channel.", "... The physical removal of journalists from the gallery required by the concrete escalation of chaos and disorder aimed to protect them and ensure order in the chamber, and not to restrict their freedom of expression or to prevent them from carrying out their function, i.e. to inform the public.” 15. In a dissenting opinion, Judge N.G.D. of the Constitutional Court stated, inter alia, the following: “... My dissenting opinion mainly concerns the inability objectively to decide the case ...", "I consider that the written information, facts and evidence available to the court were insufficient ... The decision [of the Constitutional Court] contains contradictory reasons given that it ... establishes that the removal of journalists amounted to an interference with their right to carry out their function and to inform the public about an event of indisputable public interest, but it finds that such an intervention was justified ... without there being a solid factual basis in support of that finding. ... I think that it is of crucial importance that the Constitutional Court clarifies and explains the reasonableness of the assessment of the situation and the reason for which the journalists were removed from the gallery ... In order to establish the facts and assess the need for [their] removal ... it was necessary to determine the reason which prompted the security officers to remove them, despite the undisputed fact that all the incidents and disorder in the Parliament chamber were physically and clearly isolated and distant from [the gallery].", "It is absurd that [such a removal] was carried out ‘for the safety of journalists’, when it is clear that they were in their seats and were completely passive; they did not participate in the events at all, but only observed ... It is a fact that the journalists did not contribute to the conflictual situation in any respect [not disputed by Parliament]; they did not disturb order in the Parliament building; they were in direct contact neither with the Speaker or the MPs, nor with the events outside the Parliament building ... Besides, it is clear that the journalists themselves did not feel threatened; so they did not seek and expect any protection.” II. RELEVANT DOMESTIC LAW A. Constitution of 1991 16.", "Relevant provisions of the Constitution, in so far as relevant, read as follows: FUNDAMENTAL FREEDOMS AND RIGHTS OF THE INDIVIDUAL AND CITIZEN 1. Civil and political freedoms and rights ... Article 16 “Freedom of personal belief, conscience, and thought, and public expression of thought, are guaranteed. Freedom of speech, public address, public information and the establishment of institutions for public information are all guaranteed. Free access to information and freedom to obtain and impart information are guaranteed.", "The right of reply in media is guaranteed. The right of rectification in media is guaranteed. The right of media to protect the confidentiality of a source is guaranteed. Censorship is prohibited..” Article 110 § 3 “The Constitutional Court of the Republic of Macedonia ... (3) safeguards the freedoms and rights of individuals and citizens concerning the freedom of belief, conscience, thought and public expression of thought; political association and activity and the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social or political affiliation ...” B. Parliament Act (Official Gazette no.104/2009) 17.", "Section 43 of the Parliament Act, in so far as relevant, reads: “XIII. Maintaining order in the Parliament building (1) A special security service ensures order in the Parliament building and its premises. The insignia of Parliament must be clearly displayed on the clothes of the security officers. (2) Authorised public officials cannot enter parliamentary premises and take measures against MPs or other people without approval by the Speaker. (3) No one, except a person authorised to keep order in Parliament, is allowed to carry arms.", "(4) The Speaker, after prior consultation with Deputy Speakers and coordinators of MPs’ groups, decides about responsibility and takes measures in the event of a disturbance in Parliament being caused by MPs or other people participating in the work of Parliament ...” C. Obligations Act of 2001 18. Section 142 of the Obligations Act sets out the general rules on pecuniary and non-pecuniary damage. Section 189 provides for the right to claim compensation for non-pecuniary damage in the event of violation of human rights and freedoms. D. Administrative Disputes Act 19. Under section 56 of the Administrative Disputes Act, anyone who claims that a State official undertook action which violated his or her human rights and freedoms can seek protection under the proceedings specified in that Act, unless such protection is provided by some other judicial instance.", "20. Section 58(1) provides that a claim for protection of human rights and freedoms under the Act can be lodged while the action at issue is on-going (додека трае дејствието). 21. Under section 62, if the claim is well-founded, the Administrative Court will prevent the action from being taken further (ќе го забрани натамошното вршење на дејствието). It will also specify what other measure has to be taken so as to restore lawfulness.", "22. A decision of the Administrative Court is amenable to appeal before the Supreme Court (section 63). E. Rules of Procedure of Parliament (Official Gazette nos. 91/2008, 119/2010 and 23/2013) 23. The relevant provisions of the Rules of Parliament read: Article 91 § 1 “The Speaker is responsible for maintaining order during parliamentary proceedings.” Article 93 “The Speaker can exclude an MP in the event that he or she, after being warned and denied the right to speak, disturbs order or uses inappropriate language that undermines the dignity of Parliament.", "The MP who is excluded should immediately leave the chamber. If the Speaker cannot maintain order, he or she will order a short break.” Article 94 “Rules concerning order during parliamentary proceedings apply to all participants in the proceedings.” Article 225 “Parliament ensures that the public is informed about its work ...” Article 227 “The media are allowed, in accordance with the rules on internal order in Parliament, to attend parliamentary proceedings and working groups in order to inform the public about Parliament’s work.” Article 228 “Media representatives are provided with (им се ставаат на располагање) acts to be discussed and examined by the Parliament, as well as materials and documents to be discussed in Parliament and working groups ... unless the Parliament or the working group decides to examine issues without the presence of media representatives.” Article 229 “The manner of exercise of the rights, obligations and duties of media representatives in the Parliament shall be regulated by an act passed by the President of Parliament.” F. Rules of the Constitutional Court 24. The relevant provisions of the Rules of the Constitutional Court read: Article 55 “Proceedings regarding the protection of human rights and freedoms shall, as a rule, be decided by the Constitutional Court following a public hearing. Parties to the proceedings and the Ombudsman, in addition to other people and representatives of institutions are, if necessary, summoned to attend the hearing. If they are properly summoned, the public hearing can be held in the absence of the parties to the proceedings or the Ombudsman.” Article 82 “By a decision in which the Constitutional Court finds that there was a violation of the freedoms and rights provided for in Article 110 § 3 of the Constitution, the Constitutional Court will determine the manner in which the consequences of the violation would be removed.” Article 84 § 1 “Publicity in the work of the Constitutional Court is ensured ... through attendance of parties to the proceedings, other people, bodies and organisations and media representatives ...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 25. The applicants complained under Article 6 § 1 of the Convention of the lack of an oral hearing in the proceedings before the Constitutional Court. This provision, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. Applicability of Article 6 § 1 of the Convention 26. The Government stated that they had “no objections concerning the applicability of Article 6 § 1 of the Convention regarding the procedure before the Constitutional Court.” 27.", "Notwithstanding the absence of any objection by the Government under this head, the Court considers it necessary to address the issue of applicability of Article 6 of the Convention as it goes to its jurisdiction ratione materiae. It notes that Article 16 § 3 of the Constitution guarantees the freedom to obtain and impart information (see paragraph 16 above). The freedom of the press to report on parliamentary proceedings is further specified in the Rules of Procedure of the Parliament (see paragraph 23 above). The above is sufficient for the Court to conclude that the domestic law recognises the right of accredited journalists to report from the Parliament. Reporting from the Parliament gallery was necessary for the applicants as accredited journalists to exercise their profession and to inform the public about its work.", "The Constitutional Court, which decided the applicants’ constitutional complaint, seems to have had the same approach. In such circumstances, the Court considers that the right to report from the Parliament gallery, which fell within the applicants’ freedom of expression, is a “civil right” for the purposes of Article 6 § 1 of the Convention (see similarly Shapovalov v. Ukraine, no. 45835/05, § 49, 31 July 2012; RTBF v. Belgium, no. 50084/06, § 65, ECHR 2011 (extracts); and Kenedi v. Hungary, no. 31475/05, § 33, 26 May 2009).", "2. Lack of a significant disadvantage 28. The Government argued that the applicants had not sustained a significant disadvantage owing to the failure of the Constitutional Court to hold an oral and public hearing. An oral hearing would not have contributed to the establishment of new or different facts. The relevant facts regarding the applicants’ removal from the Parliament gallery had been undisputed between the parties and could have been established on the basis of written evidence submitted in support of the applicants’ constitutional complaint.", "29. The applicants contested the Government’s objection. 30. The Court considers that this objection goes to the very heart of the complaint under this head. It would thus be more appropriately examined at the merits stage.", "3. Conclusion 31. The Court notes that no other ground for declaring the complaint under this head inadmissible has been established. It further considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicants 32. The applicants maintained that in the present case the Constitutional Court had not been called on to decide only issues of law. There had been several contested issues of fact, which had required that an oral and public hearing be held in the presence of the applicants and their representatives.", "Those issues concerned the manner in which the applicants had been removed from the Parliament gallery, notably whether the reasons for their removal had been explained to them, who had authorised the actions of the security officers, the level of force used by them and whether any security officer had been injured in the incident. Other disputed issues of fact concerned the applicants’ (in)ability to follow the incident in the parliamentary chamber and the security risk that had required, as established by the Constitutional Court, their removal. In the latter context, they referred to the dissenting opinion of Judge N.G.D. of the Constitutional Court, in which the above elements had been pointed out (see paragraph 15 above). The applicants further argued that an oral and public hearing had been required not only for the purpose of establishing the relevant facts, but also given the “exceptional public interest” in the case.", "The holding of a public hearing would have contributed to public confidence in the administration of justice. (b) The Government 33. The Government referred to the special position of the Constitutional Court and maintained that it was neither a regular court nor a court which established facts in any case. The proceedings in respect of individual constitutional complaints involved mostly legal issues and not the establishment of facts, unless they were disputed between the parties. 34.", "The Government pointed out that Article 55 of the Rules of the Constitutional Court did not specify the cases in which the court was required to hold a public and oral hearing (see paragraph 24 above). Accordingly, it was within its discretion to decide whether an oral hearing was necessary for the establishment of disputed facts. Since 2001 the Constitutional Court had held only four oral hearings in proceedings in respect of individual constitutional complaints. 35. In the present case, the Constitutional Court had based its decision on written pleadings and documents furnished by the applicants and Parliament, which it had considered sufficient for the establishment of the relevant facts.", "It had not been disputed between the parties that the applicants had been removed from the gallery. The main issue to be decided had been of a legal nature, namely whether such removal had amounted to a violation of the applicants’ right to freedom of expression. Therefore, as the parties would only have reiterated what they had already stated in their written pleadings, the holding of a hearing in the impugned proceedings would not have added to their fairness or served any useful purpose. Rather, it would have prolonged the proceedings and accordingly would have been in conflict with the principles of economy and efficiency. Lastly, the parties had not been prevented from submitting any evidence and presenting their arguments.", "2. The Court’s assessment 36. The Court firstly notes that both the Government and the applicants in their observations referred to the issue at stake as concerning the lack of an oral and public hearing. It was not, however, argued that the general public had been excluded from the hearing of 16 April 2014 when the Constitutional Court rendered the decision on the applicants’ complaint. The Court will therefore proceed to examine the case as raising an issue of lack of an oral hearing, as it was communicated to the parties (see Mitkova v. the former Yugoslav Republic of Macedonia, no.", "48386/09, § 55, 15 October 2015). 37. The Court emphasises that in proceedings before a court of first and only instance, the right to a “public hearing” entails an entitlement to an “oral hearing” under Article 6 § 1 unless there are exceptional circumstances that justify dispensing with such a hearing (see Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002‑V). 38.", "The Court observes that Article 55 of the Rules of the Constitutional Court (see paragraph 24 above) provided that, as a rule, an individual constitutional complaint submitted under Article 110 § 3 of the Constitution was to be decided at a public hearing in the presence of the parties (contrast Juričić v. Croatia, no. 58222/09, §§ 25 and 80, 26 July 2011). The Government argued that it was within that court’s discretion to decide whether to hold an oral hearing. The absence of an oral hearing in the present case was justified by the special role of the Constitutional Court and the specific nature of the impugned proceedings, which involved exclusively legal issues. It did not involve any issue of facts which had been disputed between the parties (see paragraph 33-35 above).", "39. It is to be noted that the applicants’ case was examined only before the Constitutional Court, which acted as a court of first and only instance. No other judicial authority examined the case before the Constitutional Court (see, conversely, Siegl v. Austria (dec.), no. 36075/97, 8 February 2000; Breierova and Others v. Czech Republic (dec.), no. 57321/00, 8 October 2002; Weh and Weh v. Austria (dec.), no.", "38544/97, 4 July 2002; and Novotka v. Slovakia (dec.), no. 74459/01, 8 November 2005). It fell within the jurisdiction of that court and it was the only body which decided the merits of the case (see Kugler v. Austria, no. 65631/01, § 50, 14 October 2010). 40.", "The case concerned the applicants’ complaint that their forcible removal from the Parliament gallery had violated their right to freedom of expression. The Court does not consider that it involved exclusively issues of law, as argued by the Government. On the contrary, the Constitutional Court’s findings regarding the necessity and proportionality of the impugned measure relied on issues of fact which that court was required to ascertain. Although the applicants’ removal from the Parliament gallery, as such, was not disputed between the parties, the Constitutional Court’s decision was based on facts which the applicants contested (see paragraph 32 above) and which were relevant for the outcome of the case. Those issues were neither technical (see, conversely, Siegl, cited above) nor purely legal (see, conversely, Zippel v. Germany (dec.), no.", "30470/96, 23 October 1997, and Juričić, cited above, § 91). 41. The applicants were therefore entitled to an oral hearing before the Constitutional Court. The administration of justice would have been better served in the applicants’ case by affording them the right to explain their personal experience in a hearing before the Constitutional Court. In the Court’s view, this factor outweighs the considerations of speed and efficiency on which the Government relied in their submissions.", "However, no oral hearing was held, even though the applicants had explicitly requested one. Moreover, the Constitutional Court did not give any reasons why it considered that no hearing was necessary (see Kugler, cited above, § 52). 42. In view of the foregoing considerations, the Court dismisses the Government’s preliminary objection and finds that there were no exceptional circumstances that could justify dispensing with an oral hearing. 43.", "Accordingly, there has been a breach of Article 6 § 1 of the Convention on account of the lack of an oral hearing in the proceedings before the Constitutional Court. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 44. The applicants complained that their removal from the Parliament gallery had violated their rights under Article 10 of the Convention. This provision, in so far as relevant, reads as follows: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 1. “Victim” status of the applicants (a) The parties’ submissions 45. The Government submitted that the declaration of the ad hoc comission of inquiry, whose members had been independent from those involved in the incident of 24 December 2002, had represented appropriate and sufficient redress for the applicants (see paragraph 12 above).", "Accordingly, they had lost the status of “victim” in relation to the complaints under this head. 46. The applicants contested the Government’s arguments. The commission of inquiry had not been a State body, but an ad hoc panel of experts. The fact that it had established a violation of their right to freedom of expression could not be regarded as an acknowledgment by the State authorities.", "Furthermore, the national authorities had not taken any measures to remedy the alleged violation. (b) The Court’s assessment 47. As the Court has repeatedly held, a decision or measure favourable to an applicant is not, in principle, sufficient to deprive him or her of the status of “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § § 115 and 116, ECHR 2010).", "48. In the instant case the Court notes that in the aftermath of the events at issue, the President of the State set up а commission of inquiry, as an ad hoc body, composed of five national members (two of whom were MPs). Two foreign nationals appointed by the EU participated in the work of the commission as observers. The commission drew up a report regarding the events of 24 December 2012 in which it held, inter alia, that “journalists were removed from the Parliament gallery, which violated the right to freedom of public information ...” (see paragraph 12 above). Even assuming that that declaration can be seen as an acknowledgment, whether explicit or in substance, by a State authority, of an alleged breach of Article 10 of the Convention, the Court considers that it does not provide any redress as required by its case-law (see, mutatis mutandis, Constantinescu v. Romania, no.", "28871/95, § 43, ECHR 2000‑VIII). 49. In conclusion, the Court considers that the applicants can claim to be “victims” within the meaning of Article 34 of the Convention. 2. Non-exhaustion of domestic remedies (a) The parties’ submissions 50.", "The Government maintained that the applicants had not exhausted all effective remedies. In particular, they had not claimed compensation under the general rules of tort provided for by the Obligations Act (see paragraph 18 above). Furthermore, they had not instituted criminal proceedings against unidentified perpetrators. Lastly, they had not brought their grievances before the Administrative Court in accordance with the Administrative Disputes Act (see paragraphs 19-22 above). 51.", "The applicants contested that the remedies to which the Government referred were effective in theory and in practice. In particular, a compensation claim would lack any prospect of success given the absence of a prior acknowledgment of the violation of their rights under this head. Furthermore, there was no example of domestic case-law in which the civil courts had awarded damages for violation by State officials of the right to freedom of expression. Similar considerations applied to the criminal avenue of redress. Furthermore, the Constitutional Court had not rejected the constitutional complaint for reasons of non-exhaustion of remedies.", "Lastly, if more than one potentially effective remedy was available, an applicant was required to use only one of them. (b) The Court’s assessment 52. The relevant Convention principles have been recently summarised in the Court’s judgment in the case of Vučković and Others (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). 53.", "In the present case the applicants lodged a constitutional complaint with the Constitutional Court, which is vested with jurisdiction, under Article 110 § 3 of the Constitution (see paragraph 16 above), to decide cases concerning the freedom of belief, conscience, thought and public expression of thought. The Constitutional Court examined the applicants’ complaint on the merits and dismissed it for the reasons outlined above (see paragraph 14 above). In previous cases against the respondent State, the Court has accepted that a constitutional complaint was to be regarded as an effective remedy with respect to the freedom of expression under Article 10 of the Convention (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, and Vraniškovski v. the former Yugoslav Republic of Macedonia (dec.), no. 37973/05, 26 May 2009).", "It is to be noted that the Government did not argue that that remedy had been ineffective in the circumstances of the present case. They submitted, however, that the applicants should have used instead the civil, criminal and administrative-law remedies specified above. 54. The Court reiterates that when a remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no.", "25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jašar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 11 April 2006; and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005). It has not been presented with any arguments that would indicate that the remedies referred to by the Government would add any essential elements that were unavailable through the use of the constitutional complaint under Article 110 § 3 of the Constitution.", "Furthermore, it considers that it would be unduly formalistic to require the applicants to avail themselves of a remedy which even the Constitutional Court did not oblige them to use (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 117 and 118, ECHR 2007-IV). 55. Accordingly, this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention. 3.", "Conclusion 56. The Court concludes that the applicants’ complaint under this head is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicants 57. The applicants submitted that their removal from the Parliament gallery had not been “in accordance with the law”. In this connection they alleged that the Parliament Act had not been foreseeable. In particular, section 43 of that Act had neither granted discretion to the Parliament security officers regarding measures to be taken for maintaining order in Parliament nor entitled them to use force against journalists who refused to leave the gallery.", "They further alleged that there had been no “pressing social need” for their removal. They had neither been in danger nor felt threatened by the situation. They had been removed from the gallery, which was physically separate from the chamber where the disturbance had happened. In the absence of a request on their part, the security officers had not been entitled to remove them from the gallery and prevent them from reporting on the parliamentary proceedings. Such a measure had had a chilling effect on their freedom of expression.", "(b) The Government 58. The Government submitted that MPs had had long and strained discussions on the 2013 Budget Act before the incident occurred. The parliamentary proceedings at which the Budget Act was to be approved had been of considerable public interest. Authorised journalists had been allowed to enter the Parliament building and report on the events before and during the critical day. 59.", "As to the applicants’ removal, the Government maintained that it had to be seen in the context of the strained atmosphere in the chamber and the violent and unpredictable protests outside the Parliament building. Although the applicants’ removal from the gallery had amounted to interference with their freedom of expression, it had been in compliance with the Convention. The measure had been based on section 43 of the Parliament Act, which had entitled the Speaker to order Parliament security officers to restore order so that discussion could continue. The intervention had aimed to ensure public safety, prevent further disturbance and, in particular, to protect the journalists. It had not been applied with the aim of preventing them from reporting on the parliamentary proceedings.", "It had been necessary given the ongoing disturbance, which had culminated in objects being thrown in the chamber and in the direction of the gallery, as part of the chamber. The assessment of the security risks made within the State’s margin of discretion had required that the gallery be vacated to avoid any threat to the journalists’ physical integrity. The applicants had refused to comply with the orders of the security officers to leave the gallery. Their removal had been carried out as a last resort after other less restrictive measures had been exhausted. The unforeseeable and rapid developments had required a prompt reaction by the Parliament security service.", "Notwithstanding that the applicants had neither contributed to nor participated in the incidents in the Parliament chamber, the extraordinary and chaotic events surrounding the debate in Parliament had necessitated the impugned intervention of the Parliament security service. In the Government’s view, the factual grounds of the present case were comparable to the case of Pentikäinen v. Finland ([GC], no. 11882/10, ECHR 2015) in which the Court had found no violation of Article 10. 60. Despite their removal from the gallery, the applicants had been allowed to remain in the press centre situated or in the hall adjacent to the Parliament chamber, from where they could have followed the live broadcast from the chamber.", "The fact that the applicants had been relocated to another part of the Parliament building had not had any chilling effect on their function to inform the public. The parliamentary proceedings of 24 December 2002 had been entirely broadcast on the dedicated television channel and the Parliament’s website. After the debate, video material had been made available on that website. In conclusion, the Government submitted that the Constitutional Court had based its decision on relevant and sufficient reasons and had struck a fair balance between the competing interests at stake. 2.", "The Court’s assessment (a) Existence of interference 61. It is common ground between the parties, and the Court agrees, that the applicants’ removal from the Parliament gallery from where they were reporting on the parliamentary proceedings and the subsequent incidents in the chamber amounted to “interference” with their right to freedom of expression under the first paragraph of Article 10 of the Convention. 62. The Court has to examine whether such interference was “prescribed by law”, pursued one or more legitimate aims in the light of paragraph 2 of Article 10, and was “necessary in a democratic society”. (b) Whether the interference was prescribed by law 63.", "The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). 64. Thus, a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he or she must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.", "Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124, ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015).", "65. In the present case, it is to be noted that in its decision of 16 April 2014 the Constitutional Court held that the applicants’ removal from the Parliament gallery had been based on section 43 of the Parliament Act and Articles 91-94 of the parliamentary Rules of Procedure (see paragraph 14 above). Under those provisions, the Speaker was responsible for maintaining order during parliamentary proceedings. Indeed, he ordered the special security service of Parliament to take measures to restore order (see paragraphs 8, 14, 17 and 23 above). Those provisions applied to all participants in the proceedings, which, according to the interpretation of the Constitutional Court, included journalists in the gallery.", "66. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Waite and Kennedy v. Germany [GC], no.", "26083/94, § 54, ECHR 1999‑I). Although the above rules did not contain explicit provisions entitling security officers to remove accredited journalists from the Parliament gallery, it is not unreasonable that such a power was inherent in the orderly functioning of Parliament. The Court sees no indication that the findings of the Constitutional Court were arbitrary or manifestly unreasonable. Accordingly, it does not consider that the applicants were unable to foresee, to a reasonable degree, that the intervention of security officers could, under certain circumstances, affect the ability of journalists to report from the gallery. 67.", "Against that background, the Court is satisfied that the relevant provisions of the Parliamentary Act and the parliamentary Rules of Procedure, which were accessible to the public, met the required level of precision and foreseeability and that, accordingly, the interference was “prescribed by law”. (c) Whether the interference pursued a legitimate aim 68. The Government maintained that the interference was intended to ensure public safety, prevent disorder and protect the applicants. 69. The Court is satisfied that the interference pursued the aims of ensuring public safety and the prevention of disorder.", "70. Accordingly, the central issue which remains to be determined in the case is whether the interference complained of was “necessary in a democratic society”. (d) “Necessary in a democratic society” (i) General principles 71. The general principles concerning the necessity of an interference with freedom of expression were summarised in the Delfi AS case (cited above, § 131) as follows: “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.", "Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.", "This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 72. The Court further emphasises the essential function the media fulfil in a democratic society. Although they must not overstep certain bounds, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997‑I; and Jersild v. Denmark, 23 September 1994, § 31, Series A no.", "298). Not only do the media have the task of imparting such information and ideas, but the public also has a right to receive them (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30). (ii) Application of the general principles to the present case 73.", "The Court notes that the present case concerns the removal of the applicants from the Parliament gallery, as a designated area for journalists authorised to report on the work of Parliament. The incident happened during the parliamentary debate of 24 December 2012 on the approval of the State Budget Act for 2013. The Constitutional Court established that MPs had had long and tense discussions prior to the debate at issue. It had been a matter of considerable public interest which had attracted significant media attention. At the same time two opposing groups of people were protesting in front of the Parliament building (see paragraph 14 above).", "The parties acceded to the court’s findings (see paragraphs 13, 32, 58 and 59 above). 74. The strained atmosphere culminated in a group of MPs creating a disturbance in the parliamentary chamber. They surrounded the Speaker, created noise by slapping his table, prevented access to the podium and started destroying technical equipment. In such circumstances, the Speaker ordered the security personnel to take measures in order to restore order and ensure the proper functioning of Parliament.", "In this context the Court reiterates that parliaments are entitled to react when their members engage in disorderly conduct disrupting the normal functioning of the legislature. This is because orderly debate in Parliament ultimately serves the political and legislative process, the interests of all members of the legislature, enabling them to participate on equal terms in parliamentary proceedings, and the interests of society at large (see Karácsony and Others, cited above, §§ 139 and 141). 75. The Court considers that the disorder in the parliamentary chamber and the way in which the authorities handled it were matters of legitimate public interest. The media therefore had the task of imparting information on the event, and the public had the right to receive such information.", "In this connection, the Court refers to its case-law regarding the crucial role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder, which likewise applies to the circumstances of the present case. It reiterates that the “watch-dog” role of the media assumes particular importance in such contexts, since their presence is a guarantee that the authorities can be held to account for their conduct vis-à-vis the demonstrators and the public at large when it comes to the policing of large gatherings, including the methods used to control or disperse protesters or to preserve public order. Any attempt to remove journalists from the scene of demonstrations must therefore be subject to strict scrutiny (see Pentikäinen, cited above, §§ 89 and 107). This applies even more so when journalists exercise their right to impart information to the public about the behaviour of elected representatives in Parliament and about the manner in which authorities handle disorder that occurs during Parliamentary sessions. 76.", "When assessing whether the applicants’ removal from the gallery by the Parliament security service was necessary, the Court will bear in mind that the interests to be weighed in the instant case are both public in nature, namely the interests of the security service in maintaining order in Parliament and ensuring public safety, and the interests of the public in receiving information on an issue of general interest. It will examine whether the impugned interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aims pursued. In so doing, it will pay attention to whether the applicants’ removal was based on a reasonable assessment of the facts and whether the applicants were able to report on the incident in Parliament. It will also have regard to the applicants’ conduct (see, ibid, cited above, §§ 94 and 95). 77.", "The Court is mindful of all the circumstances prior to and during the parliamentary debate at issue. In this connection, it refers to the “announcements” for “protests and incidents” (see paragraph 8 above), as well as “the indications and expectations that the discussion about the approval of the State Budget would be tense” (see paragraph 14 above). However, it notes that no information was provided as to whether any measures had been taken and preparation made in response to those “announcements”, “indications and expectations”. 78. Regarding the protests outside the Parliament building, the Constitutional Court did not go any further than to state that “several people were injured” in them.", "No additional information was given as to the nature of the injuries or the circumstances in which they had been sustained. The Court notes that in the letter of 6 January 2013, the DCPS informed the applicants that “there was information that the protests [in front of the Parliament building] could escalate and that police cordons could be violently broken. All that threatened the security in the Parliament” (see paragraph 10 above). In the absence of any further information, the Court finds it difficult to make any inferences as to the factual grounds on which that assessment was made. More importantly, it observes that in its decision of 16 April 2014, the Constitutional Court did not follow up on that indication.", "It did not point to any issue of fact as to whether, and to what extent, the protests taking place outside the Parliament building would threaten the safety of those inside the building, including the applicants. In any event, the Court takes due note of the fact that the applicants were removed from the gallery and not from the building notwithstanding the alleged threat for “the security in the Parliament” (see paragraph 10 above). 79. The Court notes that the events in the parliamentary chamber (see paragraph 74 above) were provoked by a group of MPs. During their disorderly behaviour, the applicants were in the gallery, which was situated above the chamber.", "Unlike the DCPS, the Constitutional Court did not make any findings of fact that unauthorised people had been present in the gallery and “could have disturbed the applicants in the performance of their tasks” (see paragraph 10 above). Even if such people had indeed been present in the gallery at the critical time, it is to be noted that no explanation was provided as to why they could not have been removed without the work of the applicants and other journalists in the gallery being adversely affected. 80. During the disturbance in the chamber, the applicants were passive bystanders who were simply doing their work and observing the events. The Government conceded that they had neither contributed to nor participated in the disturbance in the chamber (see paragraph 59 above).", "Accordingly, they did not pose any threat to public safety, order in the chamber or otherwise. 81. It is not disputed that the applicants refused to leave the gallery as ordered by the security officers. The Constitutional Court further established that on that occasion a small group of people, including the applicants, “had actively and passively resisted” and that as a result, a security officer sustained an injury to his leg (see paragraph 14 above). That conclusion overlapped with the findings of the DCPS (see paragraph 10 above).", "The applicants contested those findings (see paragraphs 6 and 13 above). The Court notes that neither the DCPS nor the Constitutional Court made any findings of fact that a security officer engaged in the impugned operation had sustained an injury to his chest, as alleged by the Government (see paragraph 6 above). Furthermore, no information was provided as to the nature of the leg injury. It also appears that the applicants’ behaviour, as established by the domestic authorities, did not lead to any proceedings with a view to establishing the relevant circumstances and attributing any guilt in this respect. Nonetheless, the Court considers it noteworthy that the applicants’ removal from the gallery was not a consequence of their refusal to comply with the orders of the parliamentary security service or their resistance, but was a result of the risk assessment made by that same service that the applicants’ further presence in the gallery posed a threat to their lives and physical integrity.", "In this connection, the Constitutional Court found that “the Parliament security service considered that, in order to protect the integrity and lives of the journalists in the gallery, the latter should be moved to a safer place where they would not be in danger”. 82. The Court notes that the applicants “did not feel threatened by the situation” (see paragraph 57 above). Although their perception of the gravity of the situation is important, the Court disagrees that measures taken by law-enforcement officers with a view to protecting the life and physical integrity of others should depend on a request by the would-be victim. 83.", "However, the Court finds no indication that the disorderly behaviour of the MPs in the chamber would have put the applicants’ lives and physical integrity in danger. It was not presented with any evidence that the disturbance in the chamber had been violent and that anyone, in the chamber or elsewhere, had sustained an injury as a result of that disturbance. The only relevant element on which the Constitutional Court based its finding that the applicants had not been safe was that “objects were thrown in the chamber – some in the direction of the gallery”. However, the Court notes that no further explanation was provided as to the type and number of objects thrown and whether any of them had reached the gallery, which as noted above, was situated above the chamber. The Court observes that the DCPS made no reference in its letter to objects being thrown in the chamber (see paragraphs 9 and 10 above).", "The Court further refers to its finding above (see paragraph 43 above) that the applicants were deprived of the opportunity to challenge in an oral hearing the facts on which the Constitutional Court had based its decision about the security risks for the applicants (see Baka v. Hungary [GC], no. 20261/12, § 161, ECHR 2016; Karácsony and Others, cited above, § 133; and Lombardi Vallauri v. Italy, no. 39128/05, § 46, 20 October 2009). 84. Lastly, the Court notes that the parties submitted conflicting accounts as to whether the applicants had been able to follow the events in the chamber after their removal from the gallery.", "The Court recalls that in its judgment the Constitutional Court found that the journalists “were able to follow the live broadcast of the debate from other premises [the press centre, in a hall adjacent to the gallery]” and that the “plenary debate of the Parliament of 24 December 2012 was public and it was entirely broadcast live on national television and streamed on the Parliament website (see paragraph 14 above). When the debate was over, the video material was made available to the public on that website.” Although the Court does not have a basis to call into question these factual findings, they do not, as such, adequately convey in the Court’s view whether the applicants had been effectively able to view the ongoing foreseeable removal of opposition MPs by the Parliamentary security service which, as referred to above (see paragraph 75 above), was an issue of legitimate public concern. Furthermore, the applicants’ removal entailed immediate adverse effects that instantaneously prevented them from obtaining first-hand and direct knowledge based on their personal experience of the events unfolding in the chamber, and thus the unlimited context in which the authorities were handling them (see conversely, ibid, cited above, § 101). Those were important elements in the exercise of the applicants’ journalistic functions, which the public should not have been deprived of in the circumstances of the present case. 85.", "Against this background, the Court considers that the Government failed to establish convincingly that the applicants’ removal from the gallery was necessary in a democratic society and met the requirement of “pressing social need”. While the reasons provided by the Constitutional Court were relevant, they cannot be regarded, in the circumstances, as sufficient to justify the applicants’ removal from the gallery. 86. There has accordingly been a violation of Article 10 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 88. The applicants claimed 5,000 euros (EUR) each in respect of non-pecuniary damage. 89.", "The Government contested the claim as unsubstantiated and excessive. They further submitted that there was no causal link between the damage claimed and the alleged violations. 90. The Court considers that the applicants must have sustained non-pecuniary damage, which cannot be compensated for solely by the finding of violations of the Convention. Ruling on an equitable basis, it awards each applicant the sum of EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses 91. The applicants also claimed EUR 3,500 for legal fees, without specifying whether this figure concerned their representation in the domestic proceedings or before the Court. No supporting documentation was submitted in respect of this claim. 92.", "The Government contested the claim as unsubstantiated and excessive. 93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‑IV). The Court notes that the applicants have failed to substantiate whether the costs for representation were incurred in the domestic proceedings or in the proceedings before the Court.", "Furthermore, they have not submitted supporting documents in respect of their claim under this head. In such circumstances, the Court makes no award. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Decides to join to the merits the Government’s objection that the applicants did not suffer a significant disadvantage owing to the lack of an oral hearing in the proceedings before the Constitutional Court, and dismisses it; 3. Holds that there has been a violation of Article 6 of the Convention on account of the failure of the Constitutional Court to hold an oral hearing; 4. Holds that there has been a violation of Article 10 of the Convention on account of the applicants’ removal from the Parliament gallery by the parliamentary security service; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) each, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to that amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLedi BiankuRegistrarPresident" ]

[ "SECOND SECTION CASE OF HASDEMİR v. TURKEY (Application no. 44027/09) JUDGMENT STRASBOURG 22 May 2012 This judgment is final but it may be subject to editorial revision. In the case of Hasdemir v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Isabelle Berro-Lefèvre, President,Guido Raimondi,Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 17 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44027/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Hasdemir (“the applicant”), on 25 August 2009.", "2. The applicant was represented by his sibling, Ms N. Hasdemir. The Turkish Government (“the Government”) were represented by their Agent. 3. On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the right to be released pending trial, to have a compensatory remedy for the alleged breach of Article 5 and to be tried within a reasonable time, to the Government.", "Furthermore, by virtue of Article 29 § 1 of the Convention, the Court decided to rule on the admissibility and merits of the application at the same time. 4. As the issues raised in this application are subject of well-established case-law of the Court, the Court decided to assign the application to a Committee of three judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1961 and is currently detained in İzmit F‑type prison. 6. On 6 May 2000 the applicant was arrested and taken into police custody on suspicion of membership of a criminal profit-making organisation and carrying out illegal activities on its behalf. 7. On 8 May 2000 the investigating judge at the İstanbul State Security Court ordered the applicant’s pre-trial detention.", "8. On 19 June 2000 a bill of indictment was filed against the applicant and four other persons with the İstanbul State Security Court, accusing them of forming a criminal profit-making organisation and of being involved in incidents of murder, extortion and fraud. 9. On 30 January 2003 the first-instance court acquitted the applicant and the other accused of the former charge on the ground that the mental elements of the crime had not been established on their parts. It followed that it lacked jurisdiction to examine the other charges brought against them and transferred the proceedings to the Kartal Assize Court.", "10. On 20 December 2004 the Court of Cassation quashed the judgment of the first-instance court, noting that the latter had erroneously acquitted the applicant and his co-accused of the charge concerned. In its decision, the court held that all components of forming a criminal profit-making organisation had been sufficiently established against the accused. 11. Subsequently, the case was remitted to the first-instance court.", "12. Following the abolition of the State Security Courts by Law no. 5190, the İstanbul Assize Court resumed the criminal proceedings. 13. During the proceedings, the İstanbul Assize Court reviewed the lawfulness of the applicant’s continued detention regularly at the end of each hearing or, at the latest, every thirty days, of its own motion, without holding any oral hearing.", "14. At the hearing on 3 March 2010 the İstanbul Assize Court decided, once more, to extend the applicant’s continued detention on account of the reasonable grounds of suspicion that he had committed the offences with which he was charged, and the state of the evidence in the case file. 15. On 5 January 2011 having regard to the period he had spent in detention, the İstanbul Assize Court released the applicant. 16.", "On the basis of the range of evidence in the case file, on 6 December 2011 the İstanbul Assize Court convicted the applicant of a number of crimes; including forming a criminal profit-making organisation, murder, abduction and extortion. Subsequently, the court sentenced the applicant to life imprisonment. 17. According to the information in the case file, the applicant lodged an appeal with the Court of Cassation, before which the proceedings are currently pending. II.", "RELEVANT DOMESTIC LAW 18. The relevant sections of the Turkish Code of Criminal Procedure (Law no.5271) can be found in the judgment of Araz v. Turkey (no. 44319/04, §§ 15-16, 20 May 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A.", "Article 5 § 3 of the Convention 19. The applicant complained that the length of his pre-trial detention had been excessive, having caused him great distress and unbearable suffering. He relied on Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 20. The Government contested the applicant’s argument.", "21. The Court notes that this complaint is admissible, as no ground for declaring it inadmissible has been established. 22. As regards the merits of the complaint, the Government submitted that the applicant’s detention had been based on the existence of reasonable grounds of suspicion that he had committed an offence, and that it had been reviewed periodically by the competent authority in accordance with the requirements laid down by the domestic law. 23.", "The applicant was detained on 6 May 2000 and was convicted by the İstanbul Assize Court on 6 December 2011. The Court notes that after deducting the period between 5 January and 6 December 2011 when the applicant was released pending trial, from the total time of his detention, the period that he was held in pre-trial detention lasted for ten years and eight months (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, 16 January 2007). 24. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no.", "11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that in the instant case the length of the applicant’s pre-trial detention was excessive. 25.", "There has accordingly been a violation of Article 5 § 3 of the Convention. B. Article 5 § 5 of the Convention 26. The applicant complained that he had had no right to compensation under the domestic law for the alleged violation of his right to be released pending trial, as required by Article 5 § 5 of the Convention, which reads as follows: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 27. The Government maintained that the applicant had not exhausted the remedies provided under Article 141 of the Turkish Code of Criminal Procedure (Law no.", "5271). 28. The Court notes that the Government’s preliminary objection is inextricably linked to the merits of the applicant’s complaint under Article 5 § 5 of the Convention. It follows that this issue should be joined to the merits. 29.", "The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible. 30. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‑A).", "This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. 31. In this connection, the Court notes that it has found that the applicant’s right to be released pending trial was infringed in the present case (see paragraph 25 above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether or not Turkish law afforded the applicant an enforceable right to compensation for the breach of Article 5 in this case.", "32. The Court notes, as indicated by the Government, that Article 141 § 1(d) of the Law no. 5271 introduces a mechanism, whereby a person who has been lawfully detained but whose pre-trial detention exceeds a reasonable time, may demand compensation from the State. The Court also notes, however, that according to Article 142 § 1 of the same Code, such demand may only be made after the relevant criminal proceedings have come to an end. This remedy is therefore not available in circumstances where the domestic proceedings are still pending, as in the instant case (see Kürüm v. Turkey, no.", "56493/07, §§ 18-21, 26 January 2010). 33. The Court thus considers that the Law no. 5271 does not provide for an enforceable right to compensation for the applicant’s deprivation of liberty in breach of Article 5 § 3 of the Convention, as required by Article 5 § 5. 34.", "The Court therefore rejects the Government’s objection and concludes that there has been a violation of Article 5 § 5 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35. The applicant complained that the length of the criminal proceedings brought against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” 36. The Government argued that the applicant could not be considered to have exhausted domestic remedies as the criminal proceedings were still pending before the domestic courts.", "37. The Court notes that, according to its case-law, complaints concerning the length of proceedings can be brought before it prior to the final termination of the proceedings in question (see, among many others, Plaksin v. Russia, no. 14949/02, §§ 34-35, 30 April 2004). Accordingly, the Government’s objection regarding non-exhaustion of domestic remedies must be dismissed. It further notes that this part of the application is not inadmissible on any other grounds and must, therefore, be declared admissible.", "38. As regards the merits, the Court notes that the proceedings in question began on 6 May 2000 and, according to the information in the case file, they are still pending before the Court of Cassation. They have, thus, already lasted around twelve years before two levels of jurisdiction. 39. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Hasan Döner v. Turkey, no.", "53546/99, § 54, 20 November 2007; Uysal and Osal v. Turkey, no. 1206/03, § 33, 13 December 2007; and Can and Gümüş v. Turkey, nos. 16777/06 and 2090/07, § 19, 31 March 2009). It finds no reason to reach a different conclusion in the present circumstances. Consequently, there has been a breach of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings against the applicant.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damages and costs and expenses 40. The applicant claimed 120,000 Turkish Liras (TRY)[1] in respect of pecuniary and non-pecuniary damages on the basis of loss of his earning and the alleged anguish and distress he and his family had suffered. The applicant did not claim any amount under cost and expenses.", "41. The Government contested the claim, maintaining that the applicant had failed to submit any documents supporting his claim. 42. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it accepts that the applicant must have suffered non‑pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone.", "Ruling on an equitable basis, the Court awards the applicant EUR 11,900 in respect of non-pecuniary damage. B. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the remainder of the application admissible; 2. Holds that there have been violations of Article 5 §§ 3 and 5 and Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 11,900 (eleven thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosIsabelle Berro-LefèvreDeputy RegistrarPresident [1]1. Approximately EUR 55,000" ]

[ "THIRD SECTION CASE OF ALDEGUER TOMÁS v. SPAIN (Application no. 35214/09) JUDGMENT STRASBOURG 14 June 2016 FINAL 14/09/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aldeguer Tomás v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Helen Keller,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,Blanca Lozano Cutanda, ad hoc judge,and Stephen Phillips, Section Registrar, Having deliberated in private on 17 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35214/09) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Antonio Aldeguer Tomás (“the applicant”), on 22 June 2009. 2. The applicant, who had been granted legal aid, was represented by Mr M. Ródenas Pérez, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr F. Sanz Gandásegui, State Attorney. 3.", "The applicant complained under Article 14 of the Convention taken in conjunction with Article 8 that he had been discriminated against on the ground of his sexual orientation in that he had been denied a survivor’s pension following the death of his partner, with whom he had lived in a de facto marital relationship for twelve years. In substance the applicant also relied on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. 4. On 18 October 2012 the application was communicated to the Government.", "5. Judge Luis López Guerra, the judge elected in respect of Spain, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 11 February 2015, the President of the Section accordingly appointed Ms Blanca Lozano Cutanda to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1955 and lives in Pozuelo de Alarcón (Madrid). 7. The applicant cohabited with another man in a homosexual relationship from 1990 until the latter’s death on 2 July 2002. During that period they lived together in an apartment belonging to the applicant’s partner. When his partner died, the sister and only heir of the applicant’s partner gave the applicant, because of the relationship he had had with her brother, an apartment that had belonged to the applicant’s late partner and in which the couple had spent their holidays together since 1990.", "8. On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act, arguing that he had cohabited with his deceased partner for many years. 9. On 22 September 2003 the National Institute of Social Security (Instituto Nacional de la Seguridad Social, hereafter referred to as “INSS”) refused to grant the applicant a survivor’s pension on the ground that since he had not been married to the deceased person, he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. That decision was formally served on 13 June 2005.", "10. On 1 July 2005 Law no. 13/2005 amending the provisions of the Civil Code with respect to the right to enter into marriage was passed. Two days later it entered into force. This law legalised same-sex marriage in Spain.", "In accordance with its first additional provision all legal and regulatory provisions making reference to marriage should be understood thereafter as applicable to all marriages irrespective of the sex of its members (see paragraph 35 below). 11. On 5 July 2005 the applicant filed an administrative complaint against the decision of 22 September 2003. This complaint was dismissed by the INSS on 11 August 2005. The INSS noted that there was no provision in the legislation in force that allowed, for the purposes of social security rights, the person who had been cohabiting with the deceased to gain the status of a widower.", "12. On 26 September 2005 the applicant challenged that decision before the Madrid Social Tribunal no. 33 (“the Social Tribunal”). 13. In a judgment of 14 November 2005 the Social Tribunal ruled for the applicant.", "The Social Tribunal firstly outlined that the facts of the case had to be assessed in the light of the newly enacted Law no. 13/2005, which was already in force and deemed constitutional by the tribunal. As to the merits, the Social Tribunal observed that the issue at stake was whether the applicant, as the surviving partner of a same-sex relationship that ended (following his partner’s death) before the entry into force of Law no. 13/2005, had the right to a survivor’s pension. The Social Tribunal then reiterated that, according to the well-established domestic case-law, surviving partners of unmarried couples were not entitled to a survivor’s pension under section 174 of the General Social Security Act, marriage being a constitutive element to access any such social-security benefit; that the applicant had been prevented from marrying his partner because same-sex marriage had not been recognised in domestic law at the time his partner died; that the social security administration had relied on the fact that the couple had not married to refuse the applicant a survivor’s pension; and that it was evident that after the entry into force of Law no.", "13/2005, surviving spouses of same-sex marriages were entitled to survivors’ pensions on the same footing as survivors of different-sex marriages. 14. The Social Tribunal was of the view that the solution to the legal issue raised by the applicant’s case depended on whether it could be inferred from Law no. 13/2005 that Parliament’s intention had been that surviving partners of same-sex couples who had been prevented from marrying under the former legislation could access a survivor’s pension on a similar footing to same-sex couples who could marry after the entering into force of that Act. The Social Tribunal drew attention in this regard to the provisions and the explanatory memorandum of Law no.", "13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, that is to say 3 July 2005, all legal provisions concerning marriage should be interpreted on the basis of the first additional provision of Law no. 13/2005 as applying fully to same-sex marriage (see paragraph 35 below). The Social Tribunal held in this regard that: “This is a wide-ranging provision which affects all the other provisions of the legal system making reference to marriage. From now onwards all references to marriage established in the law shall be understood as applying also to marriage celebrated between two persons of the same sex. Accordingly, whoever shall be called to interpret or apply any marriage-related provision should do so in egalitarian terms without taking into consideration whether the spouses are of the same or different sex”.", "15. The Social Tribunal further recalled that additional provision no. 10 (2) of Law no. 30/1981 of 7 July 1981 amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce, recognised the right to obtain a survivor’s pension for individuals who had been prevented from marrying a person who later died by the legislation in force until then, provided that he or she had cohabited in a relationship similar to marriage with the deceased person and that the deceased had died before Law no. 30/1981 entered into force.", "16. The Social Tribunal stressed that such a provision was included in order to provide a solution for those cohabiting couples consisting of a man and a woman who could not have married under the legislation in force until that time, and thus did not qualify for a survivor’s pension, because one or even both of them had still been married to another person whom they had been prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law no. 30/1981. The Social Tribunal considered that the applicant’s circumstances were “fully comparable” to those outlined in additional provision no. 10 (2) of Law no.", "30/1981 in so far as: “- the claimant could not marry his partner because the legislation then in force prevented him from doing so; - the claimant had shared a marital life with his partner until the latter’s death; - the latter’s death had taken place before the entry into force of Law no. 13/2005” 17. The Social Tribunal acknowledged, however, that whereas Law no. 30/1981 was aimed at protecting the rights of those cohabiting heterosexual couples who were prevented from marrying because divorce was prohibited at the time, Law no. 13/2005 was aimed at protecting the rights of those who could not marry on account of their sexual orientation, and that this distinction was the main impediment to the recognition of the applicant’s right to a survivor’s pension.", "18. The Social Tribunal considered nonetheless that treating these two groups differently would not be in harmony with the strong egalitarian intention expressed by Parliament with the passing of Law no. 13/2005 and that, accordingly, additional provision no. 10 (2) of Law no. 30/1981 was applicable to the applicant by force of additional provision no.", "1 of Law no. 13/2005. The Social Tribunal stated as follows: “Therefore, the interpretation that in my opinion better fits the legislature’s intention is the following: - If the first additional provision of Law no. 13/2005 sets out that provisions making reference to marriage shall apply irrespective of the sex of the spouses, - And one of [these provisions], currently in force to provide access to a survivor’s pension, is additional provision no. 10 (2) of Law no.", "30/1981. - The only method to apply it in a way which is consistent with the egalitarian intention of the legislature is to do so irrespective of the sexual orientation of the members of the cohabiting couple. - In order to ensure that sexual orientation does not constitute discriminatory grounds in the application of additional provision no. 10 (2) of Law no. 30/1981, the right thereby recognised shall currently be interpreted as providing a solution to factual situations such as the one in the instant case in which the impediment to access to a survivor’s pension is no other than the sexual orientation [of the claimant].” 19.", "As regards the administration’s submission that in the area of social security benefits the governing principle was that of non-retroactivity of laws and that according to the law in force at the time the applicant’s partner died the former did not qualify for a survivor’s pension because they were not married, the Social Tribunal was of the view that this general principle was not absolute and that it did not apply where there was a specific rule giving retroactive effect to laws more favourable to the citizens, as is true of the instant case. Thus, additional provision no. 10 (2) of Law no. 30/1981 should be read in the light of the first additional provision of Law no. 13/2005.", "20. As to the degree of retroactivity that should be given to additional provision 10 (2) of Law no. 30/1981 in the applicant’s case, the Social Tribunal relied on the constitutive effects of Law no. 13/2005 which created new rights and was effective only from the date it entered into force. Accordingly, the Social Tribunal recognised the applicant’s right to be awarded a survivor’s pension with effect from 3 July 2005.", "21. The INSS and the Treasury General of Social Security appealed (recurso de suplicación) against that judgment to the Madrid High Court of Justice (Tribunal Superior de Justicia). 22. On 18 September 2006 the Madrid High Court of Justice upheld the appeal and reversed the first-instance judgment. The court found that the legislature had not intended Law no.", "13/2005 to cover same-sex partnerships which had been ended by the death of one of the partners before said law had entered into force and that the lack of protection of these unions could not be considered discriminatory in the light of Article 14 of the Spanish Constitution. 23. For the court, it was only as from the entry into force of Law no. 13/2005 that marriage between same-sex couples was recognised and that this law affected other rights for those persons who would wish to marry thereafter. Hence, the court was of the view that Law no.", "13/2005 had no retroactive effects, except as otherwise expressly provided, which was not the case at hand. 24. The court further stated that even though Law no. 13/2005 had been inspired by the constitutional principle of equality, prior legislation preventing same-sex marriage could not be deemed unconstitutional as contrary to either any constitutional principle or to the right not to be discriminated against. The court referred to constitutional case-law dating from 1994 according to which the requisite of heterosexuality for the purposes of marriage was fully constitutional and that it was within the margin of appreciation of the public authorities to treat heterosexual marriages more favourably than homosexual partnerships.", "In this connection, the court maintained that despite the reference in the preamble of Law no. 13/2005 (see paragraph 35 below) to the discriminatory treatment to which homosexuals had traditionally been subjected on account of their sexual orientation, the aim of Parliament in passing that law was merely to respond to a new social reality and award homosexuals the right to marry, but not to protect same-sex partnerships which had already ended before its enactment. 25. The court referred to constitutional case-law according to which a difference in legal treatment of individuals due to subsequent changes in the law does not necessarily entail discrimination, even if those persons could be said to be in similar circumstances. Given the complexity that a change in legislation might involve, it was for Parliament to establish the characteristics of the legal transition, either by introducing retroactivity clauses or by restricting the application of the new legislation to circumstances arising after its entry into force.", "26. The court noted in this regard that Law no. 13/2005 had not included any provision concerning same-sex partnerships which had already ended at the time of its entry into force and that it strictly concerned same-sex couples still in existence at that time and who would be willing to enter into marriage. The court considered that the difference between the situations before and after the passing of Law no. 13/2005 was essentially an expression of the principle of succession of laws without constitutional implications as regards the right not to be discriminated against.", "27. As regards the applicability to the present case of additional provision no. 10 (2) of Law no. 30/1981, the Madrid High Court of Justice found that this provision was not applicable to the applicant’s case for two main reasons. Firstly, that provision could not be considered as among the provisions to which the first additional provision of Law no.", "13/2005 referred. Additional provision no. 10 (2) was, as the Constitutional Court had established, of a provisional or transitory nature and had been envisaged for those specific cases in which one of the partners had died before the entry into force of Law no. 30/1981. It had not been intended to govern future situations.", "Secondly, that provision had been envisaged for a totally different situation from that of the applicant. Additional provision no. 10 (2) of Law no. 30/1981 was aimed at guaranteeing a survivor’s pension to those heterosexuals who had been prevented from marrying their out-of wedlock partner because divorce had not been legal at the time of the latter’s death. The inability to remarry for those affected by additional provision no.", "10 (2) of Law no. 30/1981 was based on the fact that divorce was not permitted at the time. The institution of marriage was open to them in their capacity as heterosexuals. On the contrary, same-sex couples were absolutely prevented from marrying before Law no. 13/2005 since the institution of marriage was until then restricted to heterosexual couples.", "28. Furthermore, the court contended that the applicant could never have fulfilled the more uxorio marital cohabitation requirement established by additional provision no. 10 (2) of Law no. 30/ 1981 of, because only those who were in principle eligible for marriage but had been prevented from marrying for whatever reason could qualify for de facto marital cohabitation. The applicant and his partner could have never cohabited “as if married” before the entry into force of Law no.", "13/2005, because before then they were ineligible for marriage as they were both male. 29. The applicant lodged an appeal on points of law seeking harmonisation of the case-law (recurso de casación para la unificación de doctrina). In a decision of 27 June 2007, the Supreme Court (Social Chamber) declared the appeal inadmissible on the ground that the decision produced for purposes of comparison, specifically a judgment of the High Court of Justice of the Canary Islands of 7 November 2003, was not relevant. That decision was served on 26 July 2007.", "30. Relying on Articles 14 (principle of equality and prohibition of discrimination) and 24 § 1 (right to effective judicial protection), the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 11 February 2009, served on 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had failed to substantiate the special constitutional relevance of his complaints. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.", "The Constitution 31. The relevant provisions of the Spanish Constitution read as follows: Article 9 “2. It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong be real and effective, to remove obstacles which prevent or hinder their full enjoyment [of these rights], and to facilitate the participation of all citizens in political, economic, cultural and social life. ...” Article 14 “All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article 32 “1. Men and women shall have the right to enter into a marriage with full legal equality.", "2. The law shall determine the forms of marriage, the requisite age and capacity for marriage, the rights and duties of the spouses, the grounds for separation and dissolution and the effects thereof.” Article 39 “1. The State authorities shall ensure that the family is afforded social, economic and legal protection. ...” B. The Civil Code 32.", "The relevant provision of the Civil Code reads as follows: Article 2 “3. Statutes shall not have retroactive effect, unless otherwise provided therein”. C. Law no. 30/1981 of 7 July 1981, amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce (“the Divorce Act”) 33. The relevant provisions of “the Divorce Act” read as follows: Additional provision no.", "10 “On a provisional basis, until a definitive regulation is enacted in the relevant legislation, the following rules shall apply in matters concerning pensions and social security ... 2. For those who have not been able to marry on account of the legislation in force until now but who have lived as a married couple, when the death of one of the partners has occurred before the entry into force of the present Law, the survivor will be entitled to the benefits provided for in the first paragraph of the present provision and to the corresponding pension in accordance with the following paragraph. 3. The right to a survivor’s pension and other passive rights to benefits on account of a death shall be awarded to the person who has been the legal spouse in proportion to the time lived with the deceased spouse, irrespective of the causes that had determined the separation or divorce ...” D. The Royal Legislative Decree no. 1/1994 of 20 June 1994 on the Consolidated Text of the General Social Security Act, as in force at the time of the death of the applicant’s partner (“the General Social Security Act”) 34.", "Under section 174 § 1 of “the General Social Security Act” non‑marital relationships did not entitle the survivor to a survivor’s pension, even where the persons concerned had lived together. Accordingly, the award of a survivor’s pension was conditional on the existence of a lawful marriage between the deceased and the claimant/survivor. Marriage was deemed to be “lawful” when it had been celebrated in accordance with one of the forms established by Article 49 of the Civil Code. E. Law no. 13/2005 of 1 July 2005 amending the provisions of the Civil Code as regards the right to enter into marriage 35.", "The relevant parts of Law no. 13/2005 read as follows: Preamble “The legislature has decided to remove a long history of discrimination based on sexual orientation. The establishment of a personal framework that allows those who freely adopt sexual and emotional ties with persons of their own sex to develop their personality and exercise their rights under equal conditions is demanded by the citizens of our time, and this law intends to provide a response to that demand. Certainly, when the Constitution mandates the legislature to regulate marriage it does not rule out in any way whatsoever a regulation defining partner relationships in a different way than does the regulation existing to date, a regulation covering new forms of life-partner relationships. Moreover, the option reflected in this law has some constitutional foundations that should be taken into account by the legislature.", "Hence, the promotion of effective equality between citizens in the free development of their personality (Articles 9 § 2 and 10 § 1 of the Constitution), the protection of freedom in so far as forms of coexistence are concerned (Article 1 § 1 of the Constitution) and the establishment of a framework of real equality and enjoyment of rights without discrimination on account of sex, opinion or any other personal or social condition or circumstance (Article 14 of the Constitution), are values established in the Constitution that should be reflected in the rules defining the status of citizenship in a free, pluralistic and open society. From this broad perspective, the regulation of marriage that is hereby established aims at conforming to the manifest reality of Spanish society, in which changes have been brought about in that society with the involvement of groups seeking total equality for all in the enjoyment of rights, regardless of their sexual orientation; this is a reality that demands a framework establishing rights and duties for all those who formalise their partner relationships. In this context, this Law allows marriage to be celebrated between persons of the same or different sex, with full and equal rights and duties, irrespective of its composition. Accordingly, the effects of marriage, which are wholly maintained in respect of the objective make-up of the institution, shall be the same in all spheres, regardless of the sex of the spouses; this includes, amongst other areas, the sphere of social rights and benefits as well as the possibility of being a party to adoption proceedings. On the other hand, and as a consequence of the first additional provision of this Act, all references to marriage included in our legal system shall be understood as applicable both to a marriage between two persons of the same sex and to a marriage between two persons of the opposite sex.” Single Article.", "Amendment of the Civil Code as regards the right to enter into marriage “The Civil Code is modified as follows: One. A second paragraph is added to Article 44, with the following wording: Marriage shall have the same requirements and effects whether the spouses are of the same or different sex.” First additional provision: application to the legal system “Legal and regulatory provisions making reference to marriage shall be understood as applicable irrespective of the sex of its members.” F. Law no. 40/2007 of 4 December 2007 on social security measures, amending the General Social Security Act 36. Law no. 40/2007, which entered into force on 1 January 2008, amended Article 174 of the General Social Security Act (Article 174 § 3) recognising for the first time the right to a survivor’s pension for unmarried couples, heterosexual or homosexual, who had lived together continuously for more than five years before the death of the insured partner.", "In addition, the third additional provision of this Law extended retroactively this right to de facto partners who had been widowed prior to the entry into force of the law and where the survivor was found in situations of particular need. In this regard, the third additional provision established, among other requirements, that the couple “had had children together”. The claim had to be filed within a period of twelve months of the entry into force of Law no. 40/2007 (see Muñoz Díaz v. Spain, no. 49151/07, § 30, ECHR 2009).", "G. The case-law of the Constitutional Court 37. In its decision no. 222/1994 of 11 July 1994 the Constitutional Court dismissed an amparo appeal which requested that the equivalent effects as marriage be granted to the more uxorio cohabitation of two homosexuals, for the purposes of a survivor’s pension. It stated that “in the same way as a heterosexual couple cohabiting, a partnership between persons of the same biological sex is not a legally regulated institution, nor is its establishment embodied in a constitutional right; quite the opposite to marriage between a man and a woman, which is a constitutional right (Article 32 § 1 of the Constitution)”. The court upheld the constitutionality of the heterosexual principle as the defining criterion of a marital bond.", "Consequently, it accepted that the public powers granted privileged status to a family union consisting of a man and a woman, as opposed to a homosexual union. The Constitutional Court relied on the case-law of the Court under Article 12 of the Convention (Rees v. the United Kingdom, 17 October 1986, § 11, Series A no. 106, and Cossey v. the United Kingdom, 27 September 1990, § 22, Series A no. 184). 38.", "The Constitutional Court followed the same approach in its decision of 21 October 1999 in the case of Mata Estevez v. Spain ((dec.), no. 56501/00, ECHR 2001-VI), in which it declared the amparo appeal inadmissible on the grounds that it was ill-founded. 39. On 30 September 2005 seventy-two members of Parliament (representing an opposition party at that time) brought an action before the Constitutional Court challenging the constitutionality (recurso de inconstitucionalidad) of Law no. 13/2005.", "They argued that Law no. 13/2005 denaturalised the concept of marriage set forth in Article 32 of the Spanish Constitution, which explicitly referred to men and women. 40. In its judgment no. 198/2012 of 6 November 2012 the Constitutional Court, sitting as a full court, dismissed the constitutional action and concluded that Law no.", "13/2005 was fully compliant with Article 32 of the Constitution. As regards the situation before the entry into force of Law no. 13/2005, the court did not consider that it was necessary to address the issue of whether homosexual couples would have had the constitutional right to marry at that time. 41. In its judgment no.", "41/2013 of 14 February 2013 the Constitutional Court considered that the requirement of having had children to access a survivor’s pension in the case of de facto unions established by the third additional provision of Law no. 40/2007 (see paragraph 36 above) was in breach of the principle of equality before the law enshrined in Article 14 of the Constitution. The Constitutional Court was of the view that the difference in treatment established by the law, based on the requirement of having had children together, led to a disproportionate result by denying certain survivors of unmarried couples (homosexual and heterosexual couples who had not had their own or adopted children together, for legal or biological reasons) access to the protection provided by the pension. It therefore concluded that the difference in treatment lacked an objective and reasonable justification. The court considered that it was not necessary to examine whether the impugned provision was also discriminatory on grounds of sexual orientation.", "As to the effects of this ruling, the Constitutional Court indicated that the fact of declaring unconstitutional the requirement of having had children together, as established by the third additional provision of Law no. 40/2007, did not mean that those persons who had not filed a claim for a survivor’s pension within the deadline of twelve months from the entry into force of the law could now do so. Nor could this judgment call into question the authority of res judicata of final judgments in which the courts had applied the contested requirement. 42. In its judgment no.", "92/2014 of 10 June 2014 the Constitutional Court examined the constitutionality of Article 174 § 1 of the General Social Security Act, as it stood before the entry into force of Law no. 40/2007 on social security measures. The Constitutional Court examined this issue in the context of an amparo appeal lodged by an appellant who complained, under Article 14 of the Constitution, about the denial of a survivor’s pension following the death of his homosexual partner in 2002 (before the entry into force of Law no. 40/2007). The court referred to the margin of appreciation of the legislature in the area of social security rights and to the Court’s decision in Mata Estevez v. Spain (cited above), where the Court had accepted that the exclusion of same-sex couples from the survivor’s pensions social security scheme was not in breach of Article 8, taken in conjunction with Article 14 of the Convention.", "In the view of the Constitutional Court, it was solely for the legislature to decide when to extend the right to a survivor’s pension to other situations, and to what extent to do so. This is what the Spanish legislature had done by introducing same-sex marriage in 2005 (thus allowing same-sex couples to enter into marriage and benefit from survivors’ pensions) and by extending in 2007 the right to a survivor’s pension to stable, de facto unions, both heterosexual and homosexual, under certain conditions. According to the court, this was the legislature’s policy choice and the situation existing before could not, of itself, be considered incompatible with the principle of equality, as protected by Article 14 of the Constitution. 43. The Constitutional Court applied the principles set out in its judgment no.", "92/2014 and therefore rejected on the merits several amparo appeals, including those where the appellant had relied on the application by analogy of additional provision no. 10 (2) of Law no. 30/1981, following the entry into force of Law no. 13/2005 (see for instance, judgments no. 124/2014 of 21 July 2014, no.", "157/2014 of 6 October 2014, in which the public prosecutor had supported the grant of the amparo relief to the individuals concerned). H. The case-law of the Supreme Court 44. In its judgment of 29 April 2009, the Supreme Court (Social Chamber) ruled on an appeal on points of law seeking harmonisation of the case-law on the specific issue of survivors’ pensions for same-sex couples in which one of the partners had died before the entry into force of Law no. 13/2005. The Supreme Court noted that Law no.", "13/2005 did not contain any transitional provision giving retroactive effect vis-à-vis situations predating the entry into force of the law. Nor was it possible to apply by analogy additional provision no. 10 (2) of Law no. 30/1981, which concerned only cohabiting heterosexual couples who had been prevented from marrying because divorce had not been legal before 1981. The situation of same-sex couples before 2005 was totally different, in that same-sex marriage was not regulated at all and there had been no constitutional right to same-sex marriage before that date.", "In the view of the Supreme Court, Law no. 13/2005 had not been enacted to put an end to a previous situation of discrimination which ran contrary to the Constitution. Its purpose was to create a new set of rights and obligations for same-sex couples, with only ex nunc effects for the future. 45. The judgment of the Supreme Court contained a dissenting opinion authored by Judge F. Salinas Molina, which was joined by four other judges of the Social Chamber.", "The dissenting judges considered that additional provision no. 10 (2) of Law no. 30/1981 should be applied by analogy to same-sex couples who had been prevented from marrying before 2005. This application by analogy was based on the similarity between the two situations (existence of a legal impediment to enter into marriage before the entry into force of a new law and impossibility to marry after that date due to the death of one of the members of the couple), and on the fact that in both cases the purpose of the pension was to meet the needs of the surviving partner. The fact that during the legislative process concerning Law no.", "13/2005 the transitional or retroactive scope of the law had not been discussed did not mean that additional provision no. 10 (2) of Law no. 30/1981 was not applicable by analogy. Furthermore, Law no. 13/2005 was aimed at securing full equality for same-sex couples in the field of marriage, including for the purposes of social rights and benefits.", "Accordingly, judges should interpret and apply the legislation in conformity with that purpose, in order to avoid discriminatory treatment. The dissenting judges referred to the case-law of the Court, as well as Article 26 of the International Covenant on Civil and Political Rights and Article 21 § 1 of the Charter of Fundamental Rights of the European Union. I. Relevant Council of Europe materials 46. In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe.", "In Recommendation 1474 (2000) on the situation of lesbians and gays in Council of Europe member States, it called on member States, among other things, to enact legislation to provide for registered partnerships. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member States of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia, “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnership and families are treated on the same basis as heterosexual partnerships and families ...”. 47. Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia, for: “16.9.1. the same pecuniary rights and obligations as those pertaining to different-sex couples; 16.9.2.", "‘next of kin’ status; 16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship; 16.9.4. recognition of provisions with similar effects adopted by other member states;” 48. In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States: “1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; 2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; ...” 49. The Recommendation also observed as follows: “23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same‑sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.", "24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” J. The United Nations Human Rights Committee 50.", "The United Nations Human Rights Committee has examined the issue of pension rights for same-sex survived partners in two individual cases. In both cases, the Human Rights Committee found a violation of Article 26 of the International Covenant on Civil and Political Rights (equality before the law and prohibition of discrimination). In the first case, Young v. Australia, communication no. 941/2000, 6 August 2003, the Human Rights Committee observed as follows (footnotes omitted): “10.3 The Committee notes that the State party fails specifically to refer to the impugned sections of the Act (sections 5(E), 5(E) 2 and 11) on the basis of which the author was refused a pension because he did not meet with the definition of a \"member of a couple\" by not \"living with a member of the opposite sex\". The Committee observes that the State party does not deny that the refusal of a pension on this basis is a correct interpretation of the VEA but merely refers to other grounds in the Act on which the author’s application could have been rejected.", "The Committee considers, that a plain reading of the definition \"member of a couple\" under the Act suggests that the author would never have been in a position to draw a pension, regardless of whether he could meet all the other criteria under the VEA, as he was not living with a member of the opposite sex. The State party does not contest this. Consequently, it remains for the Committee to decide whether, by denying a pension under the VEA to the author, on the ground that he was of the same sex as the deceased Mr. C, the State party has violated article 26 of the Covenant. 10.4 The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences.", "It transpires from the contested sections of the VEA that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a \"marriage-like\" relationship) fulfill the definition of \"member of a couple\" and therefore of a \"dependant\", for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced.", "In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.” 51. In the case of X. v. Colombia, communication no. 1361/2005, 30 March 2007, the Human Rights Committee held as follows (footnotes omitted) : “7.1 The author claims that the refusal of the Colombian courts to grant him a pension on the grounds of his sexual orientation violates his rights under article 26 of the Covenant. The Committee takes note of the State party’s argument that a variety of social and legal factors were taken into account by the drafters of the law, and not only the mere question of whether a couple live together, and that the State party has no obligation to establish a property regime similar to that established in Act No. 54 of 1990 for all the different kinds of couples and social groups, who may or may not be bound by sexual or emotional ties.", "It also takes note of the State party’s claim that the purpose of the rules governing this regime was simply to protect heterosexual unions, not to undermine other unions or cause them any detriment or harm. 7.2 The Committee notes that the author was not recognized as the permanent partner of Mr. Y for pension purposes because court rulings based on Act No. 54 of 1990 found that the right to receive pension benefits was limited to members of a heterosexual de facto marital union. The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It also recalls that in previous communications the Committee found that differences in benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry or not, with all the ensuing consequences.", "The Committee also notes that, while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. The Committee finds that the State party has put forward no argument that might demonstrate that such a distinction between same‑sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled, is reasonable and objective. Nor has the State party adduced any evidence of the existence of factors that might justify making such a distinction. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author’s right to his life partner’s pension on the basis of his sexual orientation.” K. The Inter-American system of human rights protection 52. In the case of Atala Riffo and daughters v. Chile ((Merits, Reparations and Costs), judgment of 24 February 2012, Series C No.", "239), the Inter‑American Court of Human Rights considered that the decision of the Chilean courts to remove three children from the custody of their lesbian mother constituted discriminatory treatment against her on the basis of her sexual orientation, in breach of her right to equality (Article 24, in conjunction with Article 1 § 1 of the American Convention on Human Rights) and her right to private and family life (Article 11 § 2 and 17 § 1 of the American Convention). 53. With regard to the presumed right of Ms Atala Riffo’s children to live in a “normal and traditional” family, an argument used by the Chilean courts, the Inter-American Court of Human Rights observed as follows (footnotes omitted): “142. The Court confirms that the American Convention does not define a limited concept of family, nor does it only protect a “traditional” model of the family. In this regard, the Court reiterates that the concept of family life is not limited only to marriage and must encompass other de facto family ties in which the parties live together outside of marriage.", "143. International case law is consistent on this point. In the case of Salgueiro da Silva Mouta v. Portugal, the European Court considered that the decision of a national court to remove an underage child from the custody of a homosexual parent, with the argument that the child should live in a traditional Portuguese family, lacked a reasonable relationship of proportionality between the measure taken (withdrawal of the custody) and the purpose sought (protection of the best interest of the minor). 144. Similarly, in the Case of Karner v. Austria, the European Court of Human Rights stated that: “The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. [...] as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realizing the aim sought.", "It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people”. 145. In the instant case, this Court finds that the language used by the Supreme Court of Chile regarding the girls’ alleged need to grow up in a “normally structured family that is appreciated within its social environment,” and not in an “exceptional family”, reflects a limited, stereotyped perception of the concept of family, which has no basis in the Convention, since there is no specific model of family (the “traditional family”).” 54. The Inter-American Commission on Human Rights, in its Report No. 5/14 of 2 April 2014 (Case 12.841 Angel Alberto Duque v. Colombia), examined a case in which the applicant complained that he had been denied a survivor’s pension on account of his sexual orientation.", "The Inter-American Commission considered as follows (footnotes omitted): “74. Since evaluating whether a distinction is “reasonable and objective” must be done on a case-by-case basis, the Commission, the Court, and other international courts and agencies have made use of a standard test involving several elements: (i) the existence of a legitimate goal; (ii) the suitability or logical means-to-end relationship between the goal sought and the distinction; (iii) the necessity, in order words, whether other less burdensome and equally suitable alternatives exist; and (iv) proportionality strictu sensu, i.e., the balance between the interests at stake and the level of sacrifice required from one party compared to the level of benefit of the other. 75. Based on this, the Commission must now assess whether the exclusion of same sex couples from the right to a survivors’ pension pursued a legitimate aim and, if so, whether such restriction complied with the requirements of suitability, necessity and proportionality. 76.", "In the chapter on established facts, the Commission has shown that the decision to deny Mr. Duque a survivor’s pension as JOJG’s permanent partner was expressly and exclusively based on the fact that they were a same-sex couple. The Commission notes that no other reasons were cited —not in the reply from COLFONDOS, not in the tutela action, and not in the case file with the IACHR—. In particular, when confirming the lower-court ruling, the Twelfth Circuit Civil Law Court of Bogotá maintained that the exclusion of same-sex couples was justified based on the fact that the survivor’s pension was intended to protect the family, understood as being “formed by the union of a man and a woman, the only beings capable of preserving the species through procreation.” 77. In this vein, the Commission notes that the reasons to exclude the alleged victim from the right to a survivor’s right, which were given both by administrative and judicial authorities, stemmed from the need to “protect the family”. Preliminarily, the Commission considers that such purpose could, in the abstract, constitute legitimate goals that the State could pursue when restricting rights.", "78. However, as for the suitability requirement, the Commission finds that the reasoning offered by administrative and judicial authorities works only if one assumes a narrow and stereotyped understanding of the concept of family, which arbitrarily excludes diverse forms of families such as those formed by same-sex couples, which are deserving of equal protection under the American Convention. In effect, the Inter-American Court has established that “the American Convention does not define a limited concept of family, nor does it only protect a ‘traditional’ model of the family”. The Commission considers that there is no causal relationship between the means used and the goal pursued, failing to satisfy the suitability requirement. Hence the other requirements for the legitimacy of the restriction need not be examined.", "79. Furthermore, the fact that subsequent case law of the Constitutional Court expanded legal protection to include all types of families shows that there was no reason to maintain that narrow concept of family. (...) 81. In view of the above, the Commission finds that the State violated the principle of equal justice and non-discrimination, recognized in Article 24 of the American Convention, read in conjunction with the obligations to respect and ensure the rights, as set forth in articles 1(1) and 2 of the Convention, to the detriment of Ángel Alberto Duque.” 55. On 21 October 2014, the Inter-American Commission submitted the case to the Inter-American Court.", "In Duque v. Colombia ((Preliminary Exceptions, Merits, Reparations and Costs), judgment of 26 February 2016, Series C No. 310), the Inter-American Court concluded that Colombia had breached the principle of equality and non-discrimination, enshrined in Article 24 of the American Convention, read in conjunction with Article 1 § 1 (§§ 89-138). It considered that the exclusion of same sex couples from the right to a survivors’ pension under the Colombian legislation applicable at the time of the facts (2002) had been discriminatory on the basis of sexual orientation. The fact that the Constitutional Court had declared that exclusion unconstitutional in 2008 had not remedied the violation, since it was not clear that according to the current legislation the applicant could be granted a survivor’s pension with retroactive effects. THE LAW ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 56. The applicant complained that he had been discriminated against on the ground of his sexual orientation in that, as a survivor of a de facto same-sex union, he had been denied a survivor’s pension. The applicant complained in particular of the difference of treatment between de facto same-sex unions who had been unable to achieve legal recognition before the legalisation of same-sex marriage in 2005, and unmarried heterosexual couples who had been unable to marry before divorce was legalised in Spain in 1981. The applicant relied on Article 14 taken in conjunction with Article 8 of the Convention. 57.", "The Court reiterates that since it is the master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government (see, among other authorities, Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 59, 9 July 2015). By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties. In the present case, when notice of the application was given to the Government the parties were asked to submit observations on whether the refusal by the authorities to award the applicant a survivor’s pension had breached Article 14 of the Convention in conjunction with Article 8 of the Convention and/or Article 1 of Protocol No.", "1 to the Convention. Although the applicant did not explicitly rely in his observations on Article 1 of Protocol No. 1, the Court considers it appropriate to examine the case submitted to it from the standpoint of Article 14 in conjunction with Article 1 of Protocol No. 1 also. 58.", "Accordingly, the relevant provisions in relation to the applicant’s complaint are the following: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 8 “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 59. The Government alleged that the applicant had not invoked the right to property either in the domestic proceedings or in his application before the Court. Moreover, they highlighted that neither had it been invoked before the Constitutional Court owing to the fact that it is not among the rights and freedoms protected by amparo proceedings. Therefore, the Government asked the Court to declare this part of the application inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. The Government referred in this respect to the Court’s reasoning in the case of Schalk and Kopf v. Austria (no.", "30141/04, §§ 112-115, ECHR 2010). The Government also emphasised that in any case the applicant had failed to address the Court within six months of the last domestic decision for the purposes of said provision. 60. The Court reiterates that Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance (see, for instance, Castells v. Spain, 23 April 1992, § 32, Series A no. 236; Vučković and Others v. Serbia [GC], no.", "17153/11, § 72, 25 March 2014) and in compliance with the formal requirements and time-limits laid down in domestic law. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (Vučković and Others, cited above, § 72). 61. The Court notes that in the present case, although the applicant did not explicitly rely on the right to property (either under Article 1 of Protocol No. 1 or under Article 33 of the Spanish Constitution) before the first-instance Social Tribunal or the Madrid High Court of Justice, the subject matter of the dispute before those courts was linked to the alleged violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No.", "1 in that it concerned the difference of treatment between homosexual couples and heterosexual couples regarding eligibility for a survivor’s pension. The Court has previously held that the interest in receiving a survivor’s pension from the State may fall within the ambit of Article 1 of Protocol No. 1 (see, for instance, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 58, 2 November 2010; Muñoz Díaz, cited above, §§ 42-46), In these circumstances, the Court considers that the applicant raised before the domestic courts, at least in substance, the complaint relating to his entitlement to a survivor’s pension. 62.", "As regards the application of the six-month rule, the Court notes that no amparo relief is available in respect of the right of property. Accordingly, the final domestic decision relevant to Article 1 of Protocol No. 1 was the decision of 27 June 2007 (served on 26 July that same year) by which the Social Chamber of the Supreme Court declared inadmissible the appeal on points of law lodged by the applicant, not the Constitutional Court’s decision on the alleged violation of the fundamental rights and freedoms for which amparo relief was available, namely those set out in Articles 8 and 14 of the Convention. Conversely, an amparo appeal clearly was required before the complaints of private and family life and of discrimination contrary to Article 14 –which are at the heart of the application to the Court– could be referred to the Court. Further, the complaint under Article 14 could only be made in conjunction with other rights guaranteed by the Convention.", "Requiring the applicants to apply to the Court on two different dates in order to comply with that special feature of domestic law, even though they do not rely solely on Article 1 of Protocol No. 1, would be to construe the six-month time-limit too formally. The Court considers it more in keeping with the spirit and purpose of the Convention to treat the applicant’s complaints together for the purpose of determining when the six-month period started to run in the instant case. In that connection, it reiterates that the six-month rule is autonomous and must be construed and applied according to the facts of each individual case, so as to ensure the effective exercise of the right to individual application (Fernández-Molina González and Others v. Spain (dec.), no. 64359/01, ECHR 2002-IX; Sociedad Anónima del Ucieza v. Spain, no.", "38963/08, § 45, 4 November 2014). Consequently, the Court finds that this complaint was lodged within the six-month period allowed by Article 35 § 1 of the Convention. 63. The Court, therefore, rejects the Government’s objections in this respect. It finds, moreover, that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 64.", "The applicant contended that the Madrid High Court of Justice’s decision by which he had ultimately been refused a survivor’s pension amounted to a breach of his right not to be discriminated against on account of his sexual orientation. He stated that the Madrid High Court of Justice should have interpreted the domestic legislation in the same way as the Social Tribunal had done in order to avoid a discriminatory treatment and should have thus recognised his right to a survivor’s pension. 65. Relying on the first-instance judgment of the Social Tribunal, the applicant stated that the legislature’s egalitarian intention in this regard seemed clear from the wording of Law no. 13/2005.", "Furthermore, he argued that this egalitarian spirit was also detectable in the field of unmarried couples, as could be inferred from Law no. 40/2007 of 4 December 2007 on measures in the area of social security. In particular, the third additional provision of this Law extended with retroactive effect the right to a survivor’s pension to stable cohabiting couples under certain circumstances. As the Constitutional Court has established in its recent case-law, the purpose of a survivor’s pension is to compensate surviving partners for the economic loss suffered on account of their partner’s death awarding them a sum which is dependent on the contributions made to the relevant social security system by the deceased partner. 66.", "The applicant further referred to the judgment of the Social Tribunal, in which it was established that he was in a relevantly similar situation to that of an unmarried surviving partner of a different-sex partnership who was entitled to a survivor’s pension under additional provision no. 10 (2) of Law no. 30/1981. He argued that he had been the victim of a difference in treatment based solely on his sexual orientation and that this discrimination lacked any objective justification. 67.", "The Government asserted that it is not for the Court to determine the domestic legislation that should be applied to a particular case. Thus, the legal issue in the present case is to assess whether the Madrid High Court of Justice’s ruling, declaring that additional provision no. 10 (2) of Law no. 30/1981 was not applicable to the case at hand due to the express lack of retroactive recognition of the right to a survivor’s pension in Law no. 13/2005, amounted to discrimination under Article 14 of the Convention.", "68. In this connection, the Government submitted that the instant application did not give rise to any issue under Article 14 of the Convention because the applicant’s situation was not relevantly similar to the situation of those whom the legislature had intended to benefit with additional provision no. 10 (2) of Law no. 30/1981. Thus, they contended that additional provision no.", "10 (2) was not suitable for comparison in so far as it had had the very specific purpose of providing a provisional and extraordinary solution to the situation of different-sex couples who had been prevented from marrying owing to the ban on divorce which had been in force until the enactment of Law no. 30/1981. 69. Alternatively, the Government argued that if the Court were to compare both situations, they would not satisfy the elements required by its case-law to find discrimination. They contended that the difference in treatment between the 1981 Law and the 2005 Law pursued a “legitimate aim” and had an “objective and reasonable justification”.", "By Law no. 30/1981 the legislature of the time repealed a prohibition to divorce which was completely unjust and contrary to the European consensus then pertaining, its additional provision no. 10 (2) being aimed at protecting individuals who had been deprived of the right to marry in application of that prohibition and that consequently did not qualify for a survivor’s pension. Law no. 13/2005, on the contrary, enacted a new institution on which there had been no established consensus in Europe.", "Consequently, there was no discriminatory difference in treatment in the decision to restrict the right to a survivor’s pension to same-sex couples married after the entry into force of Law no. 13/2005. 70. The Government further stated that if, as the Court had ruled in Schalk and Kopf (cited above), the Contracting States were not under an obligation under Article 12 of the Convention or under Article 8 taken in conjunction with Article 14 to recognise same-sex marriage and the area of recognition of same-sex relationships should still be regarded as one of evolving rights where States must enjoy a margin of appreciation in the timing of the introduction of legislative changes, it would be completely inappropriate for the Court to require them to provide for a retroactive application of legislation recognising same-sex marriage and, furthermore, that this retroactive effect was analogous to those of a transitory provision enacted twenty-four years before with a view to providing a solution to very specific situations concerning different-sex couples who had been prevented from marrying. To impose such an obligation would remove all margin of appreciation from the State because it would mean in practice pushing back the effects of that legislation to a date twenty-four years before its approval.", "71. Lastly the Government accepted that, unlike Law no. 13/2005, Law no. 40/2007 sets out a provision including limited retroactivity for the recognition of a right to a survivor’s pension with respect to cohabiting couples that had been prevented from marrying before such law entered into force. However, they stated that such a provision was irrelevant for the present case and that it was within the domestic legislature’s discretion to decide whether to extend or not to unmarried couples the benefits initially granted only to married couples.", "2. The Court’s assessment (a) Applicability of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 72. The Court points out at the outset that Article 8 of the Convention does not guarantee as such a right to benefit from a specific social security scheme or a right to be granted a survivor’s pension (see, mutatis mutandis, P.B. and J.S.", "v. Austria, no. 18984/02, § 25, 22 July 2010; Youri Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). The Court reiterates that as concerns “family life in Article 8 of the Convention this notion not only includes dimensions of a purely social, moral or cultural nature but also encompasses material interests (Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004).", "73. In the instant case the applicant formulated his complaint under Article 14 taken in conjunction with Article 8 of the Convention and the Government did not dispute the applicability of those provisions, referring to Schalk and Kopf v. Austria, cited above, §§ 92-95. The Court finds it appropriate to follow this approach (Schalk and Kopf, cited above, § 88). 74. The Court has repeatedly held that Article 14 complements the other substantive provisions of the Convention and its Protocols.", "It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions –and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among other authorities, Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II; E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008; Schalk and Kopf, cited above, § 89; X and Others v. Austria [GC], no. 19010/07, § 94, ECHR 2013; and Vallianatos and Others v. Greece [GC], nos.", "29381/09 and 32684/09, § 72, ECHR 2013 (extracts)). The prohibition of discrimination enshrined in Article 14 applies to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see E.B. v. France, cited above, § 48; and Muñoz Díaz, cited above, § 42). 75. The Court notes, on the basis of the case file, that the applicant formed a stable, same-sex, de facto union with his late partner for more than eleven years.", "It is not disputed that their relationship fell within the notion of “private life” within the meaning of Article 8 of the Convention. The Court also points out that in its judgment in Schalk and Kopf, it considered that, in view of the rapid evolution in a considerable number of member States regarding the granting of legal recognition to same-sex couples following the decision in Mata Estevez (cited above), “it [would be] artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple [could not] enjoy ‘family life’ for the purposes of Article 8” (see Schalk and Kopf, cited above, § 94, concerning a cohabiting same-sex couple living in a stable, de facto, union; see also, for a non‑cohabiting same-sex couple, Vallianatos and Others, cited above, § 73). The Court is of the view that the applicant’s relationship with his late partner fell within the notion of “private life” and that of “family life”. 76. Furthermore, while Article 8 does not address the issue of survivors’ pensions, Spanish legislation expressly provided for such a right to spouses and to surviving partners of unmarried heterosexual couples who had been legally unable to marry before the entry into force of Law no.", "30/1981 (see, mutatis mutandis, Manenc v. France (dec.), no. 66686/09, 21 September 2010). Consequently, the State, which went beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in the application of that right, take discriminatory measures within the meaning of Article 14. 77. Accordingly, the circumstances of the present case fall within the ambit of Article 8 of the Convention, and Article 14 is applicable.", "78. Nor has it been disputed that the present case falls within the ambit of Article 1 of Protocol No. 1. The Court has previously held that the interest in receiving a survivor’s pension from the State may fall within the ambit of Article 1 of Protocol No. 1 (see, for instance, Şerife Yiğit v. Turkey [GC], no.", "3976/05, § 58, 2 November 2010; Muñoz Díaz, cited above, §§ 42-46). Therefore, Article 14 is also applicable in conjunction with Article 1 of Protocol No. 1. (b) Compliance with Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 (i) General principles 79.", "According to the Court’s settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Schalk and Kopf, cited above, § 96; and X and Others, cited above, § 98). The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no.", "94). 80. The Court has also held that Article 14 does not prohibit a Contracting State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may, without objective and reasonable justification, give rise to a breach of that Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006‑VI; and Muñoz Díaz, cited above, § 48).", "81. Sexual orientation is a concept covered by Article 14. The Court has repeatedly held that, just like differences based on sex, differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification (see, for example, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999‑VI; Karner v. Austria, no. 40016/98, §§ 37 and 42, ECHR 2003‑IX; and Vallianatos and Others, cited above, § 77).", "Where a difference in treatment is based on sex or sexual orientation the State’s margin of appreciation is narrow (see Karner, cited above, § 41, and Kozak v. Poland, no. 13102/02, § 92, 2 March 2010). Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 36, ECHR 1999‑IX; E.B., cited above, §§ 93 and 96; X and Others, cited above, § 99; and Vallianatos and Others, cited above, § 77). 82.", "On the other hand, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general economic or social measures, which are closely linked to the State’s financial resources (see, for instance, Stec and Others, cited above, § 52; and Şerife Yiğit, cited above, § 70). The authorities’ direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. In such a case, the Court would generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007‑V, and Manzanas Martín v. Spain, no. 17966/10, § 41, 3 April 2012).", "Moreover, in an area of evolving rights where there is no established consensus, the Court has admitted that States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (see Stec and Others, cited above, §§63-65; see, in particular, Schalk and Kopf, cited above, § 105, M.W. v. the United Kingdom (dec.), no. 11313/02, 23 June 2009, and Courten v. the United Kingdom (dec.), no. 4479/06, 4 November 2008, relating to the introduction in Austria and the United Kingdom of legislation on civil or registered partnerships). (ii) Application of the above principles to the facts of the present case 83.", "The Court observes at the outset that the aim of Law no. 13/2005 was to take away the existing distinction between same-sex couples and different-sex couples with regard to the right to enter into marriage, as from its date of entry into force. As to the circumstances of the present case, the Court notes that the national authorities’ refusal to grant the applicant a survivor’s pension was based exclusively on the fact that at the material time the applicant was not married to his deceased partner, marriage being a precondition for receiving a survivors’ pension and his partner having died three years before the recognition of same-sex marriage pursuant to Law no. 13/2005. The applicant’s complaint concerns the interpretation and application of the domestic legislation by the Madrid High Court of Justice in that it did not recognise the retroactive effect of Law no.", "13/2005 for the purposes of rights to a survivor’s pension, in contrast to the solution provided for by Law no. 30/1981 for different-sex cohabiting couples who, while legally unable to marry before that law came into force, were eligible for a survivor’s pension by virtue of the retroactivity clause contained in its additional provision no. 10 (2). For the applicant, by choosing not to apply that retroactivity clause to his factual situation, the Madrid High Court of Justice’s decision resulted in discriminatory treatment based solely on his sexual orientation. 84.", "The Court reiterates that its role is not to rule on which interpretation of the domestic legislation is the most correct, but to determine whether the manner in which that legislation has been applied has infringed the rights secured to the applicant under Article 14 of the Convention (see, among many other authorities and mutatis mutandis, Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004‑VIII; and Fabris v. France [GC], no. 16574/08, § 63, ECHR 2013 (extracts)). 85. In the present case, the applicant claimed that his situation was relevantly similar or analogous to that of a surviving partner of a different-sex cohabiting couple, who, while being legally unable to marry his/her partner before Law no.", "30/1981 came into force, qualified for a survivor’s pension by virtue of the retroactivity clause expressly included therein. The Government, however, argued on the basis of the judgment rendered by the Madrid High Court of Justice that there was no true analogy since same-sex couples could not marry at all before the entry into force of Law no. 13/2005, whereas different-sex couples were eligible for marriage but could not exercise such right because divorce was not legal. Therefore, the question to be addressed by the Court is whether the applicant’s situation is comparable to the situation that had arisen in Spain a quarter of a century earlier, of a surviving partner of a different-sex cohabiting couple, in which one or both partners were unable to remarry because they were still married to another person whom they were prevented from divorcing under the legislation in force at the material time. 86.", "The Court observes that there are certain similarities between both situations taken in the abstract: a legal obstacle prevented same-sex couples such as that of the applicant and different-sex cohabiting couples from entering into marriage and benefitting from the legal effects attached to such institution; the unmarried partners had lived together as a couple, and one of the partners had died before the entry into force of new legislation which removed the legal impediment to marriage. 87. However, the Court considers that these elements alone are not sufficient to place the applicant in 2005 in a relevantly similar position to that of a surviving partner of a different-sex couple who had been unable to marry because divorce was not permitted until 1981. As noted by the Government, additional provision no. 10 (2) of Law no.", "30/1981 had the very specific purpose of providing a provisional and extraordinary solution to those couples, giving the surviving partner access to a survivor’s pension under certain conditions (see paragraph 27 above). This, as may be assumed, against the background of a situation where the participation in building up pension rights by paid work had not been equally distributed among the sexes, since women were underrepresented in the work force. Furthermore, although there was in both cases a legal impediment to marriage, this impediment was of a different nature. In the case of the applicant, he was unable to marry his partner due to the fact that the legislation in force at the relevant time (during his partner’s lifetime) restricted the institution of marriage to different-sex couples. Same-sex couples were consequently ineligible for marriage according to that legislation, which was not deemed unconstitutional by the domestic courts (see paragraphs 24 and 37-45 above).", "As regards different-sex couples who had been unable to marry before divorce was legalised in 1981, the impediment to marriage was based on the fact that one or both partners were at the relevant time still married to another person whom they could not divorce. The inability of a couple in that situation to marry before 1981 did not result from the sex or the sexual orientation of its members but from the fact that one or both partners were legally married to a third person and that divorce was not permitted at the time of the death of one of the partners. What was at stake was an impediment to remarrying which affected one or both partners, not an impediment to marrying: the specific factual and legal situation addressed by the 1981 legislation cannot be genuinely compared to the position of a same-sex couple who were ineligible for marriage in absolute terms, irrespective of the marital status of one or both of its members. 88. In the Court’s view, the difference in context and the difference in nature of the legal impediment to marriage make the situation of the applicant in 2005 fundamentally different from that of different-sex couples covered by additional provision no.", "10 (2) of Law no. 30/1981. 89. This view is unaffected by the fact that the Spanish legislature recognised the right to a survivor’s pension to same-sex couples after the death of the applicant’s partner, by introducing in 2005 same-sex marriage (thus allowing same-sex married couples to benefit from survivors’ pensions), and by extending in 2007 the right to a survivor’s pension to stable de facto unions, both heterosexual and homosexual, under certain conditions (see paragraph 36 above). The enactment of this legislation cannot be taken as an admission by the domestic authorities that the non-recognition of same-sex marriage, or the exclusion of same-sex couples from some of the rights and benefits available to married couples, was at the relevant time incompatible with the Convention (see also paragraphs 37-45 above as regards the case-law of the Constitutional Court and the Supreme Court).", "90. In this connection, the Court recalls that it held in 2010 in its case of Schalk and Kopf that States enjoyed a margin of appreciation as regards the timing of the introduction of legislative changes in the field of legal recognition of same-sex couples and the exact status conferred on them, an area which was regarded as one of evolving rights with no established consensus (see Schalk and Kopf, cited above, §§ 105 and 108; see more recently, Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 163, 21 July 2015). It has also held that the Convention does not oblige Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf, cited above, §§ 63 and 101, and Hämäläinen v. Finland [GC], no. 37359/09, § 71, ECHR 2014), marriage being widely accepted as conferring a particular status and particular rights on those who enter it (see Burden, cited above, § 63, and Şerife Yiğit, cited above, § 72).", "Therefore, the Spanish legislature cannot be criticised under the terms of the Convention for not having introduced the 2005 or the 2007 legislation at an earlier date which would have entitled the applicant to obtain the benefit of a survivor’s pension (see, mutatis mutandis, M.W. and Courten, both cited above). 91. In conclusion, the Court considers that the applicant is not in a relevantly similar situation to that of a surviving partner of a different-sex couple who had been unable to marry because of an impediment to remarrying which had affected one or both members of the couple before 1981. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No.", "1. FOR THESE REASONS, THE COURT, 1. Declares, by a majority, the application admissible; 2. Holds, unanimously, that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.", "Done in English, and notified in writing on 14 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Keller is annexed to this judgment. H.J.J.S.P. SEPARATE OPINION OF JUDGE KELLER 1. I voted against the majority on the first point of the operative part of this judgment, but was in agreement with my colleagues for the second point.", "In my view, the Court should have examined this case exclusively under Article 14 in conjunction with Article 1 of Protocol No. 1. The majority, however, chose a different approach and examined the case in the light of Article 14 read in conjunction with Article 8 and Article 1 of Protocol No. 1, respectively. This approach does not take into account that the scope of these two rights is distinct.", "In many cases, this distinction does not play a decisive role. However, for the two countries – Monaco and Switzerland – that have not ratified Protocol No. 1, the distinction is important. 2. As I have previously argued, together with Judges Spano and Kjølbro in our dissenting opinion in the case of Di Trizio v. Switzerland (no.", "7189/09, judgment of 2 February 2016), a financial allowance in the form of support provided by the State primarily falls into the ambit of Article 1 of Protocol No. 1 (see, for example, Moskal v. Poland, no. 10373/05, §§ 93 et seq., 15 September 2009, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006-VI). It is only where some additional elements are fulfilled, such as a clear legislative intent to provide an incentive for the organisation of family life (see, for example, Konstantin Markin v. Russia [GC], no.", "30078/08, § 130, ECHR 2012), that a purely financial award can fall into the ambit of Article 8 and can therefore be examined in the light of Article 14. To decide otherwise would blur the lines between the protection of property rights on the one hand and private and family life on the other. 3. The applicant in the present case exclusively invoked Article 14 in conjunction with Article 8. The Court communicated the case under both Article 8 and Article 1 of Protocol No.", "1 (both read in conjunction with Article 14) and recharacterised the issue in paragraph 57 of the judgment. Although this is possible under the Court’s case-law in accordance with the principle jura novit curia (compare, inter alia, Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Scoppola v. Italy (no. 2) [GC], no.", "10249/03, § 54, 17 September 2009), one has to bear in mind that this approach should be the exception rather than the rule, as it causes problems with regard to the exhaustion of domestic remedies on an almost regular basis (this is also true in the case at hand, see paragraph 59 for the Government’s objection). In the light of the principle of subsidiarity, it is always most unfortunate if the national courts have not been given the opportunity to deal with a particular legal issue before it is examined by the Court. 4. In paragraph 75 of the present judgment, the Court simply states that the de facto relationship between the applicant and his late partner falls into the ambit of Article 8. This is undoubtedly true.", "However, this is not the issue in the present case. Rather, the question here concerns the right to retroactive equal treatment in purely financial matters of same-sex de facto couples who could not marry because of their sexual orientation, compared to heterosexual couples who lived in a de facto relationship because they could not legally divorce from their spouses. 5. In my view, the majority fail to provide any convincing reason why the pension in question should fall into the ambit of family or private life as protected under Article 8 as well as under the right enshrined in Article 1 of Protocol No. 1.", "6. Once the Court declared the complaint admissible, I had no difficulty in joining the majority. The crucial element in this case is the comparability of two groups: on the one hand, heterosexual partners who lived in a de facto relationship with a new partner while being legally barred from divorce, and, on the other, same-sex partners in a de facto relationship. The legal analysis is made additionally difficult by the fact that the legislator acted regarding the first group more than 25 years earlier than in the case of the second. To grant the State a wide margin of appreciation in such a difficult situation, which also has considerable financial implications, seems to me to be the right approach." ]

[ "FIRST SECTION CASE OF KASPAROV AND OTHERS v. RUSSIA (Application no. 21613/07) JUDGMENT STRASBOURG 3 October 2013 FINAL 17/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kasparov and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "21613/07) 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 nine Russian nationals, Mr Garri Kimovich Kasparov, Mr Aleksey Valeryevich Tarasov, Mr Nikolay Vladimirovich Kharlamov, Mr Nikolay Viktorovich Kalashnikov, Mr Andrey Pavlovich Toropov, Mr Aleksandr Viktorovich Stelmakh, Mr Yuriy Nikolayevich Orel, Mr Vyacheslav Viktorovich Melikhov and Ms Oksana Anatolyevna Chelysheva (“the applicants”), on 24 May 2007. 2. The applicants were represented by Ms K. Moskalenko (the first, the third and the ninth applicants), Ms O. Mikhaylova (the second applicant), Ms O. Polozova (the fourth applicant) and Ms N. Kotenochkina (the fifth, sixth, seventh and eighth applicants), lawyers practicing in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged a violation of Articles 10 and 11 of the Convention in that the authorities had prevented them from taking part in a public assembly in Moscow on 14 April 2007. All except the ninth applicant also complained of a violation of Article 6 of the Convention in the ensuing administrative proceedings against them. 4. On 4 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants’ dates of birth and places of residence are listed below: (1) Mr Kasparov was born in 1963 and lives in Moscow; (2) Mr Tarasov was born in 1968 and lives in Moscow; (3) Mr Kharlamov was born in 1973 and lives in Moscow; (4) Mr Kalashnikov was born in 1971 and lives in Moscow; (5) Mr Toropov was born in 1973 and lives in Orudyevo, in the Moscow Region; (6) Mr Stelmakh was born in 1978 and lives in Moscow; (7) Mr Orel was born in 1968 and lives in Moscow; (8) Mr Melikhov was born in 1972 and lives in Korolev, in the Moscow Region; (9) Ms Chelysheva was born in 1967 and lives in Nizhniy Novgorod. 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "1. Demonstration of 14 April 2007 7. In 2007 the first applicant, together with other individuals representing a coalition of opposition groups, intended to take part in an anti-government rally to campaign before the forthcoming parliamentary elections. The demonstration became known as the March of Dissenters; it was organised by three individuals, none of whom are applicants in the present case. On 30 March 2007 they submitted notice of a public demonstration to the mayor of Moscow.", "They indicated, in particular, that a meeting would be held at 12 noon on 14 April 2007 in Novopushkinskiy Park, which would last until 1.30 p.m. and would be followed by a march via Tverskaya Street and Okhotnyy Ryad Street to Teatralnaya Square. The march was to end at 2 p.m. They estimated that about 2,000 people would take part in the event. The notice stated that the proposed demonstration was intended “to express the demands of Russian citizens for the urgent reinstatement of the full scope of citizens’ electoral rights, through the abolition of the legislative amendments of recent years”. 8.", "On 5 April 2007 the Department for Liaison with Security Authorities of the Moscow Government informed the organisers that the event was liable to disrupt the functioning of urban services and the movement of passers-by. Therefore, authorisation could only be granted for a meeting at the foot of the Griboyedov monument on Chistoprudnyy Boulevard (a different location in central Moscow) between 12 noon and 1.30 p.m.; the number of participants could not exceed 1,000, the maximum capacity of the venue. No march was authorised. 9. On 6 April 2007 the organisers resubmitted the notice, proposing four alternative routes for the march, all in central Moscow, and agreeing to limit the number of participants to 1,000.", "10. On 10 April 2007 the Department for Liaison with Security Authorities of the Moscow Government informed the organisers that none of the alternatives could be accepted, for the same reasons as the refusal of the original proposal. It suggested that the organisers hold the event at an aeronautical club in one of the Moscow suburbs. 11. The documents submitted by the Government reveal that on 14 April 2007 the Moscow police were reinforced by special units of the riot police (“OMON”) brought in specially from twenty-nine regions of Russia “to protect public order and security” on that day.", "12. According to the Government, on 14 April 2007 at about 11.40 a.m. groups of people started gathering near Pushkinskaya Square. A group of about twenty persons, including the first eight applicants, started marching down Tverskaya Street while shouting anti-government slogans. The total number of people who took part in this unauthorised march was about fifty. According to the Government, the applicants were arrested as they tried to pass from Tverskaya Street onto Red Square.", "The Government originally alleged that the march down Tverskaya Street had begun at 1.30 p.m., as had been indicated in the police reports, but they subsequently submitted that the applicants had been arrested at 1 p.m. and brought to the police station at 1.30 p.m. 13. The applicants claimed that they had not staged a demonstration in Tverskaya Street, but had happened to be there for different reasons. Mr Kasparov, Mr Tarasov and Mr Toropov claimed that at 12 noon they had been walking peacefully down Tverskaya Street towards the place of the authorised meeting at the Griboyedov monument. The applicants did not specify the number of people walking alongside them. They claimed that their way had been barred by the riot police who were blocking off several streets in central Moscow.", "The applicants claimed that at this stage all pedestrians, both aspiring protesters and unsuspecting passers-by, had been pushed back, surrounded and indiscriminately beaten up by the riot police, before being arrested and taken in police vans to different police stations. 14. Mr Stelmakh claimed that he had not been heading to a meeting but had been walking down Tverskaya Street with his friends; when he saw the riot police dispersing a crowd and arresting people he had dropped into the “Russkoye Bistro” café, where he was arrested at about 12 noon. 15. Four other applicants denied any connection with the march.", "Mr Kharlamov claimed that he had had no intention of participating in a public event; he had been arrested when he came out of a shop near Pushkinskaya Square after having collected his mobile phone, which was being repaired. Mr Kalashnikov claimed that he had been arrested when he was heading to a local McDonald’s restaurant to meet a friend. Mr Orel also submitted that he had been heading to McDonald’s but could not get there because the street was closed off by the riot police; he too had dropped in to the “Russkoye Bistro” café on Tverskaya Street, where he had been arrested. Mr Melikhov also said that he had been heading to McDonald’s but could not get there and had been arrested in Tverskaya Street. 16.", "The applicants claimed that there had been at least thirty other people in the police van, all of whom had been arrested at the same time as them. 17. When the applicants arrived at the police station, reports on their administrative arrest were drawn up in accordance with Article 27.4 of the Code of Administrative Offences. The first to eighth applicants were charged with the administrative offence of breaching the regulations on holding demonstrations. The administrative proceedings in their cases are described below.", "18. On 17 April 2007 the first applicant received a letter from the Federal Security Service summoning him for an interview, following a media appeal broadcast on 8 April 2007 by the radio station Ekho Moskvy, in which he had called on listeners to take part in the demonstration on 14 April 2007. It was suggested that such statements could constitute the criminal offence of incitement to extremist activities. There is no information on any follow-up to this interview. 2.", "Administrative proceedings concerning the first applicant 19. After his arrest on 14 April 2007 the first applicant was taken to the police station and was then brought before the Justice of the Peace of Circuit no. 369 of the Tverskoy District of Moscow. He was charged with a breach of the established procedure for conducting public assemblies, an offence under Article 20.2 § 2 of the Administrative Offences Code. 20.", "The hearing of the administrative case was fixed for 5.30 p.m. on the same day. The applicant filed two motions to have the hearing adjourned in order to have sufficient time to prepare his defence, but the Justice of the Peace noted the insignificant volume of the case file (five pages) and decided to hold the hearing on the same day, having postponed it first by forty-five minutes and then by an additional twenty minutes. 21. At 6.30 p.m. on the same day the Justice of the Peace examined the charges. At the hearing the first applicant was represented by a lawyer.", "The applicants alleged that no members of the public had been allowed in the courtroom during the hearing, as the building had been cordoned off by the police. The first applicant’s counsel, Ms Moskalenko, filed a motion to have the hearing opened to the public. The Justice of the Peace issued a decision stating that the hearing was open to the public. 22. At the beginning of the hearing the applicant filed a motion to call and examine six eyewitnesses, four of whom had been arrested at the same time as him.", "The Justice of the Peace rejected the motion, holding that it was premature to call witnesses before the applicant and the police had been questioned. 23. The Justice of the Peace examined the police report, according to which the first applicant had been arrested at 1.30 p.m. while “walking in a big group of people shouting anti-government slogans”. She also questioned Mr I., the policeman who had arrested the applicant and drawn up the report. The latter testified that because of the public manifestations expected to take place between 12 noon and 4 p.m. on 14 April 2007 he had received an instruction to safeguard public order at 19 Tverskaya Street, in particular to stop any organised groups of people heading in the direction of Red Square.", "He also testified that Mr Kasparov had been walking in a group of about fifty to sixty people and, following the instructions to disperse the unauthorised demonstration, which was threatening to spill over into the security perimeter of Red Square, he had arrested him. The applicant claimed that the policeman had given the wrong place and time of the arrest, and reiterated the request to question the eyewitnesses, stating that the persons in question were waiting outside the court and were ready to be called. The Justice of the Peace rejected the motion on the grounds that the persons concerned had not been mentioned in the police report and that the facts were sufficiently clear to determine the charges. The court accepted the version of events put forward by the police, finding as follows: “Assessing the testimony by [Mr I. ], the court finds it credible because [Mr I.]", "was performing his professional duties; he had not been acquainted with the applicant and had no reason to slander him; he [was a party] with no vested interest.” 24. The Justice of the Peace referred to the Moscow authorities’ decision of 5 April 2007 and concluded that on 14 April 2007 the first applicant had attempted to take part in an unauthorised demonstration at 19 Tverskaya Street, where he had been arrested. The applicant was found to have acted in breach of the regulations on holding demonstrations and was convicted of an administrative offence under Article 20.2 of the Administrative Offences Code. He had to pay a fine of 1,000 Russian roubles (RUB, about 25 euros (EUR)). 25.", "The applicant appealed to the Tverskoy District Court of Moscow. He contested the facts as established at first instance, claimed that the hearing had not been held in public and alleged that he had not been given a chance to prepare his defence or to present his case adequately. 26. On 14 May 2007 the Tverskoy District Court examined the applicant’s appeal. It upheld the first-instance judgment, reiterating that the applicant had participated in an unauthorised demonstration and that he had been marching in a group of people chanting anti-government slogans.", "It also noted that there had been no proof that the first-instance hearing had not been held in public or that the applicant had not been given sufficient time to prepare his defence, since he had had two hours to do so. 3. Administrative proceedings concerning the second to eighth applicants 27. The administrative proceedings concerning each of these applicants were conducted at first instance by the Justice of the Peace of Circuit no. 369 of the Tverskoy District of Moscow.", "Like the first applicant, they were individually convicted of having breached the procedure for the conduct of public assemblies, an administrative offence under Article 20.2 of the Administrative Offences Code, and had to pay a fine of RUB 1,000 each. During the trial all of them contested the police reports, in particular as regards the time and circumstances of their arrest, and requested the court to call and examine eyewitnesses. The Justice of the Peace found, however, that the facts were sufficiently established in each case and rejected the requests. The decisions and the reasons given by the court were essentially the same as in the first applicant’s case. 28.", "The fifth applicant’s case was examined in the absence of the applicant and his lawyer because the court had rejected a motion lodged by him for the proceedings to be adjourned, finding that it was possible to proceed without the applicant and his lawyer. 29. The first-instance judgments were given on the following dates: in the second, third, fourth and sixth applicants’ cases on 16 April 2007; in the fifth applicant’s case on 22 May 2007; and in the seventh and eighth applicants’ cases on 25 April 2007. 30. The applicants subsequently appealed unsuccessfully to the Tverskoy District Court of Moscow.", "The reasons given by the appeal court were essentially the same as in the first applicant’s case. The appeal decisions in the applicants’ cases were given on 14 May 2007, with the exception of the appeal decision in the fifth applicant’s case which was given on 11 July 2007. 4. The complaint lodged by the ninth applicant 31. The ninth applicant alleged that on 14 April 2007 she had been heading to the meeting at the Griboyedov monument.", "At Sretenskiye Vorota Square she and other pedestrians had been attacked by a unit of the riot police. The applicant had seen a policeman hitting a man with a truncheon and had intervened to try to stop the beating, but the policeman had kicked her on her left leg. She had been badly hurt and therefore could not go to the meeting. Later on the same day she had sought medical help at Moscow City Clinic no. 137, where she had been diagnosed with a haematoma of the left ankle.", "32. On 16 April 2007 the applicant filed a complaint with the Moscow prosecutor’s office requesting that criminal proceedings be brought against the policemen who had used force against her. 33. On 6 July 2007 the Meshchanskiy Inter-District Prosecutor’s Office decided to dispense with a criminal investigation into the incident. 34.", "On 18 March 2011 the same prosecutor’s office quashed the above decision and remitted the file for additional investigation. Instructions were given to question the applicant and the three named eyewitnesses, to obtain the medical documents and to conduct a forensic examination. There is no information as to the outcome of those proceedings. II. RELEVANT DOMESTIC LAW 35.", "The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows: Article 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets “1. Breaches of the established procedure for the organisation of public gatherings, meetings, demonstrations, marches or pickets shall be punishable by an administrative fine of between ten and twenty times the minimum wage, payable by the organisers. 2. Breaches of the established procedure for the conduct of public gatherings, meetings, demonstrations, marches or pickets shall be punishable by an administrative fine of between RUB 1,000 and RUB 2,000 for the organisers, and between RUB 500 and RUB 1,000 for the participants.” Article 27.2 Escorting of individuals “1. The escorting or the transfer by force of an individual for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was discovered and if the drawing-up of a report is mandatory, shall be carried out: (1) by the police ... ... 2.", "The escort operation shall be carried out as quickly as possible. 3. The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person shall be given a copy of the escort operation report if he or she so requests.” Article 27.3 Administrative arrest “1. Administrative arrest or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence.", "... ... 3. Where the detained person so requests, his family, the administrative department at his place of work or study and his defence counsel shall be informed of his whereabouts. ... 5. The arrested person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.” Article 27.4 Administrative arrest report “1. The administrative arrest shall be recorded in a report ... 2.", "... If he or she so requests, the arrested person shall be given a copy of the administrative arrest report.” Article 27.5 Duration of administrative arrest “1. The duration of the administrative arrest shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article. 2. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative arrest for up to 48 hours.", "3. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative detention may be subject to administrative arrest for up to 48 hours ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 36. The first to eighth applicants complained of a violation of the right to a fair and public hearing in the determination of the administrative charges against them. They relied on Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” A. Admissibility 1. Applicability of Article 6 37. The Government requested the Court to declare this complaint inadmissible as being incompatible ratione materiae with the provisions of the Convention. They argued that Article 6 was inapplicable to the administrative proceedings; the applicants’ cases did not concern the determination either of their civil rights and obligations or of criminal charges against them. They argued that the offence under Article 20.2 of the Code of Administrative Offences was not punishable by administrative detention, a fact which distinguished the present case from Ziliberberg v. Moldova (no.", "61821/00, § 34, 1 February 2005). The Government also pointed out that the administrative offence in question fell within the jurisdiction of the Justice of the Peace, a judicial authority competent to adjudicate in cases concerning criminal offences carrying a maximum sentence of up to three years’ imprisonment, as well as in civil disputes and administrative matters. 38. The applicants contended, on the other hand, that the criminal limb of Article 6 was applicable to the proceedings at issue. They referred to the criteria set out in Engel and Others v. the Netherlands (8 June 1976, §§ 82‑83, Series A no.", "22), and claimed that the offences they had been convicted of were essentially criminal despite their classification in domestic law as administrative. They also referred to Ziliberberg, cited above, claiming that in that case the Court had found Article 6 to be applicable to proceedings concerning an administrative offence similar to the one at issue in the present case. They did not share the Government’s view that the present case was to be distinguished from the aforementioned case either on the ground suggested by the Government or on any other ground. 39. The Court reiterates that the applicability of Article 6 falls to be assessed on the basis of the three criteria outlined in the Engel judgment (see Engel and Others, cited above, §§ 82 and 83).", "In order to determine whether an offence qualifies as “criminal” for the purposes of the Convention, it is first necessary to ascertain whether or not the provision defining the offence belongs, in the legal system of the respondent State, to criminal law; next, the “very nature of the offence” and the degree of severity of the penalty risked must be considered (see, among other authorities, Öztürk v.Germany, 21 February 1984, § 50, Series A no. 73; Demicoli v. Malta, 27 August 1991, §§ 31-34, Series A no. 210; and Galstyan v. Armenia, no. 26986/03, §§ 55-60, 15 November 2007). 40.", "In addition, even though the Court’s established jurisprudence regards the second and third criteria laid down in Engel as alternative and not necessarily cumulative, this does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003‑X). 41. In Russian domestic law, a breach of the regulations on holding a public assembly is classified as an “administrative offence”. The Court has previously examined the sphere defined in certain legal systems as “administrative” and found that it embraces some offences that are criminal in nature but too trivial to be governed by criminal law and procedure (see Palaoro v. Austria, 23 October 1995, §§ 33-35, Series A no.", "329‑B). Where this is the case, the indication afforded by national law is not decisive for the purpose of Article 6 and the very nature of the offence in question is a factor of greater importance (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 71, Series A no. 80; Weber v. Switzerland, 22 May 1990, § 32, Series A no. 177; and Menesheva v. Russia, no. 59261/00, §§ 96-98, ECHR 2006‑III).", "42. As regards the nature of the offence committed by the applicants, Article 20.2 of the Code of Administrative Offences makes it a punishable offence to participate in an unauthorised demonstration. That provision regulates offences against public order and is designed to regulate the manner in which demonstrations are held. Accordingly, the legal rule infringed by the applicant is directed towards all citizens and not towards a given group possessing a special status. The Court therefore concludes that the offence was of a general character.", "43. The Court further notes that the applicants were sentenced to a fine, which the Government considered a trivial penalty. The Court notes that the applicants in the instant case were fined the equivalent of EUR 25, the maximum penalty under the applicable provision. More importantly, the fines payable in the present case were not intended as pecuniary compensation for damage but were punitive and deterrent in nature, which is also a characteristic of criminal penalties (see Öztürk, cited above, § 53). 44.", "Furthermore, the Court notes that the applicants in the present case were arrested and taken into police custody for around two hours. As a matter of principle, it attaches particular importance to any form of deprivation of liberty when it comes to defining what constitutes the “criminal” sphere (see Ziliberberg, cited above, § 34). In this case, moreover, the Court observes that the applicants were subjected to an administrative arrest under Article 27.3 of the Code of Administrative Offences, a measure which has stronger criminal connotations than the escorting of an individual to the police station as provided for by Article 27.2 of the Code. 45. These considerations are sufficient for the Court to establish that the offence of which the first to eighth applicants were convicted can be classified as “criminal” for the purposes of the Convention.", "It follows that Article 6 applies. 2. Conclusion as to admissibility 46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 47. Although they considered that the administrative proceedings fell outside the scope of Article 6, the Government claimed that the applicants had been provided with all the guarantees of a fair hearing.", "In particular, the principle of equality of arms had been ensured in that the Justice of the Peace had examined both parties’ submissions, having taken cognisance of the applicants’ account of events as well as that of the police. They also contended that the proceedings before the Justice of the Peace had been conducted in public, as required by Article 24.3 of the Code of Administrative Offences; the Justice of the Peace had confirmed this by a separate decision in the first applicant’s case, following a motion to have the hearing opened to the public. The decision expressly stated that the hearing was open to the public. The Government contested the first applicant’s allegation that members of the public had been stopped by the police in front of the court building, arguing that the applicants’ allegations related to a time when the proceedings had not yet begun, given that at 6 p.m. the first applicant and his lawyers had been preparing for the hearing. Furthermore, at his request the first applicant had been given an additional forty-five minutes to prepare for the hearing.", "48. The Government further contended that the applicants had been found guilty on the basis of ample evidence, including the police reports and the testimonies of the police officers as well as the documents provided by the Government of Moscow relating to the application to hold the public event on 14 April 2007. As regards the refusal to call witnesses at the applicants’ request, the court had stated that there was no need to examine them because the evidence in the file was sufficient to establish the circumstances of the case; the Government subscribed to that finding, which it considered to be reasonable. 49. Finally, they pointed out that the applicants’ appeals against the first‑instance decisions had been examined by the Tverskoy District Court.", "Thus the applicants had been able to avail themselves of a judicial hearing of their cases, with all the pertinent guarantees, at two instances. 50. The applicants, for their part, argued that the proceedings concerning the administrative offences had failed to comply with the guarantees of a fair and public hearing, alleging that the principle of equality of arms had not been secured in that the witnesses for the defence had not been called, and that the public had been excluded from the trial of the first applicant. 51. In the first applicant’s case, they also claimed that he had not been given sufficient time to prepare his defence because the judge had refused to adjourn the hearing and had given the applicant and his counsel only twenty minutes to prepare.", "The first applicant also claimed that the charges against him had not been specified before the trial, as only a general reference had been made to Article 20.2 of the Code without any indication as to which of the four offences covered by that Article he was accused of; this had also been an impediment to preparing his defence. He further complained that at the hearing no witnesses had been called and examined, except for the officer who had arrested the first applicant. The applicant’s request to call other eyewitnesses had been rejected on the grounds that it was unnecessary. The first applicant contested the Government’s claim that the proceedings in his case had been held in public. He submitted, in particular, that even his two lawyers had been denied access to the courthouse, although they had had authority forms to represent him in the proceedings.", "Following the motion to allow admission at least to the family the court had indeed issued the decision to which the Government had referred, to the effect that the proceedings were already open to the public, but the police had nevertheless continued to cordon off the courthouse. 52. The second applicant indicated that prior to his trial he had not been given a copy of the police report concerning the administrative charges he was facing. He also complained that the court had refused to call and examine the eyewitnesses, in particular the first and the fourth applicants and the policeman who had drawn up the report in his case, on the grounds that there had been sufficient evidence in the case file. 53.", "The third and fourth applicants alleged that they had been wrongly convicted of an administrative offence as the result of an error by the police. Neither of them had had any intention of taking part in the meeting but had happened to be passing by: the third applicant had been arrested after collecting his mobile phone from a local service shop, and the fourth applicant had been on his way to a private appointment. The third applicant had presented the shop receipts to the court but they had been dismissed as irrelevant. Moreover, in both cases the court had refused to call and examine the eyewitnesses and the policemen who had drawn up the report. Both applicants had been convicted of an administrative offence on the basis of the police report alone and had been deprived of any opportunity of proving their innocence.", "54. The fifth applicant submitted that the administrative proceedings had been conducted in his absence because the court had dismissed his request to adjourn the proceedings on medical grounds, having found that his presence was unnecessary. He had therefore been given no chance at all to state his case before a court at the crucial moment of establishment of the facts at first instance. 55. The sixth, seventh and eighth applicants complained that the court had not verified their version of events and had not taken cognisance of the fact that they had contested the time and the circumstances of their arrest.", "2. The Court’s assessment 56. The Court notes that all the applicants alleged a violation of Article 6 § 1 because of the generally unfair manner in which the domestic courts had established the relevant facts underlying the charges against them. In particular, they claimed that the courts had not given them a chance of pleading their case, by dismissing all the evidence and witnesses capable of supporting the applicants’ version of events. In the case of the fifth applicant the court, furthermore, had not heard evidence from the applicant himself because it had decided to proceed in his absence.", "57. The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see, among other authorities, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146). More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system (see Asch v. Austria, 26 April 1991, § 25, Series A no.", "203). 58. It remains the task of the Court, however, to ascertain whether the proceedings, considered as a whole, were fair as required by Article 6 § 1 (see Delta v. France, 19 December 1990, § 35, Series A no. 191, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235‑B).", "In the context of the taking of evidence, the Court has paid particular attention to compliance with the principle of equality of arms. It has held, in particular, that it is one of the fundamental aspects of a fair hearing and that it implies that the applicant must be “afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent” (see Bulut v. Austria, 22 February 1996, § 47, Reports of Judgments and Decisions 1996‑II). Therefore, even though it is normally for the national courts to decide whether it is necessary or advisable to call a witness, there might be exceptional circumstances which could prompt the Court to conclude that the failure do so was incompatible with Article 6 (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158, and Destrehem v. France, no. 56651/00, § 41, 18 May 2004).", "59. In order to decide whether the applicants in the instant case were afforded the opportunity to present their case without being placed at a disadvantage vis-à-vis the prosecution, and whether the proceedings were conducted fairly, the Court will first examine what constituted the basis of the applicants’ conviction (see, mutatis mutandis, Destrehem, cited above, § 43). 60. Turning to the first applicant’s case, the Court observes that Mr Kasparov was brought before the Justice of the Peace after being apprehended in Tverskaya Street, allegedly for taking part in an unauthorised march. It observes, next, that the circumstances surrounding his arrest, such as the purpose of his being there, the time of the alleged march and even the time and the exact place of the arrest were in dispute between the parties.", "61. Uncertainty on these points remains to date. In the proceedings before the Court, the respondent Government alleged that the march down Tverskaya Street began at 1.30 p.m., but in another part of their observations they submitted that the crowd had started to gather for the march at 11.40 a.m., and that the applicants had been arrested at 1 p.m. and had been brought to the police station at 1.30 p.m. This timeframe is consistent with the applicants’ version of events and not with what the police reported. 62.", "In the proceedings before the Justice of the Peace, Mr Kasparov contended that he had been walking with a small group of people towards the Griboyedov monument, the venue for a meeting that had been duly authorised by the Moscow authorities. The police, on the other hand, alleged that Mr Kasparov had not simply been walking but had been taking part in an unauthorised demonstration, and they insisted that he had been doing so at a time when the event at the Griboyedov monument had ended. Another controversy between the parties relates to the place of arrest. According to the police, the applicants, including the first applicant, were arrested when the demonstration threatened to spill over into Red Square, a designated high-security area. The first applicant, meanwhile, claimed that he had been arrested in Tverskaya Street when he and his companions had reached the security barrier set up by the riot police at a considerable distance from Red Square.", "63. The Court has previously held that in circumstances where the applicant’s conviction was based primarily on the assumption of his being in a particular place at a particular time, the principle of equality of arms and, more generally, the right to a fair trial, imply that the applicant should be afforded a reasonable opportunity to challenge the assumption effectively (see Popov v. Russia, no. 26853/04, § 183, 13 July 2006, and Polyakov v. Russia, no. 77018/01, §§ 34-37, 29 January 2009). 64.", "In the first applicant’s case, however, the court rejected the attempts by the applicant to clarify the time and place of his arrest, although these facts were central to the determination of the administrative charges. Presented with two irreconcilable statements, the Justice of the Peace decided to base the judgment exclusively on the version put forward by the police because they had been a “party with no vested interest”. However, the Court considers that, given the significance of the disputed facts for the outcome of the case and the role of the police officer who arrested the applicant and drew up the report, it was indispensable for the Justice of the Peace to exhaust every reasonable possibility of finding out exactly when and where the first applicant had been arrested. 65. The Court notes that calling the eyewitnesses who could have shed light on these events would have been a straightforward matter.", "Their names and addresses were known; four of them had been arrested at the same time as the applicant, and they were, according to the applicant’s counsel, waiting outside the court to give evidence. In any event, the Justice of the Peace did not refer to any technical obstacles to finding these persons. She simply considered it superfluous to the proceedings. 66. The Court cannot but conclude that the Justice of the Peace accepted the submissions of the police readily and unequivocally and denied the first applicant any possibility of adducing any proof to the contrary.", "The Court recognises that the charges against the applicant were rather trivial and that the proceedings concerning such matters are meant to be conducted expeditiously. However, taking into account the fact that the applicant’s conviction was founded upon conflicting evidence against him, the Court finds that the domestic courts’ unreserved endorsement of the police report and their refusal to examine the defence witnesses without any regard to the relevance of their statements led to a limitation of the defence rights incompatible with the guarantees of a fair hearing (see Popov, cited above, § 188). Accordingly, there has been a breach of the principles enshrined in Article 6 of the Convention. 67. The Court further notes that the other applicants’ trials were all conducted in a virtually identical manner, that is, without giving the applicants any possibility of adducing evidence in support of their version of events.", "In the fifth applicant’s case, this circumstance was further aggravated by the fact that the court did not consider his, or his lawyer’s, presence necessary for the conduct of the proceedings. 68. Having regard to the foregoing conclusion and the particular circumstances of the present case, the Court considers it unnecessary to examine the first applicant’s complaints that there was no public hearing and that he had insufficient time to prepare his defence, or the second applicant’s complaint that he was not given access to the police report prior to the court hearing. 69. In view of the foregoing, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in respect of the first eight applicants.", "II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 70. The applicants complained that the authorities’ conduct on 14 April 2007 had interfered with their right to freedom of expression and their right to freedom of peaceful assembly, guaranteed by Articles 10 and 11 of the Convention respectively. Those provisions read as follows: Article 10 (freedom of expression) “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 (freedom of assembly and association) “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” A. Admissibility 1. The first, second and fifth applicants 71. The Court notes that in so far as Mr Kasparov, Mr Tarasov and Mr Toropov are concerned, 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. The third, fourth, sixth, seventh and eighth applicants 72. The Court notes that in making their complaints under Article 10 and 11 these applicants denied that they had had any intention of taking part in a public assembly on 14 April 2007, either on Tverskaya Street, at the Griboyedov monument or elsewhere.", "They all claimed before the domestic courts and in their applications to the Court to have been arrested by mistake, simply because they had accidentally and by mischance found themselves in the midst of the attempts to break up the demonstration on Tverskaya Street. They have therefore not made out a prima facie case of interference with their freedom of expression or freedom of assembly. 73. It follows that this part of the application by Mr Kharlamov, Mr Kalashnikov, Mr Stelmakh, Mr Orel and Mr Melikhov is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 3.", "The ninth applicant 74. The Court notes at the outset that in setting out her complaints of ill‑treatment this applicant did not allege, expressly or implicitly, a violation of Article 3 of the Convention. Under Articles 10 and 11 of the Convention she claimed that the injury allegedly inflicted on her by the police had prevented her from taking part in an authorised public meeting at the Griboyedov monument. The Court further observes that she attempted to lodge a criminal complaint against the policeman who, as she alleged, had kicked her on the ankle; however, apart from a copy of her complaint she provided the Court with no further material in support of her version of events, not even a witness statement by any persons who might have been with her at the time. It should be noted that the alleged assault on the ninth applicant was a separate event from the arrest of the other applicants and took place at a different location.", "Therefore it cannot be said that her allegations are corroborated by the account of events given by the other applicants. As the file stands, the Court cannot even establish that the police did in fact disperse the authorised meeting at the Griboyedov monument. Moreover, the applicant did not attempt to lodge a civil-law complaint specifically alleging a violation of her right to peaceful assembly on that occasion, thus failing to exhaust domestic remedies for the purposes of Article 11 of the Convention or to substantiate her allegations. 75. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Merits 1. The parties’ submissions 76. As regards the scope of the case, Mr Kasparov, Mr Tarasov and Mr Toropov submitted that this case should be considered under Article 10 of the Convention as a separate issue from that under Article 11. They alleged that one of the reasons for their arrest was that they had been chanting “Putin go away” while walking down Tverskaya Street, and that their case was to be distinguished on that ground from other cases concerning restrictions on demonstrations in which the Court had ruled that an Article 10 complaint was subsumed by a complaint under Article 11.", "77. The applicants further argued that there has been interference with their freedom of peaceful assembly and freedom of expression. They alleged that their arrest on 14 April 2007 had prevented them from attending the meeting at the Griboyedov monument, an event authorised by the Moscow authorities. Moreover, the administrative liability imposed on them following the arrest also constituted disproportionate interference with their Convention rights. 78.", "As regards the lawfulness of the interference, the applicants contested the reasons given by the authorities for their arrest, in particular the allegation that they had been trying to enter Red Square, which was a designated security area. They referred to their original notice of the march and pointed out that the proposed route ran along Tverskaya Street, turning in to Teatralnaya Square, away from Red Square. They therefore contended that even if the police had perceived the demonstrators to be marching down Tverskaya Street in the direction of Red Square, they should not have assumed that they were going to penetrate the security area. 79. The Government pointed out that neither the event organisers nor any other interested parties had challenged the Moscow authorities’ decision of 5 April 2007 concerning the proposed event.", "Instead they had gone ahead with the march without authorisation. The Government contested, in particular, the allegation that the applicants had merely been walking to the venue of the authorised meeting at the Griboyedov monument. They also disagreed with the applicants about the time of the arrest, in particular as to whether it had taken place before or after the authorised meeting. The Government first insisted that the applicants had been arrested at 1.30 p.m., when the meeting had already ended, with the exception of Mr Melikhov (the eighth applicant), who had been arrested at 12.05 p.m. on Tverskaya Street, and Mr Kharlamov (the third applicant), who had been arrested at 1 p.m. on Pushkinskaya Square. They subsequently indicated that all the applicants had been arrested at 1 p.m. and had been brought to the police station at 1.30 p.m.", "They challenged the applicants’ submissions on this point as inconsistent, pointing out that Mr Kasparov had indicated 12 noon as the time of his arrest, whereas Mr Tarasov had initially stated 1 p.m. and had only later changed it to 12 noon. 80. The Government further contested the allegation that any chance passers-by had been detained or restrained by the police. In particular, there had been no complaints from alleged random victims of indiscriminate police actions. As to the applicants, all of them had knowingly and intentionally participated in an unauthorised march.", "81. The Government accepted that the applicants’ arrest and their conviction of an administrative offence had constituted interference with their freedom of assembly. However, they maintained that those measures had been lawful, had pursued the legitimate aim of maintaining public order and had been proportionate to that aim for the purposes of Article 11 § 2 of the Convention. They claimed, in particular, that the applicants had been offered a different venue at which to conduct a public event on the requested date and that the proposed changes had seemingly been accepted by the event organisers. Moreover, the authorised meeting had indeed taken place at the Griboyedov monument, and the applicants could have participated in it.", "Instead, the applicants had pursued the itinerary indicated in the original request, walking on the pavement and on the road, obstructing pedestrians and traffic, and had then tried to enter Red Square. Given that this route had not been agreed with the Moscow authorities, the police could not have foreseen that the march would take place there and then and therefore could not have taken measures to maintain public order and safety. That was why the applicants, who were ignoring the police warnings, had had to be arrested. This had also justified imposing an administrative sanction on them which, moreover, had been relatively mild. 2.", "The Court’s assessment (a) The scope of the applicant’s complaints 82. The Court notes that, in the circumstances of the case, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202). The Court takes cognisance of the applicants’ request to examine these as two separate issues because of the particular circumstances of the case. It observes that the administrative charges brought in this case referred, inter alia, to the applicants’ having chanted anti-government slogans during an unauthorised demonstration.", "This complaint, falling in principle under Article 10, is similar in scope to those examined in Galstyan (cited above, §§ 95-96 and § 100), where the applicant was arrested and convicted because of his behaviour during a political demonstration, and Sergey Kuznetsov v. Russia, (no. 10877/04, § 23, 23 October 2008), where the applicant was charged with an administrative offence for distributing offensive leaflets during a picket. In these and other cases the Court found it unnecessary to consider the complaint under Article 10 separately from that under Article 11 of the Convention. There are no reasons to depart from that principle in the present case. 83.", "On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37). (b) Whether there was interference with the exercise of the freedom of peaceful assembly and whether the interference was justified 84. The Court reiterates that the interference does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39).", "For instance, a prior ban can have a chilling effect on the persons who intend to participate in a rally and thus amount to an interference, even if the rally subsequently proceeds without hindrance on the part of the authorities (see Bączkowski and Others v. Poland, no. 1543/06, § 66-68, 3 May 2007). A refusal to allow an individual to travel for the purpose of attending a meeting amounts to an interference as well (see Djavit An v. Turkey, no. 20652/92, §§ 59‑62, ECHR 2003‑III). So too do measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants (see Oya Ataman v. Turkey, no.", "74552/01, §§ 7 and 30, ECHR 2006‑XIII, and Hyde Park and Others v. Moldova, no. 33482/06, §§ 9, 13, 16, 41, 44 and 48, 31 March 2009), and penalties imposed for having taken part in a rally (see Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan, cited above, §§ 100‑02; Ashughyan v. Armenia, no. 33268/03, §§ 75‑77, 17 July 2008; and Sergey Kuznetsov, cited above, § 36).", "85. The Court considers in that connection that irrespective of whether Mr Kasparov, Mr Tarasov and Mr Toropov were heading to an authorised public gathering, as they alleged, or were already in the process of conducting an unauthorised rally, as the Government claimed, their arrest constituted an interference with their right of peaceful assembly, as did the ensuing administrative charges brought against them. The Court observes, moreover, that the Government did not dispute the existence of the interference with the right to peaceful assembly in the present case. 86. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society (see among numerous authorities, Galstyan, cited above, § 114).", "This right, of which the protection of personal opinion is one of the objectives, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001 and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008).", "It is, in any event, for the Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Osmani and Others, cited above). 87. In the light of these principles the Court will examine whether the interference with the applicants’ right to peaceful assembly was lawful, pursued a legitimate aim and was necessary in a democratic society. 88. As regards the lawfulness of the applicants’ arrest and the subsequent administrative charges brought against them, the parties’ diverging views on this point are rooted in their conflicting accounts of the factual circumstances of the case.", "The three applicants claimed that they had been walking to the authorised public event at the Griboyedov monument, and there had therefore been no grounds for their arrest, whereas the Government claimed that they had had to be arrested because they had been conducting a demonstration in breach of the regulations and because they were threatening to break through the security perimeter of Red Square. The Court has already found that the domestic courts made no attempt to establish the precise circumstances of the applicants’ arrest, such as the time and the place, in order to verify whether it had been necessary to stop them (see paragraphs 60-62 and 66 above). In the absence of sufficient factual material to resolve this controversy the Court is unable to accept either party’s version of events as a basis for deciding whether the authorities acted lawfully. In any event, it considers that in this case the issue of compliance with the law is indissociable from the question whether the interference was “necessary in a democratic society”. It will therefore examine this issue below (see Christian Democratic People’s Party v. Moldova, no.", "28793/02, § 53, ECHR 2006‑II). 89. Turning to the existence of a legitimate aim, the Court will accept that the applicants’ arrest and their conviction of an administrative offence had pursued the legitimate aim of maintaining public order, as the Government claimed. 90. To assess whether the interference was “necessary in a democratic society” the Court will examine the proportionality of the interference in the light of the reasons given by the domestic courts.", "It observes that, according to the domestic judgments, the applicants were “walking in a big group of people shouting anti-government slogans”, that this constituted a public demonstration that had not been approved by the Moscow authorities and that the applicants were therefore in breach of Article 20.2 of the Code of Administrative Offences. It follows that in the domestic courts’ view it was the lack of permission to stage a public demonstration that served as grounds for charging them with administrative offences. 91. The Court reiterates that although it is not a priori contrary to the spirit of Article 11 if, for reasons of public order and national security, a High Contracting Party requires that the holding of meetings be subject to authorisation, an unlawful situation, such as the staging of a demonstration without prior authorisation, does not justify an infringement of freedom of assembly (see Cisse v. France, no. 51346/99, § 50, ECHR 2002‑III, and Oya Ataman, cited above, §§ 37 and 39).", "While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (ibid., § 42; see also Bukta and Others v. Hungary, no. 25691/04, § 34, ECHR 2007‑III; Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012, and Berladir and Others v. Russia, no. 34202/06, § 38, 10 July 2012).", "92. Turning to the Government’s argument that the applicants were arrested because of the risk of the demonstration spilling over into the security area of Red Square, it must be noted that these reasons were also cited by the policemen who gave testimony. However, the police reports did not mention any such risk and, in any event, it did not form part of the reasoning given by the Justice of the Peace or the Tverskoy District Court. Moreover, the Court notes that the place of arrest set out in the judgments, 19 Tverskaya Street, is about 1.4 km away from the nearest approach to Red Square. Given the modest size of the group (estimated by the police as fifty to sixty persons) and the undeniably peaceful character of the march, the Court is not persuaded that the threat of the marchers penetrating the security area was imminent.", "93. The Government’s allegation that the police had resorted to arresting the protesters because they were taken aback by the unforeseeable and unauthorised demonstration and were otherwise unable to cope is inconsistent with the facts established by the domestic courts. In particular, a policeman testified that the authorities had anticipated a rally at the time and place where the applicants were arrested, and measures had been taken to cordon off the area in advance of the march (see paragraph 23 above). Clear instructions had been given to the police officers who took part in the riot control operation specifically planned for the event. Moreover, the documents submitted by the Government reveal that reinforcements from the riot police had been brought in for the day from twenty-nine regions of Russia precisely because of the expected demonstration (see paragraph 11 above).", "These preparations should undoubtedly have enabled the police to divert a march of this scale from the high-security area. 94. Other considerations put forward by the Government in their observations, such as the nuisance caused by the protesters walking on the pavement and on the road and obstructing pedestrians and traffic, were not mentioned in the police reports or domestic judgments either. It therefore appears that they had no impact on the decisions taken in the applicants’ case. Moreover, given the heavy police presence, it should have been possible to maintain public order and safety without resorting to arrests.", "95. It follows that the applicants were arrested and charged with administrative offences for the sole reason that the authorities perceived their demonstration to be unauthorised. The Court therefore concludes that the Government have failed to demonstrate that there existed a “pressing social need” to arrest them. 96. In view of the above, the Court considers that in the instant case the police’s forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article 11 of the Convention.", "In these circumstances, the fact that the applicants were subsequently charged with administrative offences does not require a separate assessment. 97. In the light of the foregoing the Court concludes that there has been a violation of Article 11 of the Convention as regards Mr Kasparov, Mr Tarasov and Mr Toropov. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 98.", "Lastly, the applicants made complaints under Articles 7 and 18 of the Convention. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. The applicants claimed 10,000 euros (EUR) each in respect of non‑pecuniary damage. 101.", "The Government contested these claims as unreasonable and excessive. They considered that the sums related to the applicants’ allegations of inhuman and degrading treatment at the hands of the police, thus falling outside the scope of this application. 102. The Court observes that it has found a violation of Article 6 in respect of the first eight applicants, and also a violation of Article 11 in respect of Mr Kasparov, Mr Tarasov and Mr Toropov. It further notes that the applicants expressly referred to Articles 6 and 11 in their claims for just satisfaction.", "Contrary to what the Government suggested, the applicants’ claims for just satisfaction were not based on their grievances about the “rough treatment” meted out to them during their arrest and their humiliation in the administrative proceedings. Their claims for non‑pecuniary damage essentially reiterated their substantive complaints in respect of which a violation has been found. 103. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it makes the following awards in respect of non-pecuniary damage: - to Mr Kasparov, Mr Tarasov and Mr Toropov: EUR 10,000 each, plus any tax that may be chargeable on that amount; - to Mr Kharlamov, Mr Kalashnikov, Mr Stelmakh, Mr Orel and Mr Melikhov: EUR 4,000 each, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 104. The applicants also claimed reimbursement of the costs and expenses incurred before the domestic courts and the Court, in particular the fees of the three lawyers, Ms Moskalenko, Ms Mikhaylova and Ms Polozova, in the amount of EUR 3,500 each. 105. The Government contested the applicants’ claims for costs and expenses on the grounds that they had not presented a legal services agreement with their counsel under which they would be obliged to pay the sums claimed.", "106. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that Ms Moskalenko, Ms Mikhaylova and Ms Polozova represented five of the nine applicants throughout the proceedings before the Court; in particular, they submitted their applications and filed written observations on their behalf. The Court therefore grants the applicants’ claim relating to their legal representation before the Court and makes an aggregate award of EUR 10,500, plus any tax that may be chargeable. The amount awarded shall be payable into Ms Mikhaylova’s bank account directly, as requested by the applicants.", "C. Default interest 107. 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 first eight applicants’ complaint under Article 6 and the first, second and fifth applicants’ complaints under Articles 10 and 11 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention as regards the first eight applicants; 3.", "Holds that there has been a violation of Article 11 of the Convention as regards the first, second and fifth applicants; 4. Holds that there is no need to examine the complaint under Article 10 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicants, to the first, second and fifth applicants each in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, to the third, fourth, sixth, seventh and eighth applicants each in respect of non-pecuniary damage; (iii) EUR 10,500 (ten thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the bank account of Ms Mikhaylova; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF WOJCIECH KOWALSKI v. POLAND (Application no. 33734/06) JUDGMENT STRASBOURG 13 October 2009 FINAL 13/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wojciech Kowalski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 22 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "33734/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Wojciech Kowalski (“the applicant”), on 24 March 2006. 2. The applicant was represented by Ms N. Klima, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicant alleged that his detention pending trial had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention and that the proceedings in his case have lasted an excessively long time. 4. On 6 November 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Kraków. A. Criminal proceedings against the applicant and his detention pending trial 6.", "On 3 April 1997 the applicant was arrested by the police. On the same day the Kraków District Court (Sąd Rejonowy) ordered his detention for three months on suspicion of having committed several armed robberies. Simultaneously, an investigation was opened into the charges against the applicant. 7. Between 3 and 11 April 1997 the applicant served a prison sentence imposed on him in another set of proceedings.", "8. On 1 July 1997 the applicant was released. 9. On 2 September 1997 the investigation was stayed because one of the suspects had gone into hiding. 10.", "On 10 January 2000 the applicant was arrested again. On the following day the Katowice District Court ordered his detention pending trial until 9 April 2000 on suspicion of having committed, inter alia, several armed robberies while acting in an organised armed criminal gang. It relied on a reasonable suspicion that the applicant had committed the offences with which he had been charged and the likelihood of a severe sentence of imprisonment being imposed on him. Moreover, the court considered that the applicant might tamper with evidence and go into hiding. 11.", "In the course of the investigation, the applicant's detention was extended several times. In their decisions, the courts relied on the reasons previously given and the likelihood that he had committed the offences while acting in an organised armed criminal gang. In this connection, they referred, inter alia, to the testimony of a crown witness (świadek koronny). They also referred to the complexity of the case, the need to obtain further evidence and the fact that some of the suspects had not yet been arrested. 12.", "Simultaneously, between 22 September 2000 and 22 March 2001, the applicant was serving a prison sentence imposed on him in other criminal proceedings. 13. On 11 June 2001 the investigation was completed and on 18 June 2001 the applicant was indicted before the Kraków Regional Court (Sąd Okręgowy). 14. In a decision of 28 September 2001 extending the applicant's detention the Kraków Regional Court held that “a wanted notice had been put out in respect of some of the co-defendants and one of them was not a Polish citizen and had no domicile in Poland; therefore there was a real risk of absconding and going into hiding not only as regards that defendant but also as regards the remainder of them”.", "15. In its decision of 28 December 2001 the Kraków Regional Court repeated the same argument. 16. Due to the fact that some of the accused were detained in the Katowice area, on 4 March 2002 the Kraków Regional Court asked the Katowice Court of Appeal (Sąd Apelacyjny) to refer the case to the Katowice Regional Court. On an unspecified date the Katowice Court of Appeal refused.", "On 5 May 2002 the Supreme Court, following a request by the Kraków Regional Court, referred the case to the Katowice Regional Court. 17. The first hearing was scheduled for 23 January 2003, but it did not take place because one of the defence lawyers was unwell. 18. On 13 February 2003 the trial started.", "It was continued on 20 March, 10 April and 15 May 2003 when the trial court heard evidence from the co‑accused. On 12 June 2003 the trial court heard evidence from one witness but could not proceed with hearing other evidence because a sworn interpreter had failed to appear. 19. At a hearing held on 8 July 2003, out of fifteen witnesses only three appeared before the trial court. Similarly, on 25 September 2003, the Katowice Regional Court took evidence from only one witness, instead of four.", "At the subsequent hearing held on 26 September 2006, seven witnesses failed to appear at the trial, so the court heard evidence from only three witnesses. The same happened at the hearings held on 27 November and 18 December 2003, 6 June 2004 and 25 February 2005. 20. For example, between 7 July 2004 and 20 January 2005 the trial court scheduled seven hearings. Only one, scheduled for 29 October 2004, took place.", "21. In sum, from 13 February 2003 to 25 May 2005, the Katowice Regional Court heard evidence from only seven witnesses. 22. At the hearing on 25 October 2005 the applicant and his co-accused challenged the trial judges and called for their disqualification. The challenge was dismissed on an unspecified date in 2006.", "23. It appears that no hearing was scheduled between 15 July and 1 September 2006 because the hearing room was under renovation. 24. Around sixteen out of forty-five hearings scheduled by the first‑instance court were cancelled for various reasons, such as: the absence of some witnesses, defendants and interpreters; failure of the police to bring certain accused to the court from detention centres; the summer break; the resignation of one of the defence lawyers; the illness of a lay judge and a professional judge; and the failure to notify one of the defence lawyers of a hearing. 25.", "The applicant's detention during the proceedings was subsequently extended by the Katowice Regional Court on 25 June, 28 September and 28 December 2001 as well as later by the Katowice Court of Appeal on 26 June and 18 December 2002; 23 April, 17 September and 10 December 2003; 10 March, 30 June and 10 November 2004; 16 February, 25 May and 21 September 2005; 11 January, 5 April, 7 June, 20 September 2006 and 19 December 2006. In addition to the reasons specified in the decisions given during the investigation, the courts vaguely referred to the continuing necessity to obtain further witness evidence. They noted that it was not possible to schedule hearings more often as only one hearing room meeting the relevant safety requirements had been at the disposal of the trial court. However, in its decisions given in 2005 and 2006 extending the applicant's detention the Katowice Court of Appeal acknowledged to a certain degree that the applicant's detention had been excessive, criticised delays in the collection of evidence and ordered the trial court to speed up the proceedings and discipline the defence lawyers. 26.", "Requests by the applicant for release and appeals against the extensions of the term of his detention were to no avail. The courts held that the reasons for his detention were still valid. 27. On 13 March 2007 the applicant was released from detention. The court prohibited the applicant from leaving the country and confiscated his passport.", "28. The proceedings are pending before the first-instance court. B. Proceedings under the 2004 Act 29. On 5 September 2005 the applicant lodged with the Katowice Court of Appeal a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).", "30. The applicant sought a ruling declaring that the length of the proceedings before the Katowice Regional Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500 euros (EUR)). 31. On 28 September 2005 the Katowice Court of Appeal dismissed the applicant's complaint.", "It acknowledged that the proceedings had been lengthy. However, in the opinion of the court that was due to the factual complexity of the case, such as the significant number of accused, the nature of the charges against them, the fact that they were dangerous criminals and the necessity to ensure that the trial was conducted safely. The court also observed that the trial court had at its disposal only one hearing room adapted for trials against organised armed gangs and that this was not the fault of the trial court itself. Similarly, the trial court could not be held wholly responsible for witnesses' failure to appear at hearings. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 32. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 33.", "The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials including the 2007 Resolution of the Committee of Ministers can be found in the Court's judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009). 34. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are described in the Court's decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland (dec.), no.", "11215/02, ECHR 2005‑VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 35. The applicant complained that the length of his detention pending trial had been excessive.", "He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Period to be taken into consideration 37. The applicant's detention started on 3 April 1997, when he was arrested on suspicion of having committed several armed robberies while acting in an organised criminal group. Subsequently, on 1 July 1997, he was released.", "On 10 January 2000 the applicant was arrested again and, on 13 March 2007, was released from detention. 38. However, between 3 and 11 April 1997 and between 29 September 2000 and 22 March 2001 the applicant served prison sentences which had been imposed on him in other sets of criminal proceedings. These terms, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant's detention pending trial for the purposes of Article 5 § 3. Accordingly, the period to be taken into consideration amounts to six years, ten months and twenty-four days.", "2. The parties' submissions (a) The applicant 39. The applicant's lawyer submitted that the length of the applicant's detention had clearly been unreasonable and that the grounds relied on by the authorities which had extended the period of detention had never been clearly explained; each time the authorities had simply repeated the grounds originally given to justify the applicant's detention pending trial. (b) The Government 40. The Government submitted that, having regard to the Court's case‑law concerning the question of the length of detention pending trial, they had decided to refrain from taking a position on the matter.", "3. The Court's assessment (a) General principles 41. The Court reiterates that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).", "(b) Application of the above principles in the present case 42. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the serious nature of the offences with which he had been charged; (2) the severity of the penalty to which he was liable; and (3) the risk that the applicant might tamper with evidence or obstruct the proper conduct of proceedings in some other unlawful way. As regards the latter, they relied on the complexity of the case and the large number of co‑defendants and victims involved in the proceedings. 43. The applicant was charged with numerous counts of armed robbery committed in an organised and armed criminal group (see paragraph 6, above).", "In the Court's view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007). 44. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to obtain voluminous evidence to determine the degree of the alleged responsibility of each of the defendants who had acted in a criminal group and against whom numerous charges of serious offences were laid as well as the need to secure the proper conduct of the proceedings constituted valid grounds for the applicant's initial detention.", "45. Indeed, in cases such as the present one concerning organised criminal groups, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused or might otherwise obstruct the proceedings is often, by the nature of things, high. However, the Court notes in this respect that the courts extending the detention did not refer to any particular examples of attempts by the applicant to intimidate witnesses or any other obstructive behaviour. In any event, the Court considers that the grounds referred to by the Kraków Regional Court in its decision of 28 September 2001 relating to other co-accused who had gone into hiding and had no domicile in Poland (see paragraph 14 above) could not be applied to the applicant. Furthermore, according to the authorities, the serious nature of the charges and the likelihood of a severe sentence being imposed on the applicant created a presumption that he would obstruct the proceedings.", "However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of detention pending trial (see Michta v. Poland, no. 13425/02, §§ 49, 4 May 2006). 46. While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to extend this measure. In particular, the Government have failed to explain why it was only on 13 March 2007 that the authorities finally considered that it was safe to release the applicant against the surrender of his passport (see paragraph 27 above).", "47. Having regard to the foregoing, even taking into account the fact that the courts were faced with the particularly difficult task of trying a case involving an organised criminal group, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant's detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE CRIMINAL PROCEEDINGS 48. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination .... of any criminal charge against him ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 49. In their observations the Government decided to refrain from taking a position on the matter, noting however the exceptional complexity of the case and problems with transport of the accused who at the same time had been involved in several other sets of proceedings. The Government also submitted that at the relevant time the trial court had had only one hearing room at its disposal that met the safety requirements concerning the proceedings against a criminal group. 50.", "The period to be taken into consideration began on 3 April 1997 and has not yet ended. It has thus lasted over twelve years and the proceedings are still pending before the first-instance court. A. Admissibility 51. 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 52. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "53. The arguments presented by the Government that is the complexity of the case as well as problems relating to transport and availability of an adequate hearing room cannot justify the excessive length of proceedings which, so far, have lasted for over twelve years and are still pending before the first-instance court. In this connection, it recalls that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities as regards timing and organisation of hearings. Consequently, in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no.", "33492/96, § 102, 21 December 2000; Mõtsnik v. Estonia, no. 50533/99, § 40, 29 April 2003). The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 54. Having examined all the material submitted to it, the Court finds no argument capable of persuading it to reach a different conclusion in the present case.", "55. In view of the above considerations, the Court concludes that there has been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 46 OF THE CONVENTION 56. Article 46 of the Convention provides: “1.", "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” A. The parties' submissions 1. The applicant 57.", "The applicant did not submit any observations concerning this provision. 2. The Government 58. The Government submitted that there were no grounds to apply Article 46 of the Convention and that the proceedings in the applicant's case had exceptional features that distinguished it from other cases of detention pending trial. Consequently, the length of the applicant's detention pending trial did not reveal the existence of a structural problem.", "They referred further to problems concerning cases involving organised criminal groups such as complexity of the case, the necessity to obtain expert reports or intentional prolongation of proceedings by the accused themselves or their representatives. Turning to the circumstances of the present case, the Government pointed to its exceptional complexity and submitted that it fully justified the length of detention and trial. 59. The Government further stressed that Polish law was compatible with the standards of Article 5 § 3 of the Convention. 60.", "Maintaining that the number of cases in which the domestic courts had ordered detention pending trial lasting from twelve months to two years or longer was decreasing, the Government made reference to statistical data for 2002-2007 which they submitted to the Court. They further stressed that the courts' awareness of the standards concerning the length of detention pending trial was growing. 61. They also suggested that the fact that the Court had already given many judgments finding a violation of Article 5 § 3 of the Convention should not lead to the automatic application of Article 46, as had occurred in the case of Scordino v. Italy. The Polish authorities had taken many general and individual measures based on the conclusions stemming from the Court's judgments finding that the length of pre-trial detention had been excessive.", "In particular, on 17 May 2007, the Cabinet had adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (see paragraph 31 above). 62. The Government concluded that, bearing in mind the efforts of the Polish authorities and the legislative reforms which were and had been undertaken by them to solve the problem of the length of detention pending trial, Poland could not be said to have failed to comply with its obligations under Article 46 of the Convention to abide by the Court's judgments. B. The Court's assessment 63.", "Recently, in the case of Kauczor v. Poland (see Kauczor, cited above, § 58 et seq. with further references) the Court held that the 2007 Resolution of the Committee of Ministers taken together with the number of judgments already delivered and of pending cases raising an issue of excessively long detention incompatible with Article 5 § 3 demonstrated that the violation of the applicant's right under Article 5 § 3 of the Convention had originated in a widespread problem arising out of the malfunctioning of the Polish criminal justice system which had affected, and may still affect in the future, an as yet unidentified, but potentially considerable, number of persons charged in criminal proceedings. 64. It is true that the present case concerns a person involved in an organised criminal group. However, as stated above, while this element is to be taken into account in assessing compliance with Article 5 § 3 and may justify a longer period of detention than in a case concerning an individual offender, a member of an organised criminal group is entitled to the protection against unreasonably lengthy detention afforded by this provision.", "As in other numerous similar detention cases, the authorities did not justify the applicant's continued detention by relevant and sufficient reasons (see paragraphs 42-47 above). Moreover, as demonstrated by the ever increasing number of judgments in which the Court has found Poland to be in breach of Article 5 § 3 in respect of applicants involved in organised crime, the present case is by no means an isolated example of the imposition of unjustifiably lengthy detention but a confirmation of a practice found to be contrary to the Convention (see, among many other examples, Celejewski v. Poland, no. 17584/04, 4 May 2006; Kąkol v. Poland, no. 3994/03, 6 September 2007; Malikowski v. Poland, no. 15154/03, 16 October 2007; and also Hilgartner v. Poland, no.", "37976/06, §§ 46-48, 3 March 2009). Consequently, the Court sees no reason to diverge from its findings made in Kauczor as to the existence of a structural problem and the need for the Polish State to adopt measures to remedy the situation (see Kauczor, cited above, §§ 60-62 ). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 66. The applicant claimed 65,705.20 Polish zlotys (PLN) plus income tax in respect of pecuniary damage and PLN 50,000 in respect of non‑pecuniary damage. 67. The Government considered the applicant's claim in respect of pecuniary damage “highly speculative” and his claim in respect of non‑pecuniary damage far too high, and requested that they be rejected. 68.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 10,000 in respect of non‑pecuniary damage. B. Costs and expenses 69. The applicant's lawyer did not make any claim for costs and expenses.", "C. Default interest 70. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant, in respect of non‑pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 13 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF L’TRADING AND INVEST LINES KFT v. HUNGARY (Application no. 54730/12) JUDGMENT STRASBOURG 9 June 2015 This judgment is final but it may be subject to editorial revision. In the case of L’Trading and Invest Lines Kft v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Helen Keller, President,András Sajó,Robert Spano, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 19 May 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 54730/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian limited liability company, L’Trading and Invest Lines Kft (“the applicant”), on 16 August 2012.", "2. The applicant was represented by Mr Cs. Mester, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3.", "On 11 October 2012 the application was communicated to the Government. THE FACTS 4. As respondent party, the applicant was involved in a case of property litigation as of 6 March 1996. 5. Due to pending proceedings before the construction authorities, the Pest Central District Court suspended the procedure.", "Subsequently, a first hearing was held in 1999. 6. The court separated the proceedings from further claims on 2 December 2004. 7. On 27 June 2006 the court rejected the counterclaim of the applicant.", "8. On appeal, the Budapest Regional Court quashed this decision on 27 March 2007. It remitted this part of the action to the first-instance court. 9. In the resumed proceedings the first-instance court partly found for the applicant on 27 January 2010.", "10. On appeal, the Budapest Court of Appeal upheld this judgment on 1 January 2010. 11. The applicant lodged a petition for review; and the Supreme Court reversed the judgment on 9 November 2011. The decision was served on the applicant on 1 March 2012.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. 13. The Government contested that argument.", "14. The period to be taken into consideration began on 6 March 1996 and terminated on 1 March 2012. It thus lasted over fifteen years and eight months for three levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible. 15.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 16. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention. 17. Relying on Article 41, the applicant claimed 140,000 euros (EUR) in respect of pecuniary and non-pecuniary damage combined. 18. The Government contested these claims.", "19. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards it EUR 6,300 under that head. 20.", "The applicant made no costs claim. 21. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 6,300 (six thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposHelen KellerDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF GESTUR JÓNSSON AND RAGNAR HALLDÓR HALL v. ICELAND (Applications nos. 68273/14 and 68271/14) JUDGMENT STRASBOURG 30 October 2018 Referral to the Grand Chamber 06/05/2019 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 Gestur Jónsson and Ragnar Halldór Hall v. Iceland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Julia Laffranque, President,Robert Spano,Işıl Karakaş,Paul Lemmens,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström,Ivana Jelić, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "68273/14 and 68271/14) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Icelandic nationals, Mr Gestur Jónsson (“the first applicant”) and Mr Ragnar Halldór Hall (“the second applicant”), on 16 October 2014. 2. The applicants were represented by Mr Geir Gestsson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by their Agent, Ms Ragnhildur Hjaltadóttir, Permanent Secretary of the Minister of the Interior. 3.", "The applicants alleged that the District Court judgment of 12 December 2013 and the Supreme Court judgment of 28 May 2014 had violated their rights under Articles 6 and 7 of the Convention and Article 2 of Protocol No. 7 to the Convention. 4. On 2 and 3 March 2016 respectively the applications were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1950 and lives in Reykjavík. The second applicant was born in 1948 and lives in Reykjavík. Both applicants are attorneys practising in Reykjavík. 6.", "On 16 February 2012 Y and Z were indicted for participating in fraud and market manipulation along with two other individuals. On 7 March 2012, in accordance with Article 31 of the Criminal Procedures Act No. 88/2008 (hereinafter “the CPA”), the first applicant was appointed as Y’s defence counsel and the second applicant was appointed as Z’s defence counsel. 7. On 7 March 2012, the indictment of the prosecution against, inter alios, Y and Z was registered before the District Court of Reykjavík.", "At a preliminary hearing they pleaded not guilty to the charges laid against them. From March to December 2012 the prosecutor and the applicants, along with the other defence counsel in the proceedings, repeatedly submitted arguments in further preliminary hearings about various issues, such as the evidence submitted by the prosecution, the deadline for the defence to file pleadings and the defence’s request to dismiss the case. The Supreme Court issued three rulings on procedural matters in the case. 8. On 19 December 2012, after consulting the prosecution, the applicants and the other defence counsel, the District Court judge decided that the trial would take place from 11 to 23 April 2013.", "The same day, the second applicant replied to the judge’s email stating that, although it was reasonable to decide dates for the trial, he wanted to remind the judge that the case was not ready for trial at that time because the prosecution had not submitted the requested evidence and issued a witness list. Shortly afterwards the judge replied with “Merry Christmas!”. 9. On 24 January and 7 March 2013 the prosecution submitted further evidence in the case. During the second of these preliminary hearings, the applicants and the other defence counsel requested more time to study the evidence and the postponement of the trial, inter alia, because the submission of evidence had not been concluded.", "By a decision of the same day the District Court rejected the request. 10. In a preliminary hearing on 21 March 2013, the prosecution and one defence counsel submitted further evidence. The applicants and the other defence counsel requested that the prosecution provide them with certain documentary evidence. In a preliminary hearing on 25 March 2013 the applicants and the other defence counsel requested again that the trial be postponed for 6-8 weeks to allow them to study new evidence presented by the prosecution.", "By decisions of 26 March 2013, the District Court rejected both requests. By a decision of 4 April 2013, the Supreme Court dismissed the appeal. 11. On 8 April 2013 each applicant wrote a letter to the District Court judge in the case, arguing that they could not, for reasons of conscience, continue to perform their duties as defence counsel for their clients. The applicants stated, inter alia, that they had not been informed about the deadline to submit their pleadings to the Supreme Court before its ruling of 4 April 2013, the prosecution had neglected to send them a copy of its pleadings, the defence had not had adequate access to important documents, the prosecution had tapped telephone conversations between them and their clients and the whole procedure had in general violated their applicants’ rights under the Constitution, the CPA and the Convention.", "Lastly, the applicants stated that their clients’ rights had been so grossly violated that they were forced to resign from further participation in the case. They noted that they had discussed this with their clients and made clear that the latter approved of their decision. The applicants requested that their appointment as defence counsel for their clients be revoked in accordance with Section 21 (6) of the Attorneys’ Act No. 77/1998. 12.", "On the same day, the District Court judge replied to the applicants’ letters and rejected their requests. The judge referred to the CPA and the Attorneys’ Act. He reiterated that the trial would start on 11 April 2013 as previously decided. The applicants replied to the letter immediately, referred to their previous arguments and stated that they would not attend the trial on 11 April 2013. 13.", "On 11 April 2013, Y and Z attended the trial accompanied by new defence counsel. The applicants did not attend the hearing and were not summoned to appear by the court. The presiding judge recorded the aforementioned communications between him and the applicants and declared that it was unavoidable to relieve the applicants of their duties as defence counsel. New defence counsel were appointed for Y and Z and the trial was postponed for an unspecified period. The prosecution requested that the applicants be fined for contempt of court under Section 223 of the CPA (see paragraph 32 below).", "14. Before this Court the applicants submitted that, according to news reports, the presiding judge had explicitly rejected the prosecution’s request, stating that the conditions to impose fines were not fulfilled at that time. However, the Government stated that the court records (which were not submitted to the Court) did not reflect that the presiding judge had taken a position on this point. In any event, the Government argued that the statement had not been a formal one, it had not been noted in the court records and there was great uncertainty as to whether it had been made and, if so, what had actually been said. 15.", "A new trial was held before the District Court from 4 to 14 November 2013. In the meantime, the presiding judge had withdrawn from the case and a new judge had been appointed. 16. By a judgment of 12 December 2013, Y and Z, along with the other two accused, were convicted. Furthermore, the applicants were each fined 1,000,000 Icelandic krónur (ISK; approximately 6,200 euros (EUR) at the material time) under Section 223(1) (a) and (d) of the CPA for offending the court and causing unnecessary delay in the case by not attending the trial on 11 April 2013 and thereby damaging their clients’ and the other defendants’ interests.", "The judgment was delivered in the absence of the applicants. 17. On 13 December 2013 the applicants appealed to the Supreme Court against the District Court judgment as regards the imposition of fines, by way of an appeal lodged by the prosecutor at their request. Before the Supreme Court, the applicants primarily requested that the District Court judgment be annulled as to the imposition of their fines and, as a subsidiary request, that the fines be reduced, were the Supreme Court to reject their request for annulment. 18.", "In their submissions to the Supreme Court the applicants claimed firstly that they had been penalised without having been given the opportunity to defend themselves against the prosecution’s claims or being made aware of the court’s intention to impose fines on them. This had been a violation of their right to a fair trial under Article 6 §§ 1 to 3 of the Convention and Article 70 of the Constitution. Secondly, the applicants maintained that they had had valid reasons to resign from the case and that the legal conditions to fine them had not been fulfilled. 19. As regards their first claim, the applicants argued that they had at no point been informed that the court was considering imposing fines on them and they had not been invited to defend themselves before the District Court, which was a fundamental part of the right to a fair trial.", "20. As regards the second complaint, the applicants argued, inter alia, that imposing fines on them as defence counsel had not been in accordance with the CPA as they had not been defence counsel at the time the District Court judgment was delivered. They argued that, according to Section 224 of the CPA, they should have been fined immediately as “others”. Furthermore, the applicants maintained that their conduct in question had not occurred during the proceedings as the CPA required. In any event, their behaviour could not be considered as offending the court since they had not attended any hearings with the judges who had imposed the fines and decided on the merits of the case.", "The applicants further stated that their actions had been in their clients’ interests, and their clients had approved of their decisions. 21. The applicants submitted documentary evidence along with their submissions to the Supreme Court. They did not ask to examine witnesses or to give statements themselves before the court. 22.", "The Supreme Court held an oral hearing in the case where the applicants were represented by legal counsel. No witnesses were heard and the applicants did not give statements before the court. 23. The applicants were represented by two separate defence counsel before the Supreme Court. However, the applicants claimed before this Court that, due to the limited time given to present the case before the Supreme Court, each defence counsel put forth arguments on behalf of both applicants.", "24. According to the second applicant’s summary of the oral pleadings before the Supreme Court the applicants argued, inter alia, that a decision to impose court fines was an ex proprio motu decision of the court, without the parties’ involvement, and could therefore not be quashed and referred back to the first instance court. Furthermore, the applicants argued that referring the case back to the District Court for a new trial due to a violation of the CPA and Article 6 of the Convention could never be legitimate at this point as the time-limits for imposing fines on them had expired. According to Section 223 and 224 of the CPA the applicants could only be fined as “defence counsel” in a substantive judgment in the criminal case against their clients or as “others”, during the main trial in the criminal case against their clients. Additionally, the applicants argued that the amount of the fine was tenfold compared to fines imposed in previous cases and that no maximum amount for fines was stipulated in the CPA.", "Furthermore, the applicants referred to the principle of legality in criminal cases (Article 69 of the Constitution) and the principle of lex certa. 25. By a judgment of 28 May 2014, a majority of the Supreme Court (three out of five judges) confirmed the District Court judgment as regards the fines imposed on the applicants. 26. In its judgment the Supreme Court described the facts in detail.", "It referred to the obligation incumbent on attorneys under Article 20 of the Attorneys’ Act to accept the appointment or nomination as defence counsel in criminal proceedings if they fulfilled statutory requirements. Furthermore, the Supreme Court held that the applicants could not resign as defence counsel in a criminal case with reference to Section 21 (6) of the Attorneys’ Act as it only applied to civil cases. Their decision not to attend the trial in spite of the District Court rejecting their request to relieve them of their duties as defence counsel was not in accordance with the law or in the interest of their clients or the other defendants. Their statements about resigning from their positions as defence counsel had furthermore been a gross violation of their obligations as defence counsel under Section 34 (1) and 35 (1) of the CPA. The applicants had completely disregarded the legitimate decisions of the District Court judge, who had had no other option than to revoke their appointment as defence counsel and to appoint others to secure legal representation for the accused.", "27. The Supreme Court subsequently set out in detail the applicable legal provisions on the imposition of court fines, namely Sections 222 to 224 of the CPA, and noted that the provisions did not stipulate any maximum fine. The court considered, moreover, that the fines imposed on the applicants were substantial and therefore categorised them as criminal punishment. 28. Furthermore, the judgment contained the following reasons: “As previously stated, the second sentence of Section 222 (1) of [the CPA] permits the prosecution to instigate proceedings for offences subject to fines pursuant to this chapter [Chapter XXXV].", "According to general rules the defendants in question must then be provided with the opportunity to defend themselves. Such a case was not instigated. On the other hand it was, as previously stated, also possible for the judge in the criminal case, of his own accord, to impose fines in accordance with the first sentence of [Section 222 (1)]. Under those circumstances a special claim on behalf of the prosecution was not required. There are no grounds to hold that [the applicants] should have enjoyed lesser protection under the law, depending on which of the above-mentioned options were chosen when assessing whether they should be subject to the imposition of fines, which amounted to penalties, cf.", "Article 70 of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994. When it became clear that [the applicants] would not fulfil their duty of attending the trial and the court was considering imposing fines on them, they should have been summoned to a special hearing and given an opportunity to present their case and submit further arguments to that end, beyond what they had already clearly raised in their correspondence with the District Court. However, this was not done.", "Instead [the applicants] were relieved of their duties at the hearing on 11 April 2013 and a decision to impose fines on them was taken in the judgment delivered on 12 December 2013. As stated in Chapter V of the judgment the prosecutor lodged an appeal regarding this part of the case. That was done at the request of [the applicants] who, according to law, had the right to have the fines imposed on them by the District Court reviewed by a higher court following an oral hearing. [The applicants’] right to defend themselves on appeal is therefore not subject to any limitations by law and they were provided with the opportunity to raise any views in the oral hearing of the case, and as appropriate by giving statements themselves and presenting witnesses, cf. Article 205 (3) of [the CPA], or by instigating special witness proceedings, cf.", "Article 141 (1) of the same Act. In the light of this, the applicants’ rights have not been impaired due to the lack of an oral hearing by the District Court before the decision was taken to impose fines on them. Accordingly, the procedure which has taken place is in accordance with the law and does not violate their rights to a fair trial under Article 70 (1) of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994.", "For reference see the judgment of [the Court] in the case of Weber v. Switzerland from 22 May 1990 and the judgment in the case of T v. Austria from 14 November 2000. Accordingly, with reference to the reasoning of the appealed judgment, the decision on the fines imposed on [the applicants] must be upheld.” 29. The minority shared the majority’s opinion that the applicants’ conduct in not attending the trial in the criminal case against their clients had not been in accordance with the law and had been a violation of their duty as defence counsel. The minority also agreed that their conduct had caused a delay in the proceedings and the imposed fines had constituted criminal punishment. 30.", "However, the minority held as follows: “When it became clear that [the applicants] would not attend the hearing, a hearing should have been convened immediately, according to provisions of [Chapter XXXV of the CPA], and [the applicants] given notice of the charges and the opportunity to object to the decision to impose the fines. However, that was not done. Instead [the applicants] were relieved of their duties at the trial on 11 April 2013 and new defence counsel were appointed in their stead. However, the decision to impose fines on [the applicants] was made in the judgment of 12 December 2013, without notifying them, who were not defence counsel any more, of those intentions and without allowing them to defend themselves, both as regards the decision to impose the fines and the amount. In accordance with the aforementioned, the processing of the case before the District Court was flawed, but no legal provision allows this part of the criminal case to be referred back to the District Court to be heard again.", "Given these circumstances in the processing of the case, the appealed provision of the District Court’s judgment on the court fines should be annulled.” II. RELEVANT DOMESTIC LAW 31. The relevant provisions of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) read as follows: Article 69 “No one may be subjected to punishment unless found guilty of conduct that constituted a criminal offence according to the law at the time when it was committed, or is totally analogous to such conduct. The sanctions may not be more severe than the law permitted at the time of commission.” Article 70 “Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law. A hearing by a court of law shall take place in public, except if the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties.", "Everyone charged with criminal conduct shall be presumed innocent until proven guilty.” 32. The relevant provisions of the Criminal Procedures Act No. 88/2008 (Lög um meðferð sakamála) read as follows: Section 31 “... Moreover, defence counsel for the defendant must be appointed if there is a main hearing in the case pursuant to Chapter XXV, unless the defendant has chosen defence counsel pursuant to Article 32 and does not wish to have counsel appointed, or if the defendant wishes to represent him/herself, cf. Article 29.", "The judge may appoint defence counsel for the defendant even if the defendant has not requested such, if the judge deems the defendant to be unable to safeguard his/her interests sufficiently during court proceedings. ...” Section 34 “If a defendant requests that the appointment or designation of defence counsel be withdrawn and new defence counsel be appointed or designated, said request shall be granted unless there is a risk of the case being delayed as a consequence. ...” Section 35 “The role of the defence counsel is to set forth any elements in the case that may be grounds for acquittal or to the advantage of the defendant, and to safeguard the interests of the defendant in all respects. ...” Section 140 “When data is collected before an Icelandic court, pursuant to the instructions in this Chapter, the provisions of Chapter II and Chapters XVIII-XX shall apply as appropriate. A judge presiding over data collection shall decide and rule on matters concerning such collection.", "If circumstances so warrant while data is being collected before another court, a party can request that more data be collected there than had originally been requested. The judge in question shall decide whether such a request is granted.” Section 141 “The provision of Section 141 shall be applied, as appropriate, when evidence is gathered before the District Court in connection with court proceedings before the Supreme Court. ...” Section 171 “... It makes no difference when statements, objections and evidence are presented during the process of the case.” Section 196 “With the limits arising from other provisions of this Act, appeal against a District Court judgment lies to the Supreme Court in order to obtain: a. a re-examination of the determination of penalties; b. a re-examination of conclusions based on the interpretation or application of rules of law; c. a re-examination of conclusions based on the evaluation of the evidentiary value of documentation other than oral statements before the District Court; d. quashing of the judgment and remittal of the case; e. dismissal of the case by the District Court. When a judgment is appealed against, a re-examination may also be sought of rulings and decisions made during court proceedings before the District Court.", "If a District Court judgment is appealed against for any of the reasons listed in the first paragraph of this Section, revision of the court’s conclusions regarding a claim pursuant to Chapter XXVI may also be sought, provided that it has been materially resolved and the defendant or claimant has requested a re-examination. If a District Court judgment is not appealed against pursuant to the above, the defendant and the claimant may both appeal against the court’s adjudication on the merits of the claim pursuant to the rules on appeals of judgments in civil proceedings.” Section 204 “The Supreme Court can pronounce a judgment dismissing a case from the court due to flaws in its presentation to the court without a hearing having previously taken place. Similarly, the Supreme Court may quash a District Court’s judgment if there are material flaws in the procedure before the District Court ... ...” Section 205 “... The Supreme Court can decide that oral presentation of evidence should be submitted as deemed necessary by the court if there is reason to believe, in the light of the circumstances, that said presentation of evidence could have an effect on the outcome of the case.” Section 208 “... The Supreme Court cannot re-evaluate a District Court’s conclusion on the evidentiary value of an oral testimony, unless the witnesses in question or the defendant have given oral statements before the Supreme Court.", "...” Section 222 “The judge, of his/her own accord, shall determine fines in accordance with the rules laid down in this Chapter. Such fines shall be paid to the National Treasury. However, special proceedings may be initiated for offences subject to fines pursuant to this Chapter. If there is further punishment, pursuant to other laws, for offences subject to the provisions of this Chapter, claims to that effect can be made in a separate case, regardless of rulings on procedural fines.” Section 223 “The defendant, defence counsel or legal advisor may be fined for: a. intentionally causing undue delay of the case; b. violating a prohibition, cf. Section 11 (1) or (2); c. making indecent written or oral remarks before the court concerning the judge or other parties; d. otherwise violating the dignity of the court with their conduct during proceedings.", "The defendant or other parties testifying before the court may be fined for offences listed in items (b), (c) and (d) above. A fine may be imposed on parties other than those laid down in the first two paragraphs of this section for violating a prohibition under Article 11 (1) or (2), for disregarding a judge’s order to maintain order during a court session, or for otherwise behaving in a distasteful or indecent manner. If the judge deems that the provisions of the first three paragraphs of this Section have been violated but that the offence is a minor one, the judge may decide to admonish the violator instead of imposing a fine. The Supreme Court may impose a fine on the prosecutor, defence counsel or both for making a groundless appeal. Furthermore, the prosecutor, defence counsel or legal advisor may be fined for gross negligence or other misconduct during proceedings before the District Court or preparation or proceedings before the Supreme Court.", "The provisions of the first four paragraphs of this Section shall apply to proceedings before the Supreme Court as applicable.” Section 224 “Fines for the prosecutor, defendant, defence counsel or legal advisor shall be determined when a judgment in a case is rendered. If the case is concluded in another manner, fines against those parties shall be determined in a ruling. Fines imposed on other parties than those named in the first paragraph of this Section shall be determined in a ruling as soon as the offence occurs.” 33. Section 21 (6) of the Attorneys’ Act No. 77/1998 (Lög um lögmenn) reads: “... A lawyer can resign from an accepted task at any time, but has the duty of ensuring that this will not damage his client’s interest.” THE LAW I. JOINDER OF THE APPLICATIONS 34.", "Given the similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35. The applicants complained that the District Court of Reykjavík had tried and sentenced them in absentia. In their opinion there had been a breach of Article 6 §§ 1 to 3 of the Convention.", "The applicants further maintained that the Supreme Court did not and could not have remedied the procedural violations before the District Court. The relevant provision reads as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2.", "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 36. The Government contested that argument. A. Admissibility 37.", "The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further concludes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicants 38. The applicants submitted that Article 6 of the Convention applied in the case. They stated that the Supreme Court had found that the fines imposed on them were criminal penalties for the purpose of Article 6 of the Convention. This was undisputed between the parties. In this respect the applicants referred to the case of T. v. Austria (no.", "27783/95, ECHR 2000‑XII) and Weber v. Switzerland (no. 11034/84, 22 May 1990, Series A no. 177) and stated that, unlike in these cases, no maximum amount for fines had been stipulated in Icelandic law. 39. The applicants maintained that they were tried and punished in absentia before the District Court and that they had not enjoyed any rights under Article 6 of the Convention before being fined by the District Court’s judgment of 12 December 2013.", "Nevertheless, the Supreme Court confirmed the judgment and concluded that it had been enough for the applicants to enjoy these rights before the Supreme Court. 40. The applicants argued that where court proceedings took place before two instances in a member State, it was obliged to provide the rights under Article 6 of the Convention at both instances. 41. The applicants argued that appeal proceedings could not remedy a total lack of first instance proceedings in a criminal case, regardless of the court’s scope of review under domestic law.", "The applicants submitted that although, in principle, an appellate court could rectify a total lack of first instance proceedings, it could only rectify flaws at first instance by overturning the first instance court’s conviction or by referring the case back to the first instance for a new procedure. In support of this argument, the applicants referred, inter alia, to the case of De Cubber v. Belgium (§§ 32-33, 26 October 1984, Series A no. 86). 42. The applicants submitted that, according to Icelandic procedural and criminal law, proceedings before the Supreme Court had been more limited than proceedings before a District Court and that they had enjoyed fewer rights before the higher court.", "Consequently, the Supreme Court could not fully remedy the violations of their rights at first instance. 43. The applicants also maintained that Article 6 § 2 of the Convention had been violated as the case against the applicants had commenced with a conviction by a court of first instance but no indictment against them. They further argued that guilt could not be proved unless evidence was submitted before the District Court, nor could it be proved before the Supreme Court without them being given the opportunity to hear witnesses and make statements before the court. 44.", "As regards the violations of the rights stipulated in Article 6 § 1, taken in conjunction with Article 6 § 3 of the Convention, the applicants maintained that no indictment had been issued against them, which would have been a prerequisite for them to enjoy all the rights under Article 6 of the Convention. Furthermore, they had not been asked to attend the hearing when the judgment was pronounced or made aware of the judgment. 45. Moreover, the applicants argued that they had not been afforded time or facilities to prepare their defence and they had not been offered the opportunity to defend themselves in person or through legal assistance before the District Court. Furthermore, the Supreme Court had not been able to remedy this fault by simply offering them the assistance of counsel before the Supreme Court.", "46. The applicants further claimed that they had not been invited to make statements or to examine witnesses before the Supreme Court. They argued that it had been for the Supreme Court to invite them to give statements and examine witnesses. In this respect the applicants referred to the cases of Sigurþór Arnarsson v. Iceland (no. 44671/98, §§ 35-38, 15 July 2003), Botten v. Norway (19 February 1996, §§ 52-54, Reports of Judgments and Decisions 1996‑I), and Sadak and Others v. Turkey (no.", "1) (nos. 29900/96 and 3 others, § 67, ECHR 2001‑VIII). The applicants disagreed with the Supreme Court’s conclusion that they could or should have requested to do so themselves in accordance with Section 205 (3) of the CPA or by instigating witness proceedings before another district court in accordance with Section 141 (1) of the same Act. The applicants argued that, looking at the wording of the provisions, the Supreme Court’s approach in their case had not been in accordance with domestic law and legal practice and this had not been an effective or practical right. Additionally it would have been contrary to Article 6 § 2 of the Convention to oblige them to instigate special witness proceedings to prove their innocence.", "47. The applicants contested the Government’s arguments that there had been no disagreement as to the facts. Although the factual dispute between the parties had been limited, the Government could not assume that the applicants did not need to testify or examine witnesses. 48. Furthermore, the applicants contested the Government’s argument that because they had not asked to examine witnesses or to give statements themselves they had waived those rights, as experienced attorneys.", "They should not enjoy lesser rights because they were practising attorneys. The waiver of those rights had to be established in an unequivocal manner and be attended by minimum safeguards commensurate with their importance. The applicants had not waived any of their rights either explicitly or implicitly. (b) The Government 49. The Government agreed with the applicants that the fines in question had constituted penalties and that the offences committed by the applicants should be considered “criminal” within the meaning of Article 6 of the Convention.", "This had also been acknowledged by the Supreme Court. The Government furthermore acknowledged that the applicants had been tried and convicted by the District Court in absentia. 50. However, the Government maintained that the Supreme Court’s judgment of 28 May 2014, confirming the District Court judgment of 12 December 2013, had not violated the applicants’ right to a fair trial under Article 6 of the Convention. 51.", "The Government noted that the Court had repeatedly found that the Contracting States enjoyed wide discretion as regards the choice of the means to ensure that their legal systems are in compliance with the requirements of Article 6 of the Convention. In the Government’s view the flaws in the District Court’s procedure did not by themselves constitute a violation if these defects were remedied on appeal. The requirement of fairness in Article 6 of the Convention had been interpreted to mean that it covered the proceedings as a whole, and as a result flaws at one level might be put right at a later stage. Article 6 of the Convention did not require an appeal court to order a retrial at first instance if new evidence were submitted on appeal and the right to retrial was not, as such, included among the rights and freedoms guaranteed by the Convention. In this respect the Government referred to the Commission decision in the case of Callaghan and others v. the United Kingdom (no.", "14739/89, Commission decision of 9 May 1989, Decisions and Reports 60, p. 296). 52. The Government argued that the Supreme Court had acknowledged that the District Court procedure had been flawed and not in accordance with the requirements of Article 6 of the Convention. However, the applicants’ access to the appeal procedure before the Supreme Court had not in any way been limited on the grounds that they had been absent from the District Court’s proceedings. They had been able to present their case before the Supreme Court in such a way that the procedure as a whole complied with Article 6 of the Convention.", "The process before the Supreme Court had sufficiently remedied the defects of the District Court proceedings. 53. In the Government’s view the question before the Court was whether or not the Supreme Court had been capable of remedying the defects in the first instance proceedings. According to the CPA the Supreme Court’s scope of review had been very wide. A defendant could appeal against a judgment in order to obtain a revision of the District Court’s assessment of points of law and re-evaluation of evidence.", "The only limitation on the Supreme Court’s review had been that it could not re-evaluate the evidentiary value of oral statements made before the District Court. The Supreme Court could, if needed, examine witnesses and evaluate the evidentiary value of their statements. The Supreme Court’s scope of review had therefore not been a hindrance for the applicants to resort to all the same defences as they could have resorted to before the District Court. 54. The Government submitted that the case of Sigurþór Arnarsson v. Iceland (cited above) reflected that it does not constitute a categorical breach of Article 6 of the Convention if a procedure before an appeal court is somewhat more limited than the procedure at first instance and that this also applied in cases where the appeal court could review questions of fact.", "55. The Government stated that the applicants never presented any arguments to the Supreme Court which were beyond its scope of review. It seemed that there had not been any disagreement about the facts between the parties. The communications between the applicants and the District Court, which constituted the alleged offence, had been conducted by letter and email and therefore the applicants had not been in a worse position to maintain their arguments before the Supreme Court than if they had been given an opportunity to defend themselves before the District Court. Although the process before the Supreme Court was in general more limited than the procedure before the first instance, that in itself did not hinder or limit their defence abilities in the present case.", "56. The Government maintained that the CPA offered sufficient remedies to which the Supreme Court could have resorted had there been any differences between the applicants and the prosecution on the facts of the case, and it would have been necessary to have witnesses questioned or allow the applicants to give statements themselves. The Government referred to Section 205 (3) and Section 141 (1) of the CPA in this respect. Both provisions had been relied upon by appellants before the Supreme Court. The use of Section 141 (1) had not been subject to the Supreme Court’s authorisation, and although Section 205 (3) had only been relied upon once before the Supreme Court, the Government reiterated that the circumstances in the applicants’ case had been highly unusual.", "Furthermore, the Government maintained that the court could also have quashed the District Court judgment and referred the case back to the first instance according to Section 208 (3) of the CPA. However, it had not been necessary because of the way the applicants’ appeals were constructed and argued. 57. The Government rejected the applicants’ claim that it was the Supreme Court’s obligation to invite them to examine witnesses or make statements themselves before the court. They were both experienced attorneys who were assisted by defence counsel before the Supreme Court and therefore there was no need to guide them in this regard.", "58. Lastly, the Government noted that in the speech before the Supreme Court the applicants had argued that the case could not be referred back to the District Court for new proceedings. This had shown that the applicants had not argued that it was necessary to refer the case back to a lower court. 2. The Court’s assessment 59.", "As to the application of Article 6 of the Convention in the present case, the Court notes that the applicants were each fined approximately EUR 6,200 under Section 223(1) (a) and (d) of the CPA for offending the court and causing unnecessary delay in the case by not attending the trial and thereby damaging their clients’ and the other defendants’ interests. In assessing whether or not there was a “criminal charge”, the Court uses three criteria, commonly known as the “Engel criteria”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin v Russia, [GC], no.", "14939/03, § 53, 10/02/2005). The Court has in a number of cases reached the conclusion that fines for contempt of a court in the context of processing of cases before domestic courts did not amount a “criminal charge” (see, for example, Ravnsborg v. Sweden, no. 14220/88, §§ 30-36, 23/02/1994; Putz v Austria, no. 18892/91, § 33, 22/02/1996; Schreiber and Boetsch v. France, no. 58751/00, 11/12/2003 (dec.); Toyaksi and Others v. Turkey, no.", "43569/08, 20/10/2010 (dec.); Zugic v. Croatia, no. 3699/08, 31/05/2011, §§ 63-71). The fact that a fine imposed is significant does not in itself imply that an offence can be qualified as a “criminal offence” (see Brown v. the United Kingdom, no. 38644/97, 24/11/1998 (dec.)). However, in a case where a short prison sentence was imposed for contempt of court, the Court has reached the conclusion that the offence amounted to a “criminal offence” (see Kyprianou v. Cyprus, [GC], no.", "73797/01, § 64, 15/12/2005; Zaicevs v. Latvia, no. 65022/01, §§ 31-36, 31/07/2007). Likewise, in a case where a substantial fine was imposed and the applicant risked imprisonment in default without a guarantee of a hearing, the Court also concluded that the offence amounted to a “criminal offence” (see T. v. Austria, no. 27783/95, §§ 61-67, 14/11/2000). Turning to the present case, the Court notes that the Criminal Procedures Act sets out the rules on the imposition of fines and no maximum amount for court fines is stipulated in the Act.", "The Court also notes that the fines imposed were substantial. Furthermore, the Supreme Court concluded that the fine imposed on the applicants had amounted to a criminal penalty (see paragraph 27 above). This finding by the Supreme Court was not disputed between the parties, who agreed that the fines imposed amounted to a “criminal offence”. Therefore, and in particular having regard to the first Engel criterion, the legal classification of the offence under national law, the Court sees no reason to disagree with the Supreme Court. Accordingly, the applicants’ offence should be considered to have been based on a “criminal charge” within the meaning of the criminal limb of Article 6 § 1 of the Convention, which is therefore applicable in the present case.", "60. The Court observes that the guarantees set out in paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 of the same provision. In these circumstances the Court finds it unnecessary to examine the relevance of paragraph 3 for the examination of the applicants’ complaint, since their allegations in any event amount to a claim before the Court that the proceedings were unfair (see Shkalla v. Albania, no. 26866/05, § 67, 10 May 2011). The Court considers that the same applies to the applicants’ complaint based on Article 6 § 2 of the Convention (see paragraphs 43 and 46 above) as it, in substance, is also directed at the lack of fairness encompassed by their conviction in absentia by the District Court and the subsequent alleged failure by the Supreme Court to remedy the procedural flaws at first instance.", "In the light of the foregoing the Court will confine its examination to whether the proceedings were, viewed as a whole, fair within the meaning of Article 6 § 1 of the Convention. 61. The general principles as regards proceedings in absentia are set out in Sejdovic v. Italy [GC], no. 56581/00, § 81-95, ECHR 2006‑II. 62.", "The Court reiterates that, although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect to both law and facts, where it has not been established that he has waived his right to appear and to defend himself (see Sejdovic, cited above, § 82 and Hokkeling v. the Netherlands, no. 30749/12, § 58, 14 February 2017). 63. The Court further reiterates its long-standing case-law to the effect that it is a fundamental principle that it is for the national authorities, notably the courts, to interpret and apply domestic law. Therefore, it is not for the Court to deal with alleged errors of law and fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where, in exceptional cases, such errors may be said to constitute “unfairness” incompatible with Article 6 of the Convention.", "The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017). 64. In the present case it is not disputed by the parties that the applicants were tried in absentia before the District Court.", "The Court agrees and recalls that the trial commenced anew on 4 November 2013 after the appointment of new defence counsel by the trial judge, and by a judgment of 12 December 2013 the applicants were fined (see paragraph 16 above). It is undisputed, as also stated by the Supreme Court (see paragraph 28 above), that they were neither summoned to appear before the District Court nor made aware of the District Court’s intention to impose fines on them on the basis of the CPA. Therefore, the Court will proceed with examining whether the appeal proceedings before the Supreme Court provided the applicants with a remedy in the form of a fresh factual and legal determination of the criminal charge against them in accordance with the general principle described above (see paragraphs 61‑62 above). Before proceeding with its examination, the Court finally considers it necessary to observe that in the judgment in De Cubber v Belgium (cited above, § 33), relied on by the applicants (see paragraph 41 above), the Court found that a fundamental defect involving the actual composition of the national court, a matter relating to the internal organisation of the judicial system, was such that the court of appeal was not in a position to cure such a defect in the proceedings on appeal. In contrast, the present case is limited to defects in the conduct of proceedings before the District Court and is thus not of such a nature as to call into question the Supreme Court’s ability to remedy the defects on appeal, albeit subject to the requirements of the general principles in the Court’s case-law described above (see paragraphs 61-63).", "65. The Court observes at the outset that the applicants appealed against the judgment of the District Court to the Supreme Court and submitted documentary evidence on appeal. An oral hearing was held before the Supreme Court where the applicants had full legal representation. Furthermore, the court heard counsel for the defence and the public prosecutor during the trial. The Supreme Court reviewed the District Court’s findings on the merits and confirmed the latter court’s judgment by setting forth its own independent reasoning, but also relying on the reasoning of the District Court as to the legal basis of the imposition of the fines and their amount.", "66. According to Section 196 of the CPA, the Supreme Court had full jurisdiction to examine not only questions of law but also questions of fact pertaining to criminal liability, sentencing and evaluation of the probative value of documentary evidence other than oral statements before the District Court. 67. In its judgment the Supreme Court stated clearly that the applicants had the right to have their fines reviewed by a higher court following an oral hearing. In fact, as the Government accept (see paragraph 52 above), the Supreme Court proceeded on the basis that the proceedings before the District Court had not been in conformity with the requirements of Article 6 of the Convention (and the corresponding provision of Article 70 of the Icelandic Constitution) (see paragraph 28 above).", "The Supreme Court further noted that the applicants’ right to defend themselves was not subject to any limitations by law and they were provided with an opportunity to raise any views in the oral hearing of the case and, as appropriate by making statements themselves and presenting witnesses, referring in that regard to Section 205 (3) of the CPA, or by instigating special witness proceedings in accordance with Section 141 (1) of the CPA (see paragraph 28 above). However, it is undisputed by the applicants that they did not request to be heard or to have witnesses examined before the Supreme Court (see paragraphs 21-22 above). 68. The applicants maintained that it had been for the Supreme Court to invite them to give statements and to have witnesses examined and they referred to the Court’s case-law in support of this argument (see paragraph 46 above). They disagreed with the Supreme Court’s conclusion, set forth in its judgment, that they could have asked to give statements themselves or to examine witnesses in accordance with Section 205 (3) of the CPA or by instigating witness proceedings before another district court according to Section 141 (1) of the same Act.", "The applicants argued that, looking at the wording of the provisions, the Supreme Court’s approach in their case had not been in accordance with domestic law and legal practice and this had not been an effective or practical right. 69. The Court finds that the applicants’ arguments in this respect cannot be upheld for the following reasons. Firstly, Article 6 of the Convention did not require the Supreme Court in the present case to act ex proprio motu and invite the applicants to give statements or have witnesses examined. As previously mentioned, (see paragraph 62 above), in cases where an accused has been convicted in absentia at first instance, it is for the appellate court to provide a forum for the fresh factual and legal determination of the merits of the criminal charge.", "It is then for the accused to avail themselves of the remedies for their defence that are provided for by domestic law. The Court points out that the applicants were fully represented by legal counsel in the proceedings before the Supreme Court. 70. Secondly, as to the applicants’ argument that the Supreme Court’s approach to interpreting and applying Sections 205 (3) and 141 (1) of the CPA was not in accordance with domestic law and legal practice, the Court reiterates that, as an international court, it is not in a position to call into question the Supreme Court’s interpretation of domestic law unless it can be deemed arbitrary or manifestly unreasonable (see paragraph 63 above), a standard which sets a high threshold for the Court’s review. 71.", "In this regard, the Court takes note of the arguments raised by the applicants, and confirmed by the Government, that in judicial practice before the Supreme Court, witnesses have only once been called before the court. However, in the light of the principles described above, the Court is not in a position to disregard the unequivocal statements in the judgment of the Supreme Court (see paragraph 28 above) that “[the applicants’] right to defend themselves on appeal [was] ... not subject to any limitations by law and they were provided with the opportunity to raise any views at the oral hearing of the case, and as appropriate by giving statements themselves and presenting witnesses”, the Supreme Court referring in this regard to the provisions of the CPA. 72. Therefore, taking account of the reasoning of the Supreme Court, which is the highest court in the Icelandic judicial system interpreting domestic law, and viewing the wording of the provisions in question in the light of the particular facts of the present case (see paragraph 32 above), the Court finds that the Supreme Court’s interpretation and application of the provisions of the CPA to the applicants’ case cannot be considered arbitrary or manifestly unreasonable within the meaning of the Court’s case-law (see paragraph 63 above). 73.", "On the basis of the foregoing, the Court concludes that the applicants were provided with sufficient opportunity to obtain before the Supreme Court a fresh factual and legal determination of the merits of the charges against them which allowed them to put forward their case in proceedings compliant with the fairness guarantees of Article 6 § 1 of the Convention in the present case. 74. There has accordingly been no violation of Article 6 § 1 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 75.", "The applicants complained under Article 7 of the Convention that they were held guilty of an offence which did not constitute a criminal offence under national law and that the severity of their punishment, fines of ISK 1,000,000 (approximately EUR 6,200 at the material time), had not been foreseeable. Article 7 § 1 of the Convention provides as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the ones applicable at the time the criminal offence was committed.” 76. The Government contested the applicants’ claim. A. Exhaustion of domestic remedies 1.", "The Government 77. The Government maintained that nothing in the case file indicated that the applicants had invoked Article 7 as regards the complaint directed at the foreseeability of the severity of their punishment. This part should therefore be declared inadmissible for non-exhaustion of domestic remedies. 78. In this regard, the Government disputed the applicants’ submissions that they had raised the argument in their oral submissions before the Supreme Court.", "The summary of the submissions did not reflect that the applicants had, in this regard, raised Article 69 of the Icelandic Constitution or the corresponding Article 7 of the Convention, explicitly or in substance, and the Supreme Court judgment had not reflected that argument at all. 2. The applicants 79. The applicants argued that there were no formal requirements under domestic law for a defendant to plead an argument before the domestic courts. In this respect they referred to Section 171 (2) of the CPA which stated that an argument is admissible at any time during criminal proceedings and in both written and verbal form.", "Therefore, their oral submissions should be taken into account for the purpose of the rule of exhaustion of domestic remedies. 80. Furthermore, the applicants claimed that according to the summary of their oral submissions it was clear that they had argued that the fine of 1,000,000 ISK had violated Article 69 of the Icelandic Constitution, as the maximum amount of the fine was not prescribed by law and that the amount of the fine was inconsistent with the Supreme Court’s previous jurisprudence. It had therefore been argued in substance and they had given the Supreme Court the opportunity to examine whether the amount of the fine had been arbitrary and in breach of Article 7 of the Convention. 3.", "The Court’s assessment 81. In the light of the documentation provided by the applicants, the Court accepts that it can be deduced from their oral submissions before the Supreme Court that they invoked the principle of legality in criminal cases (Article 69 of the Constitution), and argued that the amount of the fine was exceptionally high and that no maximum amount for court fines was stipulated in the domestic law. Therefore, it has to be considered that this particular argument, which has a basis in Article 7 of the Convention, was indeed pleaded by the applicants before the Supreme Court, at least in substance, in compliance with the formal requirements and time-limits laid down in the domestic law, and that the court was given the opportunity to address the allegation of a violation made by the applicants and to afford redress if appropriate. 82. Therefore, the Court concludes that the Government’s objection must be dismissed.", "It finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further concludes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicants 83. The applicants argued that they should not have been fined as defence counsel for their action during court proceedings under Section 223 (1) (a) and (d) of the CPA as they had neither been defence counsel at the time the fines were imposed on them nor had their conduct taken place during court proceedings. 84. Furthermore, they argued that the amount of ISK 1,000,000 (approximately EUR 6,200 at the material time) of their fines had not been foreseeable according to the domestic law or jurisprudence as no maximum amount for fines was stipulated in the domestic law and the highest fine according to the Supreme Court’s previous jurisprudence had been 100,000 ISK. (b) The Government 85.", "The Government argued that the applicants had been fined for resigning from their duties as defence counsel and for not attending the previously planned trial of their clients. The Government maintained that at the time the applicants failed to attend the trial, they had been appointed defence counsel for their clients and their decision not to attend the trial had been an action committed during the trial itself. Therefore, the conditions of Section 223 (1) of the CPA had been fulfilled. 86. The Government further submitted that the Supreme Court’s application of Section 223 (1) of the CPA had been in compliance with Icelandic criminal law.", "The Government pointed out that the Court had undertaken its supervisory function with caution when establishing that the application of national law by national courts had been in breach of Article 7 of Convention and that in the present case there were no special reasons for the Court to substitute the domestic courts’ interpretation and application of the national law in question with its own. 2. The Court’s assessment (a) General principles 87. The guarantee enshrined in Article 7, which is an essential element of the rule of law, should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see, inter alia, Del Río Prada v. Spain [GC], no. 42750/09, § 77, ECHR 2013).", "88. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage; it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows from these principles that an offence must be clearly defined in the law, be it national or international. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 154, ECHR 2015, with further references 89.", "However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adapting to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial interpretation is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015).", "90. Lastly, the Court held in Kononov v. Latvia ([GC], no. 36376/04, § 198, ECHR 2010), that “the Court’s powers of review must be greater when the Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicants’ conviction and, in particular, it must satisfy itself that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power to this Court would render Article 7 devoid of purpose”.", "(b) Application of those principles to the present case 91. It does not appear that the Supreme Court directly addressed in its judgment of 28 May 2014 the arguments made by the applicants during their oral pleadings. However, it is clear from the judgment, and its reliance on the reasoning provided by the District Court as to the legal basis of the court fines, that the Supreme Court considered that Section 223 (1) (a) and (d) of the CPA clearly applied to the applicants’ case in the light of the facts, and because the appropriate procedures had been applied as to who decided and when to impose the fines on them in accordance with the applicable provisions. As regards the amount of the fines, the court acknowledged that the law did not stipulate a maximum amount for court fines and that the fines imposed on the applicants had been high, and therefore concluded that the fines had been penalties in the light of Article 6 of the Convention (see paragraphs 27 above). 92.", "The Court considers it important to take into account when dealing with the present case that the case seems, from the observations of the parties and the accompanying documentation, to have been the first of its kind brought before the Supreme Court on appeal due to the in absentia imposition by a District Court of fines under the CPA on defence counsel who had resigned from their positions in disregard of the orders of the trial court. In this regard the Court recalls its case-law to the effect that where the domestic courts are called upon to interpret a provision of criminal law to a particular set of facts for the first time, an interpretation of the scope of the offence which is consistent with the essence of the offence must, as a rule, be considered foreseeable (Jorgic v. Germany, no. 74613/01, § 109, ECHR 2007-III). 93. As regards the applicants’ argument concerning the interpretation of Section 223 of the CPA, the Court considers it sufficient to note that it does indeed provide a basis for imposing fines on “defence counsel” for particular acts.", "Although it would be the normal sequence of events that a defence counsel would be performing his or her function at the point in time when the fine would be imposed, the wording of the provision does not exclude the imposition of a fine on a defence counsel who has been replaced, resigned or been relieved of his or her duties. Hence, the Court does not consider that the interpretation given to the provision by the national courts contravened the very essence of the offence in question. Therefore, and taking account of the wording of the provision in question (Section 223 (1) (a) and (b) of the CPA), the Court does not find there to be adequate grounds to call into question the Supreme Court’s finding that the provisions in question constituted an adequate legal basis for the imposition of the fines. It follows that the Court does not accept the applicants’ claim that the provisions, as applied by the Supreme Court to the particular facts of the case which were elaborated in detail in the judgment of the court, lacked foreseeability within the meaning of Article 7 of the Convention. In this light, the lack of an explicit answer in the Supreme Court’s judgment to the applicants’ arguments based on the principle of legality in criminal cases does not suffice for the Court to come to a different conclusion.", "94. As to the applicants’ second argument concerning the lack of a specific stipulation of the maximum amount of fines under domestic law, the Court notes at the outset that Section 223 of the CPA clearly provided, as such, for the imposition of fines on defence counsel for the acts described in the provision. Moreover, the Court recalls its consistent case-law to the effect that Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see paragraph 89 above). It follows that the mere fact that a provision of domestic law does not stipulate the maximum amount which may be imposed in the form of a fine does not, as such, run counter to the requirements of Article 7 of the Convention. Moreover, although it is undisputed that the fines imposed on the applicants were substantially higher than previously imposed fines under Section 223, the Court recalls that it is also clear from the observations of the parties, as described above, that the present case was the first of its kind and one in which the Supreme Court considered that the nature and gravity of the applicants’ actions warranted the imposition of fines which were higher than imposed in other prior cases with different facts.", "Therefore, the Court finds that, in the light of the conclusions of the Supreme Court, the amount of the fines in question was consistent with the essence of the offence and could have been reasonably foreseen by the applicants. 95. Consequently, the Court concludes that there has been no violation of Article 7 of the Convention in the present case. IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO.", "7 TO THE CONVENTION 96. The applicants complained that their right to appeal had been violated as their defence had only been heard before one tribunal, the Supreme Court. Article 2 of Protocol No. 7 to the Convention provides, in so far as relevant, the following: “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.” 97.", "The Government contested that argument. A. Admissibility 1. The parties’ submissions (a) The Government 98. The Government maintained that the applicants had not exhausted available domestic remedies as regards this part of their application. The Government argued that in their submissions to the Supreme Court the applicants had not requested that the District Court judgment be quashed and the case be referred back for a new trial.", "Furthermore, they had not claimed that it was necessary to have a new trial before the District Court, even though they had maintained that the procedure before the first instance court had been flawed and in violation of Article 6 of the Convention and Article 70 of the Constitution. Moreover, nowhere in their submissions to the Supreme Court had they argued that the court could not remedy the defects in the lower court’s proceedings. 99. The Government pointed out, as regards the applicants’ reference to the Supreme Court’s minority opinion, that it did not have any legal value and that the legal basis for the minority’s conclusion had been unclear. (b) The applicants 100.", "The applicants contested the Government’s claim. They argued that, according to the wording of Article 204 (1) of the Act and the clear and consistent jurisprudence of the Supreme Court, the court quashed first instance judgments and ordered first instance retrials of its own motion. Therefore, it had not been a condition under the provision that a motion for a retrial would be submitted by the parties. The applicants further claimed that the minority had explicitly dealt with the issue whether to quash the first instance judgment and order a retrial without such motion. 101.", "The applicants also maintained that it had not been an obligation to exhaust remedies by making claims which would have been manifestly ill-founded. Referring to the Supreme Court minority’s opinion the applicants argued that a claim for a retrial would have been ill-founded as there had not been any legal provision to allow remand of this aspect of the District Court’s judgment back to the first instance for a new process. They further argued that a retrial at this point would also been meaningless as the deadlines to impose fines on them at first instance under Sections 223 and 224 of the Act had expired. 2. The Court’s assessment 102.", "It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by the Contracting States of their obligations under the Convention. It should not take on the role of the Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-70, 25 March 2014).", "103. While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance, and in compliance with the formal requirements and time‑limits laid down in domestic law (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 89, 23 June 2015).", "104. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists, at national level, a remedy enabling the national courts to address, at least in substance, the argument of a violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have exercised, unsuccessfully, another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right.", "It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see among others, Azinas, cited above, § 38, and Nicklinson and Lamb, cited above, § 90). 105. Before the Court the applicants submitted that their right to appeal in criminal cases under Article 2 of Protocol No. 7 to the Convention had been violated as their defence was only heard before one court instance, the Supreme Court.", "106. Before the Supreme Court the applicants primarily submitted that the District Court’s judgment should be annulled as to the imposition of the court fines, and secondly that the amount of the fines should be reduced in the event of the Supreme Court rejecting their primary claim for annulment. Furthermore, according to the applicants’ oral pleadings before the Supreme Court, they argued that the decision to impose fines according to domestic law was an ex proprio motu decision by the trial court deciding the case, without the case parties’ involvement, which could not be quashed and referred back for a retrial (see paragraph 24 above). They further submitted that, according to the domestic provisions on the imposition of court fines and under Article 6 of the Convention, a retrial could not be legitimate (see paragraph 24 above). 107.", "It is clear, in the Court’s view, that the applicants did not rely explicitly on Article 2 of Protocol No. 7 to the Convention in their written submissions before the Supreme Court or in their oral pleadings. As is directly stated in the Supreme Court’s judgment, their claims on appeal were, as relevant here, limited to seeking primarily the annulment of the District Court’s imposition of the court fines and, on a subsidiary basis, the reduction of the amount of the fines, were the Supreme Court to reject their primary claim. In other words, irrespective of whether the CPA provided the possibility for the Supreme Court to quash the District Court judgment as to the imposition of the court fines and order a retrial on that issue, the applicants did not claim on appeal that such a right derived independently from the Convention right to appeal in criminal cases. Therefore, as the case has been presented to the Court, it cannot be deduced from the judgment of the Supreme Court, or the accompanying documentation, that the applicants formulated their claims and grounds on appeal to the Supreme Court in such a way that they could be considered to have sufficiently invoked, in substance, their rights under Article 2 of Protocol No.", "7 to the Convention, which they raise now before the Court. 108. In these circumstances, the Court concludes that the applicants did not provide the Supreme Court with the opportunity, which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, Unseen ehf v. Iceland, no. 55630/15, § 19, 20 March 2018). 109.", "Consequently, this complaint must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 § 1 and 4 in fine of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning Articles 6 and 7 admissible and the remainder of the applications inadmissible; 3. Holds that there has been no violation of Article 6 of the Convention; 4.", "Holds that there has been no violation of Article 7 of the Convention; Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJulia LaffranqueRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KREUZ v. POLAND (No. 3) (Application no. 75888/01) JUDGMENT STRASBOURG 24 January 2006 FINAL 24/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kreuz v. Poland (no.", "3), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG. Bonello,MrR. Maruste,MrS. Pavlovschi,MrL.", "Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 5 January 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75888/01) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Henryk Kreuz (“the applicant”), on 9 March 2001. 2.", "The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 20 June 2003 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1955 and lives in Płock, Poland. 5. On 7 March 1992 the applicant asked the Częstochowa District Court (Sąd Rejonowy) for a payment order against the “Westa” insurance company. 6. The court refused the application on 22 June 1992.", "7. On 15 September 1992, on the applicant’s appeal, the Częstochowa Regional Court (Sąd Wojewódzki) remitted the case. 8. On 15 December 1992 the District Court upheld its original decision. 9.", "On 25 March 1993 the Częstochowa Regional Court dismissed the applicant’s further appeal. 10. The case was subsequently examined by the District Court in ordinary civil proceedings. 11. On 7 July 1993 the court stayed the proceedings because bankruptcy proceedings had been initiated against the defendant (that decision is obligatory under Polish civil procedure).", "12. On 14 December 1993 the Regional Court dismissed the applicant’s appeal against that decision. 13. The applicant unsuccessfully asked the court several times to resume the proceedings. 14.", "The court resumed the proceedings on 13 September 1996. 15. Hearings were scheduled for 23 October 1996 and 8 July 1997. 16. On 4 August 1997 the court ordered that expert evidence be obtained.", "It also ordered the applicant to pay an advance sum of money to cover the costs of the preparation of an expert report. 17. On 16 April 1998 the court stayed the proceedings because the applicant had not paid the advance sum required. 18. The applicant appealed against that decision.", "He maintained that, according to the established case-law of the Supreme Court (Sąd Najwyższy), a party’s failure to pay in advance costs of an expert opinion is not a sufficient ground for staying the proceedings. 19. On 29 July 1998 the Regional Court dismissed the appeal. 20. On 30 September 1999 the District Court resumed the proceedings and, on the same day, partly granted the applicant’s claim.", "21. On 12 September 2000 the Regional Court amended the first-instance judgment and partly granted the claim. Due to the value of the claim a cassation appeal was not available in this case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 22.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 23. The Government contested that argument. 24. The period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.", "The period in question ended on 12 September 2000. It thus lasted 7 years, 4 months and 14 days for two levels of jurisdiction. A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "27. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 28. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 29. The applicant alleged a breach of Article 6 § 1 in that he did not have a “fair trial”. He alleged that the courts committed errors of fact and law when dealing with his case.", "30. The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no 30544/96, ECHR 1999-I, § 28). The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing or any specific shortcomings on the part of the relevant courts. In the light of the material in its possession, the Court finds no indication that the impugned proceedings were unfairly conducted.", "31. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected as inadmissible in accordance with Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 33. The applicant claimed 31,428 Polish zlotys (PLN)[1] and 9447 euros (EUR) in respect of pecuniary damage. He further claimed EUR 20,000 in respect of non-pecuniary damage. 34. The Government contested these claims.", "35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3000 under that head. B.", "Costs and expenses 36. The applicant did not seek to be reimbursed for any costs and expenses in connection with the proceedings before the Court. C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3000 (three thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 January 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BratzaRegistrarPresident [1] Approximately EUR 7,844" ]

[ "FIFTH SECTION CASE OF FYODOROV AND FYODOROVA v. UKRAINE (Application no. 39229/03) JUDGMENT STRASBOURG 7 July 2011 FINAL 07/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fyodorov and Fyodorova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Karel Jungwiert,Boštjan M. Zupančič,Mark Villiger,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39229/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Vladimir Georgiyevich Fyodorov and Mrs Tatyana Sergeyevna Fyodorova (“the applicants”), on 30 October 2003. 2. The applicants, who had been granted legal aid, were represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.", "3. The applicants alleged, in particular, that they were ill-treated by the police and that no effective investigation of their complaints took place. The first applicant also alleged that he had been unlawfully subjected to a psychiatric assessment and diagnosed with a psychiatric disorder and that he had been deprived of a fair trial in civil proceedings challenging the actions of the psychiatrists. 4. On 31 March 2009 the President of the Fifth Section decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, husband and wife, were born in 1948 and 1960 respectively and live in Takhtaulove. A.", "The first applicant’s psychiatric examination of 15 June 2001 and the ensuing civil proceedings 6. In June 2000 the first applicant had a fight with the Ls, his neighbours. As a result, Mrs L. sustained bodily injuries, for which the first applicant was eventually convicted on 20 January 2005 and sentenced to suspended restriction of liberty. The applicants were also involved with the Ls in several civil proceedings concerning land use and other issues. 7.", "On 10 June 2001 Mrs L. addressed a letter to V. T., the Chief Psychiatrist of the Poltava District Clinical Hospital (“the Poltava Hospital”), alleging that the first applicant suffered from a serious mental condition and needed psychiatric treatment. She noted that he had been harassing her family for some nine years. In particular, he had been calling them names, cursing, eavesdropping, photographing their activities, recording their conversations with him, threatening to throw them out of their house and put Mr L. in prison. In June 2000 the first applicant had also hit Mrs L. in the course of an argument, inflicting serious injuries on her, which were the subject of pending criminal proceedings. She further noted that he had been in conflict with a number of other villagers.", "In particular, he was suspicious of everybody’s conduct; he photographed various allegedly “unlawful” acts; he threatened, cursed and argued with the villagers; he wrote various complaints to the authorities; he punctured the tyres of the village mayor’s car, stole crops and hay and engaged in fights. Finally, she alleged that he was prone to sudden fits of anger, beat his wife and had killed a dog. Lastly, he owned two rifles and was generally dangerous. 8. On 15 June 2001 M. F., a hospital psychiatrist, arrived in the applicants’ yard in an ambulance car and started questioning the first applicant about his relations with the Ls, in particular about their complaints that he had taken photographs of them without their consent.", "According to the first applicant, this conversation lasted about five minutes, after which he attempted to photograph the psychiatrist, the driver, and the ambulance car. In response, M. F. ran from the yard, shouting “this is abnormal”. 9. On 18 June 2001 V. T. informed the Poltava District Court that the first applicant was suffering from chronic delusional disorder (хронічний маячний розлад) and needed to undergo a forensic expert assessment with a view to receiving in-patient treatment. 10.", "On 30 June 2001 V. V., the Chief of the Regional Health Department, dismissed a complaint lodged by the first applicant, in which he alleged that the examination had been unlawful and the diagnosis incorrect. 11. In August 2001 the first applicant instituted court proceedings against M. F., V. T and V. V., complaining that he had been subjected to an unlawful examination and diagnosis in violation of the applicable law and medical guidelines. 12. On 6 February 2002 the Oktyabrsky District Court of Poltava allowed the first applicant’s claim and ordered the medical authorities to remove the diagnosis from his record.", "It observed, in particular, that complaints by the Ls could not be deemed a sufficient basis for the examination of the first applicant without his consent. It also found that the examination had been carried out in violation of the applicable procedural standards. In particular, M. F. had not duly informed the applicant of the reason for his visit and made his conclusions after an extremely brief informal conversation. 13. M. F. appealed against this judgment.", "14. At 10 a.m. on 30 April 2002 the Poltava Regional Court of Appeal opened the hearing on M. F.’s appeal. The court noted in the hearing minutes that the first applicant had requested that the case be heard in his absence and that there was no reason not to grant this request. It had then heard submissions from M. F., who had presented his version of events and noted, in particular, that his conversation with the first applicant had lasted at least twenty or twenty-five minutes. The court also allowed M. F.’s request to add an unspecified certificate to the case-file materials.", "The floor was then given to a representative of the Regional Health Department, who maintained that M. F. had acted in accordance with the provisions of section 11 of the Law “On Psychiatric Assistance”, which lays down the circumstances under which a patient may be psychiatrically examined without his or her consent. In particular, there had been a serious cause for concern about the first applicant’s state of health, as at the material time criminal proceedings were pending against him on charges of assault against Mrs L. The court then heard the manager of the local polyclinics, who alleged that it had not been possible at the material time to subject the first applicant to a more extensive in-patient assessment. The hearing ended at 11:30 a.m. 15. On the same day the Court quashed the judgment of 6 February 2002 and dismissed the first applicant’s claim. By way of reasoning, the court noted the following: “The conclusion of the first-instance court that ... M. F. infringed the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance” in examining V. G. Fyodorov is not supported by the evidence contained in the case file.", "The first-instance court did not give sufficient consideration to explanations by the witness Fyodorova T.S. – the plaintiff’s wife, who maintained at the court hearing that M. F., upon exiting the ambulance car, had introduced himself and begun asking questions. The witness also indicated that M. F. had visited them for more than ten minutes. The court did not give sufficient weight to the testimonies by Fyodorov V. G. himself ... that M. F. had spoken to him concerning the photographing of the neighbour, Mrs L., and repeated the latter’s words concerning this matter. Therefore, the conclusion of the court that M. F. had not introduced himself before the examination of Fyodorov V. G. and had not informed him of the grounds and purpose of his examination does not follow from the facts of the case.", "The court erred in concluding that M. F. examined Fyodorov V. G. without his consent and any request by the latter for such an examination. The Panel of Judges considers that the written application by Mrs L. gave sufficient grounds for a psychiatric doctor to conduct a psychiatric examination in accordance with the requirements of paragraph 3 of section 11 of the Law of Ukraine “On Psychiatric Assistance”. Without substantiation, the first-instance court declared as wrongful the diagnosis ... concerning the state of Fyodorov’s V. G.’s health, since at the time of consideration of the case the case file contained no evidence disproving that diagnosis. The Panel of Judges considers that the actions of psychiatric doctor M. F., Chief Psychiatrist ... V. T ... were compliant with the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance”. The judgment of the first-instance court shall be quashed as the court’s conclusions do not follow from the circumstances of the case ...” 16.", "The first applicant sought leave to appeal in cassation. He maintained, in particular, that the Court of Appeal had unlawfully held a hearing in his and his lawyer’s absence, having failed to notify either of them of the date of the hearing. He noted that the case file contained an unsigned request to hold a hearing in his absence. However, the first applicant contended that this unsigned application was forged and that even if it were not, no application to hear the case in the absence of his lawyer had been submitted. The first applicant further contended that the judgment lacked reasoning.", "He noted, in particular, that, according to the applicable law, an individual could be subjected to a psychiatric assessment either (a) upon his (or his representative’s) consent or (b) following a court decision or (c) in the event of urgent necessity. As the first applicant’s examination had not been based either on his consent or on a court decision, the court of appeal should have substantiated the finding that there had been an urgent need for it. Lastly, the first applicant complained that the court of appeal had not addressed his arguments concerning a violation of the applicable medical guidelines for diagnosing chronic delusional disorder, which presupposed extensive observation of a patient. In the first applicant’s opinion, having based the conclusion concerning the correctness of the diagnosis on the lack of any evidence to the contrary, the court of appeal had infringed the legal provisions concerning the presumption of mental health. 17.", "On 23 May 2003 the Supreme Court dismissed the first applicant’s request for leave to appeal in cassation, generally endorsing the findings of the court of appeal. 18. In May 2003 V. T. notified the first applicant’s lawyer that the first applicant’s name was not on the register of individuals suffering from mental disorders. On 9 September 2003 the Psychiatrists’ Association informed the first applicant that, having studied his medical documents, they found no basis to consider that he suffered from any disorders. On 2 February 2004 the applicant was also examined at the Kyiv Institute of Psychiatry and found not to be manifesting any signs of disorder and not to require treatment.", "Subsequently, referring to these documents, the first applicant unsuccessfully attempted to obtain an extraordinary review of the judgment of 30 April 2002. B. Placement of the first applicant in a psychiatric clinic on 7 March 2003 and the ensuing investigations 19. In January 2003 the Poltava Hospital received several complaints from the applicants’ fellow villagers requesting that he be admitted to a psychiatric facility on account of various incidents of hostile behaviour towards them. 20.", "Referring to these complaints, V. T. requested the Poltava District Court to authorise the first applicant’s confinement to the psychiatric clinic for assessment and, if necessary, for treatment. On 20 February 2003 the court discontinued the proceedings, having advised V. T. that this matter was within the discretion of the supervising psychiatrist. 21. On 4 March 2003 V. T. addressed a letter to the district police requesting assistance in the first applicant’s hospitalisation in view of the danger he posed to others. In his letter he noted, in particular that “at the present moment Fyodorov V. G. is a danger to society.", "In connection with his mental disorders, during hospitalisation Fyodorov V. G. may use a hunting weapon in self-defence.” 22. According to the first applicant, on 5 March 2003 V. T. signed a certificate testifying his psychiatric fitness for the purposes of extending his hunting rifle permit. 23. On 6 March 2003 M. F. and two police officers arrived at the applicants’ home in the ambulance car and discussed the procedures concerning the extension of the permit. According to the first applicant, they invited him to follow them to the police station to complete the necessary formalities; however, he refused, assuring them that he would do so later.", "24. At about 10:00 a.m. on 7 March 2003 the applicants went to the police station and requested instructions concerning the formalities to be completed for the rifle permit extension. 25. At about 12:00 p.m. M. F. arrived in the ambulance car and announced to the applicants that the first applicant was to be hospitalised. Notwithstanding the applicants’ protests, four police officers escorted the first applicant to the ambulance car and took him to the Poltava Regional Psychiatric Clinic, where he underwent two psychiatric assessments on the same day.", "26. On 8 March 2003 the first applicant was released from the Regional Clinic as he was not considered to be in need of in-patient treatment. Subsequently (on 17 March 2003) the first applicant’s lawyer was informed by N. N., the Chief Psychiatrist of the Regional Clinic, that the first applicant’s diagnosis of chronic delusional disorder, which had served as the basis for his hospitalisation, had not been confirmed. However, he had been found to be suffering from a “pathological behavioural personality disorder of the unstable epileptic type, in the sub-compensation stage” (патохарактерологічний розлад особистості по епілептоїдно‑нестійкому типу в стадії субкомпенсації). In September 2003 the first applicant was informed by the Psychiatrists’ Association that the stated diagnosis did not feature in the international classification table.", "On 11 October 2007 the first applicant underwent a psychiatric assessment in the Kyiv Centre for Forensic Assessment. The panel of experts concluded that neither on 15 June 2001, nor on 7 March 2003 or at the time of the assessment had the first applicant suffered from any psychiatric disorders. 27. On 11 March 2003 the applicants complained to the Poltava District Prosecutors’ Office that they had been ill-treated by M. F. and the police officers on 7 March 2003. They noted, in particular, that the decision to hospitalise the first applicant had been arbitrary and taken in excess of V. T.’s power.", "They further complained that the police had applied excessive force in enforcing this decision, which had caused their injuries. The use of force had been excessive because the first applicant’s protests were limited to a request to contact his lawyer and a demand to see the chief of the police department, which measures were legitimate in the context of the situation. In response he was restrained by four police officers, who also punched and kicked him, and dragged him down the stairs and into the ambulance car. The second applicant attempted to intervene, but in vain. According to her, the police officers punched her hands, pushed her in the chest and pressed her against the door, keeping her away from the first applicant.", "28. On the same day the applicants were examined by medical experts, who found that the first applicant had contusions of the soft head tissue, face, left leg and neck, cumulatively qualified as “light bodily injuries”, which could have been sustained on the date and under the circumstances described by him. The second applicant had contusions of the right hand, left arm, left knee and right leg, caused by blunt objects, possibly on the date and under the circumstances described by her. The second applicant’s injuries were also cumulatively qualified as “light”. 29.", "On 16 April 2003 the Poltava District Prosecutor’s Office refused to institute criminal proceedings, having found that in restraining the first applicant, who had objected to the lawful actions of M. F. and the police officers’ order to get into the ambulance car, the police officers had not acted in excess of the authority conferred on them by applicable law. 30. On 27 June 2003 the first applicant was X-rayed and found to have a fractured jaw. 31. In July 2003 the first applicant underwent an additional assessment by medical experts, who found that the fractured jaw could have been sustained during his placement in the ambulance car in March 2003, as he had described, and re-qualified the injuries sustained during this period as of “medium severity”.", "Based on these findings, the applicants again requested the initiation of criminal proceedings against M. F. and the police officers. 32. On numerous occasions (14 August, 11 November and 24 December 2003, 25 May 2004 and 4 March 2005) the District Prosecutor’s Office refused to institute criminal proceedings for want of evidence of criminal conduct on the part of the officers and M. F. All those decisions were subsequently annulled either by the supervising prosecuting authorities or by the Oktyabrsky District Court with reference to the insufficiency of the investigations and various procedural omissions. 33. On 18 November 2003 the Deputy Poltava Regional Prosecutor wrote to the Poltava District Prosecutor, reprimanding him for having failed to organise a thorough examination of the applicants’ complaints.", "He noted, in particular, that the District Prosecutor had failed to study the case-file materials and provide written instructions as to the inquiry; that eyewitnesses of the incident had not been identified and questioned; and that the measures taken had been perfunctory. The Deputy Regional Prosecutor also gave various instructions as to the further investigation of the case. 34. On 28 July 2005 the Poltava Regional Prosecutors’ Office initiated criminal proceedings to investigate the circumstances in which the first applicant had sustained injuries. 35.", "On 18 October 2005 the Oktyabrsky District Court of Poltava also instituted criminal proceedings concerning the second applicant’s injuries. 36. On numerous occasions (in particular, 25 December 2005, 10 June 2006 and 29 December 2007) the above criminal proceedings were discontinued for want of evidence of criminal actions on behalf of M. F. and the police officers. Those decisions were set aside by the superior prosecutorial or judicial authorities with reference to the inadequacy of the measures taken to investigate the applicants’ complaints. 37.", "On 22 May 2009 the prosecutors’ office discontinued the criminal proceedings. It noted, in particular, that the Poltava District Hospital had received numerous complaints from the applicants’ neighbours concerning the first applicant’s aggressive behaviour. In particular, one such complaint, signed by five villagers, had been received in February 2003. Having obtained a ruling from the local court that the decision to hospitalise the first applicant could be taken by the supervising psychiatrist, V. T. had asked the police for assistance in ensuring the hospitalisation. Neither M. F. nor the policemen had exceeded the authority vested in them by applicable law in demanding the first applicant’s hospitalisation.", "The force applied to the applicants had been proportionate and had not exceeded that which was necessary in order to overcome their resistance. In particular, according to expert assessments and reconstructions of the crime scene, the first applicant had apparently fractured his jaw when he accidentally banged his head against the ambulance vehicle while resisting the efforts of the police officers to place him inside. 38. By a decision of 14 September 2009, upheld on appeal on 29 October 2009, the Oktyabrsky District Court quashed that decision. The courts noted, in particular, that while the prosecution had conducted a reconstruction of the crime scene based on the police officers’ version of the events, they had failed to verify the applicants’ version of events.", "Likewise the medical assessment had verified the police’s version of events only. The police had also failed to identify any eye-witnesses of the incident in order to question them about their impressions and had not fulfilled various instructions, given, in particular, by the court in reviewing previous decisions to discontinue the proceedings. 39. According to the case-file materials the investigation of the applicants’ complaints about ill-treatment is still pending. II.", "RELEVANT DOMESTIC LAW A. Constitution of Ukraine 1996 40. The relevant provision of the Constitution reads as follows: Article 29 “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours.", "The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time ...” B. Code of Criminal Procedure 41. The relevant provisions of the Code can be found in the judgment in the case of Kozinets v. Ukraine (no.", "75520/01, §§ 40-42, 6 December 2007). C. Code of Civil Procedure of 1960 42. The relevant provisions of the Code concerning notification arrangements are summarised in the judgment in the case of Strizhak v. Ukraine (no. 72269/01, §§ 30-31, 8 November 2005) and the admissibility decision in the case of Shytik v. Ukraine (no. 2911/03 of 30 September 2008).", "D. Law of Ukraine “On Psychiatric Assistance” 43. The relevant provisions of the Law of Ukraine “On Psychiatric Assistance” read as follows: Section 3. Presumption of mental health “Each individual shall be considered as having no mental disorders unless the presence of such a disorder is established on the grounds of and according to the procedure established by this Law and other laws of Ukraine.” Section 11. Psychiatric examination “A psychiatric examination shall be carried out for the purposes of establishing whether or not an individual suffers from a mental disorder, whether she or he requires psychiatric assistance, and determining of the type of such assistance and the procedure for providing it. A psychiatric examination shall be carried out by a psychiatric doctor at the request or with the conscious consent of the individual... A psychiatric examination may be carried out without the individual’s conscious consent ... where the information available provides sufficient grounds for a reasonable assumption that the individual suffers from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life; or - will cause significant harm to her or his own health ... in the event that psychiatric assistance is not provided.", "The decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by a psychiatric doctor upon an application [by any person], which contains information giving sufficient grounds for such an examination. ... In urgent situations ... the decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by the psychiatric doctor alone, and the psychiatric examination shall be carried out immediately. In [other] cases, ... a psychiatric doctor shall submit an application to the court ... A forcible psychiatric assessment shall be carried out by the psychiatric doctor following a court order. Data concerning the psychiatric examination and the conclusion concerning the individual’s state of mental health, and the reasons for the application to the psychiatric doctor, shall be recorded in medical documents.” Section 14.", "Grounds for forced hospitalisation of an individual in a psychiatric establishment “An individual suffering from a mental disorder may be hospitalised without her or his conscious consent ..., if examination and treatment are possible only on an in-patient basis, and in the event of a finding that the individual is suffering from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST AND THE SECOND APPLICANT 44. The first applicant complained that on 7 March 2003 he had been humiliated by having been unlawfully hospitalised by force. Both applicants also complained that they had been injured as a result of the application of disproportionate force in response to their resistance to the first applicant’s hospitalisation, and that the investigation following their respective complaints had been ineffective. The applicants invoked Article 3 of the Convention in respect of these complaints, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 45.", "The Government submitted that the proceedings concerning the applicants’ ill-treatment complaints were still pending. The applicants have therefore not exhausted the relevant domestic remedies and their complaints concerning the ill-treatment should be rejected as inadmissible. 46. The applicants alleged that the Government’s objection should be examined in the light of the complaints concerning the effectiveness of the investigation. 47.", "The Court considers that the Government’s objection raises issues, which fall to be examined together with the substantive provision of the Convention relied on by the applicants. It therefore joins this objection to the merits (see e.g. Vergelskyy v. Ukraine, no. 19312/06, § 94, 12 March 2009). 48.", "The Court further notes that the above complaints are not otherwise 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. B. Merits 1. Concerning the alleged ill-treatment (a) Submissions by the parties 49.", "The applicants alleged that they were the victims of inhuman and degrading treatment by M. F. and police officers. In particular, they referred to Article 29 of the Constitution and the Law of Ukraine “On Psychiatric Assistance” and maintained that in order to be lawful, a forced psychiatric intervention, in particular, confinement to a hospital, had to be ordered by a competent court. The decision, taken in respect of the first applicant by the Chief Psychiatrist of the local hospital unilaterally and in absence of any procedural guarantees, had been manifestly arbitrary and unlawful. The application of physical force to enforce it and deliver the first applicant to the psychiatric clinic against his will had therefore also been unlawful and arbitrary, having caused the first applicant humiliation beyond the threshold allowed by Article 3 of the Convention, particularly in the context of the following circumstances. 50.", "The applicants had arrived at the police station in order to obtain an extension of the first applicant’s rifle permit upon the invitation of the police and had waited patiently for some two hours for the paperwork to be done. On 5 March 2003, two days before the incident, the first applicant had been issued with a psychiatric fitness certificate for the purposes of extending his rifle permit. Being informed about the confinement decision and ordered to comply with it immediately in these circumstances had been particularly unexpected. The appearance of manifest arbitrariness in this order was highlighted by the fact that M. F., who represented the psychiatric service, was the first applicant’s adversary in pending civil proceedings concerning the lawfulness of his previous psychiatric examination and diagnosis. 51.", "In refusing to comply with the order, the first applicant had acted in good faith and for the purpose of protecting his civil rights. He had only wished to contact the chief of the police department to obtain assurances as to the orders he had given to his subordinates and to consult his lawyer concerning his rights and obligations in the circumstances. Even assuming that the confinement decision had been lawful, the way the applicants protested against it had made application of any physical force at all excessive and degrading. 52. Finally, irrespective of the necessity of the application of force, the manner in which it had been applied to both applicants had been manifestly out of proportion and had amounted to inhuman treatment.", "The applicants had been of senior age and not athletes. They had never acted violently or intended to hurt or harm anyone. The incident had taken place on the premises of the police station, where the officers had been numerous and had had significant advantage in controlling the situation. Moreover, unlike the applicants, who had been caught by surprise, the officers and M. F. had had the opportunity to plan the operation in advance. In the meantime, the officers had acted in brutal and conscious disregard of the fact that they were inflicting injuries, if not out of a direct intention to harm the applicants (they punched, kicked and pushed the applicants and pressed a door against the second applicant to prevent her exit).", "The kicking of the first applicant had continued after he had been put in the ambulance car. Regard being had to all the above, the injuries sustained by both applicants could not be justified under Article 3 of the Convention. 53. The Government alleged that the decision to subject the first applicant to in-patient examination had been taken on reasonable grounds and in good faith. In particular, the authorities had received numerous complaints by his neighbours and fellow villagers concerning various instances of deviance and aggression on his part, including infliction of bodily injuries of medium severity on Mrs L. in 2000.", "On 20 February 2003 the Chief Psychiatrist had obtained a court decision authorising him to act at his discretion with regard to the first applicant’s hospitalisation. He had thus acted lawfully in taking the confinement decision and requesting the police officers’ assistance in enforcing it. 54. On 7 March 2003, when the applicants had arrived at the police station in connection with the extension of the first applicant’s rifle permit, the psychiatric service had been informed and M. F. had arrived in order to escort the first applicant to the hospital. The force applied in the applicants’ respect had not exceeded that which had been strictly necessary to enforce the legitimate hospitalisation order and overcome the applicants’ resistance.", "The applicants had been at fault for their own injuries, sustained primarily by banging against various objects, while the officers’ actions had been aimed exclusively at restraining them and ensuring the first applicant’s compliance with the hospitalisation order. These actions had been strictly proportionate to the need to place the first applicant in the ambulance car and deliver him to the clinic. The applicants had therefore not been subjected to ill-treatment contrary to Article 3 of the Convention. (b) The Court’s assessment 55. The Court observes that it is common ground between the parties to the present case that that the first applicant’s jaw was fractured and that both applicants sustained bruises, abrasions and other minor injuries on 7 March 2003 in connection with their confrontation with the police and M. F. The parties disagree as to whether the decision to apply physical force and the manner in which it was applied were justified under Article 3 of the Convention in the context of the applicants’ personal situation.", "56. The Court reiterates that according to its well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Allegations of ill-treatment must be supported by appropriate evidence assessed by the Court based on the standard of proof “beyond reasonable doubt” (see, as a recent authority, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX).", "(i) With respect to the first applicant 57. In the present case, no evidence was provided that the officers inflicted any injuries on the first applicant after they succeeded in placing him in the ambulance car. The Court therefore dismisses this allegation as unsubstantiated. 58. As regards the assessment of the force applied in order to put the first applicant in the car, the Court notes, first, that the type and severity of bodily injuries inflicted on the first applicant are not the only elements to be examined in deciding whether his treatment fell within the Article 3 ambit.", "59. In this regard the Court refers to the general principles established in its case-law and notes that where treatment or punishment is not connected with any physical injuries, it will fall within the Article 3 ambit if it provokes in the applicant suffering or humiliation beyond that inevitably connected with a given form of legitimate treatment or punishment (see, for example, Jalloh, cited above, § 68). What is essential for the measure to qualify as “degrading”, is the extent to which it arouses in its victim feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance, or driving him to act against his will or conscience (ibid.). It may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others (see, for example, Erdoğan Yağız v. Turkey, no. 27473/02, § 37, ECHR 2007‑III (extracts)).", "60. Thus, the Court has qualified as “degrading” a variety of coercive measures, whether lawful or arbitrary, where they were found to have been applied in a manner offensive to human dignity and without consideration for the victim’s particular situation and conduct. For instance, Article 3 was found to be infringed where, without sufficient security justifications, the applicants were placed in a metal cage separating them from the general public during a criminal trial against them (Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 99-102, 27 January 2009) or were subjected to unjustified public exposure in handcuffs (see, for example, Erdoğan Yağız, cited above, §§ 45-48, and Gorodnichev v. Russia, no. 52058/99, §§ 104, 108-109, 24 May 2007); where a strip search was conducted without a legitimate purpose (see, for example, Iwańczuk v. Poland, no.", "25196/94, § 59, 15 November 2001; Wieser v. Austria, no. 2293/03, § 40, 22 February 2007; and Malenko v. Ukraine, no. 18660/03, §§ 59-61, 19 February 2009); where the applicant’s hair was arbitrarily shaved as a part of disciplinary punishment for writing critical remarks against the State organs and his prison wardens (Yankov v. Bulgaria, no. 39084/97, §§ 117-122, ECHR 2003‑XII (extracts); or where the applicant detained in a sobering-up facility was forcibly undressed by three employees, including two of the opposite sex, and left for a period of ten hours in restraining belts (Wiktorko v. Poland, no. 14612/02, §§ 54-55, 31 March 2009).", "61. The Court notes next that the first applicant was placed in a psychiatric clinic against his will, a measure which can be deemed a serious interference with his physical and mental integrity and personal inviolability. On a number of occasions it has already ruled that forced medical interventions, while in principle justifiable, must be subjected to rigorous scrutiny under Article 3 of the Convention (see, mutatis mutandis, Herczegfalvy v. Austria, 24 September 1992, §§ 82-83, Series A no. 244). In deciding on the compliance of such measures with the above provision, the Court has examined, among other relevant factors, whether the preceding decision-making process afforded sufficient procedural guarantees to the applicant (see Nevmerzhitsky v. Ukraine, no.", "54825/00, §§ 94 -99, ECHR 2005-II; Jalloh, cited above, §§ 69, 76 and 82); Ciorap v. Moldova, no. 12066/02, § 89, 19 June 2007; and Kucheruk v. Ukraine, no. 2570/04, §§ 139 - 146, ECHR 2007‑X). 62. In the present case, the decision to confine the first applicant in the psychiatric clinic was taken unilaterally by a district psychiatrist, who appears not to have ever examined him in person.", "The first applicant was never given the opportunity to challenge this decision before its execution. On the contrary, according to his submissions, undisputed by the Government, the announcement of the confinement order caught the first applicant by surprise, as he had allegedly obtained a psychiatric fitness certificate two days before the events in question and reported to the police believing in good faith that he would obtain a rifle permit. Further, the first applicant was not afforded an opportunity to contact either the chief of the police department or his advocate before the measure was applied. The decision-making process leading to his confinement in the present case therefore lacked basic procedural safeguards, casting serious doubts concerning the therapeutic necessity for the measure at issue and even more serious doubts concerning the need for its forceful execution. 63.", "Conversely, a number of factors suggest that there was no urgent need to apply force to enforce the confinement decision with respect to the first applicant. In particular, the latter reported to the police of his own free will and behaved neither aggressively nor deviously before the confinement order was announced. It is clear from the case-file that he refused to get into the ambulance car and vigorously demanded access to his lawyer and the chief of the police department to protest against his confinement. However, it does not appear that he attempted to inflict any physical harm on anyone or to escape from the police quarters. In view of this, the Court considers that this case is to be distinguished from those where the applicants resisted violently when faced with a simple obligation to submit to the legitimate requirements of law enforcement officers - an obligation which is part of the general civil duty in a democratic society (see Berliński v. Poland, nos.", "27715/95 and 30209/96, § 62, 20 June 2002, and Barta v. Hungary, no. 26137/04, § 71, 10 April 2007). The Court further notes that it is unclear whether the police officers acted in good faith, given the information about the applicant’s alleged dangerousness, and to what extent they were bound by the psychiatrist’s request. In particular, the Government did not inform the Court whether any specific regulations in this respect existed. However, in the Court’s view, in the context of the situation, the manner in which they reacted to the first applicant’s demands for clarification concerning the legality of his confinement order, namely, by applying force to put him in the ambulance car, was manifestly disproportionate.", "64. The Court therefore finds that, regard being had to the gravity of the interference with the first applicant’s personal inviolability inherent in his confinement to the psychiatric clinic, the application of physical force in response to his attempts to clarify the legitimacy of the measure was capable of humiliating him to an extent that went beyond the threshold allowed by Article 3 with respect to forced medical procedures. It was therefore degrading. 65. Further, the Court considers that even in matters concerning the lawful application of force to counter resistance, State agents are responsible for reasonably planning their interventions in order to minimise potential injuries (see, mutatis mutandis, Rehbock v. Slovenia, no.", "29462/95, §§ 71-72, 76, ECHR 2000‑XII; R.L. and M.-J.D. v. France, no. 44568/98, §§ 66-73, 19 May 2004; and Kopylov v. Russia, no. 3933/04, §§ 162-165, 29 July 2010).", "In the present case, the Court takes note that both the psychiatric professionals and the police officers involved in the incident had time to plan their operation well in advance, including to prepare for potential violence and resistance on the part of the first applicant, who was allegedly in need of in-patient treatment on account of his aggressive and uncooperative behaviour. Further, the Court remarks that the confrontation took place on the premises of the police station, where the officers, specially trained in the art of combat, outnumbered the two applicants, who had no particular force or skills to resist them. The officers were placed in a considerably superior position in terms of controlling the situation. Based on the above considerations, the Court finds that, irrespective of whether the first applicant’s injuries were self-inflicted by banging against various objects, as argued by the Government, or inflicted by the police officers, as suggested by him, the Government have failed to show that these injuries could have been caused by an application of force which was appropriate in the circumstances. The Court therefore finds that the force used was disproportionate and amounted to inhuman and degrading treatment of the first applicant.", "66. The first applicant was therefore subjected to ill-treatment in breach of Article 3 of the Convention. (ii) With respect to the second applicant 67. The Court notes that the second applicant sustained bruises and other minor injuries as a result of her attempts to interfere with the actions of the police officers in the context of the forced hospitalisation of her husband. It considers that these injuries were sufficient to attract the applicability of Article 3 of the Convention as the violent reaction of the police which has to be seen in connection with the degrading treatment of the second applicant’s husband was clearly disproportionate.", "In assessing whether the State can be held responsible for the injuries at issue, the Court refers to its reasoning in paragraph 65 above and considers that the Government have failed to provide a plausible explanation releasing them from responsibility for the second applicant’s injuries. The force applied in respect of the second applicant therefore amounted to inhuman and degrading treatment. 68. There has therefore been a breach of Article 3 of the Convention in respect of the ill-treatment of the second applicant. 2.", "Concerning the effectiveness of the investigation (a) Submissions by the parties 69. According to the applicants, the investigation of their ill-treatment complaints lacked the basic requirements of effectiveness guaranteed by Article 3 of the Convention. It was not until two years after the incident of 7 March 2003 that the criminal proceedings were finally initiated (28 July 2005 with respect to the first applicant and 18 October 2005 with respect to the second). These delays could not but lead to the loss of valuable evidence. Furthermore, even following the institution of the proceedings, the investigation was superficial and the authorities have not been able to identify and punish those responsible for the applicants’ ill-treatment to this day, that is, more than seven years after the incident of ill-treatment.", "70. The Government disagreed. They alleged that the investigation was being carried out by the prosecutor’s office, which was independent of the authorities implicated in the incident. They further maintained that a number of investigative measures, including witness interviews, medical expert assessments and crime scene reconstructions had taken place, and that the authorities were doing everything in their power to establish the circumstances of the incident and to decide on the guilt and punishment of those (if any) responsible for the ill-treatment. (b) The Court’s assessment 71.", "The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation (see, for example, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). 72. As regards the circumstances of the present case, the Court notes at the outset that the applicants lodged their complaints about ill-treatment within several days of the incident. It further notes that the identities of the officials implicated in the acts of ill-treatment were specified in those complaints. In the meantime, the investigation, which has lasted more than seven years, has not led to a decision as to whether or not these officials should be held liable for their actions.", "73. The Court further notes that the investigation was discontinued on a number of occasions, as the prosecution was not able to detect evidence of ill-treatment. All of the decisions to discontinue the investigation were subsequently annulled by the higher prosecutorial or judicial authorities, as the prosecution had fallen short of employing all the means available to them to establish the relevant circumstances. In their relevant decisions the authorities expressly pointed to a number of measures which could have been taken, and noted that their previous instructions had not been fully complied with. In spite of this, on numerous occasions the investigations were again discontinued on essentially the same grounds as before and without further substantive measures being taken.", "74. The Court finds that the factual circumstances surrounding the investigation of the applicants’ ill-treatment complaints in the present case are similar to the situations in which it has found violations in a number of recent cases (see, for example, Mikheyev v. Russia, no. 77617/01, §§ 112‑113 and 120-121, 26 January 2006; Kozinets, cited above, §§ 61-62 and 65; and Kobets v. Ukraine, no. 16437/04, §§ 53-56, 14 February 2008). 75.", "In the light of the circumstances of the present case and its settled case-law, the Court concludes that in the present case there has been a violation of Article 3 of the Convention on account of the ineffective investigation of the applicants’ complaints about their ill-treatment in connection with the execution of the order for the first applicant’s hospitalisation. It follows that the Government’s admissibility objection (see paragraph 45 above) must be dismissed. 76. In light of all the above, the Court finds that there has been a breach of Article 3 of the Convention on account of the ineffective investigation of the applicants’ complaints about ill-treatment. II.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 77. The first applicant next complained under Article 8 of the Convention that he was subjected to a psychiatric examination on 15 June 2001 and diagnosed as suffering from chronic delusional disorder in violation of the applicable law. The provision at issue reads as follows: “1. Everyone has the right to respect for his ... private life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 78.", "The Government provided no comments concerning the admissibility of the first applicant’s complaint under Article 8 of the Convention. 79. The Court considers that the above complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Submissions of the parties 80. The first applicant submitted that both his examination on 15 June 2001 and his labelling as suffering from chronic delusional disorder as a consequence were unlawful. He maintained, in particular, that the outcome of his ensuing domestic civil proceedings was irrelevant, as the judicial authorities had failed to ensure a fair hearing and to state the grounds for applying section 11 of the Law “On Psychiatric Assistance” in his particular case, as well as to consider his argument that the procedure for his examination and establishing the diagnosis had been arbitrary.", "The courts’ conclusion that the assessment itself had been carried out properly was fully unsubstantiated. He also argued that Mrs L.’s letter could not be taken as a sufficient basis for subjecting him to a forced examination. Finally, he submitted that the brief informal conversation of which the examination consisted could not qualify as a formal psychiatric examination and a basis for diagnosing him with a serious mental disorder. 81. The Government disagreed.", "They accepted that the first applicant’s psychiatric examination constituted interference with his private life within the meaning of Article 8 of the Convention. They argued, however, that this interference was justified under paragraph 2 of the provision at issue. In particular, the assessment had been carried out based on Mrs L.’s complaints about the first applicant’s deviant behaviour, which had posed a threat to her own safety and the safety of others. These complaints had not been unsubstantiated; in particular, in June 2000 the first applicant had injured Mrs L. Other villagers had also complained to various authorities about the first applicant’s provocative conduct. The Government submitted in this regard copies of complaints concerning the first applicant’s conduct signed by various individuals and dated 2000 – 2003.", "In the light of this, the first applicant’s psychiatric examination had pursued a legitimate aim – namely, protection of the rights of others. It had been necessary in a democratic society and was conducted in accordance with the law. In particular, the relevant provision was section 11 of the Law of Ukraine “On Psychiatric Assistance”, authorising forcible psychiatric assessments of persons manifesting real intention to commit acts putting others in danger. Lastly, the Government submitted that the lawfulness of the application of that provision in the first applicant’s case had been confirmed by judicial authorities of two levels in the course of the contested proceedings. 2.", "The Court’s assessment 82. The Court has previously held, in various contexts, that the concept of private life includes a person’s physical and psychological integrity (see, for example, A v. Croatia, no. 55164/08, § 60, ECHR 2010‑...) and that mental health is a crucial part of private life (see, for example, Dolenec v. Croatia, no. 25282/06, § 165, 26 November 2009). In line with these principles, it finds that the first applicant’s examination by a psychiatrist from a State-run clinic in the present case and his diagnosis with a chronic delusional disorder constituted an interference with his private life.", "The fact of that interference is not disputed between the parties. 83. The Court further reiterates that an interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve the aim (see, as a recent authority, Guţu v. Moldova, no. 20289/02, § 65, 7 June 2007). The expression “in accordance with the law” refers, in particular, to a requirement of reasonable clarity concerning the scope and manner of exercise of discretion conferred on the public authorities (see Domenichini v. Italy, 15 November 1996, § 33, Reports 1996-V).", "84. In their submissions, the Government referred to section 11 of the Law of Ukraine “On Psychiatric Assistance” (see paragraph 43 above) as the legal ground for the interference and pointed to Mrs L.’s and other villagers’ letters as immediate grounds for considering the first applicant in need of psychiatric assistance. 85. The Court observes that the law at issue provides exhaustive grounds for subjecting an individual to examination by a psychiatrist (see paragraph 43 above). As follows from the analysis of the relevant text, these grounds are (a) the individual’s (or his representative’s) consent or request; (b) a court decision or (c) urgent necessity (in the event that the individual presents an imminent danger to himself or others).", "86. The Court notes that an analysis as to which of the above-mentioned grounds applied in the first applicant’s case is missing from the judgment of the Poltava Regional Court of Appeal, which had found that the examination was lawful (see paragraph 15 above). 87. The Court refers in this regard to the Government’s remark that the examination had been carried out on the basis of Mrs L.’s complaint to the Chief Psychiatrist of the Poltava Hospital concerning the first applicant’s deviant and harassing behaviour. It has not been suggested, either in the relevant court decision, in other case-file materials or in the Government’s observations, that the latter either requested or consented to the examination or that prior judicial authorisation was sought to carry it out.", "As regards the remaining ground for an examination established by section 11 of the Law “On Psychiatric Assistance”, that is, “urgent necessity”, an explicit reference to it in the case-file materials is likewise missing. Moreover, the Court notes that Mrs L.’s letter alleged a lasting pattern of behaviour (referring to a nine-year period), including swearing, arguing, photographing, eavesdropping, and so on. While she also referred to instances of physical violence, the only dated one concerned an incident which had taken place a year preceding her letter (in June 2000). Neither the domestic judicial authorities, nor the Government in their observations, suggested that any of Mrs L.’s complaints could be interpreted as denoting an “urgency,” which would dispense a psychiatrist from the obligation to seek the first applicant’s consent or prior judicial authorisation for his examination. As based on the available documents it is not possible to establish the exact legal ground for the first applicant’s psychiatric examination, the Court finds that the examination was not conducted in accordance with the law.", "88. The Court likewise notes that the domestic judicial authorities did not respond in any particular way to the first applicant’s arguments that the manner in which the examination was carried out (an informal conversation in the yard concerning his relations with his neighbours, which lasted between five (according to the applicant) and 25 (according to M. F.) minutes was not in conformity with applicable medical guidelines. The Court considers that analysis of the alleged procedural shortcomings of the applicant’s psychiatric examination was of crucial significance in the present case. The Government likewise did not provide any plausible explanation as to conformity of the procedural aspect of the applicant’s psychiatric examination with applicable law. The Court therefore considers that the establishment of the first applicant’s diagnosis was not in accordance with the law.", "89. These considerations are sufficient for the finding that there has been a violation of Article 8 of the Convention in respect of subjecting the first applicant to psychiatric examination against his will on 15 June 2001 and diagnosing him with chronic delusional disorder. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT ON ACCOUNT OF INSUFFICIENT REASONING IN THE JUDGMENT OF 30 APRIL 2002 90. The first applicant next complained under Article 6 § 1 of the Convention that the Court of Appeal had not stated sufficient reasons for reversing the judgment of 6 February 2002 and finding his psychiatric examination on 15 June 2001 lawful.", "This provision, insofar as relevant, reads as follows: “... In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...” 91. The Government contested this allegation. 92. The Court notes that this complaint is linked to the first applicant’s complaint under Article 8 and must therefore likewise be declared admissible.", "93. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case, regard being had to the Court’s findings under Article 8 (see paragraphs 85-88 above) concerning the lack of precision as to which legal provision served as the basis for the first applicant’s psychiatric examination, the Court considers that it is not necessary to examine the same facts also under Article 6 (see, mutatis mutandis, Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006). IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE FIRST APPLICANT’S ABSENCE FROM A HEARING OF HIS CASE ON APPEAL 94.", "The applicant also complained under Article 6 § 1 of the Convention that he had been unfairly denied the opportunity to participate in the hearing of his case against the psychiatrists on appeal either in person or through his lawyer on account of the failure of the Court of Appeal to notify him of the date of the hearing. A. Admissibility 95. The Government provided no comments concerning the admissibility of the above complaint. 96. The Court considers that the complaint at issue is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 97.", "The first applicant alleged that neither he nor his lawyer had been notified of the hearing of 30 April 2002. He noted that according to the applicable provisions of the Code of Civil Procedure, the Court of Appeal had been obliged to serve a subpoena on him or notify him of the hearing by registered mail. In the absence of a properly signed delivery slip, the court was obliged to adjourn the hearing. The case file did not feature any such delivery slip, while a reference in the transcript of the hearing to the effect that the first applicant had been duly informed of the hearing had been unspecific and unsubstantiated. Notwithstanding that the first applicant had availed himself of the opportunity to submit written objections to M. F.’s appeal, his absence from the hearing had deprived him of the opportunity to exercise important procedural rights, such as to ask and answer questions, respond to new submissions by the opponents and file requests.", "Consequently, he had been placed at a substantial disadvantage vis-à-vis his opponents. 98. The Government opposed this view. They submitted that under the applicable law an appeal hearing could be held in the absence of a party, in the event that he or she had been duly notified of its date and time. The first applicant had been so notified, as the transcript of the hearing showed.", "Moreover, the Court of Appeal had examined his written objections against M. F.’s appeal, and so it could not be said that the parties had been placed on an unequal footing. 2. The Court’s assessment 99. The Court reiterates that the principle of equality of arms – in the sense of a “fair balance” between the parties – requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).", "This principle would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007). This is especially so where the judicial authorities are expected, as in the present case, to determine factual issues, and where the applicant’s claim is, by its nature, largely based on his personal experience (see Salomonsson v. Sweden, no. 38978/97, § 39, 12 November 2002; Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007; and Shytik, cited above).", "100. Turning to the facts of the present case, the Court observes that, under the Code of Civil Procedure in force at the material time, parties to proceedings were entitled to participate in appeal hearings. The finding that a case was examined on appeal in the absence of a party not duly notified of the hearing was a ground for quashing the judgment on a further appeal in cassation. The Government have not presented any documents indicating when and how either the first applicant or his lawyer had been notified of the hearing of 30 April 2002. The Court considers that regard being had to the relevant provisions of the Code of Civil Procedure concerning notification of hearings (see paragraph 42 above), the general remark in the hearing record that the first applicant had been duly notified of it, on which the Government relies as the proof of such notification, is not sufficient to rebut the first applicant’s submissions (see Strizhak, cited above, §§ 38-41 and, by contrast, Shytik, cited above).", "101. The Court also notes that the appeal hearing at issue lasted for one and a half hours, during which the opposing party, represented by three persons, appears to have been afforded a substantial opportunity to present their oral arguments, including a description of the facts. Furthermore, the Court of Appeal admitted new evidence in the proceedings, on which the first applicant had not been able to comment before the bench (see paragraph 14 above). The hearing ended in a reversal of the first-instance court judgment, the Court of Appeal having reassessed not only the law, but also the facts of the case (that is, whether or not M. F. had duly conducted the psychiatric assessment; see paragraph 15 above). 102.", "Although the first applicant had had the opportunity to appeal against the judgment of 30 April 2002 on the points of law, the Supreme Court had rejected his request for leave to appeal in cassation without holding a hearing or providing any reasoning. 103. In the light of the above the Court considers that the first applicant’s absence from the hearing before the Court of Appeal was in breach of the principle of the equality of arms guaranteed by Article 6 § 1 of the Convention. 104. There has therefore been a violation of this provision in that respect.", "V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 105. The first applicant also complained under Article 6 § 1 of the Convention that the Supreme Court had not given any reasons for dismissing his request for leave to appeal in cassation and that the proceedings at issue had lasted an unreasonably long time. 106. Lastly, he complained under Article 10 of the Convention that he had been subjected to a psychiatric assessment on account of his deviant behaviour, which was part of his self-expression. 107.", "Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 108. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 109.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 110. The applicants claimed 400,000 euros (EUR) jointly in respect of non-pecuniary damage. 111. The Government maintained that this claim was exorbitant and unsubstantiated.", "112. The Court considers that the applicants have suffered anguish and distress on account of the violations found, which cannot be made good by the finding of these violations alone. It awards the first applicant EUR 15,000 and the second applicant EUR 2,000 in respect of non‑pecuniary damage. B. Costs and expenses 113.", "The applicants, who had also been granted legal aid, claimed EUR 2,000 in legal fees for their representation before the Court. 114. The Government noted that the applicants had not provided any documents in support of their claim. 115. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the fact that the applicants had been granted legal aid (EUR 850) and to the fact that they did not provide any evidence in support of their claim, the Court makes no award. C. Default interest 116. 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 the exhaustion of domestic remedies in respect of the applicants’ complaints under Article 3 of the Convention and dismisses it after having examined the merits of the complaint concerning ineffective investigation; 2.", "Declares the complaints under Articles 3, 6 § 1 (with respect to lack of reasoning in the judgment of 30 April 2002 and absence from the appeal hearing) and 8 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there have been violations of Article 3 of the Convention in respect of both applicants under the substantive and procedural limbs; 4. Holds that there has been a violation of Article 8 of the Convention in respect of the first applicant; 5. Holds that it is not necessary to examine separately the first applicant’s complaint with respect to the sufficiency of the reasoning in the judgment of 30 April 2002; 6. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the first applicant’s absence from the appeal hearing; 7.", "Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts in respect of non-pecuniary damage, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement: - first applicant – EUR 15,000 (fifteen thousand euros) - second applicant – EUR 2,000 (two thousand euros) plus any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]

[ "FOURTH SECTION CASE OF PIENIAK v. POLAND (Application no. 19616/04) JUDGMENT STRASBOURG 24 February 2009 FINAL 24/05/2009 This judgment may be subject to editorial revision. In the case of Pieniak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 3 February 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19616/04) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jerzy Pieniak (“the applicant”), on 3 October 2003.", "2. The applicant, who had been granted legal aid, was represented by Ms M. Wentlandt-Walkiewicz, a lawyer practising in Łodź. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs. 3. The applicant alleged, in particular, that he had been ill-treated by the police during his arrest and that no adequate and effective investigation into his allegations had been carried out by the authorities.", "4. On 11 January 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1966 and lives in Sieradz. A. The alleged ill-treatment of the applicant 6. On 18 September 2001 the applicant was arrested on charges of rape. He was transported to the Łuków Police Station and detained for 48 hours.", "His detention was subsequently prolonged for a further 24 hours. Upon his arrival the applicant was examined by a doctor, Z.M., who found only slight superficial scratches, at least some of which could have been caused by a struggle with another person. In addition, these scratches must have occurred several hours earlier. 7. According to the applicant the police officers abused him verbally when interrogating him and punched him in the stomach, chest, shoulders, face and arms.", "The Government did not respond to these allegations. 8. On 19 September 2001 the applicant was brought to the prosecutor’s office by two policemen, M.M and T.K. He was then questioned by the prosecutor. According to the applicant, he reported the alleged ill-treatment.", "The Government submitted that during the interview the prosecutor and the applicant were alone in the room. There was no note of the applicant’s complaint in the minutes of the interrogation. 9. On the evening of the same day the applicant felt weak and complained of stomach pain. At the applicant’s request, the police officer on duty called an ambulance.", "On arrival, the doctor, M.A., administered a painkiller to the applicant. She noted that the applicant had a small (2‑3 cm) bruise on his chest. He also complained about pain in his chest, ribs and stomach. 10. On 21 September 2001 the applicant was brought before the Łuków District Court.", "The court ordered that the applicant be remanded in custody. According to the applicant, he again complained about the alleged ill‑treatment. However, there is no note of the complaint in the minutes of the hearing. 11. On the same date M.M., a police officer from the Łuków Police Station, drew up an official report.", "The report reads as follows: “On 18 September 2001 J.P. [the applicant] was arrested in Celiny Szlacheckie, Stanin commune, on charges of raping E.C. On his arrest he was examined by a surgeon, Z.M., who did not observe any marks on his body apart from scratches on his neck and the upper part of his chest. On 19 September 2001 J.P was interrogated by the Łuków District Prosecutor. On the evening of that day he informed the police officer on duty in the Łuków Police Station, that he had been beaten by police officers. At his request the officer on duty called an ambulance and [he] was examined by a doctor.", "Today, during the Łuków District Court’s hearing regarding his detention, J.P. complained that he had been beaten by police officers while being questioned”. 12. Later that day the applicant was admitted to the Siedlce Detention Centre. On arrival the applicant had visible injuries, and was asked to explain their origin. He made a written note and stated that he had been subjected to ill‑treatment at the police station.", "He noted that the police officers had ordered him to keep his arms above his head and when his arms began to shake they had hit him and told him that they “would treat his neurosis”. Lastly, he stressed that he would be able to recognise the officers in question. 13. On 24 September 2001 he was examined by a doctor, P.S. In so far as relevant, the doctor’s report read: “Haematomas and bruises on both arms.", "Movement preserved. Haematomas and bruises on the left ribs. Bruises without oedema on the right eyelid. No changes to the eyeball.” B. The investigation into the applicant’s allegations 14.", "On 4 October 2001, as a result of the applicant’s complaint in the Sieldce Detention Centre, the Police commandant of the Łuków District initiated an internal investigation. 15. On 19 October 2001 T.Z., head of the criminal section of the Łuków police, was heard. He confirmed that he had been informed of the applicant’s allegations and had seen the applicant’s bruises. 16.", "On 30 October 2001 the prosecutor maintained that he had not seen any visible injuries on the applicant and the applicant had not complained about ill-treatment during the interview on 19 September 2001. 17. The internal investigation was discontinued on 5 November 2001 on the ground that the applicant was unable to identify the perpetrators. 18. On 8 October 2002, during the hearing held in the course of the criminal proceedings against the applicant, he testified that he had been beaten by police officers on 19 September 2001 following the interrogation at the prosecutor’s office.", "19. On 12 November 2002 the Łuków District Court convicted the applicant of rape. The judgment was upheld on appeal on a later unknown date. 20. On 16 December 2002 the applicant filed a complaint with the Łuków District Prosecutor about the actions taken by the police.", "21. On 17 February 2003 the prosecutor instituted an investigation into the applicant’s allegations. 22. On 12 March 2003 the prosecutor discontinued the criminal proceedings into the applicant’s allegations. The prosecutor held that, according to the information in the case file, the applicant had not been interrogated by police officers.", "In addition, the applicant himself agreed that the scratch marks on his arms, neck and chest had occurred when he had cut down bushes on his land. Furthermore, it did not appear from the doctors’ reports (including the report drawn up by the doctor in the Siedlce detention centre) that the applicant had been beaten. The prosecutor heard evidence from four police officers. They testified that they had not noticed whether the applicant had any abrasions. They also could not have ill‑treated the applicant because they had never interrogated him.", "The prosecutor heard evidence from M.A – the doctor who had examined the applicant on 19 September 2001. She testified that she did not remember whether the applicant had any abrasions or injuries. She had only prescribed tranquillizers, as the applicant was suffering from neuralgia. The prosecutor stressed that there was insufficient evidence to conclude that the applicant had been beaten up by the police. 23.", "The applicant appealed against this decision. On an unknown date the Regional Prosecutor upheld the first‑instance decision. The applicant filed an appeal with the Łuków District Court. 24. On 13 May 2003 the court refused to institute criminal proceedings against the police officers allegedly involved in the incident.", "The court held that there was no evidence that the applicant had been beaten by the police. In addition, the applicant had reported the alleged ill‑treatment for the first time only on 8 October 2002, when he testified before the Łuków District Court. Until that date he had never raised this issue, nor had he complained to the prosecution authorities. He had further filed an official notification of the commission of a crime on 16 December 2002. 25.", "On 21 August 2006 the applicant lodged a motion for the reopening of the proceedings concerning ill-treatment. He argued that additional documents should be considered in the proceedings, namely M.M.’s report of 21 September 2001 and his medical files from the Siedlce detention centre. 26. On 6 December 2006 the prosecutor reopened the proceedings. 27.", "On 7 March 2007 the prosecutor heard evidence from the doctor P.S., who had examined the applicant in the detention centre. The doctor considered that the applicant’s bruises had been unexceptional and could have occurred 3 to 5 days before the examination. In addition they could have been caused by squeezing or pushing away. The doctor stressed that had the applicant complained of ill-treatment he would have noted it in his medical records. 28.", "On 23 March 2007 the prosecutor discontinued the proceedings. He considered that the applicant had constantly changed his version of facts and that there had been no witnesses who could have described the situation. In addition, there was no medical evidence that the applicant had been subjected to ill-treatment and, lastly, there was a high probability that the injuries had occurred in the course of the [rape] victim’s self-defence. The prosecutor concluded that it was not possible to establish beyond doubt the factual circumstances in which the injuries had occurred. 29.", "It would appear that the applicant failed to appeal against this decision. II. RELEVANT DOMESTIC LAW AND PRACTICE 30. In so far as relevant, Article 16 of the Police Act of 6 April 1990, as applicable at the material time, provides: “1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures: (1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles; (2) truncheons; (3) water cannons; (4) police dogs; (5) rubber bullets fired from fire-arms.", "2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.” 31. Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police provides: “1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order. 2.", "When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against the life, health or property of others.” In so far as relevant, paragraph 6 of the Ordinance provides: “Handcuffs may be used ... in order to prevent an escape or to prevent an active assault or active resistance. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 32. The applicant complained that he had been ill-treated by the police following his arrest and that no adequate and effective investigation into his allegations had been carried out by the authorities. He relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 33.", "The Government contested that argument. A. Admissibility 34. The Government raised a preliminary objection that the applicant had not exhausted all available domestic remedies in respect of his allegations of ill-treatment. They argued that after the investigation had been discontinued for the second time the applicant should have lodged a complaint against the prosecutor’s decision of 23 March 2007. 35.", "Secondly, they alleged that the applicant could have lodged a claim with a civil court for compensation under Article 417 of the Civil Code. 36. The applicant replied that he had exhausted all available domestic remedies. He had complained about the decision to discontinue the investigation of 13 March 2003. He had further filed a motion for the reopening of the proceedings after they had been discontinued.", "37. The Court reiterates that the aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer to an international body for their acts. However, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that in cases where the national law provides for several parallel remedies in the sphere of both civil and criminal law, the person concerned, after a sustained but eventually unsuccessful attempt to obtain redress through one such remedy, must necessarily try all other means (see H.D. v. Poland, no. 33310/96, 7 June 2001, and Olszewski v. Poland (dec.), no.", "55264/00, 13 November 2003). 38. The Court notes that the applicant appealed the decision to discontinue the investigation of 12 March 2003. In addition he filed a motion for reopening of the proceedings (see paragraphs 23 and 25 above). The Court does not therefore consider that, after the prosecuting authorities had discontinued, for the second time, the investigation instituted at the applicant’s request, he was still required to use further remedies in order to fulfil his obligation under Article 35 § 1 (see, mutatis mutandis, the decision in the H.D.", "case, cited above). 39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Alleged ill-treatment by the police (a) The parties’ submissions 40. The applicant submitted that during the police interrogation on 18 and 19 September 2001 police officers had beaten him in order to obtain a confession. They had punched him in the stomach and also slapped his face.", "As a result he had suffered a swollen and bruised eye, his nasal septum was broken and he had injuries to the chest and stomach. He submitted that there had been a violation of Article 3. 41. The Government maintained that the applicant had not been subjected to treatment contrary to Article 3 of the Convention. They submitted that there was no evidence that the applicant’s injuries were caused by misconduct on the part of the police officers.", "In addition, the evidence had led to the conclusion that the applicant’s injuries had been inflicted by the rape victim, who had tried to defend herself during the assault. 42. In any event, the Government submitted that the injuries suffered by the applicant did not fall within the scope of Article 3. In their opinion the scratches and bruises complained of by the applicant could not be considered sufficiently serious to have amounted to ill-treatment contrary to Article 3. 43.", "In conclusion, the Government submitted that no substantive violation of Article 3 had occurred in the present case. (b) The Court’s assessment 44. The Court reiterates that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). Where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no.", "241-A, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 45. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).", "However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).", "46. The Court further reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, p. 65, § 162). 47. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch, cited above, § 38).", "Thus, the burden rests on the Government to demonstrate with convincing arguments that the use of force which resulted in the applicant’s serious and numerous injuries was not excessive (see, mutatis mutandis, Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000-XII, and Matko v. Slovenia, no. 43393/98, § 104, 2 November 2006 48. Turning to the circumstances of the present case, the Court observes that the applicant sustained visible injuries such as haematomas and bruises, established by a medical examination (see paragraph 13 above). The degree of bodily harm indicates that the applicant’s injuries were sufficiently serious to amount to inhuman and degrading treatment within the scope of Article 3 (see, for example, Afanasyev v. Ukraine, no.", "38722/02, § 61, 5 April 2005). It remains to be considered whether the State should be held responsible under Article 3 for these injuries. 49. The Government submitted that the applicant’s injuries could have been caused by the struggle with the victim and that the medical experts could not categorically establish the origin of the applicant’s injuries. In contrast, the applicant claimed that he had been beaten by police officers in order to obtain a confession.", "50. The Court notes that in the proceedings instituted following the applicant’s allegations of ill-treatment, the public prosecutors maintained that there had been insufficient evidence to conclude that the applicant had been beaten up by the police. Furthermore, there was a probability that the injuries had occurred in the course of the rape victim’s self-defence. 51. The Court notes that, although the medical reports established conclusively the presence of injuries on the applicant’s body, they did not determine the exact time that they were sustained (see paragraphs 9 and 13 above).", "52. In the instant case, it does not appear from the documents contained in the case file that the injuries found on the applicant’s body had been sustained prior to his detention in police custody. In this connection, the Court observes that the applicant was examined on his arrest by a doctor, who observed only superficial scratches on the applicant’s body (see paragraph 6 above). When he was admitted to the detention centre three days later, his injuries were so visible that he was asked to explain their origin (see paragraph 12 above). 53.", "In the light of the foregoing, the Court reiterates that a State is responsible for the welfare of all persons held in detention. Such persons are in a vulnerable situation and the authorities have a duty to protect them. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control, the Court considers that the Government have failed to provide a plausible explanation of how the applicant’s injuries were sustained. It therefore concludes that the injuries in question were the result of treatment for which the Government bore responsibility. 54.", "There has accordingly been a substantive violation of Article 3 of the Convention. 2. Adequacy of the investigation (a) The parties’ submissions 55. The applicant maintained that the investigation into his allegations had not been effective and thorough. He stressed that although he reported the incident for the first time in September 2001, an investigation had only been instituted when he filed an official complaint on 30 December 2002.", "56. The Government did not agree. They considered that the investigation into the applicant’s allegations had been thorough, effective and capable of leading to the identification and punishment of those responsible. The fact that the investigation had eventually been discontinued was not tantamount to a violation of the Convention. They stressed that the applicant’s allegations had been investigated in three separate sets of proceedings.", "An internal police investigation had been conducted in October 2001. Subsequently, the prosecution authorities had examined the allegations on two occasions. One of these decisions had been reviewed by the Łuków District Court on 15 May 2003. (b) The Court’s assessment 57. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 58. The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq.).", "They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, Tanrıkulu v. Turkey [GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. 59.", "Turning to the circumstances of the instant case, the Court notes that following the applicant’s complaint the public prosecutor carried out an investigation. It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3. 60. The Court observes that the applicant informed the authorities of the alleged ill-treatment for the first time on 21 September 2001. However, the investigation was instituted only in February 2003 (see paragraph 21 above).", "In addition, during the first stage the prosecution authorities did not consider all available evidence and, on the applicant’s motion, the investigation was reopened (see paragraph 26 above). In this respect the Court notes that doctor P.S., who examined the applicant on his admission to the detention centre, had been heard only in March 2007, that is, five and a half years after the examination. 61. The Court further observes that there was a series of delays in the investigation, the total duration of which cannot be reasonably justified. These delays in the investigation significantly diminished the prospect of its success and completion.", "62. Having regard to these numerous flaws and omissions, the Court finds that no effective investigation was carried out into the applicant’s allegations of ill-treatment. Accordingly, there has been a violation of Article 3 of the Convention on that account. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 65. The Government contested this claim.", "66. The Court awards the applicant EUR 10,000 in respect of non‑pecuniary damage. B. Costs and expenses 67. The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, did not claim any sum for costs and expenses.", "C. Default interest 68. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the ill-treatment of the applicant; 3.", "Holds that there has been a violation of Article 3 of the Convention as regards the absence of an effective investigation into the applicant’s allegations of ill-treatment; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF JUCHA AND ŻAK v. POLAND (Application no. 19127/06) JUDGMENT STRASBOURG 23 October 2012 FINAL 23/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jucha and Żak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 19127/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Ms Dorota Jucha (“the first applicant”) and Mr Tomasz Żak (“the second applicant”), on 21 April 2006. 2. The applicants were represented by Mr B. Filar, a lawyer practising in Tarnów. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.", "3. The applicants alleged that their conviction for defamation had been in breach of their right to freedom of expression. 4. On 13 July 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1975 and lives in Tarnów. The second applicant was born in 1955 and lives in Lisia Góra. The first applicant is a journalist working for TEMI, a local weekly newspaper published in Tarnów.", "The second applicant is the editor-in-chief of that weekly. 6. TEMI published a series of six articles entitled “Marek C. in episodes” which were written by the first applicant. Marek C. [M.C.]", "was a local councillor and vice-chairman of the Tarnów Municipal Council. In the issue of 28 January 2004 the weekly published the first article about M.C. It began as follows: “M.C. is certainly a colourful character. This Tarnów councillor, serving his third mandate on the municipal council, tried to become the President of Poland and a member of the Senate.", "Currently, he is involved in many court cases and is again becoming the subject of scandals. Everyone remembers well that at the beginning of winter Councillor C. was involved in the eviction of two pregnant women from a flat located at ... Street in Tarnów. Everyone also remembers the explanation of C. who described one of the evicted women as running a shebeen and suggested that she together with her daughter were women of easy virtue. ... People don’t want to speak about C. And if they do, they speak about him as if he were dead – either well or nothing. Otherwise they risk to be taken to court and charged with defamation or breach of his personal rights.", "The list of persons who have met him in a courtroom is long and new names appear on it all the time. ...” In the subsequent part of the article the first applicant described M.C.’s career as a local politician. Basing herself on information received under conditions of anonymity from M.C.’s former collaborators and fellow councillors, she portrayed him as an overbearing, self-centred and ruthless person. She further stated that M.C. had been involved in many, mostly unsuccessful, political ventures and after every lost election he created a new political grouping.", "7. In the issue of 4 February 2004, the weekly published the second article in the series. It read as follows: “For years the activity of M.C. has been based on balancing on the edge of the law, and even on breaking it. C. is most frequently accused of denigrating people and undermining their authority and of disseminating untruthful information about them.", "This includes information which suggests corruption links between people whom C. dislikes for reasons exclusively known to him. And that is how the articles and paragraphs of the Criminal Code which are being breached by councillor C. – without much notice on his part – proliferate. Colleagues on the [municipal] council People still don’t want to speak about C. Are they afraid? Of what? Z.J., formerly for many years chairman of the Tarnów Municipal Council, refused to speak.", "Similarly, J.R., former mayor, did not want to say anything. (...) However, A.K., the current chairman of the Municipal Board spoke: “M.C. is a very touchy person, often he does not weigh his words. Even if a mild opinion is expressed about him, he still considers himself to be offended. At the same time he uses words which in the language of people with at least a minimum of good manners are considered inappropriate.", "I said already once to Mr C. that his character was not oriented on construction, but on destruction. (...)” Mayor M.B. does not want to comment on councillor C.’s behaviour. He says that not because he is afraid, but because he thinks that there is nothing to comment on: “Cooperation with this councillor is entirely out of the question. From his part there is only constant criticism, attack, and most frequently without any order, repetition of the same arguments.", "Mr C. criticises everything and all the time. ... Desk for the councillor M.C. has ambitions and plans. He wants to become the President of Poland, or mayor of Tarnów, or a member of parliament.", "And if there are no elections, then he applies for the job of director of the Żabno Cultural Centre. There also without success. Everywhere and on every occasion he promises something. Up to now it would be difficult to find in his CV any positive achievements or just partial fulfilment of his various promises, including the electoral ones. Sometimes C. attempted to get other “inferior” positions, compared to a chair in the presidential palace.", "For example, the mayor’s plenipotentiary for the establishment of a university in Tarnów. It was being said that an agreement on the taking of this position by C. would be one possible way of calming the political excesses of the councillor. He did not get the position. Unofficially it was being said that similar arguments [were raised] when C. attempted to get another job, namely that of deputy head of the municipal police in Tarnów. This also failed.", "... And could it be that his venomous aversion to the media, and in particular to the largest weekly in the region, is the result of its refusing his offer to become the editor in chief of the paper, or is that just a coincidence? Councillor – offender? Recently C. again lost a court case; this time against a journalist of the local Radio Maks, M.K. The case concerned allegations made by councillor C. against the Tarnów radio journalist. It is interesting that despite having found C. guilty and additionally ordering him to pay PLN 500 to a children’s home, the court conditionally discontinued the proceedings for a probationary period of one year, not sentencing him.", "A sentence for Marek C. would have meant the loss of his position as a councillor. That was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. As a consequence of the breach of the electoral law, the Warsaw Regional Court ordered the forfeiture of some donations paid to C.’s electoral committee. The apex of the offending activities (apogeum przestępczych poczynań) of Marek C. was the recent disclosure of confidential information from court proceedings instituted against C. by Radio Maks.", "It turns out that the hearing was conducted in private. “Dissemination of any information from such a hearing without authorisation is an offence under Article 241 § 2 of the Criminal Code. This offence entails mandatory prosecution and is subject to a penalty of imprisonment not exceeding two years, a fine or a restriction of liberty” B.O., spokesperson for the Tarnów prosecution service, told TEMI. The information that a hearing is conducted in private is announced at the beginning of the hearing by a judge who is also required to inform the persons present at the hearing of the penalties to which they would be liable for dissemination of information obtained that way. We are in the possession of a document made publicly available by C. in breach of the law; he also does so on the internet site of his grouping, which has the surprising name – in the context – of “Honesty”.", "Our requests for a discussion about all court cases in which M.C. is involved were rejected by the main party concerned.” 8. The article was accompanied by excerpts from a statement of the Tarnów Municipal Council of 11 September 2002 which was signed by 34 councillors. It read as follows: “It is in the public good of the inhabitants of the city of Tarnów that they learn about the arrogance and dishonesty of the local councillor, Mr M.C. A person who does not respect the dignity of a fellow human being is not worthy of holding such a prestigious position as councillor.", "The Tarnów Municipal Council strongly disapproves of the behaviour of councillor M.C. who constantly offends other councillors, lowers their dignity and thus grossly violates moral norms and the obligations of a councillor.” 9. On an unspecified date in 2004 councillor M.C. lodged with the Tarnów District Court a private bill of indictment against the applicants, charging them with defamation under Article 212 §§ 1 and 2 of the Criminal Code. He referred to TEMI’s issue of 28 January 2004 in which the first part of the article “Marek C. in episodes” with the statement “we will find out next week whether he may be referred to as an offender” was published.", "He also referred to the issue of 4 February 2004 in which the second part of the article was published and included the statements “recently C. again lost a court case; this time against a journalist of the local Radio Maks, M.K (...) that was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. (...) The apex of the offending activities of Marek C. was the recent disclosure of confidential information from court proceedings instituted by Radio Maks against C.” M.C. alleged that the applicants had insinuated that he was an offender. These statements had lowered him in the eyes of the public and undermined the public confidence necessary for the discharge of his duties as a councillor and vice-chairman of the Tarnów Municipal Council.", "10. In the proceedings before the trial court the first applicant stated that as a journalist she was entitled to write a critical article about M.C. and that the charge against her was groundless since she had put a question mark on the statement concerning the offending activities of the councillor. She and the second applicant had had information from the radio journalist M.K. about the criminal proceedings against M.C.", "which had been conditionally discontinued. The first applicant further stated that the article was reliable since the spokesperson for the prosecution service had stated that disclosure by a private prosecutor of information originating from a hearing held in private constituted an offence. 11. The editor-in-chief (the second applicant) corroborated at the trial the statements of the first applicant. He stated that the impugned article was not the first material about MC.", "indicating that his behaviour had been bordering on an offence. M.C. had been a defendant in many court cases and had participated in the eviction of two pregnant women. The second applicant emphasised that the impugned article had not contained the term “offender” but “offending activity”. 12.", "On 24 June 2005 the Tarnów District Court gave judgment. It convicted the applicants of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. It held that on account of the publication in the issue of 4 February 2004 of the article “Marek C. in episodes (2)” the applicants had alleged that M.C. had broken the law and that his actions had been of an offending nature. The applicants were each sentenced to a fine of PLN 500 (aprox.", "EUR 125). 13. The District Court found as follows: “Having regard to the established facts it is reasonable to assume that the acts of the accused Dorota Jucha and Tomasz Żak matched the features of the offence of defamation in its aggravated form specified in Article 212 § 2 of the Criminal Code. In the light of the wording of Article 212 it is generally prohibited to speak badly about another person without a legitimate interest, and the allegation levelled is an imputation when it concerns the behaviour of the defamed person or his characteristics and amounts to imputing to such a person the commission of an offence or failure to fulfil his duties. The entire significance of the article entitled “Marek C. in episodes (2)” published on 4 February 2004, which may be summarised by reference to its subtitle “Councillor – offender?” came down to quoting a sequence of events which were to present the private prosecutor as an offender (przestępca).", "Speaking of somebody as an offender has a clearly pejorative meaning for public opinion; it may even be said to be “utterly disgraceful”. The fact that the allegation was not categorical, and that in the present case the subtitle Councillor – offender was followed by a question mark, is not relevant so far as concerns the features of the offence of defamation (as submitted in particular by Dorota Jucha). (...) The information disseminated by the accused Dorota Jucha and Tomasz Żak was objectively capable of lowering the private prosecutor in the eyes of public opinion and undermining public confidence in his capacity for a given position, occupation or type of activity. Although an imputation does not have to be based on a concrete fact and may take the form of a generalised assessment of another person, the article “Marek C. in episodes (2)” included information which was intended to give the impression that the private prosecutor’s activity could be considered offending. The statements included in the article were either untrue (which is relevant to the question whether the accused can rely on the defence of justified criticism) or even if completely true they were distorted in such a way that we may not speak of fair reporting, and thus the “rightness” of the accused’s behaviour.", "Assessing the particular fragments of the publication it should first be stated that the State Electoral College’s rejection of a financial report from the presidential campaign in which M.C. had actively participated was meant to be evidence of the [private] prosecutor’s offending activity (przestępcza działalność). The following words were put under the subtitle Councillor – offender: “that was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. The Warsaw Regional Court ordered the forfeiture of some donations paid to C.’s electoral committee.", "The apex of the offending activities of Marek C. (apogeum przestępczych poczynań Marka C.)...”. In this context the implication of the article is that M.C. committed the offence of breaking the provisions of the electoral law. This allegation is not true. In the light of the quoted judgment [of the Supreme Court] M.C.", "is not an offender because he was not convicted under the said law [Law of 27 September 1990 on Elections of the President of the Republic of Poland], it was not “his” financial report but the report of his electoral committee that had been rejected, which is a sanction of an administrative and not of a penal nature, and the forfeiture of some donations has nothing to do with forfeiture as a penal measure under the Criminal Code and is a civil-law consequence of the breach of the electoral law. Thus, to say that those activities have the features of an offence departs from the truth. In speaking of the apex of the offending activities of Marek C. the accused were imputing to him an offence under Article 241 of the Criminal Code [unauthorised disclosure] having no grounds to do so, since at that time no proceedings which could give rise to a reasonable suspicion [that M.C. had] committed [that] offence were pending. Although it was objectively true that the private prosecutor had written a letter to the president of Radio Maks in which he referred to the circumstances regarding the pending criminal proceedings conducted in private, the statement that that act was an offence constituted an imputation within the meaning of Article 212 of the Criminal Code.", "(...) It is a court which decides whether the law was broken, and whether an offence was committed. The accused when formulating [their] categorical statement invoked in its support a declaration by B.O., spokesperson for the Tarnów prosecution service, who set out the legal characteristics of the offence specified in Article 241. The information conveyed [by the accused] with reference to the [private] prosecutor’s behaviour which was said to constitute “the apex of the offending activities”, while relying on the unquestionable authority of the prosecution service, distorted the conditional and merely informative nature of the spokesperson’s declaration, [thus] giving the impression that the [private] prosecutor had committed that offence. As regards the statement contained in the article “recently C. again lost a court case”, which referred to the judgment in which the District Court conditionally discontinued proceedings against Marek C. in respect of one of the charges, it should be noted that the offence [of defamation] may either take the form of making untrue allegations or distorting true circumstances. Although there is no doubt that at a certain stage of the proceedings such a judgment was indeed given (it was not yet final then), the form in which that information was presented immediately after the subtitle “Councillor – offender?” distorts the nature of the conditional discontinuation of the proceedings.", "A judgment conditionally discontinuing the proceedings is not a conviction. Even accepting the truthfulness of this allegation, the actions of the accused Dorota Jucha and Tomasz Żak could have corresponded to the features of adefence specified in Article 213 § 2 of the Criminal Code only in so far as the making of that allegation could have been justified from the point of view of the right to criticism. The criteria which should be met by such criticism were indicated in the Supreme Court’s judgment of 28 September 2000 (...). [The criticism] should be socially justified and desirable, be made in the public interest and be fair and accurate. However, fairness and accuracy were missing from the information presented by the accused in their article, although as journalists they were under the duty referred to in section 12 § 1(1) of the Press Act to act with particular diligence.", "This is shown by the lack of objectivity in the information presented, partiality, inaccuracy, the creation of a particular psychological atmosphere surrounding the publication or at least the incomplete presentation of the circumstances of the case resulting from failure to state that the impugned judgment was not final, [and] that the conditional discontinuation concerned one of the charges, while in respect of other [charges] the private prosecutor was acquitted.” 14. The applicants appealed, arguing that they had acted in the public interest when publishing the article about the local councillor. They emphasised that the term “offending activities” had been used in the broader sense of “breaking the law” and not in the legal meaning of the word “offending”. They were aware of the provocative nature of the statement “Councillor – offender” but had weakened it by placing a question mark after it. They had exercised their journalistic freedom, which allowed them to have recourse to some degree of exaggeration.", "Further, they submitted that the District Court had admitted some of the evidence but failed to take other evidence into account, namely articles from the German press concerning M.C.’s travelling abroad with his daughter without the mother’s consent and the District Court’s judgment in case no. II K 807/03 convicting the applicant of defamation in respect of the Tarnów cable television and its journalists. 15. On 7 October 2005 the Tarnów Regional Court upheld the first‑instance judgment. The applicants were ordered to reimburse the costs of the appeal proceedings in the amount of PLN 50.", "16. The Regional Court considered in turn the allegations made about the private prosecutor by the accused. As regards the court case brought by a local radio journalist against M.C., the Regional Court noted that by a judgment of the Tarnów District Court of 15 January 2004 M.C. had been found guilty of defamation and that the court had conditionally discontinued the proceedings. However, the applicants had failed to state that the judgment was not final.", "On appeal M.C. had been acquitted of defamation. 17. As regards the rejection of the financial report, the Regional Court observed that the decision of the Warsaw Regional Court on forfeiture of some electoral donations had not established the personal responsibility of M.C. in this respect or that an issue of his criminal responsibility had arisen.", "18. Subsequently, the Regional Court assessed the statement about “the apex of the offending activities of Marek C.” which had been made in the context of unauthorised disclosure of information from the defamation proceedings brought by a journalist of Radio Maks against M.C. The information at issue was a statement made by the chairman of Radio Maks (K.Ł.) during a hearing held in private. The Regional Court found that the statement of the chairman concerned only M.C.’s involvement with that radio and as such had been of marginal importance.", "However, the applicants had presented it as the apex of M.C.’s offending activities. 19. The Regional Court found, in so far as relevant: “That offending activity amounts then to one not final judgment finding the private prosecutor guilty in respect of one charge in case no. II K 374/03, the rejection of C.’s financial report from the presidential campaign and, in effect, the fact that C. had quoted a certain statement made by witness K.Ł. at the hearing in case no.", "II K 374/03. In the Regional Court’s view the [alleged] offending activity of the private prosecutor in this case was not really presented. Counsel has referred in his appeal to articles from the German press, which indeed depict the [private] prosecutor in an exceptionally negative light. However, it should be noted that this case was not at all mentioned in any of the articles published at that time about the private prosecutor. Counsel subsequently evoked the final judgment of the Tarnów District Court in case no.", "II K 807/03 where the private prosecutor, appearing as a defendant, was eventually found guilty of having committed an offence under Article 212 §§ 1 and 2 of the Criminal Code. However, it should be remembered that this judgment was given only in May 2004, and became final on 19 November 2004. Thus, at most the defendants were entitled to mention in their article the fact that another set of criminal proceedings against the private prosecutor was pending, but that is not what they did. However, constructing on that basis a thesis that the defendant [M.C.] carries out offending activities would clearly be at least premature.", "(...) The assertion of the defendants that first the statement “offending activities” is much milder than the statement “offence” because it implies a certain supposition, and that moreover that term is supposed to have not only a legal but also a common meaning (as it concerns lawbreaking not necessarily established in a judgment of the criminal court) is a false thesis. Such a statement explicitly indicates that the [private] prosecutor committed offences, and that he had been found guilty of them by a final court decision or even final court decisions, if in effect the accused used the phrase “the apex of the offending activities”. However at that time ... the private prosecutor had not been found guilty of any offence (obviously by a final judgment). The statement that the [private] prosecutor again lost in court against M.K. already indicates that earlier (even leaving aside the fact that the judgment was not final) he had lost some criminal cases.", "The subtitle “Councillor – offender?” used by the accused in the articles should be recalled in this respect. The question mark, which was supposed to diminish the significance of that statement ... in the context of subsequent information concerning the [private] prosecutor, was in fact merely a technique of social engineering suggesting that the accused was only putting the question whether C. was an offender without prejudging the above. However, statements which they used in the subsequent part of the article had the de facto effect that they instantly provided answers in this respect. Moreover for the offence of defamation a categorical form [of statement] about some dishonourable fact is not necessary. ...", "There is no doubt that the accused in the present case did not display accuracy in gathering material concerning the private prosecutor (at least in respect of the impugned article). The information could have been verified as true or false. By employing the term “offending activities” the accused resorted to abuse and untruth. Journalistic freedom includes the possibility of resorting to exaggeration, or even provocation. The right to free expression is one of the basic human rights.", "It is guaranteed by the European Convention on Human Rights (Article 10) and the Constitution of the Republic of Poland (Article 54). The freedom of the press is a main aspect of that right. It is one element of an effective democracy (public scrutiny). However, the right to criticism and free expression may not be transformed into imputations against anyone, including a politician. ...", "The limits of criticism as regards politicians and their actions are definitely wider than in respect of other persons. However criticism is not unlimited. It is one thing to consider inappropriate public or private behaviour of the [private] prosecutor, but in the case where de facto a conclusion is formed that the [private] prosecutor is in reality a person having problems with the law, an offender with a significant record of criminal cases (the court returns once more to the expression “the apex of the offending activities”), we cannot speak of acceptable criticism assessing that term in the context of freedom of expression. ... The right to criticism as regards persons holding public functions cannot be exercised in such a manner as to infringe the good name or reputation of the criticised person (judgment of the Supreme Court of 28 March 2003, IV CKN 1901/00)...”.", "20. The Regional Court’s judgment was served on the applicants’ lawyer on 2 November 2005. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant provisions of the Criminal Code 21.", "Article 212 provides in so far as relevant: “§ 1. Anyone who imputes to another person, group of persons, institution, legal person or organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year. § 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.” Article 213 provides as follows: “§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.", "§ 2. Whoever makes or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life evidence of truth shall only be admitted when it serves to prevent a danger to someone’s life or to protect the morals of a minor.” B. The Constitutional Court’s judgment of 30 October 2006, case no. P 10/06 22. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 read in conjunction with Article 31 § 3 of the Constitution.", "The court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy may prevail over the protection of freedom of expression. The court further found that there was no basis to assume that the protection of freedom of expression merely by means of the civil law (provisions on personal rights) would be as equally efficient as its protection through the criminal law. Protection of freedom of expression by means of the criminal law did not of itself infringe the relevant provisions of the Constitution. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23.", "The applicants complained that the court judgments in their case had violated their right to freedom of expression. They submitted that they had diligently collected material for their article and had published only information which they had believed to be true. The applicants relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, in particular on the grounds of non-exhaustion in respect of a constitutional complaint on which point the parties expressed similar views.", "The application must therefore be declared admissible. B. Merits 1. The applicants’ submissions 25. The applicants argued that the judgments given by the domestic courts had violated Article 10 of the Convention.", "They were accused of defamation for having published critical articles about a local councillor in which they had exposed his reprehensible behaviour. Despite the fact that all of the information presented by the first applicant in her articles was true, the applicants were sentenced for having used the term “offending activities” which did not have a precise meaning in the Polish language. Furthermore, the legal meaning of the word “offender” was different from its meaning in the ordinary language. 26. Journalists had to be protected when publishing information on matters of public interest provided they acted in good faith and based themselves on reliable information.", "The first applicant had collected material for her articles in a diligent manner and had only used information which she believed to be true. 27. The applicants maintained that public criticism was an important element of a successful democracy. In a democratic system control of those in power was exercised not only by a political opposition but also by public opinion shaped by the press. It was not only the right, but also the obligation of the press to exercise such public control.", "The judgments of the domestic courts had violated Article 10 since journalists who had fulfilled their duties were found guilty of defamation. 2. The Government’s submissions 28. The Government argued that the interference with the applicants’ right to freedom of expression had been compatible with the terms of Article 10. The interference was prescribed by law, being based on Article 212 of the Criminal Code, and pursued a legitimate aim, namely the protection of the reputation or rights of others.", "It was also “necessary in a democratic society”. Furthermore, the reasons advanced by the domestic courts were relevant and sufficient to justify the interference. 29. They underlined that the series of articles published by the applicants had contained both value judgments and statements of fact, and that the truth of the latter statements could have been verified. Their veracity was questioned by the councillor M.C.", "who succeeded in proving that the allegations had been untrue. This transpired from the Tarnów District Court’s judgment of 24 June 2005. In addition, the councillor did not question the entirety of the applicants’ articles but only particular factual statements. 30. The Government submitted that the national legislator had decided to prevent the dissemination of untrue information by means of the criminal law.", "In view of the margin of appreciation accorded to the State, a criminal measure as a response to defamation could not, as such, be considered disproportionate to the aim pursued. Furthermore, the sanctions imposed on the applicants (a fine in the amount of 500 PLN for each applicant) had been rather symbolic. The mere fact of imposing criminal sanctions on the applicants could not be seen as a violation of their freedom of expression. 31. Referring to the Court’s case-law, the Government further argued that journalists could not claim under Article 10 that they were exempt from the duty to obey the provisions of the domestic law.", "The judgment against the applicants had not been delivered in order to deter them from contributing to public discussion on issues affecting the life of the community, but to make them obey the rules of reliable debate and the ethics of journalism. 32. The Constitutional Court in its judgments in cases nos. P 10/06 (30 October 2006) and SK 43/05 (12 May 2008) underlined the importance of freedom of expression in a democratic society, while stressing that the dignity of an individual had also to be protected by the authorities. In the case of conflict between freedom of expression and the right to private life, the latter could prevail over the former.", "The Constitutional Court further held that protection of one’s reputation and good name, which were inextricably linked with the dignity of a person, by means of the criminal law did not of itself infringe the relevant provisions of the Constitution. Civil sanctions could be sufficient if they made it possible to re-establish the previous state of affairs. However, the consequences of the infringement of one’s good name could not be reversed and subsequent apologies could not eradicate the fact of the infringement. The Government lastly noted that the criminal proceedings in the applicants’ case had at their origin a bill of indictment lodged by a private individual, the victim, and not by a public prosecutor. 33.", "In the Government’s view, the applicants had overstepped the limits of criticism acceptable in a public debate since they had disseminated – as established by the domestic courts – untrue factual assertions about the councillor. Accordingly, the intervention of the domestic courts was necessary in order to react appropriately to defamatory accusations devoid of any foundation or formulated in bad faith. In conclusion, the interference at issue could be considered necessary in a democratic society for the protection of the reputation or rights of others. 3. The Court’s assessment 34.", "It was common ground between the parties that the applicants’ conviction and punishment constituted an interference by a public authority with their right to freedom of expression. 35. Such interference will be in breach of Article 10 if it fails to satisfy the criteria set out in its second paragraph. The Court must therefore determine whether it was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” to achieve that aim or aims. 36.", "The Court finds, and this has not been disputed, that the interference was “prescribed by law”, namely by Articles 212 and 213 of the Criminal Code. It further pursued the legitimate aim of protecting “the reputation or rights of others”. 37. It remains to be established whether the interference was “necessary in a democratic society”. This determination must be based on the following general principles emerging from the Court’s case‑law (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no.", "33348/96, §§ 88‑91, ECHR 2004‑XI, with further references): (a) The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (b) The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.", "(c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10. (d) The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. 38. The applicants published a series of critical articles about the local councillor M.C.", "The domestic courts found the applicants guilty of defamation committed through the mass media on account of the second article in the series (“Marek C. in episodes (2)”). They held that the applicants had imputed to M.C. that he had broken the law and that his activities had been of an offending nature. Such imputations, in the courts’ view, had denigrated him in the eyes of the public and undermined the public confidence necessary for the discharge of his duties as a councillor and vice-chairman of the municipal council. 39.", "The Court notes that the manner in which a local official carries out his official duties and issues touching on his personal integrity is a matter of general interest to the community (see, among others, Sokołowski v. Poland, no. 75955/01, § 45, 29 March 2005; Kwiecień v. Poland, no. 51744/99, § 51, 9 January 2007). In their articles the applicants described the political career of M.C., the manner in which he had been perceived by his fellow councillors and further referred to a number of legal proceedings in which M.C. had been involved.", "For the Court, there is no doubt that those were matters of public interest and that reporting on them formed an integral part of the task of the media in a democratic society. 40. It should be further observed that M.C. was an elected local official who “inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance” (see, Lingens, cited above, § 42; Oberschlick v. Austria (no. 2), 1 July 1997, § 29, Reports ofJudgments and Decisions 1997‑IV; Mamère v. France, no.", "12697/03, § 27, ECHR 2006‑XIII; Kwiecień, cited above, § 47). 41. The applicants in the present case were journalists. The Court has repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest.", "Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999‑III, and Axel Springer AG v. Germany [GC], no. 39954/08, § 79, 7 February 2012). Particularly strong reasons must be provided for any measure affecting this role of the press and limiting access to information which the public has the right to receive (see, Oberschlick v. Austria (no.", "1), 23 May 1991, § 58, Series A no. 204). 42. The domestic courts’ position in the case was that the applicants intended to portray M.C. as an offender by referring to three particular events in which he has been involved.", "They placed particular emphasis on the subtitle “Councillor – offender?” and the term “the apex of the offending activities” used in the article. On the basis of their analysis, the domestic courts concluded that the applicants’ assertions were either untrue or distorted to the point that they exceeded the limits of permissible criticism (see paragraph 13 above). They held in the operative part of the judgment that the applicants had alleged that M.C. had broken the law and that his activities had been of an offending nature. 43.", "In their article the applicants referred, amongst other things, to the following facts. Firstly, they stated that M.C. had lost a court case with a local radio journalist. In that case the local councillor was found guilty of defamation but the proceedings against him were conditionally discontinued (1). The domestic courts reproached the applicants for having failed to mention that the decision at issue had not been final and that they had somehow blurred the discontinuation of the proceedings with the conviction.", "Secondly, the applicants referred to the rejection of M.C.’s financial report concerning his presidential campaign and the subsequent forfeiture of some of the donations made to his committee (2). In this respect, the domestic courts held that it was untrue that M.C. had personally breached the provisions of the electoral law because the irregularities established had formally concerned his electoral committee. Thirdly, the applicants reported that M.C. had disclosed confidential information from a hearing held in private and had thus broken the law (3).", "Here, the domestic courts observed that the applicants had not been entitled to report on the matter since no proceedings had been instituted against M.C. in this respect. 44. The Court is unable to follow the domestic courts’ analysis of the impugned passages, which appears to be unduly restrictive and formalistic. With regard to the proceedings against M.C.", "brought by a local radio journalist, even if it would have been more appropriate to mention that it was only a first-instance ruling, the applicants nevertheless accurately reported that M.C. had been found guilty of defamation. As regards the assertion concerning the financial irregularities during the presidential campaign, the Court notes that M.C. had not been held personally liable. However, it is reasonable to consider that he bore at least political responsibility for the irregularities established in the financing of his campaign.", "With regard to the alleged disclosure of confidential information, the Court observes that the domestic courts’ analysis was very restrictive; it had been established in the proceedings against the applicants that such information, namely a witness statement had been disclosed by M.C. (see paragraph 18 above). The degree of precision for establishing the well‑foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular when expressing his opinion in the form of a value judgment (see, Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 46, ECHR 2002‑I; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43, ECHR 2003‑XI; and Kasabova v. Bulgaria, no.", "22385/03, § 62, 19 April 2011). 45. Having regard to the above and taking account of the general context of the series of articles, the Court finds that even if the allegation that M.C. had been involved in “offending activities” may be seen as excessive, there was certainly sufficient information available in them to warrant an opinion that the councillor “had broken the law”. That latter assertion may be considered to have been fair comment on a matter of public interest which was underpinned by a sufficient factual basis.", "It appears that it was the applicants’ primary intention to expose M.C.’s reprehensible behaviour in public life and not to label him as an offender. Indeed, in the opening line of their article of 4 February 2004 they stated that “the activity of M.C. has been based on balancing on the edge of the law, and even on breaking it” (see paragraph 7 above). The applicants repeated the same argument in their appeal against the trial court’s judgment. 46.", "The exercise of the freedom of expression carries with it “duties and responsibilities” which also apply to the press. Consequently, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas, cited above, § 65; Kasabova, cited above, § 63). The Court considers that in the present case the applicants complied with those obligations. When preparing their articles, they approached a significant number of M.C.’s former collaborators and fellow local politicians to have as objective a picture of him as possible. They requested M.C.", "to comment on the court cases in which he had been involved; however, their requests were refused. 47. Furthermore, the content and the tone of the articles were on the whole fairly balanced. The domestic courts limited their assessment to certain passages from the articles and somehow disregarded the general critical opinion about M.C.’s activities as a local politician which was supported by information from various sources. Having regard to the overall context of the series of articles published by the applicants, the Court considers that they do not appear to have been a gratuitous personal attack on M.C.", "It emerges from the articles, which were not in that part contested by M.C., that he was a divisive and antagonistic figure in local politics as evidenced by a number of statements quoted in the two articles. In this connection, the Court notes also the very negative assessment of M.C. expressed in a statement of the municipal council signed by thirty-four councillors (see paragraph 8 above). Since M.C. was a controversial figure in local politics, he should have been prepared to display a greater degree of tolerance when exposed to scathing remarks about his performance or policies (see, mutatis mutandis, Lombardo and Others v. Malta, no.", "7333/06, § 54, 24 April 2007; Kubaszewski v. Poland, no. 571/04, § 43, 2 February 2010). Lastly, the Court has accepted on many occasions that a degree of exaggeration and immoderation is allowed for those who take part in a public debate on issues of general interest (see, Mamère, cited above, § 25; Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006). 48.", "In conclusion, the Court considers that the reasons adduced by the domestic courts were not “relevant and sufficient” to justify the interference in issue and the standards applied by them were not fully compatible with those embodied in Article 10. Having regard to the vital role of the press in a democratic society, the interference was disproportionate to the legitimate aim pursued and not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 49. There has accordingly been a violation of Article 10 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicants claimed 10,000 Polish zlotys (EUR 2,380) in respect of non-pecuniary damage related to the violation of their right to freedom of expression. 52.", "The Government submitted that a finding of a violation would constitute sufficient just satisfaction should the Court establish that there had been a violation of Article 10 in the case. 53. The Court accepts that the applicants suffered non-pecuniary damage – such as distress and frustration resulting from the conviction – which is not sufficiently compensated by the finding of a violation of the Convention and awards the amount claimed in full. B. Costs and expenses 54.", "The applicants did not submit a claim for costs and expenses. C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,380 (two thousand three hundred and eighty euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 23 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıDavid Thór BjörgvinssonDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF KUKOVIČ v. SLOVENIA (Application no. 20300/02) JUDGMENT STRASBOURG 6 April 2006 FINAL 06/07/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kukovič v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrE. Myjer,MrD.T. Björgvinsson,MrsI.", "Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 16 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20300/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Jože Kukovič (“the applicant”), on 13 May 2002. 2. The applicant was represented by the Verstovšek lawyers.", "The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4.", "On 11 June 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicant was born in 1935 and lives in Grobelno. 6.", "On 20 April 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZM. 7. On 20 November 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,007,020 Slovenian tolars (approximately 8,400 euros) for the injuries sustained. Between 13 April 1999 and 22 May 2002 the applicant lodged five preliminary written submissions and/or adduced evidence.", "Between 22 June 1999 and 3 October 2001 he made five requests that a date be set for a hearing. Of the three hearings held between 13 December 2001 and 28 May 2002, none was adjourned at the request of the applicant. During the proceedings, the court appointed a medical expert. At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant 28 August 2002 8.", "On 5 September 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 2 April 2003 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 18 April 2003. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 9.", "The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 10. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 11. The Government pleaded non-exhaustion of domestic remedies.", "12. The applicant contested that argument, claiming that the remedies available were not effective. 13. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no.", "23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 14. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.", "15. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Article 6 § 1 16. The period to be taken into consideration began on 20 November 1998, the day the applicant instituted proceedings with the Celje District Court, and ended on 18 April 2003, the day the Celje Higher Court’s judgement was served on the applicant. It thus lasted for nearly four years and five months for two levels of jurisdiction. 17.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 18. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 19. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case.", "20. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 22. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage. 23. The Government contested the claim. 24.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,000 under that head. B. Costs and expenses 25. The applicant also claimed approximately EUR 1,530 for the costs and expenses incurred before the Court.", "26. The Government argued that the claim was too high. 27. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one.", "Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerJohn HediganRegistrarPresident" ]

[ "FIRST SECTION CASE OF MELNIKOV v. RUSSIA (Application no. 23610/03) JUDGMENT STRASBOURG 14 January 2010 FINAL 14/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Melnikov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "23610/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Anatolyevich Melnikov (“the applicant”), on 3 July 2003. 2. The applicant, who had been granted legal aid, was represented by Ms V. Bokareva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 12 December 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 4. On 21 September 2006 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should submit further observations on the admissibility and merits of the application. 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 1968 and is currently detained in prison no.", "72/1 in the Ulyanovsk Region. A. Criminal proceedings against the applicant 1. First and second offences 7. On 15 May 2000 the applicant, together with Mr S. and another unidentified person, broke into the premises of a private company and stole several items of property.", "8. On 19 September 2000 the applicant, together with Mr S. and Mr I., committed another theft. 9. Mr S. was arrested on an unspecified date and was questioned by the investigating authority. At the interview, in the presence of counsel, he admitted to the thefts.", "He gave a detailed account of the events, stating that the applicant had forced the window frames in order to enter into the buildings, and described how they had then shared the proceeds from the sale of the stolen items. 10. On 6 December 2001 the investigator set up a face-to-face confrontation between S. and the applicant (see paragraph 38 below for “Relevant domestic law and practice”). According to the record, the investigator asked them if they knew each other and whether they had committed the offences. The applicant replied that he was acquainted with S. but had not committed any criminal offence with him; S. insisted that they had committed the above offences together.", "The record contained a note saying that they had been apprised of their right to put questions to each other; that they had waived this right and that they had no comments to add to the record. The copy of the record submitted by the Government bears S.’s and the applicant’s signatures. According to the applicant, he did not sign the record. 2. Third offence 11.", "On 28 September 2001 the applicant, together with Mr A. and two other unidentified accomplices, robbed a warehouse belonging to a private company. During the preliminary investigation A. confessed to the robbery and named the applicant and another person as his accomplices. Allegedly, no counsel was present at this interview. 3. Trial 12.", "The applicant and A. were detained pending trial. S. and I. were not detained but were ordered not to leave the town. 13. In April 2002 the prosecutor signed the bill of indictment. The criminal case against the above persons was scheduled to be tried before the Vyshniy Volochek Town Court of the Tver Region.", "At the trial the applicant denied his involvement in the offences with which he was charged. He also argued that S. and A. had wrongly accused him, alleging that A. had admitted to the charges against him during the preliminary investigation following ill-treatment by the police. 14. On an unspecified date, S. went into hiding from justice. On 18 June 2002 the judge issued an arrest warrant in respect of S. On 19 June 2002 this order was sent to the Vyshniy Volochek police department.", "As is clear from an undated letter submitted by the Government, the trial judge asked the police department to speed up the enforcement of her earlier order. On 5 September 2002 the Town Court resumed the trial proceedings. On 6 September 2002 the trial court suspended the proceedings noting that S. had previously named the applicant and I. as his accomplices and that an arrest warrant had been issued against S., who went into hiding. The trial court also extended the applicant’s detention. The applicant appealed against the preventive measure.", "On 24 October 2002 the Regional Court upheld the preventive measure but decided that the suspension of the proceedings was not justified. 15. The trial proceedings resumed. At the hearing on 3 December 2002 A. retracted the statement he had given to the investigator in relation to the third offence and argued that he had confessed and implicated the applicant under duress. At the prosecutor’s request the trial court heard evidence from two officers of the Vyshniy Volochek district investigation department, who had arrested the applicant and A.", "Having also examined the video recordings in which A. showed the scene of the crime and pointed to the applicant as his accomplice, the trial court rejected as unfounded the allegation of confession under duress. 16. The applicant contended that he had not been afforded an opportunity to examine S., who had evaded prosecution and was in hiding. At the hearing on 4 December 2002 the prosecutor asked the trial court to allow the reading-out of S.’s pre-trial deposition. The applicant and I. objected to this request.", "The judge granted the request in the interests of the “objective examination of the case”. 17. On 10 December 2002 the Town Court convicted the applicant of robbery and two counts of theft. The court sentenced him to eight years and six months’ imprisonment. In finding the applicant guilty of two thefts, the court relied on S.’s pre-trial statement accusing the applicant, and referred to various statements by the employees of the private companies from which the thefts had been committed.", "Those statements only concerned the assessment of the pecuniary damage caused by the thefts. The court also listed several items of “other physical evidence” including the record of the crime scene description and the articles stolen. 18. On 20 March 2003 the Tver Regional Court upheld the judgment in substance, while reducing the applicant’s prison term to eight years. The appeal court stated that the trial court had rejected the allegation of duress after a proper inquiry.", "Regarding S., the appeal court pointed out that the applicant had had an opportunity to confront him and challenge the credibility of his statements during the face-to-face confrontation at the pre-trial stage of the proceedings. B. Conditions of detention in the remand centre 19. From October 2001 to April 2003 (in relation to the above proceedings) and from 24 November 2003 to 8 December 2004 (in relation to new proceedings) the applicant was kept in remand centre no. 69/1 in the town of Tver.", "Between April and November 2003 the applicant served his sentence in Tver colony no. 10 in relation to the above criminal case. 1. The applicant’s account 20. In his letter of 1 May 2004 the applicant described his conditions of detention in the remand centre since 24 November 2003 as follows.", "On his arrival the applicant was put in cell no. 19. The cell measured approximately thirty square metres and was designed to accommodate twelve inmates. However, at that time the applicant shared the cell with more than thirty inmates. In 2004 the number of inmates in his cell exceeded the limit, varying between twenty and forty.", "In these circumstances the applicant had to share a bed with another inmate. The applicant was confined in one cell with a HIV-positive inmate and others suffering from tuberculosis and hepatitis B and C. The concrete floor in the cell was always wet because the water tap was broken. Besides the fact that water ran freely on the floor, the accumulation of humidity was conducive to the spread of infectious diseases among the cell inmates. The cell was infested with bugs, cockroaches and lice and was poorly ventilated. From 23 December 2003 until 6 January 2004 the applicant was not allowed to shower.", "No radio receiver, TV set or light reading such as crossword puzzles for entertainment were allowed by the authorities of the detention facility. In late 2003 and 2004 the applicant was allowed to have meetings with his family, during which he could talk to them through a glass partition with the aid of a telephone. 2. The Government’s account 21. From 24 November 2003 to 22 October 2004 the applicant was kept in cell no.", "19 together with up to twenty-one detainees, the average cell population being fourteen detainees. From 22 October to 15 November 2004 the applicant was in cell no. 20, which housed up to eighteen persons, the average cell population being thirteen detainees. Both cells measured twenty-four square metres and had twelve beds. No information was submitted regarding the period from 15 November to 8 December 2004.", "22. Each cell was equipped with a table, two benches and a toilet. Each cell had both natural and mandatory artificial ventilation, as well as ventilator windows. The necessary disinfection or sanitary measures were taken on a regular basis. 23.", "The applicant was provided with an individual bed and bedding, including a mattress, a pillow, a pillowslip, a cover, two bed sheets and a towel. Once a week he was allowed to have a fifteen-minute shower. 3. The applicant’s complaints about his conditions of detention 24. According to the applicant, in January 2004 he complained to the Moskovskiy District Court of Tver about the conditions of his detention in remand centre no.", "69/1. On an unspecified date the President of the District Court sent a letter to the applicant stating that no complaint from him had been received by that court. As he was unsatisfied with the reply of the District Court, the applicant wrote to the Tver Regional Court. No reply was received. 25.", "The applicant complained about the conditions of his detention in the remand centre to the Office of the Russian President. In reply to this complaint he received a letter dated 27 August 2004 from the prosecutor’s office of the Tver Region, which confirmed that the population of the remand centre had exceeded the limit (twenty-one inmates compared with a limit of twelve persons) at the relevant time. In the same letter the prosecutor’s office rejected the applicant’s complaint concerning the allegedly unlawful limitations on visits from his family members, including extended visits from his wife. C. Detention in Tver colony no. 1 26.", "Before July 2005 the applicant was detained in Tver colony no. 10. In July 2005 he was transferred to Tver colony no. 1. In both facilities he was reprimanded on several occasions for breaching the prison discipline rules.", "He was put into a punishment cell for five and later for fifteen days. 27. On 28 November 2005 the disciplinary committee decided that his prison regime should be changed to a strict regime with effect from 7 December 2005 on account of his repeated breaches of prison discipline. Hence, from late October 2005 until September 2006 he was placed in a punishment cell at least twenty-five times for periods of between six days and two months (on one occasion in 2006). In the meantime, other disciplinary measures (such as reprimands or an “educational talk”) were imposed on him for similar breaches.", "D. The applicant’s correspondence with the Court 28. At the applicant’s request, on 2 May 2006 the Court decided under Rule 36 § 4 (a) of the Rules of Court to give Ms Bokareva, then a legal consultant at the International Protection Centre in Moscow, leave to represent the applicant in the proceedings before the Court. She was invited to submit by 6 July 2006 at the latest any written observations on behalf of the applicant in reply to the Government’s observations, together with any claims for just satisfaction. She was also invited to indicate by the same date the applicant’s position regarding a friendly settlement of the case, and any proposals he might wish to make. The above time-limit was extended to 6 August 2006.", "29. In addition, in response to a request for legal aid by Ms Bokareva on behalf of the applicant, the latter was invited to complete, by 15 June 2006, the form for the declaration of means provided for in Rule 93 § 1 of the Rules of Court. This time-limit was extended to 15 July 2006. 30. According to the applicant, on 31 May 2006 in the presence of three other prisoners the applicant gave guard N. of Tver colony no.", "1 a package of documents (fifty-seven single or double‑spaced pages) containing his observations in reply to the Government’s observations on his application before the Court. He asked that it be dispatched to his representative, Ms Bokareva. N. then informed him that he had transmitted the package to officer K. Later, the applicant learned from unit officer Sh. that the latter had seen the package. The applicant contended that he had handed over his letter to guard N. in the presence of three cellmates.", "According to the applicant, it was never dispatched. 31. The Government produced a copy of Mr N.’s report stating that no documents had been handed over to him while he was on duty from 30 to 31 May 2006. Similarly, Mr K. and Mr Sh. also testified that Mr N. had not been in possession of any documents from the applicant on 31 May 2006.", "The prison administrative officer reported that all correspondence from the applicant to various authorities and the International Protection Centre had been properly dispatched in 2006. The censorship unit officer reported that a letter from the applicant dated 30 May 2006 (eight pages) had been dispatched to Ms Bokareva without undue delay. 32. According to the applicant, in June 2006 another letter pertaining to the proceedings before the Court was belatedly dispatched to his representative. According to the report produced by the Government, the censorship unit officer confirmed that a two-page letter from the applicant dated 5 June 2006 had been dispatched to Ms Bokareva without undue delay.", "33. On 4 July 2006 the applicant’s representative informed the prison authorities that any hindrance of the applicant’s correspondence would violate Article 34 of the Convention. 34. On 2 August 2006 Ms Bokareva arrived from Moscow at Tver colony no. 1.", "She was accompanied by Mr R., a lawyer practising in Moscow. It appears that the purpose of this visit was the drafting of the applicant’s observations in reply to those of the Government. 35. According to the applicant’s representative, the deputy prison governor, Mr V., refused to allow a meeting with the applicant. Ms Bokareva made a written request to see the prison governor.", "Having waited for more than two hours, she saw the prison governor leave the colony premises. His deputy, Mr Sm., undertook to deal with their request but after two more hours they had still not managed to see the applicant. 36. According to the Government, on 2 August 2006 Mr V. spoke to Ms Bokareva and another person, who indicated that they were the applicant’s lawyers. Mr V. informed them that a visit could be granted in compliance with the applicable procedure only at a prisoner’s request (see paragraph 47 below).", "The visitors left his office and did not return. According to a report dated 2 October 2006 and signed by Mr Sm., on 2 August 2006 he received two persons, one of whom was Mr R. The latter produced documents certifying that he was a lawyer and the applicant’s counsel. The visitors asked Mr Sm. to contact the applicant so that he could make a written statement asking for an appointment with the lawyers. In the meantime, they were asked to wait outside the colony administrative building.", "The applicant, who was in a punishment cell, signed the statement and handed it over to Mr Sm. However, when Sm. returned the lawyers had already left the area. 37. The applicant’s representative submitted observations in reply and claims for just satisfaction on 4 August 2006.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Examination of witnesses 1. RSFSR Code of Criminal Procedure 38. Criminal proceedings were regulated by the RSFSR Code of Criminal Procedure until 1 July 2002, when the 2001 Code of Criminal Procedure (CCrP) entered into force.", "Under Article 162 of the Code, an investigator was authorised to set up a face-to-face confrontation between two persons who had been previously interviewed and whose testimonies contained significant discrepancies. 39. Article 163 of the Code read as follows: “...The investigator starts the confrontation procedure by asking the participants whether they know each other and what their relationship is. Thereafter, each participant in turn is invited to give evidence on the relevant issues. After they have given evidence, the investigator can ask questions.", "The participants can ask questions to each other, if allowed by the investigator...” 2. Code of Criminal Procedure 2001 (CCrP) 40. Article 240 of the Code provides as follows: “1. All the evidence should normally be presented at a court hearing...The court should hear statements from the defendant, the victim, witnesses...and examine physical evidence... 2. The reading of pre-trial depositions is only permitted under Articles 276 and 281 of the Code...” 41.", "Article 276 § 1 of the Code read in 2002 as follows: “The reading out of a pre-trial deposition made by the defendant...may be allowed if requested by the parties and if (1) there are substantial discrepancies between the pre-trial statement and the statement before the court...” 42. Article 281 § 1 of the Code read as follows in 2002: “The reading-out of earlier statements made by the victim or witness...is permitted if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court, (2) the victim or witness has not appeared before the court.” 3. Jurisprudence of the Supreme Court of Russia 43. Sitting as a court of appeal in a criminal case, the Supreme Court held that before the legislative amendment in July 2003 the requirement of consent to the reading-out of depositions under Article 281 of the CCrP made it possible for one of the parties to the criminal proceedings to act in breach of the adversarial nature of those proceedings (appeal decision no. 3-74/03 of 19 February 2004).", "Thus, with reference to Article 15 of the Constitution, the Supreme Court considered that the first-instance court was empowered not to apply Article 281 of the Code and to rely directly on the Constitution. That approach allowed the trial court to proceed with the reading-out of the pre-trial deposition despite the absence of consent from one of the parties. The Supreme Court interpreted Article 281 as requiring consent from both parties only when the trial court decided to read out a pre-trial statement of its own motion rather than in response to a request from one of the parties. 4. Jurisprudence of the Constitutional Court of Russia 44.", "In its admissibility decision of 27 October 2000 (no. 233-O), the Constitutional Court held that the reading-out of pre-trial depositions should be considered as an exception to the court’s own assessment of the evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insisted on calling a witness whose testimony might be important to the case, the court had to take all available measures to ensure that witness’s presence in court. Where that witness was available for questioning, the reading-out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, where the witness was not available for questioning, the defence was still to be provided with appropriate procedural safeguards such as a challenge to the deposition in question, a motion to challenge it by way of examining further evidence or a pre-trial face-to-face confrontation between that witness and the defendant, at which the latter was given an opportunity to put questions to the former (see also the admissibility decision of 7 December 2006 (no.", "548-O)). B. Re-opening of criminal proceedings 45. Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention. C. Conditions of detention 46. Order no.", "7 issued on 31 January 2005 by the Federal Service for the Execution of Sentences deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions Tver remand centre no. 69/1 as one of the detention centres affected.", "As of 1 July 2004, its design capacity was 1,160 detainees but it actually housed 1,587 inmates. 47. Pursuant to Article 89 § 4 of the Code of Execution of Sentences, in force at the material time, for the purpose of receiving legal advice prisoners could have visits from advocates or other persons entitled to provide legal advice. Such visits were not subject to limitation as to their number and could not exceed four hours. At prisoners’ request meetings with advocates could be held in private, without being heard by others.", "48. The Internal Regulations for Penitentiary Facilities adopted by the Ministry of Justice on 3 November 2005 provided that if they so requested, detainees were allowed to have visits from advocates or other persons authorised to provide legal advice (§ 83). If so requested, such visits could be held in private out of the hearing of others and without the use of listening devices. There was no restriction on the number of such visits. By its decision of 26 June 2007, upheld on 11 September 2007, the Supreme Court ruled that paragraph 83 of the Regulations was unlawful as it made consultation with a lawyer subject to a request from the prisoner concerned.", "The Supreme Court concluded that this provision of the Regulations contradicted Article 89 § 4 of the Code of Execution of Sentences. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 49. The applicant complained that the conditions of his detention in Tver remand centre no. 69/1 from 24 November 2003 to 8 December 2004 had been in breach of Article 3 of the Convention.", "In his submissions in August 2006 he also complained that the conditions of his detention in the remand centre from October 2001 to April 2003 were in breach of Article 3 of the Convention. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 50. The Court observes that the complaint concerning the conditions of detention from October 2001 to April 2003 was introduced by the applicant in August 2006. The Court finds, therefore, that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 51.", "As regards the complaint concerning the conditions of the applicant’s detention in the remand centre from 24 November 2003 to 8 December 2004 (see paragraphs 19 - 25 above), the Court considers that it 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 52.", "The Government submitted that at the time the authorities had been unable to provide four square metres of cell space per detainee in this remand facility, as required under Russian law (see also paragraph 46 above). The problem of overpopulation had been widespread at the relevant time and could not be resolved in view of the high level of crime and a lack of funding. However, the mere fact of non-compliance with the national requirements concerning cell space per detainee, in the Government’s view, did not suffice to find a violation of Article 3 of the Convention. The remaining conditions of the applicant’s detention (the fact that he had an individual bed and bedding, the light and temperature conditions in the cells, the presence of a toilet and table) had been acceptable. 53.", "The applicant maintained his initial allegations and submitted that he could not have been provided with an individual bed since the number of detainees exceeded the number of beds in the cells. 54. The Court observes that the parties’ accounts differ in various respects. However, it is clear that the applicant was afforded less than two square metres of cell space, while at some times this figure went below one square metre per detainee (see paragraph 21 above). In particular, the Government made no submissions regarding the cell population between 15 November and 8 December 2004, which prompts the Court to give credence to the applicant’s allegation that the cell population might have approached forty persons instead of the twelve detainees for which cells nos.", "19 and 20 were designed. Moreover, the Court cannot accept the Government’s submission that the applicant was provided with an individual bed in a situation where the cells housed more than twelve detainees and had a constant number of beds (twelve). 55. The Court also notes that the applicant’s grievances at the national level gave rise to an enquiry, which confirmed in substance the above findings concerning the overpopulation problem and the related insufficiency of individual beds for all detainees (see paragraph 25 above). 56.", "The Court reiterates that in a number of cases the lack of personal space afforded to detainees in Russian remand centres was so extreme as to justify, in itself, a finding of a violation of Article 3 of the Convention. In those cases applicants were usually afforded less than three square metres of personal space (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Labzov v. Russia, no.", "62208/00, § 44, 16 June 2005; and Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005). 57. As regards the Government’s submission that the overcrowding was due to objective reasons and that the facility officials could not be held liable for it, the Court reiterates that even if there had been no fault on the part of the facility officials, the Contracting Parties are answerable under the Convention for the acts of any State agency, since what is in issue in all cases before the Court is the international responsibility of the State (see Lukanov v. Bulgaria, 20 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). Whether overpopulation was due to maintenance works or to other causes is immaterial for the Court’s analysis, it being incumbent on the respondent State to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no.", "7064/05, § 63, 1 June 2006). 58. The foregoing considerations are sufficient to enable the Court to conclude that the conditions of the applicant’s detention from 24 November 2003 to 8 December 2004 were inhuman and degrading. 59. In view of the above findings, the Court does not consider it necessary to establish the truthfulness of the remaining allegations made by the applicant.", "60. There has accordingly been a violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 61. The applicant complained that he had not been afforded an effective opportunity to examine S. in relation to two theft charges.", "He also contended that the reading-out of S.’s pre-trial incriminating statement and its admission in evidence had been unlawful. He relied on Article 6 of the Convention, which, in its relevant parts, reads as follows: “1. In the determination of...any criminal charge against him, everyone is entitled to a fair ... hearing... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” A. Admissibility 62. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 63.", "The applicant alleged the face-to-face confrontation could not be considered as an effective opportunity to examine S. since the applicant’s lawyer had not been given notice to attend. The applicant affirmed that he had refused to sign the record. Furthermore, the authorities had not taken reasonable steps to secure S.’s presence at the trial. The Government had provided no evidence to prove that any summons had been issued or measures taken. According to the applicant, S. had incriminated the applicant in exchange for release from custody.", "Moreover, S.’s testimony was unreliable since he had changed his deposition several times before the trial, in particular regarding the identity and number of persons involved in the thefts. In view of the above, the trial court’s reliance on S.’s pre-trial statement in finding the applicant guilty on two counts of theft had been unlawful and in breach of the presumption of innocence. 64. The Government submitted that during the preliminary investigation S. and the applicant had had a face-to-face confrontation at which the applicant had waived his right to ask S. questions. Moreover, all reasonable efforts had been made to secure S.’s presence at the trial.", "A subsequent suspension of the trial proceedings would have impinged upon the accused’s rights, in particular their right to a trial within a reasonable time. Accordingly, the trial court had been justified in allowing the reading-out of S.’s pre-trial statement. The reading-out had been lawful. 2. The Court’s assessment (a) General principles 65.", "The Court reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 51, Reports 1997‑III, Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238). Indeed, as the Court has stated on a number of occasions (see, among other authorities, Lüdi, cited above, § 47), it may prove necessary in certain circumstances to refer to statements made during the investigative stage.", "If the defendant has been given an adequate and proper opportunity to challenge the statements, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d) of the Convention (see, for instance, Belevitskiy v. Russia, no. 72967/01, § 117, 1 March 2007). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on statements that have been made by a person whom the accused has had no opportunity to examine or to have examined at some stage of the proceedings, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Unterpertinger v. Austria, 24 November 1986, §§ 31-33, Series A no. 110; Saïdi v. France 20 September 1993, §§ 43-44, Series A no. 261-C; Lucà v. Italy, no.", "33354/96, § 40, ECHR 2001‑II; and Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001-X). 66. The Court also reiterates that where a deposition may serve to a material degree as the basis for a conviction then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see Lucà, cited above, § 41). In the event that the impossibility of examining the witnesses or having them examined is due to the fact that they are absent or otherwise missing, the authorities must make a reasonable effort to secure their presence (see Bonev v. Bulgaria, no.", "60018/00, § 43, 8 June 2006). The Court also considers that while the appearance of a witness is a prerequisite for the defence’s opportunities to confront this witness, there must also be an adequate opportunity to question him or her (see Kaste and Mathisen v. Norway, nos. 18885/04 and 21166/04, § 47, ECHR 2006‑...). 67. The Court considered in Isgrò v. Italy (19 February 1991, § 35, Series A no.", "194‑A) that the confrontation procedure in that case had enabled the applicant to put questions directly to a key witness and to discuss his statements, thus providing the investigating judge with all the information which was capable of casting doubt on the witness’s credibility. Mr Isgrò had also been able to repeat in person his claims before the first‑instance and appeal courts. Despite the fact that Mr Isgrò had not been represented during the confrontation in question, the Court noted that the public prosecutor had likewise been absent, and that the purpose of the confrontation did not render the presence of the applicant’s lawyer indispensable. The Court also noted that the national authorities had made efforts to take evidence from the witness in person; having been unable to do so, they had based their decision solely on the witness’s pre-trial statements; those statements had been made by him to an investigating judge, whose impartiality had not been contested; the courts had regard to other testimony and to the observations submitted by the applicant during the investigation and at the trial. Since it had been open to the applicant to put questions and to make comments himself, the Court concluded that the applicant enjoyed the guarantees secured under Article 6 § 3 (d) to a sufficient extent.", "68. In Doorson v. the Netherlands (26 March 1996, §§ 24-25 and §§ 66 et seq., Reports 1996‑II), which concerned anonymous witnesses, the Court found no violation of Article 6 when two of six such witnesses against the applicant had been questioned by an investigating judge on the direction of the appeal court and the defence lawyer had had an opportunity to examine the witnesses, albeit in the absence of the applicant. 69. The Court considered in a recent case against Russia that the confrontations carried out by an investigator between several witnesses and the applicant in the presence of his lawyer satisfied the requirements of Article 6 §§ 1 and 3 (d) in so far as questions had been put to those witnesses and their answers had been recorded (see the partial admissibility decision in Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006).", "The Court noted that the applicant had not explained in what other respect the confrontations had been procedurally deficient and why further questioning of the above witnesses before the trial court had been necessary. The Court was not provided with any evidence that the defence had somehow been placed in a disadvantageous position vis-à-vis the prosecution during the face-to-face confrontations. Lastly, noting that the applicant’s conviction on the relevant charges had not been based solely on the testimonies of the above witnesses, the Court held that although the latter had been absent at the trial, the applicant’s right under Article 6 § 3 (d) had been properly secured at the pre-trial investigation stage (see also, for similar reasoning, Vozhigov v. Russia, no. 5953/02, §§ 52-58, 26 April 2007). (b) Application of those principles in the present case 70.", "Turning to the circumstances of the present case, the Court considers that, although S. did not testify at a court hearing he should, for the purposes of Article 6 § 3 (d) of the Convention, be regarded as a witness because his statement, as taken down by the investigative authorities, was used in evidence by the domestic courts. It is noted that he was not an anonymous witness and that his absence at the trial was due to his having absconded. 71. First of all, as regards the alleged unlawfulness of the reading-out of S.’s pre-trial statement, the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen, cited above, § 50, and Doorson, cited above, § 67; see also Babkin v. Russia (dec.), no.", "14899/04, 8 January 2009). The Court thus considers that it was up to the national courts to determine what provision of the Code of Criminal Procedure applied to the co-defendant’s statement (see paragraph 40 above). 72. The Court further notes that the main thrust of the applicant’s complaint was the alleged lack of an adequate opportunity to examine S. or have him examined, in particular on account of the alleged lack of any reasonable effort on the part of the national authorities to ensure S.’s presence at the trial. 73.", "It is uncontested between the parties that the applicant pleaded not guilty throughout the proceedings and that his conviction on two counts of theft was based, to a decisive extent, on S.’s pre-trial deposition. In finding the applicant guilty of two thefts, the trial court relied on this deposition and referred to various statements by the employees of the private companies from which the thefts had been committed. Those statements, however, only concerned the assessment of the pecuniary damage caused by the thefts. The court also listed several items of “other physical evidence” including the record of the crime scene description and the articles stolen, without any further discussion of their probative weight. 74.", "The Court’s case-law under Article 6 § 3 (d) of the Convention requires that a defendant be given an adequate opportunity to examine, or have examined, a witness at some stage of the proceedings, and it is preferable for such examination to take place in the course of adversarial proceedings before an independent and impartial tribunal. 75. The Court notes in that connection that S. not only admitted the charges but named the applicant as his accomplice and gave a detailed account of the applicant’s and his own role in the commission of the thefts. In the Court’s opinion, there is a considerable risk that a co-accused’s statement may be unreliable, given his or her obvious interest in diverting blame from himself to another person. Thus, a higher degree of scrutiny may be required for assessing such a statement, because the position in which accomplices find themselves while testifying is different from that of ordinary witnesses.", "They testify without being under oath, that is, without any affirmation of the truth of their statements which could render them punishable for perjury for wilfully making untrue statements (see Vladimir Romanov v. Russia, no. 41461/02, § 102, 24 July 2008). 76. The Court further notes that S. made his initial statement to an investigating authority (an inquirer or an investigator). Neither the applicant nor his counsel was present during that interview.", "Nothing in the case file suggests that S.’s statement was recorded on video so that the applicant and the trial court could observe his demeanour under questioning and thus form its own impression of his reliability (see, by contrast, Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005-...). 77. At the same time, the Court found no factual basis in support of the applicant’s allegation that S. had concluded any agreement with the prosecution, for instance in the form of a plea bargain (see Erdem v. Germany (dec.), no. 38321/97, 9 December 1999).", "78. Bearing the above factors in mind, the Court considers that before admitting S.’s statement in evidence it was incumbent on the national court to assess what impact the absence of the co-accused, who was also the putative key witness against the applicant, might have on the fairness of the trial. The national courts’ analysis in the present case was limited to stating that S.’s absence at the trial was counterbalanced by the fact that the applicant had had a previous opportunity to question him during the pre-trial face-to-face confrontation (see paragraph 38 above). 79. Having regard to its previous jurisprudence on the matter (see paragraphs 67 - 69 above), the Court observes that the applicant was not assisted by counsel during the confrontation, apparently, because counsel had not been summoned to it.", "The Court has previously underlined the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (Can v. Austria, no. 9300/81, Commission report of 12 July 1984, § 50, Series A no. 96, and, more recently, Salduz v. Turkey [GC], no. 36391/02, § 54, 27 November 2008). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.", "In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer (see Salduz, cited above, § 54). Thus, it is unlikely that in the absence of legal advice the applicant was in a position to understand the confrontation procedure and effectively exercise his right to examine a “witness” with a view to casting doubt on the authenticity and credibility of S.’s incriminating statement. The Court is not prepared to consider that the applicant validly waived his right to examine S. 80. Moreover, the Court notes that the confrontation was conducted by an investigator who did not meet the requirements of independence and impartiality, and had a large discretionary power to block questions during the confrontation. 81.", "In view of the above, the pre-trial confrontation procedure in the present case was not an appropriate substitute for the examination of the co-accused in open court (see, mutatis mutandis, Windisch v. Austria, 27 September 1990, § 28, Series A no. 186). S.’s presence was of crucial importance to enable the court to make an effective assessment of his demeanour and of the reliability of his deposition (see Hulki Güneş v. Turkey, no. 28490/95, § 92, ECHR 2003‑VII (extracts); Vladimir Romanov, cited above, § 105; and Makeyev v. Russia, no. 13769/04, §§ 41-42 and 45, 5 February 2009).", "82. Lastly, the Court notes that the respondent Government failed to show that every reasonable effort had been made in order to bring S. before the trial court. In particular, it does not appear that any measures were taken after an arrest warrant had been issued against S. Nor does it appear that when instructing the trial judge to resume the trial the court of appeal enquired whether the requisite measures had indeed been taken. While the Court is mindful of the difficulties encountered by the authorities in terms of resources, it has no reason to consider that tracking down S. for the purpose of calling him at the trial, in which the applicant stood accused of a serious offence and faced a custodial sentence, would have constituted an insuperable obstacle (see Bonev, cited above, § 44, with further references). 83.", "Although the Court does not doubt that the domestic courts undertook a careful examination of S.’s pre-trial deposition, it finds that the defence rights were in the circumstances restricted to an extent that was incompatible with the guarantees provided by Article 6. 84. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 85.", "The applicant complained that the prison authorities had acted in breach of his right of individual petition under Article 34 of the Convention which, in its relevant parts, reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. Submissions by the parties 86. The applicant raised three separate grievances: (i) he alleged that on 31 May 2006 the prison authorities had failed to dispatch to his representative his comments on the Government’s observations in the present application and had delayed dispatching another letter in June 2006; (ii) he contended that his representative had been refused permission to have a meeting with him in the prison; and (iii) he maintained that he had been detained in a punishment cell on numerous occasions since October 2005 because of his application to the Court. The applicant contended that his situation had worsened after notice of his application had been given to the respondent Government. He had spent most of the time between late October 2005 and November 2006 in a punishment cell, purportedly for minor breaches of prison discipline such as non-compliance with the rule on making one’s bed.", "The applicant contended that he had handed over his letter to guard N. in the presence of cellmates B., Y. and M. 87. The Government submitted that the applicant had not handed over any letter on 31 May 2006. However, his letters of 30 May and 5 June 2006 had been dispatched to his representative before the Court. With regard to the second grievance, the Government submitted that the applicant’s representative and Mr R. had left the prison before they were given permission to see the applicant. Lastly, the Government contended that the applicant had been placed in a punishment cell on account of numerous breaches of prison discipline and not in connection with his application pending before the Court.", "B. The Court’s assessment 1. General principles 88. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005‑I).", "In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. The fact that the individual actually managed to pursue his application does not prevent an issue arising under Article 34: should the Government’s action make it more difficult for the individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34 (see Akdivar and Others v. Turkey, 16 September 1996, §§ 105 and 254, Reports 1996‑IV). The intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with; what matters is whether the situation created as a result of the authorities’ act or omission conforms to Article 34 (see Paladi v. Moldova [GC], no. 39806/05, § 87, 10 March 2009). 89.", "Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see Akdivar and Others cited above, § 105). In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities. 2. Application in the present case (a) Dispatch of correspondence 90. Having examined the parties’ submissions, the Court considers that the applicant’s allegations concerning the failure to dispatch one letter in May 2006 (see paragraphs 30 and 31 above) and the delayed dispatch of another one in June 2006 (see paragraph 32 above) have not been substantiated.", "91. It is not necessary for the Court to determine the facts, which are in dispute between the parties, since in any event the Court does not find that there has been any act of hindrance, which would entail a violation of the respondent State’s obligation under Article 34 of the Convention in the circumstances of the case. (b) Meeting with the representative 92. The issue before the Court is whether the impediments to communication allegedly placed in the applicant’s way by the prison staff amounted to a violation of the respondent State’s obligation not to hinder the effective exercise of the right of petition under Article 34 of the Convention. 93.", "In a Moldovan case the Court found a violation of Article 34 on account of the impossibility for the applicant to discuss with his lawyer issues concerning the application before the Court without their being separated by a glass partition (see Cebotari v. Moldova, no. 35615/06, §§ 58-68, 13 November 2007). 94. The applicant’s inability during his treatment in hospital for several months to communicate in any way with his representative before the Court was found to amount to a violation of Article 34 of the Convention in Shtukaturov v. Russia (no. 44009/05, § 140, 27 March 2008).", "The Court concluded that the restrictions had made it almost impossible for the applicant to pursue his case before the Court; as a result, the application form had been completed by the applicant only after his discharge from the hospital. 95. In Lebedev v. Russia (no. 4493/04, §§ 116-119, 25 October 2007) the applicant complained that one of his lawyers had had to obtain certain additional authorisations in order to be able to meet him. The Court noted that in principle, excessive formalities in such matters could de facto prevent a prospective applicant from effectively enjoying his right of individual petition.", "However, no violation was found in that case since the limitation complained of had had no negative effect, either theoretical or practical, on the proceedings before the Court; the domestic formalities had not been excessive and, in any event, the applicant had had meetings with his other lawyers during the period under consideration. 96. Turning to the circumstances of the present case, the Court accepts that compliance with certain formal requirements may be necessary before obtaining access to a detainee, for instance for security reasons or in order to prevent collusion or action to pervert the course of the investigation or justice. It is uncontested in the present case that the applicant’s representative before the Court was in possession of a valid authority form and that the only reason for refusing her permission to see the applicant was the absence of a formal request from the latter. The Court observes that although the Code of Execution of Sentences did not require a prisoner to make a formal request in order to have a meeting with his or her lawyer, the prison authorities relied on the secondary legislation, which apparently contradicted the Code (see paragraphs 47 and 48 above).", "Be that as it may, there is no doubt that the prison staff took steps to obtain such a request from the applicant on 2 August 2006. As is clear from Mr Sm.’s report, the representative was required to wait outside the prison administrative building in the meantime. Apparently, she was not given any indicative time when she would be able to see the applicant. However, there is insufficient factual evidence before the Court to enable it to consider that the prison staff subsequently acted in a way which would amount to unjustified interference with the applicant’s right of individual petition. 97.", "Accordingly, the Court concludes that the respondent State complied with its obligation under Article 34 of the Convention. (c) Disciplinary measures against the applicant 98. The Court observes that, according to the information submitted by the Government, the applicant was placed in a punishment cell on at least twenty-five occasions between October 2005 and September 2006. The periods of detention lasted from six days to two months (on one occasion in 2006). 99.", "The Court does not exclude that recourse to disciplinary penalties or criminal proceedings against an applicant can be aimed at intimidating or punishing him for his application to the Court (see Oferta Plus SRL v. Moldova, no. 14385/04, § 143, 19 December 2006). The threat of criminal or disciplinary proceedings against an applicant’s lawyer concerning the contents of a statement submitted to the Court has previously been found to interfere with the applicant’s right of petition (see Kurt v. Turkey, 25 May 1998, §§ 160 and 164, Reports 1998‑III, and McShane v. the United Kingdom, no. 43290/98, § 151, 28 May 2002), as has the institution of criminal proceedings against a lawyer involved in the preparation of an application to the Commission (see Şarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001).", "The Russian Government were found to be in breach of their obligation under Article 34 of the Convention in a case where the applicant’s representative and translator had been summoned by the local police for an interview in connection with the applicant’s claims for just satisfaction (see Fedotova v. Russia, no. 73225/01, §§ 49-52, 13 April 2006; see also Ryabov v. Russia, no. 3896/04, §§ 58-65, 31 January 2008). 100. The Court has to determine whether the imposition of relatively harsh consecutive penalties on the applicant in the present case was intended to impinge or actually had the effect of impinging upon his right of petition under Article 34 of the Convention.", "The Court observes in that connection that none of the substantive claims raised by the applicant before the Court concerned the detention facility in question. More importantly, the applicant did not contest the fact that he had disregarded certain prison rules which he considered unreasonable. 101. The Court notes from the parties’ submissions that throughout his detention in various detention facilities the applicant was subjected to disciplinary penalties for breaches of the prison rules. Those penalties gave grounds to take additional disciplinary measures against him.", "Having examined the record presented by the Government, the Court considers that neither the penalties nor the consequent change in the applicant’s detention regime revealed any arbitrariness which could in itself amount to a form of pressure contrary to Article 34 of the Convention (see Poleshchuk v. Russia, no. 60776/00, § 32, 7 October 2004, and Bakhmutskiy v. Russia, no. 36932/02, § 167, 25 June 2009). The applicant’s allegation that there was a connection between his application to the Court and the imposition of the penalties at issue is unsubstantiated. The Court thus finds that it has not been convincingly established that the authorities of the respondent State interfered with the exercise of the applicant’s right of individual petition.", "102. Accordingly, the respondent State cannot be said to have failed to comply with its obligation under Article 34 of the Convention on this account. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 103. Lastly, the applicant complained under Article 6 of the Convention that the trial court had erred in admitting as evidence A.’s incriminating statements made at the pre-trial stage, allegedly under duress.", "He also complained under Article 8 of the Convention of the limitation of his contacts with his family during an unspecified period or periods of his detention in the remand centre. 104. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 106. The applicant claimed 2,000,000 euros (EUR) in respect of non‑pecuniary damage and health damage, in particular on account of the conditions of his detention and his unlawful conviction. 107.", "The Government contested this claim. 108. The Court considers that the claim concerning the alleged health damage is unsubstantiated. At the same time, having regard to the nature of the violations found and making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 109.", "As regards the findings under Article 6 §§ 1 and 3 (d) of the Convention, the Court also reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the relevant proceedings if requested (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV, and Bocos-Cuesta v. the Netherlands, no. 54789/00, § 82, 10 November 2005). The Court notes in this connection that Article 413 of the Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court has found a violation of the Convention. B.", "Costs and expenses 110. The applicant made no claim in respect of costs and expenses. There is therefore no call to make an award under this head. C. Default interest 111. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the conditions of detention from November 2003 to December 2004 and the alleged lack of an opportunity to examine a co-accused admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention; 4. Holds that the respondent State has not been in breach of its obligations under Article 34 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 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 January 2010, 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 concurring opinion of Judge Spielmann is annexed to this judgment. C.L.R.S.N.", "CONCURRING OPINION OF JUDGE SPIELMANN I. I must admit that it was not without hesitation that I agreed that there had been no violation of Article 34 of the Convention in so far as the meetings with the applicant’s representative are concerned. Admittedly, compliance with certain formal requirements may be necessary before obtaining access to a detainee, for instance for security reasons or in order to prevent collusion or action that might pervert the course of the investigation or justice (see paragraph 96 of the judgment). In the instant case, however, the only reason for refusing the applicant’s representative permission to see the applicant was the absence of a formal request from the latter. In my view such a requirement is clearly disproportionate. It may lead to the absurd result that a lawyer who wants to prepare a case pending before the Court must contact the applicant to request a formal invitation to visit the latter in prison.", "Nevertheless I voted against finding a violation of Article 34 because I agree with my colleagues that there is no evidence that the right to individual petition has been undermined. II. In paragraph 109, the Court rightly reiterates its case-law as regards the findings under Article 6 §§ 1 and 3 (d) of the Convention, namely that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the relevant proceedings if requested. Given its importance, however, I would have preferred the reasoning set out in paragraph 109 of the judgment to have been included also in the operative provisions, for the following reasons. Firstly, it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation or no violation of the Convention, and is of decisive importance on that account for the interpretation of the Convention, it is the operative provisions that are binding on the parties for the purposes of Article 46 § 1 of the Convention.", "It is therefore a matter of some significance, from a legal standpoint, that part of the Court’s reasoning appears also in the operative provisions. Indeed, what the Court states in paragraph 109 of the judgment is, in my view, of the utmost importance. It reiterates that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum). In the present case, the best means of achieving this is the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option and it is available in the domestic law of the respondent State. The reason why I wish to stress this point is that it must not be overlooked that the amounts which the Court orders to be paid to victims of a violation of the Convention are, in accordance with the terms and the spirit of Article 41, of a subsidiary nature.", "Wherever possible, the Court should therefore seek to restore the status quo ante for the victim. It should even, in cases such as the present one, reserve its decision on just satisfaction and examine this issue, where necessary, only at a later stage, should the parties fail to settle their dispute satisfactorily. Admittedly, States are not required by the Convention to introduce procedures in their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However, they are strongly encouraged to do so, especially in criminal matters. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure (Article 413 of the Russian Code of Criminal Procedure), it is the Court’s duty not only to note the existence of the procedure, as paragraph 109 does, but also to urge the authorities to make use of it, provided, of course, that the applicant so wishes.", "However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment. Moreover, the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment that “unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay, within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused”, sums in respect of non-pecuniary damage and costs and expenses. Similarly, in Lungoci v. Romania (no.", "62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment that “the respondent State is to ensure that, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement”. By virtue of Article 46 § 2 of the Convention, supervision of the execution of the Court’s judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures intended to facilitate the Committee of Ministers’ task in discharging these functions. To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also, in the operative provisions, indicate to the State concerned the measures it considers the most appropriate to redress the violation." ]

[ "THIRD SECTION CASE OF IVASHCHENKO v. RUSSIA (Application no. 61064/10) JUDGMENT STRASBOURG 13 February 2018 FINAL 13/05/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ivashchenko v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Luis López Guerra,Helen Keller,Dmitry Dedov,Georgios A. Serghides,Jolien Schukking, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 23 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "61064/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Nikolayevich Ivashchenko (“the applicant”), on 18 October 2010. 2. The applicant was represented by Ms M. Dubrovina, a lawyer practising in Novorossiysk, Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.", "The applicant alleged that actions by customs officials had constituted unlawful and disproportionate interferences with his correspondence, private life and freedom of expression and that the domestic remedies were ineffective. 4. On 5 October 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1983 and lives in Krasnodar. 6. The applicant had a press card issued to him as a photographer, stating that he was a “correspondent at Agency.Photographer.ru”. According to the applicant’s submissions, he also prepared various texts for publication in print and Internet media outlets on an occasional basis. A.", "Events on 27 August 2009 7. In August 2009 the applicant and Ms D. travelled to Abkhazia to prepare a report with photographs on, as he described it, “the life of this unrecognised republic”. 8. On 27 August 2009 they returned to Russia, arriving on foot at the Adler customs checkpoint. The applicant presented his Russian passport, press card and a customs declaration, stating that he had electronic information devices (a laptop and flash memory cards) in his luggage.", "The laptop was his own property, however, he also used it for professional purposes. 9. The applicant and D. were examined by Officer K. In his report to his superior, drawn up at 10.40 a.m. on 27 August 2009, he stated that in view of the applicant’s answers to questions and because of his behaviour, neither of which have been specified to the Court, there was a need to verify the information contained in the applicant’s customs declaration by way of an “inspection procedure” (see paragraph 31 below) in respect of the items in his bag and backpack and to “apply the measure for minimising risk as per profile no. 55/1000000/11062008/00228 ...”. 10.", "The Government have submitted to the Court a written statement from K., which reads as follows: “Following the customs control measure of an interview and given [D.’s and the applicant’s] behaviour and the nature of their professional activities, a supposition/assumption (предположение) arose that they might have banned printed and/or audio- and video-material with extremist content in their bags ... Since [the applicant] noted in his declaration that he had electronic storage devices, I made a written report to the acting chief officer of the customs checkpoint concerning the need for carrying out an inspection of [the applicant’s] bags in the framework of the risk management system and for involving Officer B., an IT specialist. The inspection was approved by the chief officer by way of his handwritten approval on my report ... The chief officer issued an order for an inspection and authorised B. and myself to use the sampling procedure ... The above-mentioned supposition/assumption was based on the presence of a folder labelled “Extremist” in the laptop ... Data from it was copied on the same day [on the spot] ... to DVD RW disks, which were then sealed in a plastic bag ... [The applicant], B. and two attesting witnesses were present ...", "The sampling report contained a detailed description of the data that was copied, including the names of the folders that had been copied, their number and the number of files in each folder ... The copying was carried out by Officer B. I did not open or copy any electronic folders or files ... I did not read any ‘correspondence’ (personal correspondence or other text material) ... An order to carry out a forensic examination was issued on 8 September 2009 ... because on 27 August 2009 we had no information about the relevant expert organisations for that type of forensic examination ...” 11. The Government have also submitted a written statement from Officer B., which reads as follows: “In accordance with the order for an inspection [no. ...], which required sampling and which also indicated ‘other’, I copied data from [the applicant’s] laptop to six DVD RW disks ... because we had no other type of disks or electronic storage devices ...", "Since the laptop’s hard drive was some 160 Gb and at the time we had no means for fast copying, I decided only to copy folders with strange names. I did not read any ‘correspondence’ (personal correspondence or other text material) from the laptop.” 12. According to the Government, after finding in the directory of the laptop an electronic folder entitled “Extremism (for RR[1])”, which contained a number of photographs, the customs officer decided to copy it and some other folders from the laptop for further examination by an expert, who could determine whether they contained any information of an extremist nature. 13. The folder contained seven subfolders and 180 files.", "The applicant made a note in the record, stating that the material had been copied onto rewritable DVD disks (thus technically allowing the data to be modified, including by way of adding data). According to the applicant, the folder had some photographs and a PDF copy of an article entitled “How to incite hatred?” on anti-extremism legislation. The article, written by Ms V., was published in the Russian Reporter magazine in June 2009 and was accompanied by photographs taken by the applicant. The author of the article discussed the controversies and difficulties relating to the interpretation and application of Russian anti-extremism legislation, with reference to four criminal cases under Article 282 of the Criminal Code. According to the applicant, the material that was copied included documents and text concerning two ethnic groups (the Yazidis and the Meskhetian Turks), who were allegedly under pressure from the Krasnodar regional administration.", "For instance, a folder named “Isolation” contained texts describing the social problems facing thirty-seven Yazidi families (with references to their personal details), who had been discriminated against by the regional administration. 14. It can be seen from the record of the sampling that thirty-four folders (containing some 480 subfolders with over 16,300 electronic files) were copied. The folders had the following names (mostly in Russian): In motion, Miscellaneous, Desktop, Foto_projects, On the road, Isolation, Drawings, 1 May, 9 May, 14 February, Law, Extremism (for RR). 15.", "It appears that the data from the laptop was first copied to a mobile or external hard drive and then recopied to six DVDs. According to the Government, the information was then deleted from the external hard drive. The original data in the laptop was not deleted and remained intact. 16. According to the applicant, his laptop remained with Officer B. for several hours.", "Allegedly, the officer read through the applicant’s correspondence in the ICQ messaging program and copied some 26 gigabytes of data, including the applicant’s personal correspondence, personal photographs and FTP[2]-type passwords. 17. The applicant submitted the following written statement by Ms D. to the Court: “At 10 a.m. we presented ourselves at the border control and presented our passports ... We were then taken to the customs control area ... There the customs officers asked [the applicant] to hand over his press card; so they were aware that he had one ... Officer K. interviewed us about the purpose of our visit to Abkhazia and our professional and civic activities ...", "I heard an FSB border officer tell the customs officers about the need for a ‘special check’ of our electronic storage devices ... Seeing a laptop in [the applicant’s] bag, the customs officers expressed their intention to copy all the available information ... I was interviewed (again) about my civic activities, my political views and about [the applicant’s] professional activities ... the type of work done and the publications ...” 18. On 9 September 2009 the applicant was informed that a report had been commissioned from a criminal forensics expert to determine whether the data copied from his laptop had any prohibited “extremist” content. 19.", "In November 2009 the expert organisation returned the DVDs to the customs office, stating that it was not possible to carry out the examination, although it gave no reasons. In December 2009 a report was sought from another expert organisation. Apparently, it concluded that the data contained no extremist material. According to the applicant, the DVDs with his data were handed over to him in November 2011. B.", "Judicial review 20. In the meantime, the applicant brought judicial review proceedings under Chapter 25 of the Code of Civil Procedure (“CCP”), challenging the adverse acts and actions of the customs officials. 21. By a judgment of 25 January 2010 the Prikubanskiy District Court of Krasnodar dismissed his claims. The court held as follows: “Laptops, storage devices, photo- and video-cameras should be considered as ‘goods’ within the meaning of Article 11 of the Customs Code.", "All goods should be presented for checking by customs, as required under Article 14 of the Code ... The customs authorities are authorised to take samples of goods for examination ... and to use technical devices to speed up the checks ... The data from the applicant’s laptop was copied for the purposes of examination in compliance with Presidential Decree no. 310 on combating fascism and political extremism ... In the circumstances, the fact that the samples taken for examination constituted all the relevant data was justified ...” 22.", "The applicant appealed, arguing, inter alia, that the first-instance court’s assessment had not taken into account the requirements relating to Articles 8 and 10 of the European Convention, in particular, the requirement that any interference by a public authority had to be shown to be “necessary in a democratic society” and proportionate to the legitimate aims pursued. He mentioned the Court’s case-law relating to the seizure of printed material and electronic devices, an action which adversely affects the maintenance of professional secrecy. The applicant also argued as follows: (a) Compliance with Decree no. 310 was not possible without actually reading someone’s correspondence and other personal information, thereby interfering with the constitutional right to the protection of the secrecy of correspondence and other communications. Article 55 of the Constitution only permitted restrictions on people’s rights on the basis of a federal statute; the decree in question was secondary legislation (подзаконный акт) and could not lawfully introduce additional limitations on constitutional rights; (b) The trial court had mentioned that laptops, flash memory cards and the like were “goods” for the purposes of customs legislation.", "However, the sampling had been carried out in respect of the information they contained rather than the carriers or containers of the information (“the goods”). Access to that information, however, was only allowed on the basis of a court order, as stated in Article 23 of the Constitution; (c) In his “written explanations” to the appeal court, the applicant insisted that in Chapter 25 proceedings a public authority had the burden of proving that its acts were lawful and justified. However, the first-instance court had not required the customs authority to cite a specific legal provision authorising its officials to examine electronic data. According to the applicant, the customs authority representative had refused at the hearing to explain the specific content of the risk profile concerning the applicant, referring to the fact that the information in question was classified and was for internal use only. However, a 2004 Instruction by the Federal Customs Authority only authorised a customs inspection where the risk profile in question provided for that type of measure (see also paragraph 37 below).", "23. On 22 April 2010 the Krasnodar Regional Court upheld the judgment, essentially reproducing the lower court’s reasoning as follows: “Under Articles 403 and 408 of the Customs Code, customs authorities fulfill the tasks and functions assigned to them by federal and other legislation ... and have the authority to apply measures prescribed by the Customs Code for ensuring compliance with customs legislation ... Article 11 of the Customs Code defines goods (for the purposes of customs legislation) as movable property which is being transferred across the customs border. This includes laptops, memory flash cards, photo-cameras, video-cameras, printed material and the like. Article 14 of the Code provides that all such goods should be subject to customs clearance and customs control.", "Article 123 of the Code provides that goods should be declared when being transferred across the customs border. Article 124 of the Code provides that the declaration is made by way of presenting a written declaration or otherwise ... The transfer of goods by individuals for personal use is prescribed by Chapter 23 of the Customs Code, and Government decree no. 715 of 27 November 2003 and no. 718 of 29 November 2003.", "Article 13 of the Code provides that goods which are prohibited from being transferred to Russia must be removed from Russia. By a letter of 16 July 2008 the Federal Customs Authority listed the goods which are banned from Russian territory ... By a letter of 3 May 2006 the Authority listed the goods that must be declared to customs. The procedure for and the types of customs checks are described in Chapters 34-37 of the Code. Article 358 of the Code provides that customs checks are based on the principle of selectiveness and, as a rule, should be limited to such forms of control as are sufficient for ensuring compliance with customs legislation ... When selecting the form of control, the risk management approach is applied, which is based on the effective use of resources for preventing violations of the legislation ... Risk is defined as a probability of non-compliance with customs legislation.", "When carrying out a customs check, the customs authority is allowed to take samples of goods which are needed for further assessment. The relevant procedure is defined in Article 383 of the Code and Customs Authority order no. 1519 of 23 December 2003. When carrying out a customs check, the authority is allowed to use technical means to limit the time of such checks; the list and procedures for their use are defined in Article 388 of the Code and in Customs Authority order no. 1220 of 29 October 2003 ... Order no.", "677 of 10 November 1995 by the Customs Authority (‘On preventing the transfer of prohibited printed, audio- and video-material across the customs border’) does not contradict the current customs legislation and has not been revoked because the current Customs Code contains Article 13 concerning bans and limitations on the transfer of goods across the customs border ... In view of the above, the court agrees with the first-instance court that the customs inspection was authorised and carried out within customs control procedures and that the data was copied in line with Russian Presidential Decree no. 310 of 23 March 1995 ... Article 2 of the decree clearly requires the customs authority to ‘arrest and bring to liability persons who disseminate printed, cinematographic, audio-, photo- or video-materials which are aimed at being propaganda in favour of fascism, at inciting social, racial, ethnic or religious enmity; and to take measures for seizing printed material of that kind’ ... Article 383 of the Code concerning the minimal amount of samples was complied with because the information taken for sampling was not homogenous.", "Thus when the samples were taken, it was necessary to take the full amount of information from the device ... In addition, it is noted that under Article 10 of the Customs Code, information received by customs officials may be used exclusively for the purposes of customs legislation ... Customs officials are not authorised to disclose that information or transfer it to third persons, except as set down in the Code or other legislation ...” 24. The applicant does not appear to have been prosecuted subsequently in criminal, administrative or other proceedings in connection with the data obtained from his laptop by the customs authorities. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Constitution of the Russian Federation 25. Article 23 § 2 of the Russian Constitution provides that everyone has the right to the privacy of his or her correspondence, telephone communications and postal, telegraphic or other messages. Restrictions may be imposed on that right by a court decision. 26. Article 29 protects freedom of expression and prohibits incitement to social, racial, national or religious hatred.", "Everyone has the right to freely search for, receive, transmit, produce and disseminate information by lawful means. 27. Article 55 § 3 of the Constitution provides that individuals’ rights and freedoms may be limited by a federal statute in so far as that is necessary to protect the constitutional structure, morals, health, the rights and freedoms of others, and to ensure the country’s national security and defence. B. Customs Code of the Russian Federation of 28 May 2003 (in force until 2010) and related legal Acts 28.", "Article 11 of the Customs Code defined “goods” as any movable or immovable property being transferred across the customs border. By Article 130 of the Civil Code, all items that are not immovable property (for instance, money) should be recognised as being movable property. 29. All goods and vehicles had to be presented for customs controls in accordance with the procedure and methods prescribed by the Customs Code; customs requirements in the course of a check could not impede the transfer of goods or vehicles across the border to an extent that exceeded what was necessary as a minimum for ensuring compliance with customs legislation (Article 14 of the Customs Code). Article 13 of the Customs Code provided that goods prohibited from entering Russia were to be removed from the country without delay, unless otherwise provided for by the Code or other federal statutes.", "30. Article 358 of the Code provided for the principles guiding the customs control process, namely that it was based on the selectiveness principle and, as a rule, had to be limited to such forms as were sufficient for ensuring compliance with customs legislation. When choosing a specific form of control, the customs authority was to be guided by the risk management system, which defined a risk as a probability of non‑compliance with customs legislation. The system was based on the effective use of the resources at the disposal of the customs authority for preventing violations of customs legislation, violations which, inter alia, could affect “important public interests which the customs authorities [were] empowered to protect”. The customs authorities had to apply risk assessment methods for determining the level of scrutiny in customs checks.", "31. Forms of customs control included the examination of documents, interviews, customs surveillance, customs examinations and inspections (таможенный досмотр) (Article 366 of the Code). The last mentioned was a check that included breaking the seals on goods, opening packaging, containers or other locations where goods were or could be located (Article 372 of the Code). Inspections were to be carried out in the presence of the person declaring the goods, except for some situations such as the moving of goods in international postal dispatches. 32.", "Article 378 of the Code provided that goods and vehicles could be subjected to an expert assessment as part of the customs control procedure where special skills were needed for clarifying matters relating to such a procedure. A customs officer was allowed to take samples of goods for assessment, with the amount being the minimum needed to carry out such an assessment (Article 383). The person declaring the goods could be present during the sampling and was required to assist the officer carrying out the procedure (ibid.). 33. As specified in the Regulations on Customs Procedures approved by the Russian Government on 2 February 2005, “inspections” entailed the examination of goods in order to prevent or stop violations of Russian legislation or to detect prohibited goods.", "Such inspections could include the opening or unsealing of containers (paragraph 14 of the Regulations). 34. Order no. 1519 issued by the Federal Customs Authority on 23 December 2003, in force at the material time, provided further details about inspections but did not refer to the taking of samples of electronic data. 35.", "Decree no. 310 issued by the President of Russia on 23 March 1995, “On measures for ensuring consolidated actions by public authorities in the fight against manifestations of fascism and other forms of political extremism in the Russian Federation”, reads as follows: “Cases of incitement to social, racial, ethnic and religious enmity, as well as the proliferation of fascist ideas, have been growing in the Russian Federation. Anti‑constitutional activities by people or groups having extremist views have increased and become more defiant in their nature. Unlawful armed and paramilitary units have been created. There is a growing threat that they will join forces with certain trade unions, commercial or criminal groups.", "These processes are extremely dangerous for our society and constitute a threat to the foundations of the constitutional system. They undermine constitutional rights and freedoms, the security of society and the unity of the Russian Federation. It is unacceptable that the rise of political extremism should impede the forthcoming State and municipal elections and the free expression of voters, influence the resolution of labour disputes or pressure certain State or municipal authorities. The activities of political extremists (some of whom openly associate themselves with National Socialism, using fascist slogans and symbols or ones that are similar) are deeply insulting to veterans and to the sacred memory that Russians have for the victims of the Great Patriotic War. Such activities are particularly provocative in the year of the celebration of the 50th anniversary of the victory over fascist Germany ... As guardian of the Constitution of the Russian Federation and of people’s rights and freedoms, with a view to ensuring the stability of the constitutional structure, public safety, and the maintenance of the unity of the Russian Federation, under Articles 13, 15, 80 and 82 of the Constitution and Article 22 of the International Covenant on Civil and Political Rights, I order: ... 2.", "Within their respective competencies, the Ministry of the Interior, the Federal Counter-Intelligence Service, the State Customs Committee, and the State Border Service must arrest and bring to liability persons who are disseminating printed, cinematographic, photo-, audio- or video-materials which are aimed at inciting propaganda in favour of fascism, at inciting social, racial, ethnic or religious enmity; to take measures for seizing such printed material and other materials. ... 6. I invite the Supreme Court of the Russian Federation to provide guidance concerning the notions and terminology relating to liability for acts aimed at inciting social, racial, ethnic and religious enmity ...” 36. Order no. 677 issued by the Federal Customs Authority on 10 November 1995 read at the time as follows: “In order to enforce Decree no.", "310 of 23 March 1995 issued by the President of Russia, it is ordered as regards customs procedures that: 1. The chief officers of regional authorities must take effective measures for preventing the entry of printed, cinematographic, photo-, audio- and video-materials aimed at propaganda in favour of fascism and at inciting social, racial, ethnic or religious enmity. For that purpose it is necessary to assign officers specialised in checking the content of such material from the units that carry out customs inspections of goods and vehicles ... 2. ... to apply Article 20 of the Customs Code [of 18 June 1993]. [3]” 37.", "With their observations the respondent Government enclosed the Instruction on customs officials’ actions on the application of risk profiles during customs checks, approved by the Federal Customs Authority on 11 January 2008. It apparently replaced an earlier Instruction issued in 2004 and is no longer valid. At the relevant time the Instruction provided that a customs inspection could be carried out if there was information about a possible customs offence (правонарушение) or if there were justified “suppositions” (обоснованные предположения) that information that had been declared about certain goods was not correct (section 68). If a customs officer considered it necessary to carry out an inspection on the basis of information received or if he had justified grounds to assume that information that had been declared about goods or vehicles might be incorrect, he had to submit a report to his superior (section 71). The latter then authorised or refused an inspection (section 73).", "38. Pursuant to a letter dated 16 July 2008 issued by the Federal Customs Authority, the import of printed, cinematographic, photo-, audio‑ and video-materials aimed at Nazi propaganda or at inciting social, racial, ethnic and religious enmity was banned (section 3.1.2). C. Other legislation and documents 39. Section 1 of the Suppression of Extremism Act (Federal Law no. 114-FZ on Combatting Extremist Activity, 25 July 2002), as in force at the material time, defined extremist activity or extremism as: - a forcible change of the constitutional foundations of the Russian Federation and breaches of its territorial integrity; - the public justification of terrorism or other terrorist activities; - inciting racial, national, religious or social hatred; - propaganda promoting the exceptional nature, superiority or inferiority of persons on the grounds of their religion, social position, race, nationality or language; - violations of an individual’s rights and freedoms on account of his or her religion, race, national, social position or social origin; - obstruction of the exercise of citizens’ electoral rights or violations of the secret ballot in voting, combined with violence or threats of the use thereof; - obstruction of the lawful activities of State authorities, electoral commissions and their officials, non-governmental or religious organisations, combined with violence or threats of the use thereof; - propaganda for and the public display of Nazi attributes or symbols or attributes or symbols which are similar to Nazi attributes or symbols to the point of becoming undistinguishable; - public appeals to carry out the aforementioned acts or the mass distribution of manifestly extremist materials, their production or possession with the aim of mass distribution; - making a public and manifestly false accusation against a State official of the Russian Federation or its constituent entities in relation to the commission of the acts mentioned in section 1 of this Act and which were a crime during the exercise of his or her official duties or in connection with those duties; - organising and preparing the above acts, as well as incitement to their commission; - funding the aforementioned acts or any assistance in preparing and carrying them out, including by providing training, printing, material or technical support, telephone or other means of communication or information services.", "“Extremist material” was defined as documents or information in other forms which are designed for dissemination, and calls for carrying out extremist activities or justifying the need for such activities, including publications that justify national or racial superiority or justify war crimes or other crimes, which are aimed at the full or partial destruction of an ethnic, national, social, racial or religious group. 40. Article 13 of the Code of Criminal Procedure provides that a court order is needed to impose restrictions on a citizen’s right to the secrecy of his or her correspondence, telephone or other communications, postal, telegraphic and other messages. A court order is also needed for seizing postal and telegraphic communications. 41.", "Section 8 of the Operational-Search Activities Act (Federal Law no. 144-FZ of 12 August 1995) provides that operational-search activities involving interference with the constitutional right to the secrecy or privacy of correspondence, postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services can be conducted on the basis of a court order. It can be allowed following the receipt of information (1) that a criminal offence has been committed, is ongoing, or is being plotted; (2) about persons conspiring to commit, who are committing, or have committed a criminal offence; or (3) about events or activities endangering the national, military, economic or ecological security of the Russian Federation. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 42.", "The Government argued that the applicant had not complied with the six-month rule under Article 35 § 1 of the Convention because there was no evidence that he had dispatched his application form within eight weeks of the Court’s letter acknowledging receipt of his initial letter. 43. The applicant stated that he had dispatched his application form on 16 December 2010. 44. As confirmed by the stamp on the envelope, the application’s first letter was dispatched to the Court on 18 October 2010, which was less than six months after the appeal decision in his case (see paragraph 23 above).", "The application form was dispatched to the Court on 16 December 2010, which was within the time-limit set by the Court in its letter confirming receipt of the applicant’s initial communication. The Court therefore dismisses the Government’s objection. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant complained under Article 8 of the Convention that the customs authorities had unlawfully and without any valid reasons examined the data contained on his laptop and in storage devices, and had copied electronic data relating to both his personal life and professional activities.", "46. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 47.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 48. The applicant argued that the customs officials’ actions had amounted to “interference by a public authority” with both his “private life” and his “correspondence” within the autonomous meanings arising from Article 8 of the Convention. That “interference” had been unlawful because there had been no criminal investigation in respect of him and no court order, in breach of Article 23 of the Constitution, Article 13 of the Code of Criminal Procedure and section 8 of the Operational-Search Activities Act of 1995 (see paragraphs 25, 40 and 41 above). The domestic courts had failed to make any substantive findings on the matter of legality and had carried out no proportionality assessment in respect of the impugned “interference”. It could not be reasonably accepted that the contested measures had been lawfully authorised by the Customs Code (namely Article 372) since that only concerned an “inspection” of “vehicles, cargo and goods” (see paragraph 28 above).", "The situation complained of had not fallen in any of the above categories. In particular, the electronic data on the applicant’s laptop was not “goods” within the ordinary meaning of that term under the Civil Code or the Customs Code. 49. The applicant argued that the various pieces of legislation applied to him, even read together, did not satisfy the “quality of law” requirement arising from the Court’s case-law regarding “interferences” under both Articles 8 and 10 of the Convention. In particular, Presidential Decree no.", "310 of 23 March 1995 (see paragraph 35 above) was not a piece of primary legislation (namely a federal statute) but had less legal value, which was not sufficient under the Constitution (see paragraphs 25 and 27 above) for a lawful “interference” with fundamental rights and freedoms. Moreover, the decree was worded in vague and exceedingly wide terms and, in any event, could not have guided the customs authority’s actions in a situation such as the applicant’s, that is in relation to electronic data. 50. The “interference” had not been shown to pursue any legitimate aim and had not been convincingly demonstrated as being “necessary in a democratic society”. The applicant had not been subject to any criminal prosecution and had crossed the border lawfully.", "As of 27 August 2009 the authorities had not advanced any argument pertaining to the need to ascertain whether the applicant’s laptop contained any “extremist material”. That explanation had only been put forward subsequently. The customs authority’s actions had been motivated merely by the discovery of a folder named “Extremism” on the applicant’s laptop. That did not justify the steps taken initially to access the laptop. The respondent Government had not specified what part of the data constituted a threat to national security, public safety or the economic well-being of the country.", "The copying of the applicant’s data had not been selective and had included a variety of personal and professional data. 51. Lastly, the applicant noted that it was possible to challenge the actions of public officials by way of a judicial review under Chapter 25 of the CCP, which had been done. However, the domestic courts had not proceeded to an adequate assessment of the adverse impact that the officials’ actions had had on the applicant’s right to respect for his private life and correspondence or his right to freedom of expression. In particular, they had not carried out an assessment of whether the officials’ actions had been proportionate to any particular legitimate aim.", "(b) The Government 52. The Government accepted that the inspection and copying of the applicant’s materials had constituted “interference by a public authority” with the applicant’s “private life”. However, they denied that there had been any reading or copying of the applicant’s “correspondence”. The photographs taken by the applicant and which had given rise to the copying procedure could not pass for such “correspondence” within the meaning of Article 8 § 1 of the Convention. The customs officers had not read any personal correspondence and had not copied any email, Facebook or Skype passwords.", "The applicant had failed to discharge the burden of proving the existence of any “interference” in that regard. 53. The Government submitted that the customs inspection of the applicant’s bags and the “sampling” of “goods” had not been random as they had been carried out after examining his customs declaration and with regard to his conduct and answers to the officer’s questions. Those acts had given rise to a reasonable suspicion “regarding the applicant’s compliance with the legislation in force”. The ensuing actions had been based on a specific risk profile, which had then justified the application of certain measures.", "Every risk profile contained objective criteria, which could determine the need for taking certain measures in each particular case. The customs inspection and the sampling of data from the applicant’s laptop had been a necessary measure to minimise the risk emerging from the specific risk profile. In addition, the customs officer had made a report to his supervising officer before inspecting the applicant’s luggage. 54. The presence of the folder with photographs and entitled “Extremism” had been a legitimate reason for further actions on the part of the customs officers, including the copying of electronic data concerning the photographs.", "It had not been possible for the officers to take another course of action and the law had required them to obtain an expert conclusion as to the presence of “extremist material”. The applicant had raised no objection relating to the copying or to its extent. The applicant had only voiced a concern that further information, not related to him, could be added to the DVDs containing his photographs. The subsequent use of the copied information had been strictly limited to the needs of the expert examination. 55.", "The Government also argued that Russian law contained a number of safeguards against abusive or arbitrary actions on the part of customs officers. The Russian Constitution expressly limited interferences with the inviolability of people’s private lives to situations where it was necessary for a legitimate aim and which was prescribed by a federal statute (such as the Customs Code). The inspection and copying of the applicant’s materials had been authorised by Articles 372 and 383 of the Customs Code and had been further detailed in related legal acts, including orders issued by the Federal Customs Authority. Those provisions conferred corresponding and sufficiently fettered powers on customs officers without any need for a court order, which would be required in the case of interference with someone’s “correspondence”. 56.", "The Customs Code contained provisions limiting the use of private information and provided for liability for breaching those limitations. The same limitations were also imposed on experts examining “samples”. 57. The Government submitted some statistical data for 2009-11 aimed at demonstrating (by contrast to the Court’s findings in Gillan and Quinton v. the United Kingdom, no. 4158/05, § 84, ECHR 2010 (extracts)) that the inspection and sampling procedures in relation to suspicions of the presence of extremist or other prohibited material in electronic form had been rarely applied (for instance, various types of materials relating to Jehovah Witnesses or Scientology, various types of goods or materials showing Nazi symbols or those resembling them in various contexts).", "58. Lastly, the Government submitted that the applicant had had effective remedies at his disposal in respect of his complaints. The judicial review procedure under Chapter 25 of the CCP was capable of remedying violations of individual rights. The applicant’s case had been examined by the courts on the merits. They had dealt with matters relating to legality and had concluded that the customs officials’ actions had not breached his rights.", "The Government enclosed fourteen judgments from various Russian courts in cases that had been lost by the customs authorities (such as the unlawful levying of customs fees, an unlawful refusal to release an international postal package or the unlawful retention of a vehicle). The Government argued that the absence of a requirement to obtain a court authorisation was counterbalanced by the availability of a judicial review under Chapter 25 of the CCP, which was essential for ascertaining the legality of the public officials’ actions. It was also possible to claim compensation under Article 1070 of the Civil Code for damage caused by the actions of public officials. 2. The Court’s assessment (a) Whether there was “interference by a public authority” with the applicant’s rights under Article 8 of the Convention (i) Correspondence 59.", "The applicant argued that the customs officers’ actions had constituted an “interference” with his “correspondence” with the meaning of Article 8 § 1 of the Convention and, first and foremost, under Article 23 of the Russian Constitution, which required a court order for that type of “interference” with correspondence or “other communications” (see paragraph 25 above). 60. First of all, the Court notes that the applicant’s complaint is related to data contained on his laptop. There is no evidence that the applicant’s flash memory cards were inspected or that any data was copied from them. 61.", "Second, it can be accepted that the applicant’s laptop allowed for access to his ICQ conversations with other people. However, it has not been specified whether access to that program was protected by a password or whether no such password was technically required. The applicant has not specified what other “correspondence”, such as emails, was readily accessible for reading on the laptop (see Posevini v. Bulgaria, no. 63638/14, § 75, 19 January 2017). It does not appear that the applicant was required to disclose any password.", "As regards the applicant’s submission concerning “the copying of his passwords”, it has not been specified, and the Court does not have sufficient information at its disposal on this point, how it was technically practicable to “copy” passwords for such accounts as those needed for email, Facebook or Skype. 62. The Court has previously held that the search and “seizure” of electronic data constituted an interference with the right to respect for “correspondence” within the meaning of Article 8 of the Convention (see, in respect of legal entities, Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 45, ECHR 2007‑IV; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 63, 2 April 2015; and Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, no.", "27013/10, § 76, 3 September 2015; see Robathin v. Austria, no. 30457/06, § 39, 3 July 2012). In the circumstances of the present case and noting insufficient elements to conclude that the applicant’s “correspondence” was adversely affected by the customs officers’ actions, the Court finds it more appropriate to focus on the notion of “private life” (see below; see also Trabajo Rueda v. Spain, no. 32600/12, § 32, 30 May 2017). (ii) Private life 63.", "The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). This Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world.", "It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person’s private life is concerned in measures effected outside a person’s home or private premises. In this connection, a person’s reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor (see P.G. and J.H.", "v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX). 64. The Court has previously held, in the context of a search on the street, that irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the use of the coercive powers conferred by legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life (see Gillan and Quinton, cited above, § 63). 65.", "In a recent case, the Court considered that there had been an “interference” with the applicant’s right to respect for her “private life” on account of the search of her bag and seizure of a notebook from it because it was believed to contain information relevant to the criminal investigations against her (see Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania, no. 27153/07, §§ 70-71, 17 January 2017; see also Amarandei and Others v. Romania, no. 1443/10, § 216, 26 April 2016). 66.", "In Gillan and Quinton (cited above), the Court also made the following findings as regards the context of the search to which passengers submit at airports or at the entrance to a public building, essentially for security reasons: “64. ... [The Court] does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual’s Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different.", "The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.” 67. In the present case the applicant’s complaint is not related to being asked questions during the initial customs procedure or about customs officers looking inside his bags. The thrust of his complaint was and remains about the search of his laptop, which lasted several hours, allegedly without any reasonable suspicion of any offence or unlawful conduct; the copying of his personal and professional data, followed by its communication for a specialist assessment; and the retention of his data for some two years. In the Court’s view, those actions went beyond what could be perceived as procedures that were “routine”, relatively non-invasive and for which consent was usually given. The applicant could not choose whether he wanted to present himself and his belongings to customs and a possible customs inspection (compare Gillan and Quinton, § 64).", "68. In addition, the Court emphasises that the present case concerns the context of customs controls for “goods” carried by a person arriving at customs to declare items rather than the context of security checks, in particular those that may be carried out in relation to a person and his or her effects prior to admission to an aircraft, train or the like (see also, by way of comparison, Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 59, ECHR 2012; Gahramanov v. Azerbaijan (dec.), no. 26291/06, §§ 40-41, 15 October 2013, and, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, §§ 64 and 74, ECHR 2008, and Bowler International Unit v. France, no.", "1946/06, §§ 40-47, 23 July 2009, under other Articles of the Convention and Protocols to it). In the Court’s view, by submitting his effects to customs controls a person does not automatically and in all instances waive or otherwise forgo the right to respect for his or her “private life” or, as the case may be in other applications, his or her “correspondence”. 69. Thus, in view of the above observations, the Court considers that it is open to the applicant to rely on the right to respect for his “private life” and that there has been an “interference” under Article 8 of the Convention. 70.", "An interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, seeks to pursue one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims. (b) Whether the “interference” was justified (i) General principles 71. The Court reiterates that the expression “in accordance with the law” requires that the impugned measure should have “some basis” in domestic “law”, which should be understood in its “substantive” rather than “formal” sense. In a sphere covered by the written law, the “law” is the enactment in force as the competent courts have interpreted it (see Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002‑III).", "The “law” may encompass enactments of lower ranking statutes and, for instance, regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by Parliament (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 83, 14 September 2010). 72. In addition, the phrase “in accordance with the law” (as well as “prescribed by law” in Article 10) requires the impugned measure to be compatible with the rule of law, which is mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8 of the Convention. The “law” must thus be accessible to the person concerned and foreseeable as to its effects, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct.", "73. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see, under Article 8 of the Convention in the context of secret measures of surveillance and data gathering by public authorities, Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82 and Rotaru v. Romania [GC], no.", "28341/95, § 55, ECHR 2000-V, and under other Articles of the Convention and/or in other contexts: Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I; Sanoma Uitgevers B.V. [GC], cited above, § 82; Gillan and Quinton, cited above, § 77; and Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 411, 7 February 2017). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no.", "25594/94, § 31, ECHR 1999‑VIII). 74. In that connection, the existence of sufficient procedural safeguards may be particularly pertinent, having regard to, to some extent at least and among other factors, the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no.", "44787/98, § 46, ECHR 2001‑IX). In various contexts of Article 8 of the Convention, the Court has emphasised that measures affecting human rights must be subject to some form of adversarial proceedings before an independent body competent to review in a timely fashion the reasons for the decision and the relevant evidence (see Al-Nashif v. Bulgaria, no. 50963/99, § 123, 20 June 2002; X v. Finland, no. 34806/04, §§ 220-222, ECHR 2012 (extracts); Oleksandr Volkov v. Ukraine, no. 21722/11, § 184, ECHR 2013; and Kotiy v. Ukraine, no.", "28718/09, §§ 68-70, 5 March 2015; see also Milojević and Others v. Serbia, nos. 43519/07 and 2 others, § 64, 12 January 2016). 75. The above considerations under the heading of “quality of law” may overlap with similar issues analysed under the heading of “necessary in a democratic society” (see Ustinova v. Russia, no. 7994/14, § 44, 8 November 2016).", "The Court reiterates that where a wide margin of appreciation is afforded to the national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by the Convention (see, in the context of decisions relating to town and country planning policies, Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001‑I, and in other contexts: Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003‑VIII; Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts); see also Liu v. Russia (no.", "2), no. 29157/09, §§ 85-86, 26 July 2011; Gablishvili v. Russia, no. 39428/12, § 48, 26 June 2014; Yefimenko v. Russia, no. 152/04, §§ 146-50, 12 February 2013, and Lashmankin and Others, cited above, § 418). 76.", "As regards specifically searches and seizures or similar measures (essentially in the context of obtaining physical evidence of certain offences), it is pertinent to assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle has been adhered to (see Camenzind v. Switzerland, 16 December 1997, § 45, Reports of Judgments and Decisions 1997‑VIII, with further references). As regards the latter point, the Court must firstly ensure that the relevant legislation and practice afford individuals “adequate and effective safeguards against abuse”; notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where the authorities are empowered under national law to order and effect searches without a judicial warrant (see also Gutsanovi v. Bulgaria, no. 34529/10, § 220, ECHR 2013 (extracts)). If individuals are to be protected from arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal framework and very strict limits on such powers are called for. Secondly, the Court must consider the particular circumstances of each case in order to determine whether, in the concrete case, the interference in question was proportionate to the aim pursued (see Camenzind, cited above, § 45).", "(ii) Application of the principles to the present case 77. As regards the requirement that an “interference” should be “in accordance with the law”, the Court reiterates at the outset that in the first place it is for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176‑A; Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; see also Delfi AS v. Estonia [GC], no.", "64569/09, § 127, ECHR 2015). (α) Formal legality 78. First of all, as to formal legality (meaning compliance with rules of domestic law), the Court dismisses as unsubstantiated the applicant’s assertion that (i) the impugned measures were in breach of Russian law if there was no ongoing criminal investigation or measures under the Operational-Search Activities Act, and/or (ii) in the absence of a prior judicial authorisation (see paragraphs 25, 40 and 41 above). The applicant’s second argument concerned the allegedly unforeseeable application of the provisions concerning customs inspections of “goods and vehicles” and the customs procedure for the “sampling of goods” to the examination and copying of electronic data from his laptop. 79.", "The domestic courts shed no light on the question of the applicability of Article 23 § 2 of the Russian Constitution, which protects the right to the secrecy or privacy of “correspondence” or “other messages” and requires a court decision for imposing restrictions on that right. Nor did the courts make any other specific findings relating to the applicant’s rights as protected by Article 23 of the Constitution or Article 8 of the Convention. In the absence of any domestic findings, the Court is unable to reach any conclusion as regards formal compliance with Russian law on that account. 80. At the same time, it is noted that the domestic courts merely referred to Article 11 of the Customs Code, which defines goods for the purpose of customs legislation as movable property that is being transferred across the customs border, to then conclude that such items as laptops, flash memory cards, cameras, video-cameras, printed material and the like fell within the notion of “goods” (see paragraphs 21, 23 and 28 above).", "This served as a basis for then asserting that such “goods” could be lawfully subjected to the sampling procedure, without any further consideration of the context in which the customs control concerned the non-material digital contents (electronic data amounting to information or images, for instance) accessed by way of “opening” a “container” (the laptop) (see paragraphs 31 and 33 above). Before the Court the Government attempted to supplement that consideration by references to further provisions of Russian law, such as the Civil Code. However, those provisions were not part of the domestic assessment and, in any event, do not seem to provide a sufficiently sound legal basis for copying electronic data in the customs context. Having regard to the reasoning of the domestic decisions, the Court is not satisfied that the combined reading of the relevant provisions of the Customs Code (a “federal statute” within the meaning of Article 55 of the Constitution, cited in paragraph 27 above) and other legal rules constituted a foreseeable interpretation of national law and provided a legal basis for the copying of electronic data contained in electronic documents located in such a “container” as a laptop. (β) Protection against arbitrariness and adequate safeguards 81.", "The Court notes, however, that the main thrust of the applicant’s grievance before the Court essentially relates to insufficient legal protection against an arbitrary interference as regards both the authorisation and carrying out of the intrusive measures (for a summary of the relevant principles, see paragraphs 73-74 above). In the Court’s view and for the reasons presented below, the safeguards provided by Russian law have not been demonstrated as constituting an adequate framework for the wide powers afforded to the executive which could offer individuals adequate protection against arbitrary interference. - Administrative procedure 82. The Court accepts the Government’s submission that the powers to carry out the inspection and sampling procedures were, indeed, confined to the specific context of customs controls and were limited to people crossing the border of the Russian Federation. The Court has also taken note of the Government’s submission that it was the chief officer of the customs unit who was empowered to authorise an examining officer to carry out an inspection and sampling.", "However, the Court is not satisfied that there was a clear requirement at the authorisation stage that the inspection and, first and foremost, the copying be subjected to a requirement of any assessment of the proportionality of the measure (compare Gillan and Quinton, cited above, § 80, where stop-and-search powers were additionally subject to prompt confirmation by the Secretary of State and judicial review). 83. Referring to the risk-profiling approach adopted by Russian customs and the related 2008 Instruction (see paragraphs 30 and 37 above), the Government may be understood to be suggesting that that approach furnished safeguards against arbitrary “interference” on the part of the customs officers. For its part, the Court refers in this connection to the appeal court’s finding in the applicant’s case that the customs control had to be based on the principle of selectiveness and, as a rule, had to be limited to such forms of control as were sufficient for ensuring compliance with customs legislation. It was also stated that when carrying out a customs check, the customs authority was allowed to take samples of goods which were needed for further assessment.", "However, both the domestic court decisions and the Government’s submissions before the Court are limited to general assertions about the risk-profiling approach and do not specify how it was applied to the applicant. In fact, when carrying out their review of the customs officers’ actions, the courts did not even refer to the above‑mentioned Instruction. Moreover, the reference to risk management (including risk profiling) does not address the matter of the extensive copying of the data from the applicant’s laptop, which is at the heart of the present complaint. The Court does not overlook that the domestic courts pointed out that extensive copying was “needed” because of the diverse nature of the “goods” to be sampled, which was electronic data in the present case. In the Court’s view, it is usual for an electronic device to contain various types of electronic files (text, photographs, videos and others) and that the contents may vary even within the same type of file.", "In addition to the above‑mentioned considerations relating to the legal basis in this case, it is evident that the usual approach to the sampling by customs of “goods” was not adequate as regards electronic data (see also paragraph 80 above). 84. Next, it is noted that the applicant pointed out that the “interference” had been unjustified since he had not been subject to any ongoing criminal investigation or any measures under the Operational-Search Activities Act. However, the Court is not convinced that in order to avoid arbitrariness it was indispensable for the customs officer to have a reasonable suspicion of criminal activity stricto sensu (as being in breach of the Criminal Code of the Russian Federation), that is some objective basis for suspecting the particular person of “criminal” activity in the particular circumstances of a given situation taken as a whole. By way of comparison, the Court reiterates that it is also possible to envisage a justified interference with Article 8 rights by way of search-and-seizure or comparable measures in contexts other than those of a criminal investigation, in relation to unlawful conduct punishable under other procedures (see, for instance, DELTA PEKÁRNY a.s. v. the Czech Republic, no.", "97/11, §§ 80-83, 2 October 2014). 85. However, it does not appear that the comprehensive measure used in the present case had to be based on some notion of a reasonable suspicion that someone making a customs declaration has committed an offence, namely one arising from the anti-extremist legislation pertinent to the present case. Indeed, the Russian Customs Code linked its various procedures to the need for “ensuring compliance with customs legislation”. The present case concerns one specific context where imputed “non‑compliance” is related to the ban set out in Presidential Decree no.", "310 of 23 March 1995 read together with the Federal Customs Authority’s order no. 677 of 10 November 1995 and Article 13 of the Customs Code of 2003 (see paragraphs 29, 35-36 above). The apparent lack of any need for a reasonable suspicion relating to an offence was exacerbated by the fact that the domestic authorities, ultimately the courts on judicial review, did not attempt to define and apply such notions as “propaganda for fascism”, “social, racial, ethnic or religious enmity” to any of the ascertained facts. It is also noted that the presidential decree seems to relate to measures such as the “arrest and bringing to liability” of persons “who [were] disseminating” material with the above content. It has not been suggested that any separate instructions or guidance was made available to customs officers in relation to dealing with situations involving potential prima facie “extremist material” and for dealing with electronic data in that context.", "86. In the context of the present case the Court is not convinced by the Government’s submission that the fact that the applicant was returning from a disputed area constituted in itself a sufficient basis for proceeding with the extensive examination and copying of his electronic data on account of possible “extremist” content. 87. In situations when a person is at customs after arriving in the country (a fortiori, through such ports of entry as customs points for vehicles or those arriving on foot, as in the present case), bearing in mind the margin of appreciation afforded to the respondent State in the customs context, it is particularly pertinent to ascertain whether post factum judicial remedies were available and provided adequate safeguards. - Judicial review 88.", "Although the exercise of the powers to inspect and sample was amenable to judicial review under Chapter 25 of the Russian CCP, the width of those powers was such that the applicant faced formidable obstacles in showing that the customs officers’ actions were unlawful, unjustified or otherwise in breach of Russian law (compare Gillan and Quinton, cited above, § 80). 89. The Court refers to its findings under Article 13 of the Convention in conjunction with Article 11 in Lashmankin and Others (cited above, § 356), which also concerned the judicial review procedure under Chapter 25 of the CCP. In particular, the Court stated as follows: (a) The scope of judicial review was limited to examining the lawfulness of the impugned administrative act or measure. In accordance with Chapter 25 of the CCP, the sole relevant issue before the domestic courts was whether the contested act or measure was lawful.", "“Lawfulness” was understood as compliance with the rules of competence, procedure and contents. The Supreme Court expressly stated that the courts had no competence to assess the reasonableness of the authorities’ acts or decisions made within their discretionary powers. It followed that the courts were not required by law to examine the issues of “proportionality” and “necessity in a democratic society”, in particular whether the contested decision answered a pressing social need and was proportionate to any legitimate aims pursued, principles which lie at the heart of the analysis of complaints relating to Article 11 of the Convention. (b) The analysis of the judicial decisions made in the case of Lashmankin and Others showed that they failed to recognise that the cases involved a conflict between the right to freedom of assembly and other legitimate interests and to perform a balancing exercise. The balance appeared to be set in favour of protection of other interests, such as rights and freedoms of non-participants, in a way that made it difficult to turn the balance in favour of the freedom of assembly.", "The Court concluded that in practice Russian courts had not applied standards which were in conformity with the principles embodied in Article 11 and did not apply the “proportionality” and “necessary in a democratic society” tests. 90. In the Court’s view, that assessment is applicable to the context of the adverse decisions and actions taken by the customs authorities in relation to the copying of electronic data, as challenged by the applicant in the judicial review proceedings. After examining the parties’ submissions, the Court finds no reason to depart from the above assessment (see, in the same vein, Polyakova and Others v. Russia, nos. 35090/09 and 3 others, §§ 110-14, 7 March 2017 as regards judicial review challenges in relation to family visits to convicted prisoners; and Ustinova, cited above, §§ 51-52 in relation to an exclusion order in respect of a foreign national).", "In particular, the Court notes that in addition to having different subject matter from the present case, several examples of the favourable domestic judgments supplied by the Government (see paragraph 58 above) were confined to findings of formal unlawfulness relating to non-observance of certain formal requirements of domestic law, for instance relating to the competence of a customs authority, compliance with certain procedures and time-limits. The decisions contain no particular reasoning corresponding to the matters examined above in the context of Article 8 of the Convention as regards respect for the applicant’s “private life”. 91. In addition, the Court observes that the Chapter 25 review in the present case was carried out in the light of the applicable substantive legislation such as the Customs Code, which served as the basis for the “interference”. The respondent Government has not demonstrated that that legislation added anything to provide the courts with a legal framework for ascertaining whether the “interference” was “necessary in a democratic society”.", "92. The Court is of the view that the circumstances of the present case highlight certain deficiencies in the domestic regulatory framework. The domestic authorities, including the courts, were not required to give – and did not give – relevant and sufficient reasons for justifying the “interference” in the present case. In particular, it was not considered pertinent by the domestic authorities to ascertain whether the impugned measures were in pursuance of any actual legitimate aim, for instance the ones referred to by the Government. It was merely assumed that the identification of possible “extremist material” was required by the 1995 Presidential decree.", "It was not considered relevant, at any stage and in any manner, that the applicant was carrying journalistic material (see also below under Article 10 of the Convention). (γ) Conclusion 93. In sum, the Court concludes in addition to the findings under the heading of formal legality in paragraph 80 above that the respondent Government has not convincingly demonstrated that the relevant legislation and practice afforded adequate and effective safeguards against abuse in a situation of applying the sampling procedure in respect of electronic data contained in an electronic device (compare Gillan and Quinton, cited above, § 87). 94. They are not, therefore, “in accordance with the law” and it follows that there has accordingly been a violation of Article 8 of the Convention.", "95. The above findings dispense the Court from having to examine whether the other requirements of the second paragraph of Article 8 have been complied with. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 96. The applicant argued that the situation complained of had also resulted in a separate breach of his freedom of expression, namely his freedom to receive and impart information and ideas.", "97. Article 10 of the Convention reads in the relevant parts as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ...” A.", "The parties’ submissions 1. The applicant 98. The applicant argued that the customs authority’s actions had amounted to “interference by public authority” with his freedom of expression, including his freedom to receive and impart information and ideas “regardless of frontiers”. The applicant submitted that when crossing the border he had presented his passport and press card. By copying the data from the laptop, the authorities had also copied his “FTP access passwords” to several professional servers, such as Agency.Photographer.ru.", "99. The impugned “interference” had pursued no legitimate aim and had not been “necessary in a democratic society”. The applicant had acted as a journalist and had expressed his opinion by way of taking photographs and preparing texts for publication in print and Internet media outlets. In particular, the applicant had at the time been working on a photo report concerning the life of ordinary people in Abkhazia and the prospects for economic development in the area. That was a matter of considerable public interest, in particular on account of Russia’s financial and military assistance.", "The national courts had not carried out any proportionality assessment. 2. The Government 100. The Government argued that there had been no “interference by public authority” under Article 10 of the Convention because at no point on 27 August 2009 or later had the applicant been found liable for any offence or otherwise; he had not been prohibited from publishing material; the material that had been copied had not been subjected to a confiscation measure; and there had been no disclosure of any confidential sources. The customs officers’ actions had been limited to the inspection and copying of some data on account of a reasonable suspicion that it might contain extremist material.", "Their actions had had no “chilling effect” vis-à-vis the journalistic freedom to hold and express opinions. It could not be decisive in the present case and had not been decisive for the customs officers that the applicant was a photojournalist. The applicant had not been approached or threatened because of his professional status. The “regardless of frontiers” phrase in Article 10 had no import in the present case. 101.", "Even it was accepted that there had been “interference by public authority”, such interference had been relatively insignificant. It had been lawful and had pursued the aims listed in Article 10 § 2 of the Convention. The “interference” had been proportionate to those aims, in particular, for the same reasons as regards Article 8 of the Convention. The Government submitted that the Court’s case-law relating to the protection of journalistic sources was inapplicable in the present case. B.", "The Court’s assessment 102. The Court considers that the complaint under Article 10 of the Convention is linked to the complaint under Article 8 and that it is admissible. However, having regard to the applicant’s specific allegations and the nature and scope of the Court’s findings under Article 8 of the Convention (see also Gillan and Quinton, § 90, and Lashmankin and Others, §§ 350-60, both cited above), the Court considers that it is not necessary to examine it separately on the merits. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 8 AND 10 103.", "Lastly, the applicant complained in substance about the manner in which the judicial review in the present case was carried out. The parties have been invited to make submissions under Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 104. The applicant argued that the public officials’ actions could be and actually had been challenged by way of a judicial review under Chapter 25 of the CCP. However, the domestic courts had not proceeded to an adequate assessment of the adverse impact that the officials’ actions had had on his right to respect for his private life and correspondence or his right to freedom of expression. In particular, they had not carried out an assessment of whether the officials’ actions had been proportionate to any particular legitimate aim.", "105. The Government submitted that the applicant had had access to effective remedies in respect of his complaints. The judicial review procedure under Chapter 25 of the CCP was capable of remedying violations of individual rights. The applicant’s case had been examined by the courts on the merits. They had dealt with matters relating to legality and had concluded that the customs officials’ actions had not breached his rights.", "The applicant could also have lodged a civil claim under Article 1070 of the Civil Code. 106. Having regard to the applicant’s specific allegations and, first and foremost, the nature and scope of the Court’s findings under Article 8 of the Convention (see also Lashmankin and Others, cited above, §§ 350-60), the Court considers that the complaint under Article 13 of the Convention is admissible but that it is not necessary to examine it separately on the merits. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 107. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 108. The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage. 109. The Government submitted that the applicant had not substantiated a causal link between the alleged suffering and the violations of the Convention. 110.", "The Court awards the applicant EUR 3,000, plus any tax that may be chargeable. B. Costs and expenses 111. The applicant also claimed EUR 2,805 for the costs and expenses incurred before the domestic courts and the Court. 112.", "The Government expressed doubts about the authenticity of the contract between the applicant and his representative, in particular as regards the services allegedly provided at the domestic level. The Government also considered that the fees claimed were excessive and that the postal expenses had been substantiated only in part. 113. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,700 covering costs under all heads, plus any tax that may be chargeable to the applicant.", "C. Default interest 114. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Articles 8, 10 and 13 of the Convention admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3.", "Holds that it is not necessary to examine separately the merits of the complaint under Article 10 of the Convention; 4. Holds that it is not necessary to examine separately the merits of 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 the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsHelena JäderblomRegistrarPresident [1] Russian Reporter magazine [2] File Transfer Protocol [3] Article 20 of the Customs Code of 18 June 1993 provided that it was admissible to prohibit entry of certain goods into Russia, in view of the considerations of national security, protection of public order, morality, human life and health, or other interests of the Russian Federation, on the basis of Russian legislation or international treaties of the Russian Federation." ]

[ "SECOND SECTION CASE OF FATİH TAŞ v. TURKEY (No. 2) (Application no. 6813/09) JUDGMENT STRASBOURG 10 October 2017 FINAL 10/01/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fatih Taş v. Turkey (no.", "2), The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Julia Laffranque,Ledi Bianku,Işıl Karakaş,Paul Lemmens,Valeriu Griţco,Jon Fridrik Kjølbro, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 5 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6813/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Fatih Taş (“the applicant”), on 17 December 2008. 2. The applicant was represented by Mr İ. Akmeşe and Ms Y. Polat, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) were represented by their Agent. 3. On 9 January 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, Aram Basım ve Yayıncılık, which published a periodical, Vesta. 5. In 2004 an article written by Mr M.Ş. entitled “On the Kurdish Intellectual” was published in Vesta.", "6. On 29 December 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, certain passages of the article depicted the PKK[1] as part of the Kurdish intellectual movement and hence constituted propaganda of the organisation, known for employing violence and terror. 7.", "On 23 September 2008 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 as he had published the article in question in Vesta. 8. In its judgment, the Istanbul Assize Court cited the following passages from the article: “In Kurdish history, there have been moments, in certain periods, during which Kurdish literature and culture developed and shone. In those moments, sparks of thought appeared.", "However, objectively and without renouncing the past, the conditions of the birth of Kurdish intellectualism are based on the 1970s. In earlier periods, there had only been individual and temporary developments not creating traditions. The political nature of the 20th century, the existence and rise of national liberation movements, the emergence of modern currents in Kurdish politics and, most importantly, the creation of a mass movement, served as the basis for the birth of the Kurdish intellectual. This process was manifested in the figure of the PKK. All political movements before the PKK were rebellious, devoid of political depth, tactical unity, stable path and permanence.", "The ideological and intellectual superficiality of these revolts and their fierce repression led to the loss of existing knowledge and to falling behind. From this point of view, through political and thoughtful analysis, while being free from the system and alienation, and bearing within it its own cultural identity based on the impoverished Kurdish rustics, [the PKK] allowed the beginning of a permanent and stable political enlightenment process. ... Another characteristic of the PKK movement at the beginning was that it realised that [the previous] abstract and theoretical movements had not led to a solution but deepened the problem. ... The fact that the PKK movement was based on the impoverished Kurdish rustics who were intact and preserved their national identity paved the way for a start favourable for a confident, militant and revolutionary tradition.", "Yet, the progress of the movement was accompanied by the downfall of the level of quality.” 9. The court considered that the aforementioned passages and the article in its entirety constituted propaganda in favour of the PKK. It hence sentenced the applicant to ten months’ imprisonment and ordered him to pay a fine of 375 Turkish liras (TRY). Taking into account his good behaviour during the trial and his character, the court suspended the pronouncement of his conviction on condition that he did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması). 10.", "On 22 October 2008 the court dismissed an objection lodged by the applicant against the above-mentioned decision. II. RELEVANT DOMESTIC LAW 11. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 12. The applicant complained under Article 10 of the Convention that his criminal conviction pursuant to section 7(2) of Law no. 3713 had constituted a violation of his right to freedom of expression. 13.", "The Government contested his argument. They claimed at the outset that he did not have victim status, within the meaning of Article 34 of the Convention, given that the pronouncement of his conviction had been suspended. The Government further submitted that the interference with the applicant’s freedom of expression had been prescribed by law, had pursued the legitimate aim of protecting the State as a whole and had been necessary in a democratic society. They noted that the article in question glorified the PKK and promoted hatred, hostility and the use of arms, militancy and revenge. They lastly contended that the circumstances of the case were similar to the case of Sürek v. Turkey ((no.", "1) [GC], no. 26682/95, ECHR 1999‑IV) in which the Court found no violation of Article 10 of the Convention. 14. The Court considers that the Government’s objection regarding the lack of the applicant’s “victim status” is closely linked to the merits of his complaints under this head. It therefore joins this issue to the merits.", "The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 15. As to the merits, the Court notes at the outset that it has already held in cases concerning Articles 10 and 11 of the Convention where the pronouncement of the applicants’ convictions had been suspended that there was nonetheless an interference with their rights guaranteed under the aforementioned Articles (see Şükran Aydın and Others v. Turkey, nos.", "49197/06 and 4 others, § 44, 22 January 2013; Gülcü v. Turkey, no. 17526/10, §§ 98-102, 19 January 2016). The Court finds no reason to depart from its considerations in the above-mentioned cases, particularly in view of the fact that, as a publisher, the applicant faced, for five years, the threat of a penalty. In the Court’s opinion, that condition entailed real and effective restraint and had a deterrent effect on his very profession (see Erdoğdu v. Turkey, no. 25723/94, § 72, ECHR 2000‑VI, and Koç and Tambaş v. Turkey, no.", "50934/99, § 39, 21 March 2006). The Court hence finds that the criminal proceedings brought against the applicant and the judgment of 23 September 2008 amounted to an “interference” with the exercise of his freedom of expression and that he has “victim status” under Article 10. The Court accordingly rejects the Government’s objection. 16. The Court further considers that the interference was based on section 7(2) of Law no.", "3713. In the light of its findings regarding the necessity of the interference (see paragraph 19 below) the Court considers that it is not required to conduct an examination of the “lawfulness” of the interference. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011). 17.", "As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of other cases and found violations of Article 10 of the Convention (see, for example, Sürek c. Turquie (no. 4) [GC], no. 24762/94, §§ 54-61, 8 July 1999; Erdoğdu v. Turkey, no. 25723/94, §§ 60-73, ECHR 2000‑VI; Demirel and Ateş v. Turkey (no. 3), no.", "11976/03, §§ 19‑30, 9 December 2008). The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion. 18. In this connection, the Court notes that the applicant published an article written by Mr M.Ş. in Vesta.", "The article in question contained the author’s opinions on Kurdish intellectuals in Turkey. Within that context, in a number of passages the author assessed the establishment and development of the PKK and the Kurdish intellectuals’ relationship with that organisation. The Court has examined the passages cited in the Istanbul Assize Court’s judgment and also the article in its entirety. It observes that the author had particularly critical views on Kurdish intellectuals and sympathy towards the intellectual background of the PKK and its leader. However, in the Court’s view, the article as a whole cannot be construed as encouraging violence, armed resistance or an uprising or being capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons, which are essential elements to be taken into account.", "The Istanbul Assize Court, however, does not appear to have given consideration to any of the above. In sum, the Court considers that the interference with the applicant’s right to freedom of expression was not justified by “relevant and sufficient” reasons for the purposes of Article 10 of the Convention. 19. The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 20. The applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time and that there had been no domestic remedies available under Turkish law for the excessive length of the criminal proceedings and the breach of his right to freedom of expression. 21. Having regard to the facts of the case and its finding of a violation of Article 10 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s complaints under Articles 6 and 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.", "47848/08, § 156, ECHR 2014, and the cases cited therein). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed 5,048 Turkish liras (TRY) (approximately EUR 2,285) for costs and expenses incurred.", "In support of his claims, he submitted a legal services agreement with his representative and an invoice showing that he had paid TRY 4,248 (approximately EUR 1,930) to him for his representation before the Court. 23. The Government contested those claims. 24. Ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage.", "As to costs and expenses, regard being had to the documents in its possession, the Court rejects the claim in respect of the domestic proceedings and considers it reasonable to award the sum of EUR 1,930 for the proceedings before the Court. 25. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection regarding the applicant’s lack of victim status under Article 10 of the Convention and dismisses it; 2.", "Declares the complaint under Article 10 of the Convention admissible; 3. Holds that there has been a violation of Article 10 of the Convention; 4. Holds that there is no need to examine the admissibility or the merits of the complaints under Articles 6 and 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 the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,930 (one thousand nine hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıRobert SpanoDeputy RegistrarPresident [1]. An illegal armed organisation" ]

[ "GRAND CHAMBER CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND (Application no. 16354/06) JUDGMENT STRASBOURG 13 July 2012 This judgment is final but may be subject to editorial revision. In the case of Mouvement raëlien suisse v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of: Nicolas Bratza, President,Françoise Tulkens,Josep Casadevall,Corneliu Bîrsan,Egbert Myjer,Mark Villiger,Päivi Hirvelä,András Sajó,Mirjana Lazarova Trajkovska,Ledi Bianku,Ann Power-Forde,Mihai Poalelungi,Nebojša Vučinić,Kristina Pardalos,Ganna Yudkivska,Paulo Pinto de Albuquerque,Helen Keller, judges,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 16 November 2011 and on 9 May 2012, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 16354/06) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association constituted under Swiss law, Mouvement raëlien suisse (“the applicant association”), on 10 April 2006.", "2. The applicant association was represented by Mr E. Elkaim, a lawyer practising in Lausanne (Switzerland). The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice. 3. The applicant association alleged that the banning of its posters by the Swiss authorities had breached its right to freedom of religion and its right to freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively.", "4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 15 May 2008 the Court decided to give notice of the application to the Government and, under former Article 29 § 3 of the Convention, to examine the admissibility and merits at the same time. 5. On 13 January 2011 a Chamber of that Section composed of the following judges: Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, and also of Søren Nielsen, Section Registrar, delivered a judgment in which it found, by five votes to two, that there had been no violation of Article 10 of the Convention and that there was no need to examine separately the complaint under Article 9.", "The dissenting opinion of Judges Rozakis and Vajić was appended to the judgment. 6. On 12 April 2011 the applicant association requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 75. On 20 June 2011 the panel of the Grand Chamber accepted that request. 7.", "The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. Mihai Poalelungi’s term of office expired on 30 April 2012. He continued to sit in the case (Article 23 § 3 of the Convention and Rule 24 § 4). 8. The applicant association and the Government each filed further written observations (Rule 59 § 1).", "In addition, third-party comments were received from the non-governmental organisation Article 19, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 November 2011 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrF. Schürmann, Head of European law and international human rights section, Federal Office of Justice,Federal Police and Justice Department,Agent,MrA.", "Tendon, Lawyer, Deputy Head of the Legal Department of the Canton of Neuchâtel,MsD. Steiger Leuba, Technical adviser, European law andinternational human rights section, Federal Officeof Justice, Federal Police and Justice Department, Advisers; (b) for the applicant associationMrE. Elkaim, lawyer,MrN. Blanc, associate lawyer,Counsel,MrM.P. Chabloz, head and spokesman of the Mouvementraëlien suisse,Adviser.", "The Court heard addresses by Mr Elkaim and Mr Schürmann, and also their replies to certain questions from judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The applicant association and the Raelian Movement 10. The applicant association, which was set up in 1977, is a non-profit association registered in Rennaz (Canton of Vaud).", "It is the national branch of the Raelian Movement, an organisation based in Geneva and founded in 1976 by Claude Vorilhon, known as “Raël”. According to its constitution, its aim is to make the first contacts and establish good relations with extraterrestrials. 11. According to the information available on the applicant association’s website at the time of the adoption of the present judgment, the Raelian Movement’s doctrine is based on Raël’s alleged contact with the “Elohim”, extraterrestrials with “advanced technology”, who are said to have created life on earth and a number of world religions, including Christianity, Judaism and Islam. The Raelian Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal.", "In that connection the Raelian Movement has expressed opinions in favour of human cloning. 12. Some texts of the Raelian Movement or works written by Raël himself advocate a system of government called “geniocracy”, a doctrine whereby power should be entrusted only to those individuals who have the highest level of intellect. 13. In his book Sensual Meditation Raël defines this concept as an “instruction manual” given to humans by extraterrestrials, enabling each person “to discover his/her body and especially to learn how to use it to enjoy sounds, colors, smells, tastes, caresses, and particularly a sexuality felt with all one’s senses, so as to experience the cosmic orgasm, infinite and absolute, which illuminates the mind by linking the one who reaches it with the universes he/she is composed of and composes”.", "B. The relevant proceedings 14. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.", "15. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral. 16. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect.", "The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”. 17. On 27 October 2003 the Neuchâtel Land Management Directorate upheld that decision. It noted that, for the Raelian Movement, life on earth had been created by extraterrestrials, who were also the founders of the various religions and were capable of saving the world, and accepted that this amounted to a religious conviction protected by freedom of conscience and belief. It further accepted that the Regulations constituted a sufficient legal basis in such matters.", "The Directorate observed that there was nothing offensive in the text and picture on the poster, or in the allusion to extraterrestrials. However, it pointed to the fact that the Raelian Movement advocated “geniocracy” (a political model based on intelligence) and human cloning. Moreover, in a judgment of 13 February 1998 the Fribourg Cantonal Court had found that the movement also “theoretically” advocated paedophilia and incest, especially in the works of Raël himself. The practice of “sensual meditation” could also easily lead to abuse. In addition, the website of Clonaid, to which the Raelian Movement’s site contained a link, offered specific services in the area of cloning, and the notion of eugenics was contrary to the principle of non-discrimination.", "The poster campaign was prejudicial to morals and to the rights of others. In any event, the Raelian Movement had other means by which to disseminate its ideas. 18. The applicant association appealed to the Administrative Court for the Canton of Neuchâtel. It claimed, among other things, that the mere defence of “geniocracy”, cloning and sensual meditation were not offensive opinions.", "Moreover, it argued that the movement denounced paedophilia through its association Nopedo. The refusal to authorise its poster thus amounted purely and simply to censorship, especially as the applicant association’s website was, in any event, accessible through a search engine. 19. In a judgment of 22 April 2005 the Administrative Court dismissed the appeal, after acknowledging, however, that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom. It found first that the impugned measure was based on the Administrative Regulations, which constituted a law in the substantive sense, and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement’s website.", "The services proposed by Clonaid were manifestly contrary to Swiss public order. The court further observed that criminal complaints had been filed against the Raelian Movement alleging the existence of sexual practices that were intended to systematically corrupt young teenagers. The content of the works on “geniocracy” and “sensual meditation” could lead certain adults to sexually abuse children, the child being described in certain works as a “privileged sexual object”. The comments on “geniocracy” and the criticisms of contemporary democracies were likely to undermine public order, safety and morality. For those reasons the Administrative Court concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway.", "20. The applicant association lodged a public-law appeal against that judgment with the Federal Court, requesting that it be set aside and that the case be referred back to the respondent authority for a new decision. 21. In a judgment of 20 September 2005, served on the applicant association on 10 October 2005, the Federal Court dismissed the appeal. The relevant passages read as follows: “The Directorate, and subsequently the Administrative Court, acknowledged that the [applicant] association could rely on the right to freedom of religion (Art.", "15 of the Constitution, Art. 9 ECHR and Art. 18 UN Covenant II), in so far as it defended a global vision of the world, especially as regards its creation and the origin of the various religions. The City of Neuchâtel disputes this, noting that the aim of the [applicant] association as defined in Article 2 of its Constitution, is not religious in nature. According to a report on ‘sects’ produced in 1995 for the French National Assembly, the Raelian Movement is classified among the movements that present dangers for the individual, especially on account of the excessive financial demands made of its members and practices that cause bodily harm, and also dangers for the community, in particular through an antisocial discourse.", "Many of the movement’s publications contain passages described as offensive. There is no need to ascertain whether a religious movement may, on account of the dangers it represents, be precluded from relying on the right to freedom of religion, or whether the [applicant] association presents such dangers. Indeed, the parties agree that the [applicant] is entitled to rely on the right to freedom of opinion. As to the conditions in which such freedom may be restricted, as laid down in Article 36 of the Constitution, it makes little difference whether Article 15 or Article 16 of the Constitution is relied on (see also Article 9 § 2 and Article 10 § 2 ECHR). The [applicant] does not argue that the impugned measure impairs the very essence of its religious freedom, or that the restrictions on that freedom are, in the circumstances of the case, subject to stricter conditions.", "On the contrary, the [applicant] relies on the principles of proportionality and public interest, without distinction as to the constitutional right invoked. ... 5.2 According to case-law, citizens do not have an unconditional right to an extended use of public space, in particular when a means of advertising on the public highway involves activity of a certain scale and duration, and excludes any similar use by third parties (Federal Court judgment 128 I 295 point 3c/aa p. 300 and the judgments cited therein). When it wishes to grant authorisation for extended or private use of public space, or when it supervises the conditions under which a licence is used, the State must nevertheless take into account, in balancing the interests at stake, the substantive content of the right to freedom of expression (Federal Court judgment 100 Ia 392 point 5 p. 402). 5.3 In the present case, the grounds given by the Cantonal Court to confirm the refusal by the City of Neuchâtel relate to respect for morality and the Swiss legal order. The Administrative Court took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by the Raelian Movement, together with the works and websites that could be accessed from the movement’s website.", "Three different criticisms are thus directed against the [applicant] association. Firstly, the [applicant] association’s website contains a link to that of Clonaid, via which this company offers specific cloning-related services to the general public and announced, in early 2003, the birth of cloned babies. Cloning is prohibited under Swiss law, pursuant to Art. 119 of the Constitution and to the Medically-Assisted Reproduction Act (RS 814.90). Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of children.", "Numerous members of the movement had, moreover, been investigated by the police because of their sexual practices. Thirdly, the promotion of ‘geniocracy’, a doctrine according to which power should be given to the most intelligent individuals, and the criticism consequently directed at contemporary democracies, was likely to undermine the maintaining of public order, safety and morality. 5.4 The [applicant] no longer contests, at this stage, the existence of a sufficient legal basis, namely, in this case, Article 19 of the Regulations. A municipal by-law offers the same guarantees, in terms of democratic legitimacy, as a Cantonal law, and thus constitutes a sufficient legal basis (judgment 1P.293/2004 of 31 May 2005, point 4.3, Federal Court judgment 131 I xxx; Federal Court judgment 122 I 305, point 5a, p. 312; 120 Ia 265, point 2a, pp. 266-267 and the references cited therein).", "The [applicant] invokes, however, the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [applicant] association’s activities. It argues that if it had generally engaged in conduct that was immoral or in breach of public order, it would have been dissolved by the courts pursuant to Article 78 of the Civil Code. If no decision had been taken to that effect, it would not be possible to prohibit it from publicising its philosophy and world vision. 5.5 The poster in itself does not contain anything, either in its text or in its illustrations, that was unlawful or likely to offend the general public. Above the central drawing representing extra-terrestrials appears the text ‘The Message from Extraterrestrials’, without any explanation.", "Below that, the [applicant] association’s website address and a telephone number are printed in bolder type. The phrase ‘Science at last replaces religion’ is admittedly capable of offending the religious beliefs of certain persons, but it is merely the expression of the movement’s doctrine and cannot be described as particularly provocative. The poster as a whole can thus clearly be seen as an invitation to visit the website of the [applicant] association or to contact it by telephone. Faced with such advertising, the authority must examine not only the acceptability of the advertisement’s message as such, but also that of its content. It is therefore legitimate to ascertain whether the website in question might contain information, data or links capable of offending people or of infringing the law.", "Moreover, contrary to the [applicant]’s allegation, an association may be criticised for opinions or activities which, without constituting grounds for dissolution within the meaning of Article 78 of the Civil Code, nevertheless justify a restriction on advertising. 5.5.1 As regards cloning, it was not the opinions expressed by the [applicant] association in favour of such practices (particularly in the book Yes to Human Cloning, published in 2001 and available via the [applicant]’s website) that were penalised, but the link with the company Clonaid, set up by the association itself, which offers various practical services in this area for payment. The issue is thus not simply, contrary to what the [applicant] has argued, the expression of a favourable opinion of cloning, protected by Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution. That provision, accepted in 1992 by the majority of the population and of the Swiss Cantons (in the form of Article 24 novies (a) of the Constitution), falls in particular within a policy of protection of human dignity, according to the conception thereof that is generally shared in this country (FF 1996 III 278; see also the response of the Federal Council to a question from R. Gonseth of 9 June 1997). The [applicant] does not contest the unlawfulness of human cloning, especially if it is carried out for commercial gain (section 36 Medically Assisted Reproduction Act; Art.", "119 § 2 (e) of the Constitution). Nor can it seriously contest the fact that the link to the Clonaid website contributes to the promotion of an unlawful activity, and goes further than the mere expression of an opinion. On that first point, which already justifies the decision under appeal, the [applicant] has not put forward any real relevant argument within the meaning of section 90 § 1 (b) of the Judicial Organisation Act. 5.5.2 On 15 October 2003 the Intercantonal Beliefs Information Centre provided information on the Raelian Movement. This information shows, among other things, that the movement apparently has a political mission.", "Virulently attacking democracies, which are referred to as ‘mediocracies’, it defends the notion of ‘geniocracy’, a political model based on individuals’ level of intelligence. A world government would consist of geniuses, elected by individuals whose intelligence is 10% higher than average. Admittedly, ‘geniocracy’ is presented as a utopia and not as a genuine political project; contrary to the finding of the Administrative Court, this doctrine does not appear likely to undermine public order or safety. However, apart from the fact that the doctrine appears to be largely inspired by eugenics, it is manifestly capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law (see, in particular, the wording of the preamble to the Federal Constitution of 18 April 1999, together with Article 8 of the Constitution concerning equality and the prohibition of discrimination). 5.5.3 Lastly, according to the judgment under appeal, it cannot be considered that the Raelian Movement advocates paedophilia.", "However, numerous members have apparently been investigated by the police on account of their sexual practices. According to a judgment delivered on 28 November 1997 by the District Court of La Sarine, concerning a right of reply requested by the Mouvement Raëlien Suisse, the remarks made by Raël in his works could lead certain adults to commit acts of sexual abuse against children. The judgment quotes extracts from works by Raël that can be downloaded from the website of the [applicant] association, according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it. That judgment further indicates that, notwithstanding the denial subsequently issued on this point, certain articles published in the quarterly newsletter Apocalypse described the child as a ‘privileged sexual object’. Lastly, it is stated that a friend and a member of the Raelian Movement were convicted by the Vaucluse Assize Court and sentenced to five years’ imprisonment for sexually assaulting a twelve-year-old girl.", "The judgment was confirmed on 13 February 1998 by the Fribourg Cantonal Court. An ordinary appeal and a public-law appeal by the Mouvement Raëlien were dismissed on 24 August 1998 by the Federal Court, having regard in particular to the equivocal writings of the movement’s founder or members (judgments 5P.172/1998 and 5C.104/1998). The case-file, moreover, contains various documents concerning criminal proceedings brought against members of the [applicant association] for sexual assault. A judgment of 24 January 2002 of the Lyons Court of Appeal clearly shows that acts of sexual abuse were committed by leaders of the movement against minors. The movement’s leaders are thus said to have advocated ‘a broad sexual freedom strongly encouraging commission of the act’; they had thus corrupted young teenagers by supposedly philosophical discourse, by increasingly specific sexual fondling and by inciting them more and more forcefully, in order to satisfy ‘their sexual needs and fantasies with young girls who had just turned fifteen, and who were changing partners very quickly’.", "The fact that the impugned articles date from the 1980s and that there has been no conviction in Switzerland does not negate the involvement of members of the [applicant] association in acts leading to criminal sanctions. The [applicant] does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children. On that point also, the [applicant]’s arguments do not address the grounds set out in the decision under appeal. Since acts of abuse have indeed been recorded on the part of certain members of the Raelian Movement, the argument that paedophilia is strongly condemned by the movement’s official doctrine is not decisive. 5.6 Having regard to the foregoing, the refusal issued to the [applicant] appears to be justified by sufficient public-interest grounds, because it is necessary to prevent the commission of acts constituting criminal offences under Swiss law (reproductive cloning and sexual acts with children).", "Moreover, certain passages in the works available via the [applicant]’s website (in particular about the ‘sensual awakening’ of children, and ‘geniocracy’) are likely to be seriously offensive to readers. 5.7 The [applicant] invokes the principle of proportionality. It points out that the poster itself contains nothing that is contrary to public order, and maintains that the measure is not appropriate to the aim pursued. 5.7.1 In accordance with Article 36 § 3 of the Constitution, any restriction on a fundamental right must be proportionate to the aim pursued. It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum (Federal Court judgment 125 I 474, point 3, p. 482, and the references cited therein).", "5.7.2 In the present case, the public interest does not only consist in limiting the publicity given to the [applicant] association’s website, in view of the reservations expressed above about public order and morality; it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question. From that perspective, the prohibition of the posters is appropriate to the aim pursued. Furthermore, the measure criticised by the [applicant] is confined to the display of posters in public spaces. The [applicant] association remains free to express its beliefs by many other means of communication at its disposal (see the Murphy judgment of 10 July 2003, ECHR 2003-IX, p. 33, § 74). 5.7.3 The [applicant] takes the view that the authority should have suggested that it make changes to the poster in order to make the content acceptable.", "However, even though it was aware of the objections raised against its poster campaign, the [applicant] itself never proposed a version of the poster that was likely to be authorised. The Administrative Court, for its part, found that the poster should be prohibited even without the reference to the website, but this seems questionable; there is no doubt, however, that the removal of the address in question would deprive the poster campaign of its object, which, as has been shown, is essentially to advertise the website itself. It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number. 5.7.4 The impugned measure therefore respects the principle of proportionality, in all its aspects. It constitutes, for the same reasons, a restriction that is necessary ‘in a democratic society’, in particular for the protection of morals, within the meaning of Article 9 § 2 and Article 10 § 2 of the ECHR.” C. The applicant association’s poster campaigns in other Swiss cities 22.", "Posters of a similar design to that concerned by the present case – also containing the Raelian Movement’s website address and a telephone number but a different text, namely “The true face of God” – were authorised in December 1999 in a number of Swiss cities such as Zurich and Lausanne. The applicant association was also able to conduct further campaigns with posters of other designs – some of which indicated the Raelian Movement’s website address – between 2004 and 2006 in various Swiss towns and cities other than Neuchâtel. However, in October 2004, the town council of Delémont refused to authorise a poster that the applicant association wished to display with the wording “God does not exist”. II. RELEVANT LAW AND PRACTICE A.", "Domestic law 1. The Constitution 23. Article 119 of the Federal Constitution of 18 April 1999 concerns reproductive medicine and gene technology involving human beings. That provision reads as follows: “Human beings shall be protected against the misuse of reproductive medicine and gene technology. The Confederation shall legislate on the use of human reproductive and genetic material.", "In doing so, it shall ensure the protection of human dignity, privacy and the family and shall adhere in particular to the following principles: (a) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful. (b) Non-human reproductive and genetic material may neither be introduced into nor combined with human reproductive material. (c) Methods of medically assisted reproduction may be used only if infertility or the risk of transmitting a serious illness cannot otherwise be overcome, but not in order to conceive a child with specific characteristics or for research purposes; the fertilisation of human egg cells outside a woman’s body is permitted only under the conditions laid down by the law; no more human egg cells may be developed into embryos outside a woman’s body than are capable of being immediately implanted. (d) The donation of embryos and all forms of surrogate motherhood are unlawful. (e) Trade in human reproductive material and in products obtained from embryos is prohibited.", "(f) The genetic material of a person may be analysed, registered or made public only with the consent of the person concerned or if the law so provides. (g) Everyone shall have access to data relating to their ancestry.” 24. In a response of 21 May 2003 to a Swiss National Council Member, who had asked whether measures should be taken against the Raelian Movement under paragraph (a) of that Article, the Federal Council stated: “As, in Switzerland, the Raelian Movement is merely calling for the social recognition of cloning techniques – or for the lifting of the ban on cloning – its activity falls within the freedom of opinion ...” 2. Neuchâtel Administrative Regulations 25. In Neuchâtel, as in other Swiss municipalities, the management of posters in public areas is entrusted to a private company.", "The municipal council granted such company a concession for this purpose under the Administrative Regulations of 17 January 2000, of which the relevant provisions read as follows: Article 18 “1. The installation of billboards and advertising panels in public areas, and in private areas visible from public areas, shall be subject to authorisation. 2. Such authorisation shall be granted only if the urban-planning and safety conditions are satisfied.” Article 19 “1. The Police may prohibit posters that are unlawful or immoral.", "2. Flyposting shall be prohibited.” Article 20 “An exclusive right in respect of posters displayed within the area of the municipality may be granted by the municipal council.” B. International law 26. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the “Convention on Human Rights and Biomedicine”, opened for signature on 4 April 1997 in Oviedo (the “Oviedo Convention”), entered into force on 1 December 1999. It has applied to Switzerland since 1 November 2008.", "27. The Additional Protocol to the Oviedo Convention, opened for signature on 12 January 1998 in Paris, entered into force on 1 May 2006 and has been applicable to Switzerland since 1 March 2010. It prohibits “any intervention seeking to create a human being genetically identical to another human being, whether living or dead”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 28.", "The applicant association claimed that the measures taken by the Swiss authorities to prohibit the display of its posters had breached its right to freedom of expression as guaranteed by Article 10 of the Convention. That provision reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2.", "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Government’s preliminary objection 29. In their written and oral observations before the Grand Chamber, the Government requested the Court to declare the application inadmissible as manifestly ill-founded. In the Government’s submission, the Court could declare manifestly ill-founded a complaint which had been examined in substance by the competent national bodies in proceedings that met all the conditions of fairness and were not arbitrary. The Government emphasised that, in such a case, the Court should not substitute its own assessment of the facts for that of the numerous national authorities which had given decisions during the proceedings in question.", "30. The Court reiterates that, in the context of Article 43 § 3 of the Convention, the “case” referred to the Grand Chamber covers all the aspects of the application that have been declared admissible by the Chamber (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001‑VII). However, even after the decision of a Chamber to declare a complaint admissible, the Grand Chamber may also examine, where appropriate, issues relating to the admissibility of the application, for example by virtue of Article 35 § 4 in fine of the Convention, which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”, or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland, cited above, § 141, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003‑V).", "31. In the present case, the Grand Chamber would point out that the Chamber took the view in its judgment that the application was not “manifestly ill-founded within the meaning of Article 35 § 3 of the Convention” (see paragraph 22 of the Chamber judgment). It does not see any reason to depart from that conclusion, especially as the issues raised by the Government in this connection are more relevant to the examination of the merits. 32. Accordingly, the Court dismisses the Government’s preliminary objection.", "B. Compliance with Article 10 of the Convention 1. The Chamber judgment 33. In its judgment of 13 January 2011 the Chamber first found that the prohibition of the posters in question constituted an interference with the applicant association’s freedom of expression. In the Chamber’s view, such interference was prescribed by law and pursued the legitimate aims of prevention of crime, protection of health and morals and protection of the rights of others.", "Turning then to the necessity of the interference, the Chamber, after noting that it found itself confronted for the first time with the question whether the domestic authorities should allow an association, by making public space available to it, to disseminate its ideas through a poster campaign, emphasised that whilst it was not in dispute that the poster in question contained nothing unlawful or shocking, either in its text or in its illustrations, it had displayed the applicant association’s website address. Taking into account the general context of the poster, and in particular the ideas imparted by the website and the links to other sites from that website, the Chamber pointed out that this modern means of conveying information and the fact that it was accessible to everyone, including minors, would have multiplied the impact of the poster campaign. Observing that the Swiss courts had carefully reasoned their decisions, and also taking into account the limited scope of the impugned ban, which did not extend to the association itself or to its website, the Chamber took the view that the competent authorities had not overstepped the wide margin of appreciation afforded to them as regards regulation of the extended use of public space. The Chamber thus held that there had been no violation of Article 10 of the Convention. 2.", "Submissions of the parties and the third-party intervener (a) The applicant association 34. The applicant association emphasised at the outset that, in finding that Switzerland had such a wide margin of appreciation in regulating the extended use of public space, the Chamber had endorsed a discretionary policy on the part of the relevant authorities. It would thus suffice for a city or a State to say that it did not wish its name to be associated with certain non-majority but lawful ideas in order to justify a systematic refusal and oppose the expression of such ideas in public on a permanent basis. The applicant association referred, in this connection, to the position adopted by the Court in Women On Waves and Others v. Portugal (no. 31276/05, 3 February 2009), where the Court had criticised a ban on disseminating ideas contrary to those of the majority.", "Similarly, in a judgment of 22 February 2011 (no. 1 BvR 699/06), the German Constitutional Court had rejected the argument that a ban on the distribution in an airport of leaflets criticising deportation policy was justified by a concern to maintain a pleasant atmosphere. That court had further held that it could not accept prohibitions intended to prevent the expression of opinions not shared by the authorities. 35. The applicant association asserted that it was a lawfully constituted association under Swiss law and that there had never been any criminal sanctions against it or any measures taken to have it banned.", "In its submission, since it was not disputed that the impugned poster did not in itself contain anything that was illegal or might offend the public, the basis of the poster ban stemmed from the fact that the poster referred to the Raelian Movement’s website and thus made a link with the ideas expressed on that site. The applicant association argued that it found itself in a situation where it was prevented from disseminating its ideas through posters on the ground that there were other means of communication it could use, in particular the Internet, but when it displayed the address of its website on a poster, it was prohibited from doing so on the pretext that this created a link with its ideas, which were allegedly dangerous for the public. In the applicant association’s submission, the approach taken by the Swiss authorities, and endorsed by the Chamber, was tantamount to complicating excessively, or even preventing, any publicity for or dissemination of its ideas. 36. As regards those ideas, which the Swiss authorities and the Chamber had found to be capable of justifying the poster ban, the applicant association reiterated that there was nothing illegal in expressing favourable views about cloning or “geniocracy”.", "It pointed out that, whilst it had expressed opinions in favour of cloning, it had never taken part in any therapeutic or experimental acts related to human cloning. As regards the concept of “geniocracy”, it stated that the interference with its rights was all the more serious as neither the impugned poster nor the Raelian Movement’s website referred to it. The applicant association explained that this concept came from a book advertised on the website that contained philosophical opinions and that everyone was free to agree or disagree with them. 37. Turning to the allegations that the Raelian Movement’s ideas had given rise to sexual abuse, the applicant association claimed that no police or judicial authority had ever had to act on any case of paedophilia or sexual abuse connected in any way to the movement or one of its members.", "On the contrary, it claimed that it had always, without hesitation, expelled any member against whom there had been even the slightest suspicion of conduct contrary to the law on the protection of minors. 38. The applicant association concluded that there was no pressing need to prohibit the poster just because it mentioned a website address. Pointing out that Article 10 of the Convention also protected the form in which ideas were conveyed (it cited Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001‑III), and sharing the opinion of the dissenting judges Rozakis and Vajić, according to whom the authorities’ margin of appreciation was narrower when it came to negative obligations (Women On Waves and Others, cited above, § 40), the applicant association argued that there had, in the present case, been a violation of Article 10 of the Convention.", "(b) The Government 39. The Government unreservedly agreed not only with the fundamental principles of freedom of expression reiterated by the Chamber but also with its application of those principles. In their submission, the Chamber had correctly balanced the interests at stake. They argued that the following points should be taken into account. 40.", "As regards, first, the provision of public space, the Government argued that individuals did not have an unconditional right to the extended use of such space, in particular for the purpose of advertising involving activity of a certain scale and duration, and excluding any similar use of that space by third parties. Pointing out that the impugned poster was not of a political nature, the Government agreed with the findings of the domestic authorities, especially the view that it was necessary to examine not only the advertisement’s message as such, but also its content, thus including the website reference. In this connection the Government endorsed the Chamber’s reasoning that the impact of the posters in question would have been multiplied as a result of the reference to the Raelian Movement’s website address. 41. As regards the extent of the margin of appreciation, the Government emphasised that the ideas disseminated in the various publications obtainable through the Raelian Movement’s website were capable of offending the religious beliefs of certain persons, and that the authorities had a wide margin of appreciation in that sphere (they cited Murphy v. Ireland, no.", "44179/98, § 67, ECHR 2003‑IX). In that connection, the Government criticised the dissenting opinion annexed to the Chamber judgment, considering that it placed too much weight on the distinction between positive and negative obligations in determining the extent of the margin of appreciation. In the Government’s submission, the present case fell into the category of cases where the characterisation of the obligation as negative or positive depended on how the question was formulated: whether the authorities were criticised for having done something or for failing to do something. They admitted that it would be different if, unlike the situation in the present case, access to public space were not subjected to any restriction or authorisation. 42.", "Turning to the examination of the legitimate aims pursued by the disputed restriction, the Government agreed with the analysis of the Chamber, which had approved the arguments of the four national authorities called upon to examine the refusal issued by the police to the applicant association. As regards the applicant association’s opinions about the “sensual awakening” of children, the Government referred to various proceedings brought against members of the Raelian Movement for acts of sexual abuse (Vaucluse Assize Court, Lyons and Colmar Courts of Appeal, investigating judge in Versailles). In their view, that list of decisions strongly suggested that certain passages of publications obtainable through the movement’s website could lead adults to commit acts of sexual abuse against children. 43. As to the question of cloning, the Government drew attention to the relationship between the applicant association and the company Clonaid, set up by Raël, which they alleged offered various practical and fee-paying services in the area of cloning, a practice prohibited by the Federal Constitution and criminal legislation.", "The presence of a link to the Clonaid website contributed to the promotion of an unlawful activity, thus going further than the mere expression of an opinion. 44. As regards “geniocracy”, the Government pointed out that, without as such specifically undermining public order or safety, this concept might offend the democratic and anti-discriminatory beliefs on which the principle of the rule of law was based. They agreed with the Federal Court that, even though “geniocracy” could be seen as a utopia and not as a real political project, it appeared to be inspired largely by eugenics and was at odds with democratic principles. 45.", "The Government lastly observed that the scope of the prohibition was limited. Agreeing with the position of the Chamber in this connection, they took the view that the applicant association was not prevented from disseminating its doctrine by the numerous other means of communication available to it, including the Internet. The Government emphasised in this connection that there had never been any question of banning the Raelian Movement’s website or the movement itself. They took the view, however, that a distinction should be drawn between the purpose of the association, which could be quite lawful, and the means used to achieve it, which could for their part be unlawful. 46.", "For all these reasons, the Government requested the Grand Chamber to confirm the Chamber’s judgment and find that there had been no violation of Article 10. (c) The third party 47. The organisation Article 19 requested the Court to make a careful examination of the margin of appreciation that was to be afforded to States for restrictions on freedom of expression in cases involving the dissemination of information on the Internet. In its view, the importance of freedom of expression on the Internet under international law meant that the State’s margin of appreciation in this area should be a narrow one. As regards, more specifically, the question of hyperlinks to other sites, the organisation Article 19 referred to comparative-law material concerning judicial decisions in the United Kingdom, Germany and the United States, in particular, showing that a measure requiring the removal of a link without first addressing the source of the allegedly illegal content would always be a disproportionate step.", "3. The Court’s assessment (a) General principles 48. The fundamental principles concerning freedom of expression are well established in the Court’s case-law. The Chamber judgment, referring to the cases of Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007‑V) and Steel and Morris v. the United Kingdom (no.", "68416/01, § 87, ECHR 2005-II), reproduced them as follows (§ 49): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.", "The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ....” (b) Application of the above principles to the present case (i) Whether there has been an interference 49. It is not in dispute that the applicant association sustained a restriction of its right to freedom of expression on account of the banning of the poster campaign it wished to conduct.", "The parties argued before the Grand Chamber, however, about whether such a restriction could be regarded in terms of negative obligations or positive obligations. 50. The Court would reiterate in this connection that in addition to the primarily negative undertaking by the State to abstain from any interference with the rights guaranteed by the Convention, there “may be positive obligations inherent” in such rights (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no.", "2) [GC], no. 32772/02, § 82, ECHR 2009); in both situations – whether the obligations are positive or negative – the State enjoys a certain margin of appreciation (see, for example, Keegan v. Ireland, 26 May 1994, §§ 51-52, Series A no. 290). 51. In the present case the Court takes the view that it is not necessary to examine further whether Article 10 imposed a positive obligation on the Swiss authorities.", "As the impugned ban constituted, in any event, an interference, it will not be acceptable unless it fulfils the requirements of paragraph 2 of that Article. (ii) Justification for the interference 52. Such an interference with the applicant association’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”. 53. The Court would first note that it is not in dispute between the parties that the restriction at issue was based on Article 19 of the Administrative Regulations of the City of Neuchâtel (see paragraph 25 above).", "54. As to the legitimate aims pursued by the restriction, the Government indicated that it had sought to prevent crime, to protect health or morals and to protect the rights of others. 55. The Grand Chamber observes, like the Chamber, that the applicant association has not denied that the measure in question was taken to fulfil those legitimate aims. The Grand Chamber thus accepts that the restriction at issue pursued the above-mentioned legitimate aims.", "56. It follows that the main question to be addressed in the present case is whether the impugned measure was necessary in a democratic society. 57. As the Chamber noted, the present case is singular in the sense that it raises the question whether the national authorities were required to permit the applicant association to disseminate its ideas through a poster campaign by making certain public space available to it for that purpose. In this connection the Court notes that in two Turkish cases it found a breach in respect of a poster ban imposed on a political party.", "However the Court’s finding in those cases was based on the fact that the regulations permitting such a ban were “not subject to any strict or effective judicial supervision” (see Tüzel v. Turkey, no. 57225/00, § 15, 21 February 2006, and Tüzel v. Turkey (no. 2), no. 71459/01, § 16, 31 October 2006). 58.", "The present case can also be distinguished from that of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003‑VI), which concerned the use of space belonging to a private company, and from the Women On Waves case concerning the denial of authorisation for a ship to enter a State’s territorial waters – space that was “public and open by its very nature” (cited above, § 40). In the present case there has been no general ban on imparting certain ideas, only a ban on the use of regulated and supervised facilities in public space. As the Chamber noted, like the Swiss Federal Court before it, individuals do not have an unconditional or unlimited right to the extended use of public space, especially in relation to facilities intended for advertising or information campaigns (see paragraphs 14 and 51 of the Chamber judgment). (α) Margin of appreciation 59.", "The Court would draw attention to its established case-law to the effect that Contracting States enjoy, under Article 10, a certain margin of appreciation in assessing the need for and extent of an interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I). 60. However, this margin goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X, and Flinkkilä and Others v. Finland, no.", "25576/04, § 70, 6 April 2010). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied upon (see Axel Springer AG v. Germany [GC], no. 39954/08, § 86, 7 February 2012). 61. The breadth of such a margin of appreciation varies depending on a number of factors, among which the type of speech at issue is of particular importance.", "Whilst there is little scope under Article 10 § 2 of the Convention for restrictions on political speech (see Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999‑IV), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion (see Murphy, cited above, § 67). Similarly, States have a broad margin of appreciation in the regulation of speech in commercial matters or advertising (see markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Casado Coca v. Spain, 24 February 1994, § 50, Series A no. 285‑A).", "62. In the present case, the Court observes that it can be reasonably argued that the poster campaign in question sought mainly to draw the attention of the public to the ideas and activities of a group with a supposedly religious connotation that was conveying a message claimed to be transmitted by extraterrestrials, referring for this purpose to a website address. The applicant association’s website thus refers only incidentally to social or political ideas. The Court takes the view that the type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context – there is no inducement to buy a particular product – it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function.", "The State’s margin of appreciation is therefore broader. 63. In such cases, the national authorities are in principle, by reason of their direct and continuous contact with the vital forces of their countries, in a better position than the international judge to give an opinion on the “necessity” of a “restriction” or “penalty” intended to fulfil the legitimate aims pursued thereby (see Müller and Others v. Switzerland, 24 May 1988, § 35, Series A no. 133). 64.", "For this reason the management of public billboards in the context of poster campaigns that are not strictly political may vary from one State to another, or even from one region to another within the same State, especially a State that has opted for a federal type of political organisation. In this connection, the Court would point out that certain local authorities may have plausible reasons for choosing not to impose restrictions in such matters (see Handyside v. the United Kingdom, 7 December 1976, § 54, Series A no. 24). The Court cannot interfere with the choices of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the Convention system (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 35, § 10, Series A no. 6).", "65. The examination by the local authorities of the question whether a poster satisfies certain statutory requirements – for the defence of interests as varied as, for example, the protection of morals, road traffic safety or the preservation of the landscape – thus falls within the margin of appreciation afforded to States, as the authorities have a certain discretion in granting authorisation in this area. 66. Having regard to the foregoing considerations concerning the breadth of the margin of appreciation in the present case, the Court finds that only serious reasons could lead it to substitute its own assessment for that of the national authorities. (β) Reasons given by the domestic courts 67.", "The Court must accordingly examine the reasons given by the authorities for banning the poster campaign at issue, together with the scope of that ban, in order to ascertain whether those reasons were “relevant” and “sufficient” and thus whether, having regard to the margin of appreciation afforded to the national authorities, the interference was proportionate to the legitimate aims pursued and whether it corresponded to a “pressing social need”. It would point out in this connection that, unlike the above-mentioned cases where the Court found a breach in respect of decisions banning poster campaigns on account of the lack of any strict or effective judicial scrutiny (see Tüzel, cited above, § 15, and Tüzel (no. 2), cited above, § 16), no question arises in the present case as to the effectiveness of the judicial scrutiny exercised by the domestic courts. 68. The parties have discussed whether it was appropriate for the purposes of examining the necessity of the disputed measure to take into consideration, as the domestic courts did, the content of the Raelian Movement’s website, whose address was indicated on the poster in question.", "Having regard to the principle that the Convention and its Protocols must be interpreted in the light of present-day conditions (see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004‑VIII), the Chamber took the view that the website did have to be considered because, as it was accessible to everyone, including minors, the impact of the posters on the general public would have been multiplied on account of the reference to the website address. 69. The Court reiterates its general principle that the impugned interference has to be examined in the light of the case as a whole in order to determine whether it is “proportionate to the legitimate aim pursued” and whether the reasons given by the national authorities to justify it appear “relevant and sufficient” (see paragraph 48 above).", "It observes that the impugned poster clearly had the aim of attracting people’s attention to the website: the address of that site was given in bold type above the slogan “The Message from Extraterrestrials” (see paragraph 14 above). It would thus be illogical for the Court to look solely at the poster itself; it is necessary for it, like the domestic courts, to examine the content of the website in question. 70. As regards the reasons as such, the Court would first note, like the Chamber, that the five national authorities which examined the case (the police administration, the municipal council, the Neuchâtel Land Management Directorate, the Administrative Court and the Federal Court) gave detailed reasons for their decisions, explaining why they considered it appropriate not to authorise the poster campaign. The Federal Court, which is the highest domestic court, referred in particular to Article 10 of the Convention and to the Court’s case-law in that area, and examined the proportionality of the impugned measure.", "71. In finding the refusal to authorise the campaign in question to be justified, the Federal Court successively examined each of the reasons relied on by the lower courts as justifying such refusal, namely the promotion of human cloning, the advocating of “geniocracy” and the possibility that the Raelian Movement’s literature and ideas might lead to sexual abuse of children by some of its members. 72. Even though some of these reasons, taken separately, might not be capable of justifying the impugned refusal, the Court takes the view that the national authorities were reasonably entitled to consider, having regard to all the circumstances of the case, that it was indispensable to ban the campaign in question in order to protect health and morals, protect the rights of others and to prevent crime. The Chamber found, in particular, as follows (paragraphs 55-57 of the judgment): “55.", "... First, the association’s website contained a link to that of Clonaid, via which that company was proposing specific cloning-related services to the general public, and on which it had announced, in early 2003, the birth of cloned babies. Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of minors. Thirdly, the propaganda in favour of ‘geniocracy’, namely the doctrine according to which power should be entrusted to people with the highest level of intelligence, and the resulting criticism directed at contemporary democracies, was capable of undermining public order, safety and morals. 56. The Court finds that the domestic authorities’ accusations against certain members of the applicant association, as regards their sexual activities with minors, are of particular concern.", "... Admittedly, it is not within the Court’s remit, in principle, to review the facts established by the domestic bodies or the proper application of domestic law; therefore, it is not called upon to ascertain whether the authorities’ accusations are proven. However, the Court is of the opinion that, having regard to the circumstances of the present case, the authorities had sufficient reason to find it necessary to deny the authorisation requested by the applicant association. 57. Similar considerations are called for as regards the question of cloning.", "The Court observes that the domestic authorities may in good faith have considered it indispensable, for the protection of health and morals and for the prevention of crime, to prohibit the poster advertising campaign, given that the applicant association displayed, on its website, a link to that of Clonaid, a company that it had itself set up ... Moreover, as the association itself admitted, it had a favourable opinion of cloning, an activity that was clearly prohibited by Article 119 paragraph 2 (a) of the Federal Constitution ...” The Grand Chamber does not see any reason to depart from the Chamber’s considerations in this connection. Accordingly, the Court finds that the concerns expressed by the national authorities were based on relevant and sufficient reasons. 73. The Chamber lastly took the view that the impugned measure was ultimately limited in scope, as the applicant association remained free “to express its beliefs through the numerous other means of communication at its disposal”; the Chamber also pointed out that “there was never any question of banning the applicant association itself or its website” (see paragraph 58 of the Chamber judgment).", "74. The applicant association claimed that this position of the Chamber was contradictory and was tantamount to complicating excessively any dissemination of its ideas, since it was prohibited from imparting information using posters on the ground that it had a website, but when it displayed the address of its website on a poster it was barred from doing so on the pretext that this created a link with its ideas, which were allegedly dangerous for the public. 75. In the Court’s view, however, such a contradiction is no more than apparent. Like the Government, it finds that a distinction must be drawn between the aim of the association and the means that it uses to achieve that aim.", "Accordingly, in the present case it might perhaps have been disproportionate to ban the association itself or its website on the basis of the above-mentioned factors (see, in this connection, Association Rhino and Others v. Switzerland, no. 48848/07, §§ 66-67, 11 October 2011). To limit the scope of the impugned restriction to the display of posters in public places was thus a way of ensuring the minimum impairment of the applicant association’s rights. The Court reiterates in this connection that the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question (see Women On Waves, cited above, § 41). In view of the fact that the applicant association is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes, the impugned measure cannot be said to be disproportionate.", "(c) Conclusion 76. The Court concludes that the national authorities did not overstep the broad margin of appreciation afforded to them in the present case, and the reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social need”. The Court does not therefore see any serious reason to substitute its own assessment for that of the Federal Court, which examined the question at issue with care and in line with the principles laid down by the Court’s case-law. 77. Accordingly, there has been no violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 78. The applicant association further relied on Article 9 of the Convention in support of its allegations, finding that the impugned prohibition had infringed its right to freedom of religion. 79. In its judgment, the Chamber took the view that it was not required to examine separately the complaint under Article 9 (see paragraph 61 of the Chamber judgment).", "80. The Court is of the view that there is no reason to depart from the Chamber’s approach on this point. Accordingly, it concludes that it is not required to examine whether Article 9 of the Convention applies to the impugned ban and, if so, whether there has been a violation of that provision. FOR THESE REASONS, THE COURT 1. Dismisses, unanimously, the Government’s preliminary objection; 2.", "Holds, by nine votes to eight, that there has been no violation of Article 10 of the Convention; 3. Holds, unanimously, that it is not required to examine the complaint under Article 9 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 13 July 2012. Michael O’BoyleNicolas BratzaDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Bratza; (b) joint dissenting opinion of Judges Tulkens, Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vučinić and Yudkivska; (c) joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić ; (d) dissenting opinion of Judge Pinto de Albuquerque. N.B.M.O’B.", "CONCURRING OPINION OF JUDGE BRATZA 1. With some hesitation I have voted with the majority of the Court in finding that there was no violation of Article 10 of the Convention in the present case. My eventual view has essentially been based on four features of an unusual case. a) The nature of the interference 2. The applicant association’s complaint relates to the refusal of authorisation to conduct a poster campaign in public areas of the city of Neuchâtel.", "The use of such public space was governed by the Administrative Regulation of 17 January 2000, which provided, inter alia, that the installation of billboards and advertising panels in public areas should be subject to authorisation, that the police administration might prohibit posters that were unlawful or immoral and that an exclusive right in respect of posters displayed within the area of the municipality might be granted by the municipal council. The refusal of authorisation was successively upheld on appeal by the municipal council of the city, by the Neuchâtel Land Management Directorate, by the Administrative Court for the Canton of Neuchâtel and by the Federal Court. 3. The parties were in dispute as to whether the refusal of authorisation was to be seen as amounting to a direct interference with the applicant’s rights under Article 10, and thus as involving the negative obligations of the State under Article, or as giving rise to the positive obligations of the State to secure the association’s right to freedom of expression. The Grand Chamber, in common with the Chamber, has preferred to treat the case as one of a direct interference requiring justification under paragraph 2 of Article 10, while correctly observing that the boundaries between the negative and positive obligations under the Convention do not lend themselves to precise definition and that in both circumstances States enjoy a certain margin of appreciation.", "4. I can accept this approach. Nevertheless, there are elements in the case which suggest that it was the positive obligations of the State which were primarily at stake. In this regard, I consider it to be of importance that the applicant’s complaint relates not to a general restriction imposed on the association’s activities or on its freedom to disseminate or impart information to the general public about its existence or its aims and beliefs. This, as is pointed out in the judgment, the association remained free to do by displaying its posters on private property or by distributing leaflets or by using other means of publicity, such as the print or broadcast media or through the medium of the association’s own internet website.", "The complaint is a much more specific one, namely the refusal of the municipal authorities to authorise, in the exercise of its regulatory powers, the use by the association of public billboards in the city to display a particular poster for a specified period as part of an extensive poster campaign. In this respect the case has certain similarities to that of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003-VI), in which the restriction on the applicants’ ability to communicate their views was limited to the entrance areas and passageways of a shopping mall and in which the Court’s conclusion that the State was not in breach of its positive obligations under Article 10 was in part founded on the fact that the applicants had not been prevented from disseminating those views in other parts of the town or by other means. It is true that, in the Appleby case, the mall in question belonged to a private company, while the billboards in the present case were erected in public areas within the exclusive control of the municipality. Nevertheless, Article 10 cannot in my view be interpreted as imposing an obligation on national authorities to provide unconditional and unrestricted access to the use of public facilities to impart information or ideas.", "The case of Women on Waves and Others v. Portugal (no. 31276/05, 3 February 2009), on which reliance is placed by the applicant association, is no authority to the contrary, involving as it did the extreme measure of a general prohibition on a ship entering the State’s territorial waters, a space which was, as the Court found in that case, “public and open by its very nature”. 5. Even accepting that the refusal of authorisation is properly to be seen as an interference with the applicant’s freedom of expression, it was one of a limited nature. The applicant association relies on the fact that it was able to impart its ideas through its own website without restriction but not to display the address of the website on posters as indicating a contradictory stance on the part of the municipal authorities and as undermining the necessity of the measures taken by those authorities.", "I do not agree. I find nothing contradictory in a decision to refuse permission for public facilities to be used for the purposes of advertising a website, while at the same time taking no steps to close down or restrict access to the website. Like the majority of the Court, I consider that the limited nature of the measures in question served, if anything, to confirm the proportionality of the measures. I am similarly unpersuaded by the applicant’s argument that the lack of necessity of the measures is demonstrated by the fact that in other States, and even other regions of Switzerland, the poster campaign was accepted by the authorities - an argument which has, as noted in paragraph 64 of the judgment, been rejected by the Court in its previous case-law. b) The nature of the speech 6.", "As is pointed out in the judgment, the breadth of the margin of appreciation afforded to the national authorities varies depending on a number of factors, among which the type of speech is of particular importance. While there is little scope under Article 10 for restrictions on political speech, a broad margin of appreciation is in general afforded for the regulation of speech in commercial matters, including forms of advertising. 7. I am unable to accept that the association’s poster can be equated to political speech or that it can be seen as designed to address matters of political or public debate in Switzerland. The poster, with its reference to the association’s website address, was exclusively intended to give publicity to its existence and to draw attention to its activities, a description of which was to be found on that website.", "In this respect, the poster was, in its essentials, a mode of advertising even if, in contrast to commercial advertising with which the Court’s case-law has previously been concerned, it was not intended to induce the public to buy a particular product or service and may not have had any directly financial purpose. The margin of appreciation afforded to the national authorities was in my view accordingly a broader one. c) The content of the posters 8. Emphasis is placed by the association on the fact that there was nothing objectionable on the face of the poster itself. This was accepted by the Federal Court which noted that the poster did not contain anything in its text or in its illustrations that was unlawful or likely to offend the general public.", "However, the Federal Court went on to note that the poster as a whole could clearly be seen as an invitation to visit the website of the association or to contact it by telephone and that it was thus legitimate to ascertain whether the website might contain information, data or links capable of causing offence or of infringing the law. Like the Federal Court, I consider that it would be too narrow an approach to examine the poster in isolation and that, in assessing the justification for any interference, it is necessary and appropriate to examine the content of the website which the public was being invited in the poster to consult. d) The grounds for the refusal of authorisation 9. In carrying out such an assessment, I attach considerable weight to the fact that four domestic authorities, including the Administrative Court and the Federal Court, examined the case and the justification for refusing authorisation to the poster campaign. The detailed judicial review of the decision by the two courts is of special significance, affording as it did an effective safeguard against arbitrariness, discriminatory treatment and abusive power in the decision-making process leading to the refusal of authorisation.", "10. Three aspects of the association’s aims and activities, as appearing from its website, attracted particular attention – the promotion of human cloning through the link to Clonaid; the promotion of the concept of “geniocracy”; and the encouragement, through the literature and ideas of the association and its founder, of sexual abuse of children by some of its members. 11. Although the doctrine of “geniocracy” was found to be largely inspired by eugenics and, as the Federal Court found, to be manifestly capable of offending democratic and anti-discriminatory convictions, the doctrine was not in that court’s view such as to undermine public order or safety or to justify on its own the refusal of authorisation of the poster campaign. 12.", "The link of the association with Clonaid and the risk of encouraging sexual abuse of children were found to be of greater concern. As to the latter, the national courts found not only that numerous members of the movement had been investigated and prosecuted on account of their sexual practices but that, as a judgment of the Lyons Court of Appeal clearly showed, acts of sexual abuse had been committed by leaders of the movement against minors and that those leaders had advocated a broad sexual freedom strongly encouraging commission of such acts and had corrupted young teenagers. In addition, certain passages in the works of the founder of the association on the practice of “sensual meditation” which could be downloaded from the website could lead adults to commit acts of sexual abuse against children, a fact which the Federal Court found had not been disputed by the association itself. Since acts of abuse had indeed been recorded on the part of certain members of the movement, the argument that paedophilia was strongly condemned by the movement’s official doctrine was not, in view of the Federal Court, decisive. 13.", "As to the first of the objections, it was not the opinions expressed by the association in favour of cloning practices and which appeared in the association’s website that were found to justify the refusal of authorisation but, rather, the express link on the website to the company Clonaid, which had been established by the association itself and which offered various practical services in this area for payment. The issue, as the Federal Court put it, was “not simply... the expression of a favourable opinion of cloning protected under Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution”. It could not, in the view of the Federal Court, be seriously contested that this link to the Clonaid website “contributed to the promotion of an unlawful activity” and went further than the mere expression of an opinion. 14. As the dissenting opinions demonstrate, views will undoubtedly differ as to the adequacy of the reasons given by the Federal Court for upholding the refusal of authorisation.", "In the particular circumstances of the present case and having regard to the margin of appreciation afforded to the national authorities, I find those reasons to have been both relevant and sufficient and accordingly conclude that Article 10 of the Convention was not violated. JOINT DISSENTING OPINION OF JUDGES TULKENS, SAJÓ, LAZAROVA TRAJKOVSKA, BIANKU, POWER-FORDE, VUČINIĆ AND YUDKIVSKA (Translation) 1. We do not share the position of the majority, which found that there had been no violation of Article 10 of the Convention in the present case. We will set out the reasons for our dissent as regards the central question of the necessity, in a democratic society, of the ban imposed on the poster campaign that the applicant association wished to conduct in the Swiss city of Neuchâtel. The right to freedom of expression under Article 10 is an essential provision because it underpins the democracy that lies at the heart of the Convention.", "Any restriction of that freedom must be strictly justified by a pressing social need and narrowly circumscribed by relevant and sufficient reasons. Reasons for the ban 2. In the present case, it was not so much the poster itself that justified the ban, because it did not contain anything unlawful either in its text or in its illustrations. The ban was “indirect”, in so far as it was based on the association’s opinions and on the conduct attributed to some of its members. To establish the concrete “connection” between the poster and the said opinions and conduct, the Court noted that the poster indicated, in bold type, the Raelian Movement’s website and telephone number.", "With that in mind, in order to justify the interference with the applicant association’s right to freedom of expression, the reasons given related not only to the association’s positions on scientific atheism that are apparent from the posters but also to its opinions on human cloning and “geniocracy”, as well as to the possibility of sexual abuse on the part of its members. In fact there was a patchwork of reasons relating to “speech” of a hybrid nature, not being commercial or political, but concerning a subject of public interest. 3. As regards scientific atheism, the national authorities accepted that the applicant association’s anti-religious messages – in particular the wording on the impugned poster about a message supposedly from extraterrestrials or claiming that science would replace religion – were not particularly provocative, even though they were capable of offending part of Swiss society. In this connection, it should be observed that the freedom of thought, conscience and religion guaranteed by the Convention also entail freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Buscarini and Others v. San Marino [GC], no.", "24645/94, § 34, ECHR 1999‑I). 4. As regards cloning, the Swiss authorities’ review in this connection was doubly indirect. It concerned first a reference on the impugned poster to the applicant association’s website and, when the case came to be examined by the domestic courts, also a link from that site to the website of the company Clonaid, which is accessible throughout Switzerland. The applicant association acknowledged that it had expressed opinions in favour of human cloning, but claimed that it had never participated in therapeutic or experimental acts in that field.", "Even supposing that “the link to the Clonaid website contribute[d] to the promotion of an unlawful activity”, as the Federal Court found, the Swiss Government did not allege that such “promotion” constituted per se an unlawful act punishable under domestic law. Whilst the expression of an opinion in favour of human cloning might shock or offend the majority of people, it is “precisely in the case of ideas that offend, shock and challenge the established order that freedom of expression is the most precious” (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009). 5. As regards “geniocracy”, the idea put forward by the applicant association undeniably runs counter to democratic principles.", "However, as the Government themselves have admitted, this idea is not presented by the applicant as a real political project but rather as a utopia. The situation is thus different from those where the Court has found restrictions on freedom of expression to be proportionate in respect of organisations defending political projects that were incompatible with the concept of a “democratic society” (see, for example, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 132, ECHR 2003‑II). 6. Lastly, as regards certain passages from publications available through the Raelian Movement’s website and devoted to the notions of “sensual meditation” and the “sensual awakening” of children, potentially leading members of the movement to sexually abuse children, it is clear that any convictions for acts committed in the context of such an association’s activities could justify the banning not only of a poster campaign but also of the association itself and, if appropriate, of its website.", "In the present case – and this is essential in our view – the facts set out by the Federal Court were not regarded by the domestic authorities as capable of justifying the banning of the applicant association itself. In those circumstances, it may be questioned whether there was a “pressing social need” to ban a poster campaign without at the same time banning the applicant association, which had existed since 1977, especially where the prevention of particularly serious criminal offences, such as those against children, was at stake. The reasons put forward in this connection by the domestic courts, whilst probably being “relevant”, do not however appear “sufficient” to justify the impugned interference with the applicant association’s freedom of expression; the Federal Court indeed failed to explain how, why and to what extent that ban was proportionate to and necessary for the legitimate aim of preventing crime. Moreover, neither in the reasons given by the domestic courts, nor in the Government’s observations before the Court, do we find any indication that there was a clear and imminent danger which justified the impugned interference (see Gül and Others v. Turkey, no. 4870/02, § 42, 8 June 2010, and Kılıç and Eren v. Turkey, no.", "43807/07, § 29, 29 November 2011). 7. In this connection, some further clarification is called for. It is true that in Switzerland the Cantons may have different laws and policies in certain areas, and this explains why the posters banned in Neuchâtel may be authorised elsewhere. In itself, we obviously do not find that this situation raises any issue.", "Our Court has acknowledged that sensitivities may legitimately differ within a single State, even if this should entail diversified policies in terms of restrictions on fundamental rights. In the Court’s view, “[w]here there are disparate cultural communities residing within the same State, it may well be that different requirement[s], both moral and social, will face the governing authorities”[1]. This idea of a “federal margin of appreciation”, as it could be called, was used for example in Handyside to explain and justify the variable nature of the proceedings brought against the publisher of the Little Red Schoolbook in different parts of the United Kingdom[2]. It can also be perceived as an underlying idea in Müller v. Switzerland[3] and Otto-Preminger-Institut v. Austria[4]. However, this situation considerably weakens the legitimacy of the aim that justifies the interference, as well as the compelling social need, namely the prevention of crime, in this case sexual abuse of children, and the risk of danger.", "Danger, if it exists, does not disappear with borders, wherever they may be. Scope of the ban 8. The majority found that to limit the scope of the impugned restriction to the display of posters in public places was a way of ensuring the minimum impairment of the applicant association’s rights. They further pointed out that, as the applicant association was able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes, the impugned measure could not be said to be disproportionate (paragraph 75 of the judgment). 9.", "We are not convinced by this reasoning. To prohibit the applicant association from displaying posters mainly on account of the content of its website, whilst arguing that the scope of such a ban remains limited because the association remains free to communicate via that very same website is singular, if not paradoxical. Whilst in certain situations a limited ban may be justified on the ground that there are alternative means of communication, that is obviously not the case where the ban is based on the same criticisms as those levelled at the alternative means. 10. Moreover, the Court has always observed in its case-law that it is not its role to cast judgment on the manner in which individuals choose to express themselves, because Article 10 of the Convention also protects the form in which ideas are conveyed (see Thoma v. Luxembourg, no.", "38432/97, § 45, ECHR 2001‑III). Applicants are free to use the means of expression of their choosing and it is not for the Court to scrutinise them or suggest other forms or arrangements. Ultimately that would be tantamount to imposing on applicants the burden of proving the necessity of the means of communication used and therefore of reversing the logic of Article 10. 11. Lastly, the finding of the Grand Chamber that there has been no violation of Article 10 of the Convention enshrines a particular view of advertising in public space, suggesting that this facility benefits from special status (see paragraph 57 of the judgment).", "We believe, by contrast, that such status should require increased neutrality on the part of the public authorities, with equal access for all individuals and entities that are not expressly prohibited. It is certainly necessary to combat the dangers and excesses of sects and a State may have to ban associations that seriously contravene democratic values. However, it is difficult to accept that a lawful association, with a website that has not been prohibited, should be prevented from promoting its ideas through posters that are not unlawful in themselves. As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed.", "Article 10 of the Convention would then risk becoming inoperative. JOINT DISSENTING OPINION OF JUDGES SAJÓ, LAZAROVA TRAJKOVSKA AND VUČINIĆ I For reasons explained in the joint dissenting opinion of Judges Tulkens, Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vučinić and Yudkivska, this case clearly falls under the test laid down in The Sunday Times v. the United Kingdom (no. 1) (26 April 1979, Series A no. 30) and in Handyside v. the United Kingdom (7 December 1976, Series A no. 24).", "The ban by the Neuchâtel police regarding the applicant association’s posters on public billboards does not satisfy the condition of showing a pressing social need, as required by the Handyside test. The opposite conclusion of the majority relies on the introduction of a new category of “lower-level” speech. Accordingly, a so-called “non-political”, “quasi-commercial” speech that “has a certain proselytising function”[5] is deprived of the protection granted to speech in general. This new standard runs counter to the Court’s well-established case-law and diminishes the protection of speech, without offering compelling reasons. In view of this development we find it necessary to add a few considerations to the above-mentioned joint dissenting opinion.", "It is particularly regrettable to see the protection of freedom of expression being diminished in respect of the world view of a minority. Moreover, at least the original justification for the ban given by the local police reflects the fact that the poster contained ideas and opinions which were at odds with the prevailing opinions of the local authorities and, perhaps, the majority of citizens of Neuchâtel. The accommodation of such sentiments as a ground for the restriction of freedom of expression is incompatible with the goals of the Convention. II “In order to assess the necessity for restraining ... the prohibited declarations must be placed in their proper context and examined in the light of the particular circumstances of the case” (Barthold v. Germany, 25 March 1985, § 56, Series A no. 90).", "The nature of the expression. As understood by the Swiss Federal Court, the expression in the present case is composed of several elements: (a) a poster on a public billboard, taken together (b) with the information on a website operated by the applicant association that was advertised on the poster and (c) the content of a second website which was accessible via a hyperlink from the applicant’s website. While the ban concerned billboards alone, the whole communication process was taken into consideration. The Federal Court’s approach reflects a profound understanding of the communication process in the age of the Internet. The poster is both an expression of specific content (consider, for example, the line on the poster: “Science at last replaces religion” or the reference to extraterrestrials) and a medium for additional information to be found on or via the website.", "In this context, to use the words of McLuhan, the medium is the message. 1. Is this an advertisement? According to the Court’s case-law it cannot be regarded as an advertisement in the sense of commercial expression. As the Court has previously found “... for the citizen, advertising is a means of discovering the characteristics of services and goods offered to him” (see Stambuk v. Germany, no.", "37928/97, § 39, 17 October 2002)[6]. No services or goods are offered in the present case, nor does the Court argue that this is a commercial advertisement. The intended effect is to make people think about the applicant association’s ideas and perhaps change their world view (see Barthold, cited above, § 58). It follows that the poster is not a commercial advertisement. The Court has already considered similar situations, in particular where a television commercial “indubitably fell outside the regular commercial context inciting the public to purchase a particular product.", "Rather, ... the commercial reflected controversial opinions pertaining to modern society in general and also lying at the heart of various political debates.” (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 57, ECHR 2001‑VI, where the Handyside test was found to be applicable). Arguably, even in the case of the “most protected” speech, namely that of a political nature, a somewhat wider margin of appreciation than that normally accorded is applicable to advertisements (see TV Vest AS and Rogaland Pensjonistparti v. Norway, no. 21132/05, § 67, ECHR 2008). It should be noted, however, that this exception was found applicable in the context of an election campaign in television broadcasting, where the reason for the restriction was related to the powerful and pervasive impact of this type of medium (ibid., § 70.)", "That is not the case here and the Court’s case-law that has been developed in respect of other non-commercial communication should apply. In any event, even restrictions on commercial advertising must “be closely scrutinised by the Court, which must weigh the requirements of [the] particular features [of such advertising] against the advertising in question” (see Casado Coca v. Spain, 24 February 1994, § 51, Series A no. 285‑A, and Stambuk, cited above, § 39). 2. The installation of billboards and advertising panels in public areas is subject to authorisation, although in Neuchâtel the management of posters in such areas has been entrusted to a private company.", "On 29 March 2001 the police prohibited the poster in question for being unlawful and immoral. The Federal Court considered that the use of the billboards amounted to the (extended) use of public space. 2.1. The freedom of expression issue in the present case concerns the nature of the public space that is accessible to all for the display of posters. According to US, Canadian and (in some regards) German constitutional jurisprudence, government property opened to the public for expressive purposes, like a billboard, becomes a public forum open to all speakers[7].", "All speakers have an equal right of use; the government must not exercise censorship and should apply otherwise permissible restrictions in a way that respects neutrality[8]. In democratic Europe, in the context of using publicly owned frequencies for the communication of ideas, it is expected (especially where the State controls broadcasting as a monopoly) that the management of the public service will be fair and impartial, allowing pluralism (i.e. respecting neutrality), precisely because general public access is not possible (see Informationsverein Lentia and Others v. Austria, 24 November 1993, Series A no. 276, and Manole and Others v. Moldova, no. 13936/02, § 101, ECHR 2009).", "These considerations are relevant in the present case, as they were in Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003‑VI). As is the case in the United States of America, outdoor signs play an important role in the communication of ideas in Europe too, and, as has been found in Canada, they are an effective and inexpensive means of communication for individuals and groups that do not have sufficient economic resources to use other media. These considerations are relevant even if there might be differences in the level of protection granted to speech between the various democracies. These principles do not, however, find application in the Swiss Federal Court’s judgment (see § 5.2, quoted in paragraph 21 of the present judgment), which did not consider billboard access rights unconditional and found such access to be “subject to substantive content analysis”.", "The assumption that “acceptance of a poster advertising campaign could suggest that [the State is] endorsing, or at least tolerating, the opinions and conduct in question” as admitted by the Chamber (Mouvement Raëlien Suisse v. Switzerland, no. 16354/06, § 52, 13 January 2011), is contrary to the function and nature of the public forum. Such fora exist to allow all opinions to be imparted, while official notices have their own dedicated place for display. Access is denied purely because of identification with some ideas and denial of others. The idea that the State is endorsing expression when it is made in regulated public communication space open to all is based on a misunderstanding, at odds with the tolerance and broadmindedness that are fundamental to democracy.", "Such fear of endorsement was historically one of the sources of the belief that elevated censorship into a governmental duty. Of course, there are grounds for restricting access to public fora. Such grounds will be in conformity with the Convention if they do not signal partisanship or bias. A lower-level demonstration of a pressing social need in this context has been recognised (see Murphy v. Ireland, no. 44179/98, ECHR 2003‑IX).", "This exception has been applied in the case of an attack on religious sentiments related to the free exercise of religion, in particular circumstances, such as where the issue is politically or socially divisive to the extent that it may result in unrest, and where the effects of the media used are more immediate and invasive. In the absence of a violation of intimate personal convictions it is hard to see what would turn the alleged sensitivities of Neuchâtel into a proper ground for restriction under Article 10 § 2, “given ... the risks of excessive interferences with freedom of expression under the guise of action taken against allegedly offensive material” (ibid., § 68). It is thus perhaps not surprising that the majority of the Grand Chamber, in their finding of no violation, do not rely on the above argument of sensitivity accepted by the Chamber. 2.2 In the present case, Swiss law has recognised the existence of public space for display purposes that is open to all. The administration of such public space is, of course, subject to time, place and manner restrictions.", "Contrary to the Swiss position, as endorsed by the majority, the authorities do not have a “certain discretion” in the administration of these fora, though they have the power to ensure that the request for use satisfies statutory requirements serving the legitimate purposes of Article 10 § 2 or necessitated by requirements of fairness (as scarcity of billboard space may require a fair and neutral system of allocation). In the Swiss system applicable here, the administration of billboards was under private management and the display of the poster was subject to prior authorisation. As the Court has previously found, “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216). The Court held it to be “especially so as far as the press is concerned, for news is a perishable commodity” (ibid., emphasis added).", "However, timeliness is an issue even in the present case, as the posters were intended to be displayed as part of a planned, coordinated campaign. Moreover, the general rule of the Court refers primarily to “dangers inherent in prior restraints” which exist outside the area of journalism, and are related to the historical abuse of censorship and (in more practical terms) to the speculative nature of the restrictions applied in any prior restraint system; speculative, because the authorities have to evaluate future events and impacts. Reasonable foresight has its legitimate place in the handling of the affairs of the State, and hypotheticals about possible harm to children, democracy and moral sensitivity did in fact play a major role in the present case. Of course, the State is expected to prevent crime and, in that context, speech-restrictive preventive measures may serve pressing social needs. However, the Swiss authorities did not demonstrate that the expression “privileged sexual object” had actually encouraged paedophilia, a crime that is expressly and actively condemned by the Movement.", "There had been a few convictions of members of the Movement, but there is no evidence that their number is statistically significantly higher than convictions of members of other denominations. Religious organisations are not banned in a democracy just because some of their members commit crimes. The reference to criminal convictions resembles guilt by association. Such assumptions cannot be found “convincing” for the purposes of showing the existence of a pressing social need with regard to the applicant organisation. III Among the reproachable elements of the website “propagated” on the poster, and turning the ban into one that would serve a pressing social need, the Swiss Federal Court found that the Raelian Movement’s website contained a link to the Clonaid website, therefore “contribut[ing] to the promotion of an unlawful activity, and go[ing] further than the mere expression of an opinion” (Federal Court judgment, § 5.5.1., quoted at paragraph 21 of the judgment).", "Unfortunately, the case file does not contain a printout of the impugned website as of March 2001 and we do not know what text (if any) accompanied the hyperlink. Currently there is no hyperlink available on the homepage of the Raelian Movement’s website[9] but the Federal Court affirmed that it had existed at an unspecified time and that it led to the website of an organisation that offered a service that was considered criminal in Switzerland. We have no information concerning the offers of activity available on the Clonaid website in March 2001. In the absence of facts, their assessment cannot be convincing, irrespective of due deference to the superior local knowledge of local authorities. It is at least curious that the police ban had been imposed on 29 March 2001, while the first announcement that Clonaid had successfully performed the first human reproductive cloning dates from 27 December 2002.", "It is not clear how a link in 2001 could have promoted an illegal activity that was made possible only in 2002. The original police ban of 2001 did not contain reference to the hyperlink leading to Clonaid and the issue of the hyperlink is first mentioned in the 27 October 2003 decision of the Neuchâtel Land Management Directorate. Ex post findings and events do not contribute to a convincing establishment of the need for the ban. Assuming, for the sake of argument, that Clonaid was praising (illegal) cloning research already at the material time, it is still hard to see how reading about such advocacy of illegal research would have turned the good people of Neuchâtel into criminal participants in unlawful scientific activity. Abstract advocacy of criminalised behaviour in the form of requesting legalisation is not an inducement to crime.", "Furthermore, to what extent does information concerning a third party connected to the applicant association via a hyperlink constitute a relevant fact for the evaluation of a pressing social need? A hyperlink points to a whole document or to a specific element within a document[10]. By clicking on the link the user moves to the other document. Its availability certainly facilitates access to information that will advocate and, to some extent, provide an opportunity to commit the prohibited act. However, there are a number of independent decisions to be taken by the user of the first website: the user has to click on the link, read the second site, find the relevant advocacy on the site, take a decision to contact Clonaid, and finally, after such contact, decide to participate in criminal activity.", "The relationship is simply too remote. A user facing a hyperlink already remains free to decide whether or not to move to the next website. To attribute responsibility to the applicant (as content-provider) for the choices of the user requires careful analysis. Without such analysis it is arbitrary and disproportionate to impose a ban on a poster that serves as a non-electronic “link” to a website (thereby indirectly sanctioning the content-provider). A reference is not an endorsement or an identification, and even an endorsement would not create a clear danger of committing a crime.", "Otherwise the “referring” person would be obliged to distance himself all the time and that would impose a considerable burden on freedom of speech in the world of the Internet. A hyperlink certainly facilitates the dissemination of an idea (by making it more accessible) but not all dissemination gives rise to responsibility. As the Supreme Court of Canada held in a defamation case, hyperlinks are essentially different from publication and are by themselves content-neutral. Like references, they communicate the existence of something, but do not, by themselves, communicate its content (Crookes v. Newton, 2011 SCC 47). Where a specific website can most easily be found with the help of a search engine, it would be unrealistic to assume, without additional consideration, that the “referring” person shares responsibility for unlawful content referred to by means of a hyperlink.", "Moreover, the Clonaid website is accessible in Switzerland without the intermediary of the applicant’s website or poster. As mentioned above, the case file does not contain information regarding the specific position of the first website as to the content that opens up with the help of the link. It is most likely that in the present case the applicant association did know of the content of the second website, but the relationship between the two website operators remains contested. This cannot be a convincing demonstration of the need for restriction by relevant facts, as is required by the Handyside test. In reality, while the Court may find that it has to follow the fact-finding and related assessment given by the national court as to the relationship in question, in the absence of such analysis there can be no talk of “assessment”.", "No facts, no assessment – therefore no acceptability. The content of web pages is subject to constant change. A regulation of the Internet that respects freedom of expression should not disregard the changing content. Moreover, a website operator who inserts a link cannot foresee what the content will be on the linked site at any given point in time. To impose liability on someone providing hyperlink access in respect of future content on the second website, to which the link continues to lead, would undermine the “basic grammar” of the Internet, except where it can be clearly demonstrated that the first website operator has control over the second.", "In that case, however, its liability is not vicarious; for such liability to exist, the control would have to be convincingly established. In view of the above doubts, it is all but evident that such an indirect relationship creates a pressing social need with regard to the applicant association’s website. These doubts, of course, are even stronger when it comes to the banned poster, which is a further step away. Moreover, neither the poster nor the hyperlink would have a compelling effect on the reader. IV The majority concluded that “some of these reasons [i.e.", "that the website stands for anti-democratic ideas, or promotes crime], taken separately, might not be capable of justifying the impugned refusal” (paragraph 72). The majority do not specify which reasons would be capable of such justification, nor do they find this necessary, as they rely on a “mosaic theory”[11] to show the indispensability of the ban, “having regard to all the circumstances of the case” (ibid.). This brings us to the new standard applicable to the use of public billboards in the context of poster campaigns that are not strictly political (see paragraph 64), a category of speech which can be described as “undefined”. The fact that the advertisement is paid for does not change the nature of the ideas advertised and does not deprive it of the protection granted to expression in general; nor does it make it a commercial or quasi-commercial advertisement, as there is no interest in influencing consumer behaviour or promoting products[12]. It is not by accident that the Convention expressly includes within the right to freedom of expression the freedom to “receive and impart information and ideas without interference by public authority and regardless of frontiers”.", "Ideas are to be protected not in the sterility of their production but in the process of their communication. The Swiss authorities – and this Court too – considered the poster as existing in conjunction with, and as being interrelated with, the website as part of the same communication chain, and the applicant association’s ideas were evaluated with regard to the poster’s effect through the communication process. The form of expression is protected not only because it can be essential to, or inseparable from, the content, but also because it is essential for imparting ideas. [13] V One cannot disagree with the Court’s case-law to the effect that “national authorities are in principle, by reason of their direct and continuous contact with the vital forces of their countries, in a better position than the international judge to give an opinion on the ‘necessity’ of a ‘restriction’” (see paragraph 63). Whatever these “vital forces” might be (and they do, in fact include forces which do not stand for human rights), the same direct contact (or vicinity) may have a distortive impact on their judgment.", "We have voiced our concern in that regard above (Section I). It is for that reason (among others) that the States Parties to the Convention found it necessary to institutionalise an international Court to supervise the myopia of localism. Accordingly, the Court’s function is to exercise a “supervisory function”, hand in hand (i.e. in proper dialogue) with, and with full respect for, domestic authorities. In supervising the presence of a restrictive pressing social need, “supervision” cannot mean passive acceptance of domestic speculation about the capacity of an idea to undermine public order, safety and morals.", "The undeniably better knowledge of local circumstances and sensitivities that militate in favour of the choices of national authorities must not become a fig-leaf for acquiescence in bigotry. The doctrine of margin of appreciation is a valuable tool for the interaction between national authorities and the Convention enforcement mechanism; it was never intended to be a vehicle of unprincipled deferentialism. Even a broad margin of appreciation does not diminish the need for relevant and sufficient explanation, though it may well be that what has to be demonstrated will be different (e.g. a lower level of likelihood of a risk). The natural respect for domestic fact-finding and correctness of the interpretation of domestic law cannot exempt the Court from requiring that accusations by authorities against applicants which dictate restrictions on freedom of expression must be proven.", "Furthermore, the Court has clearly stated that “applying a restriction in good faith” is insufficient; the fact that in the present case the authorities considered the restrictive measures indispensable is irrelevant, irrespective of the number of instances involved. As Judge Malinverni observed: “Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on it under Article 19 of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto.” (dissenting opinion of Judge Malinverni, joined by Judge Kalaydjieva, § 1, in Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011) One should not forget the societal effects on minority positions of such a police ban. The applicant organisation is undeniably in a minority position precisely because of its unpopular views. While it has continued to have opportunities to express its views (though in the absence of the posters the likelihood of effective communication has been diminished) the ban and its reasons expressed an official legal position on the views of the applicant association, with obvious additional censorial effect.", "In the context of demonstrations, the Court has recognised that refusals to give authorisation could have had a chilling effect on the applicants (and others participating in the movement and sharing similar convictions). It could also have discouraged other persons from making themselves acquainted with those ideas on the grounds that they did not have official authorisation (see Bączkowski and Others v. Poland, no. 1543/06, § 67, 3 May 2007). It was the authorities’ fear of being seen to be associated with an unpopular, even offensive, view that resulted in the disregard of the governmental obligation of neutrality, a fundamental principle that must apply in matters of world views. Freedom of expression cannot be left to strive under the dictates of governmental fear of public sensitivities.", "APPENDIX Following the methodology adopted in the comparable Appleby case (cited above), it is useful to provide a summary of the approach taken in comparable situations in some jurisdictions. In Appleby it was stated that “The United States Supreme Court has accepted a general right of access to certain types of public places, such as streets and parks, known as ‘public fora’ for the exercise of free speech (Hague v. Committee for Industrial Organisation, 307 U.S. (United States: Supreme Court Reports) 496 (1939)).” Where the government opens property for expressive activity, it thereby creates a public forum. According to Canadian and US law, billboards constitute “public fora”. In Metromedia, Inc. v. City of San Diego (453 U.S. 490, 494 (1981)) the Supreme Court of the United States quoted Justice Clark in agreement: “ ‘The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or “broadside” to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes.’ (26 Cal.", "3d, at 888...).” (ibid. at 501). Metromedia also stated (ibid. at 514-15) that “the city [i.e. government] does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.", "See Carey v. Brown, 447 U.S., at 462 ...; Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 ... (1972). With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: ‘To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.’ Consolidated Edison Co., 447 U.S., at 538 ..” The same judgment referred (at 516) to Virginia Pharmacy Board v. Virginia Citizens Consumer Council (425 U.S., at 77), concluding that outside the sphere of commercial speech “it cannot be assumed that ‘alternative channels’ [for communication of information] are available, for the parties stipulated to just the opposite: ‘Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive.’” Once a public forum has been created the government cannot discriminate between different speakers or messages (see Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981); and Niemotko v. Maryland, 340 U.S. 268 (1951). In Shuttlesworth v. City of Birmingham, 394 U.S. 147, (1969), Justice Stewart for the Court stated that “holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional.” (ibid.", "at 150-51). Canadian jurisprudence shows similar concerns with regard to the posting of signs. R. v. Guignard (2002 SCC 14, [2002] 1 SCR (Canada Supreme Court Reports) 472) referred back to Ramsden v. Peterborough (City) ([1993] 2 SCR 1084), where the Canadian Supreme Court “stressed the importance of signs as an effective and inexpensive means of communication for individuals and groups that do not have sufficient economic resources. Signs, which have been used for centuries to communicate political, artistic or economic information, sometimes convey forceful messages. Signs, in various forms, are thus a public, accessible and effective form of expressive activity for anyone who cannot undertake media campaigns.", "(See Ramsden, at pp. 1096-97; see also Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139, at p. 198. ).” A further authority is Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295. Likewise, the German Constitutional Court recognises the application of all the guarantees of freedom of opinion in public, communication-serving fora (Schutzbereich nach auf öffentliche, der Kommunikation dienende Foren).", "The same guarantees apply even beyond classical public fora, to other situations (places) that serve other public functions (see BVerfG, 1 BvR 699/06, 22.2.2011, Absatz-Nr. (1-128), http://www.bverfg.de/entscheidungen/rs20110222_1bvr069906.html). DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE The Mouvement raëlien suisse case is about the freedom of expression of a minority. This case concerns the banning of a poster campaign by the Swiss authorities to the detriment of the applicant association. The parties agreed that the ban on the display of the applicant association’s posters was “prescribed by law”, inasmuch as it was provided for in Article 19 of the Administrative Regulations of the City of Neuchâtel.", "The parties also agreed that it pursued the legitimate aims of the prevention of crime, the protection of health and morals, and the protection of the rights of others. The disputed question in the present case is that of the proportionality and necessity of the poster ban. Behind it lies the old question of State control of communication in the public arena, especially in view of what John F. Kennedy once called “alien philosophies”[14]. I respectfully dissent from the findings of the majority. The reasons for my dissent will be presented in three parts.", "The first part deals with the justification for the Court’s supervision of the interference with the applicant’s freedom of expression and the value of the “public forum” doctrine in European human rights law. The second part establishes the criteria for the Court’s supervision. I will study the nature of the interference, using a two-pronged test to differentiate between negative and positive obligations; consider the form of the speech, with a view to establishing the ambit of freedom of expression on public billboards and the Internet, with its hyperlinks; and evaluate the nature of the speech in question, stressing the differences between commercial, religious and philosophical speech. After establishing the criteria of the supervision, I will proceed, in the third part, to the application in the instant case of the proportionality test, having in mind the reasons given by the domestic courts for the interference, i.e., scientific atheism, cloning, “geniocracy” and “sensual meditation”, together with the necessity test, assessing the scope of the ban. The Court’s supervision of the interference The present case provided the Court with an opportunity to rule on the State’s margin of appreciation in respect of the use of public space for the exercise of freedom of expression.", "The Court’s case-law is scarce but enlightening in this regard. In Appleby and Others v. the United Kingdom, where the applicants had been refused permission to collect signatures for a petition in a private shopping centre, the Court found that it could not be inferred from Article 10 of the European Convention on Human Rights that the State had a positive obligation to create rights of entry to private property or even to all publicly owned property, such as government offices and ministries, in order to assert the right to freedom of expression, if there were alternative and effective means for those concerned to convey their message. The Court did not exclude that such a positive obligation could arise, however, where the bar on access to property had the effect of preventing the effective exercise of freedom of expression or where it could be said that the essence of this right had been destroyed[15]. In Murphy v. Ireland the Court accepted that a provision which allowed the filtering by the State or any organ designated by it, on a case-by-case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently. Thus, State action in this regard should be “impartial, neutral and balanced”[16].", "In Women On Waves and Others v. Portugal, the Court dealt with an interference with the exercise of freedom of expression in the respondent State’s territorial waters, which were open by their very nature, with the consequence that any interference with freedom of expression within such space should be exceptional. Moreover, the Court reaffirmed that Article 10 protected not only the substance of the ideas and information expressed but also the form in which they were conveyed[17]. This question has, however, been examined for some time by the United States Supreme Court, which has construed the public-forum doctrine under the First Amendment to the US Federal Constitution[18]. The public-forum doctrine has been refined over the years, culminating in Perry Education Association v. Perry Local Educators’ Association, where the Supreme Court established a three-tier categorisation of public fora. The first category is the traditional public forum, which includes places which by long tradition or by government fiat have been devoted to assembly and debate[19].", "In a traditional public forum, the State may not restrict speech based on content, unless it can show that its regulation is necessary to serve a compelling State interest and is narrowly tailored to achieve that interest. The second category is the limited public forum, defined as public property which the State has opened for use by the public as a place for expressive activity. Although the State need not indefinitely keep a limited public forum open to the public, while the forum is open any State restriction of speech in that forum will be under the same rules as those applicable to a traditional public forum[20]. The third category is the non-public forum, which, by tradition or design, is not an appropriate platform for unrestrained communication. Here the State is granted much greater latitude in regulating freedom of expression.", "In addition to applying time, place and manner regulations, the State may reserve the forum for its intended purposes, as long as the regulation of speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view[21]. Thus, “the existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue”[22]. In the particular case of billboards, the Supreme Court decided that an ordinance which permitted on-site commercial advertising (a sign advertising goods or services available on the property where the sign was located), but forbade other commercial advertising and non-commercial advertising using fixed-structure signs, unless permitted by specified exceptions, such as temporary political-campaign signs, breached the freedom of expression of companies that were engaged in the outdoor advertising business[23]. The Canadian Supreme Court also takes the view that restrictions on freedom of expression in public places must be interpreted strictly. In the case Committee for the Commonwealth of Canada v. Canada, the Supreme Court found that the provisions of airport concession regulations prohibiting the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting in an airport, except as authorised in writing by the Minister, were inconsistent with the freedom of expression guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms[24].", "In the specific case of billboards and posters, the Supreme Court censured as unconstitutional the absolute prohibition of postering on public property[25] and affirmed the right to post political advertisements on the sides of buses belonging to the public transportation system[26]. The public-forum doctrine was recently adopted by the German Federal Constitutional Court, which held that the administration of Frankfurt Airport was not entitled to prohibit, in the check-in area, the distribution of leaflets criticising the government’s deportation policy. Ruling on whether there had been a breach of freedom of expression, the court found, in accordance “with the model of the public forum” (nach dem Leitbild des öffentlichen Forums), that the wish to create a “pleasant atmosphere” (Wohlfühlatmosphäre) for travellers, free from political or social debate, could not justify banning the leaflets in question in a public space such as an airport check-in area. Nor could content-based reasons, namely that the distribution of leaflets had been prohibited because the airport administration did not share the opinions expressed, disapproved of them or considered them capable of harming its activities, justify any restriction on freedom of expression. The German Federal Constitutional Court was nonetheless willing to admit restrictions on freedom of expression in some sensitive public places where there was “a concrete fear that serious incidents will occur” (ernsthafte Störungen konkret zu befürchten sind)[27].", "As the above-mentioned Supreme and Constitutional Courts have repeatedly expressed, the public-forum doctrine is of paramount importance for democratic regimes, because it is based on the principle of content-neutrality of State regulation of expression in the public arena. According to this principle, the State is not assumed to support all the messages that are communicated in public facilities and spaces. When a certain message is circulated in public space there is no presupposition that the State endorses tacitly or expressly the content of that message. This principle derives directly from the principle of equality of all citizens before the law and the corresponding prohibition of discrimination of citizens by public authorities. [28] The Court’s case-law, and especially Women On Waves and Others (cited above), already hints at this same principle.", "The freedom of expression that Women On Waves guaranteed in the open maritime space of a State should also be acknowledged in its public space on land. The instant case provided an occasion to affirm that principle explicitly. In fact, the Court has constantly recognised that Article 10 § 2 leaves to the Contracting States a margin of appreciation, which is afforded both to the domestic legislature and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force. However, this margin goes hand in hand with a European supervision[29]. The Court has to satisfy itself that the interference in issue is “necessary in a democratic society”, that is to say, that it corresponds to a “pressing social need” and is “proportionate to the legitimate aim pursued”, the reasons given by the national authorities to justify the interference therefore being “relevant and sufficient” for the purposes of paragraph 2 of Article 10 of the Convention[30].", "Thus, the interference with freedom of expression is justified if it complies with a two-tier test: the test of necessity and the test of proportionality. The test of necessity assesses whether the interference with the right or freedom adequately advances the “social need” (social interests and rights and freedoms of others) pursued and reaches no further than necessary to meet said “social need”[31]. The test of proportionality evaluates whether a fair balancing of the competing rights, freedoms and interests has been achieved, whilst ensuring that the essence (or minimum core) of the right or freedom is respected[32]. The formal characterisation of a place as a public forum in view of its principal function does not per se resolve the matter, but it is certainly a valuable element, among others, to ascertain the prevailing right, freedom or interest. In addition to this space element, the balancing also takes into consideration the nature, form and timing of the speech, the status of the speaker, the nature and degree of the interference and the nature of the social need to be met.", "Subject to the restrictions imposed by the social interests and “rights and freedoms of others” foreseen in Article 10 § 2 of the Convention, freedom of expression in a public forum is applicable not only to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the majority. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”[33]. To use the words of George Orwell, “If liberty means anything at all, it means the right to tell people what they do not want to hear”[34]. The Government claimed that the approval of the poster would mean that there was an implicit authorisation of the applicant’s ideas by the State[35]. This argument sits ill with a modern democratic society.", "In a pre-modern society, for ideas to be published in the public forum, a prior nihil obstat et imprimatur (literally, “there is no obstacle and you may print”) acceptance from the authorities was required, this authorisation being in certain cases express and in others tacit. The State had to approve the content of every single book, every single piece of creative work, every single speech communicated in the public space. Europe’s history bears witness to the long and hard fight against this form of State control, that fight having been accomplished with the grandiose acknowledgment that “the free communication of ideas and opinions is one of the most precious of the rights of man”, as Article 11 of the Declaration of the Rights of Man and of the Citizen foresaw[36]. Any sort of State nihil obstat in respect of the content of the message communicated in a public space would nowadays mean an inadmissible civilisational regression to pre-modern times. As Immanuel Kant wrote, a government seeking to impose such nihil obstat et imprimatur control on the public dissemination of controversial ideas should be reproached, since Caesar non est supra grammaticos[37].", "The nature of the interference The boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition[38]. The answer to this question does not simply depend on the way the latter is formulated, as the Government maintained in their memorial. This is not a mere linguistic question. There is a double logic test for the purpose of ascertaining whether the Court is in the presence of positive or negative obligations. On the one hand, the Court should ask itself if the absence of any action by the national authorities would have resulted in a violation of the Convention.", "Had the Neuchâtel police and administrative authorities omitted to take any decision regarding the poster, there would be no case at all. Therefore, the issue at stake is the action of interference (i.e., the refusal of authorisation) by the respondent State with a Convention right, rather than failure by the State to take positive measures to protect a Convention right. On the other hand, the Court should consider whether, in the event that there has been a violation of the Convention, a complementary action by the government would be required to restore the applicant to the situation in which he found himself prior to that violation. If a finding of a violation does not imply the need for any restorative action by the government, that indicates a negative obligation. If a finding of a violation does imply the need for additional restorative action by the government, that indicates a positive obligation.", "In the case at hand, the domestic authorities took the initiative to prohibit the impugned posters allowed by the company Société Générale d’Affichage in 2001 and reiterated the prohibition in July 2004. No restorative action would now be possible, and the State would simply have to stop prohibiting similar campaigns by the applicant association in the future. Thus, the State had an obligation to refrain from restricting the applicant association’s freedom of expression by refusing to permit the poster campaign. To sum up, the present case is to be analysed in terms of the negative obligations arising from Article 10 of the Convention. That conclusion will affect the margin of appreciation afforded to the State in the present case, since the Court takes the view that this margin is narrower in the case of negative obligations arising from the Convention[39].", "The form of the speech First and foremost, the domestic authorities censured the requested poster campaign that the applicant association wished to conduct in the streets and parks of Neuchâtel. By tradition and design, public billboards on the streets and parks are public fora. The same applies to public billboards administered by a private entrepreneur on behalf of municipal authorities. Thus, expression in this privileged public space is incompatible with content-based censorship and leaves a narrow margin of appreciation to the State. It is noteworthy that the Swiss authorities examined not only the content of the applicant association’s website mentioned on the poster but also that of other sites – in particular of the Clonaid site and the apostasie.org site – that were accessible via hyperlinks on the applicant’s site, as well as books of the Movement and by its leader and the magazine Apocalypse.", "The Court could not establish the exact state of the websites visited by the domestic authorities at the material time and the Government did not present evidence in this connection. The parties discussed whether it was appropriate for the purposes of examining the proportionality and necessity of the disputed measure to take into consideration the content of the various websites referred to by the domestic authorities. The Court exercises its supervision in the light of the case as a whole[40]. Accordingly, a global examination of the context of the case also requires looking at the content of the websites in question. Such an examination should consider, in particular, the fact that the Internet is the most open and dynamic network in history.", "If streets and parks of a city are the historical quintessential public fora, the Internet is today’s global marketplace of ideas[41]. Consequently, in the light of an effective, and not illusory, guarantee of the freedom of expression enshrined in Article 10, and bearing in mind the crucial public-service value of the Internet, users must have the greatest possible access to Internet-based content, applications and services of their choosing, whether or not they are offered free of charge, using suitable devices of their choosing[42]. This principle of Internet neutrality imposes on both public and private Internet stakeholders (access providers, content-sharing platforms, search engines) an obligation not to refuse, provide or terminate in a discriminatory manner access to the Internet, with governments having the additional duty to ensure that all stakeholders are held accountable for violations of their users’ freedom of expression and information. Therefore, users must not be subjected to any licensing or other requirements having a similar effect, nor any general blocking or filtering measures by public authorities, or restrictions that go further than those applied to other means of content delivery. When exceptional circumstances justify the blocking of unlawful content, it is necessary to avoid targeting users who are not part of the group for whose protection a filter has been activated.", "The Internet being a public forum par excellence, the State has a narrow margin of appreciation with regard to information disseminated through this medium. This is even more the case as regards hyperlinks to web pages that are not under the de facto or de iure control of the hyperlinker[43]. In this case, the narrow margin of appreciation of the State is determined by the principle that no liability may be imputed to the “hyperlinker” based on the illegal content of the hyperlinked web pages, except when the hyperlinker has de iure or de facto control of the hyperlinked web page or has endorsed the illegal content of the hyperlinked web page. Linking by itself cannot be understood as a tacit expression of approval, additional elements being necessary to evidence the deliberate mens rea of the hyperlinker. The nature of the speech The Court has acknowledged that a wide margin of appreciation is afforded to the Contracting States when regulating expression in relation to matters of private interest, such as those within the sphere of religious[44] and commercial matters[45].", "However, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or any other matters of general interest[46]. Taking into consideration not only the contested poster, but also the website to which the poster referred and those other websites to which the first site was hyperlinked and the literature referred to by the domestic authorities, it is difficult to define the type of speech in issue in the present case. One thing is clear: the speech of the Movement falls outside the commercial context, in which members of the public are induced to buy a particular product. Three reasons can be put forward to support this assessment. Firstly, profit was not a relevant purpose, let alone the main purpose, of the message of the Movement displayed on the poster or in its website.", "What was at stake in this communication was not the applicant association’s “purely commercial” interest[47]. In fact, the applicant association does not even have a statutory profit-making purpose, since it is a non-profit association (association à but non lucratif, according to Article 1 of its Constitution, statuts révisés de la religion raëlienne en Suisse). In addition, no sale was proposed on the poster and the products which were proposed for sale on the website, such as books, had an informational function, in accordance with the alleged pedagogical purpose (renseigner le grand public) of the Movement foreseen in Article 2 of the same Constitution. Secondly, the fact that the applicant association paid for the poster to be posted on the public billboards of the City of Neuchâtel is immaterial. Expression does not lose Convention protection to which it would otherwise be entitled simply because it appears in the form of a paid advertisement.", "[48] Thirdly, the linking to the Clonaid website is also irrelevant, since the applicant association and Clonaid were at the material time – and still are – different legal entities. No evidence whatsoever was provided to the Court that the applicant association ever gained or even could have gained any profit from the cloning services made available by a third party. The speech in issue seems to be close to philosophical debate, since the applicant association claims to be discussing the relationship between science and religion and to be disclosing a message purportedly transmitted by extraterrestrials in this connection. The applicant association not only purports to convey a message on the future of mankind, but also on the way today’s men and women should live, from which ethical implications derive. If in addition one takes into consideration, as did the domestic courts, the references on the applicant association’s website to geniocracy and the campaign for women’s rights, the speech in issue also takes on a clear political connotation, which is reinforced by a general criticism of the present-day model of social, political and economic structures of Western societies.", "Regardless of the intrinsic philosophical value of the speech, which is obviously not under the Court’s jurisdiction, it is undeniable that it portrays a “general perspective of the world”, a Weltanschauung[49]. Consequently, the encompassing and mixed nature of the applicant association’s speech, involving several issues of general interest, narrows the breadth of the margin of appreciation afforded to the State. The proportionality test Having clarified the applicable assessment criteria, the impugned interference now has to be examined in the light of the case as a whole in order to determine whether it is “proportionate to the legitimate aim pursued” and corresponds to a “pressing social need”, the specific reasons given by the national authorities therefore having to appear “relevant and sufficient” for those purposes. Thus, a thorough analysis of the reasons put forward by the domestic authorities in the light of the necessity and proportionality tests is required. Those reasons were related to the applicant association’s positions in matters of scientific atheism, defence of cloning and “geniocracy”, and to the possibilities of sexual abuse allegedly stemming from the content of the Raelian Movement’s website and literature.", "Scientific atheism The Federal Court admitted that the applicant association’s anti-clerical ideas and especially its wording on the poster about a message supposedly transmitted by extraterrestrials or its remark that science was replacing religion were not particularly provocative in nature, even if they might be offensive for part of Swiss society[50]. The freedom of thought, conscience and religion guaranteed by the Convention entails freedom to hold or not to hold religious beliefs and to practise or not to practise a religion[51]. The State may not unduly suppress or restrict free communication of all believers, agnostics, atheists and sceptics, under the guise of respecting the religious sentiment of the majority. Consequently, freedom of expression allows for criticism of religion, churches, religious institutions and the clergy, as long as it does not derail into defamation (i.e., deliberate insult of persons and institutions)[52], or hate speech (i.e., promotion of hatred against a religious group)[53] or blasphemous speech (i.e., wilful deprecation of a particular religion by denigrating its doctrine or its deities)[54]. The line between criticism in religious matters and blasphemy is a very thin one, as European history has shown.", "In drawing that line, the Court departs from a civil libertarian doctrine, according to which freedom of expression should always prevail over freedom of religion, as well as from an opposite State-centred view, which would defer to public authorities unlimited power to regulate expression in public space according to the religious sentiment of the majority. Neither one nor the other extreme view is in accordance with the spirit of tolerance which is a feature of a democratic society. Only an approach that seeks to balance free speech and the freedom of others to hold religious beliefs is compatible with the Convention[55]. Indeed, the Court has frequently emphasised the State’s fundamental role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed[56].", "Thus, tolerance requires a content-neutral stance on the part of the State with regard to different forms of expression with a religious connotation. In the present case, since the speech of the applicant association on the replacement of religions by an alleged “scientific atheism” and its criticism of established churches did not constitute, at the material time, a form of hate speech, nor a form of denigration of religion or religious institutions or the clergy[57], it was not proportionate to prohibit the contested poster on such basis. Cloning The Federal Court concluded that the linking of the applicant association’s website to that of the company Clonaid “contribute[d] to the promotion of an illicit activity and went further than a simple statement of an opinion”[58]. In fact, human cloning is prohibited by the Additional Protocol to the Oviedo Convention of 12 January 1998, ratified by twenty-one of the forty-seven member States of the Council of Europe, including Switzerland. At the material time, Switzerland had not yet ratified the Protocol, since it only took that step on 24 July 2008.", "Nevertheless, Article 119, paragraph 2 (a), of the Federal Constitution, on the prohibition of human cloning, was already in force in March 2001. The domestic authorities’ review in this connection was doubly indirect, because it concerned a reference on the impugned poster to the applicant’s website and, in turn, a hyperlink on that website to the website of Clonaid. The applicant association has not denied expressing opinions in favour of cloning, but claims that it has never participated in therapeutic or experimental acts in the field of human cloning. No evidence was presented before the Court or the domestic authorities of any such participation or of any de iure or de facto control by the applicant association over the Clonaid website. In addition, no evidence was produced as to the state of the websites of both the applicant and Clonaid at the material time.", "Nevertheless, in view of the explicit endorsement given to Clonaid by the applicant, the question whether the illegality of Clonaid’s cloning services could potentially taint the legality of the applicant association’s own website must be raised. The promotion of cloning by the applicant association and its endorsement of Clonaid’s activity did not constitute per se an unlawful act punishable under domestic law. In fact, the Swiss Criminal Code provides for the offence of public incitement to commit a crime (Öffentliche Aufforderung zum Verbrechen – see Article 259 of the Criminal Code), but this provision requires as a constitutive element of the criminal conduct that the incitement must have taken place in an unequivocal way in relation to a crime, whose form and content are sufficiently precise to be recognised by common citizens and to influence them, the mere endorsement of an idea being irrelevant for the purposes of the provision[59]. The Swiss Federal Council itself acknowledged twice, in its response of 10 September 1997[60] and in its response of 21 May 2003 (see paragraph 24 of the judgment) to questions from members of parliament, the lawfulness of the Movement’s activity of promotion of cloning. Since the applicant association was not engaged in any unlawful cloning activity, not even as a moral or material accomplice, it was not proportionate to prohibit the mere statement of an opinion favourable to cloning.", "“Geniocracy” The applicant association advocates “geniocracy”, which represents government by an intellectual elite. The Federal Court considered that this ideology was “capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law”[61]. Geniocracy undeniably runs counter to democratic principles, since it breaches the principle of equality of all citizens. However, as the Federal Court also admitted, the idea of geniocracy is not presented by the applicant as a “real political project” but rather as a “utopia” which would be fulfilled voluntarily[62]. This situation is distinct from those cases where the Court has found restrictions on freedom of expression to be proportionate in respect of organisations defending political projects that were incompatible with the concept of a “democratic society”[63].", "Hence, it was not proportionate to prohibit a mere utopian speech. “Sensual meditation” The Federal Court laid great emphasis on the fact that a number of criminal cases of sexual abuse of children involved members of the Raelian Movement. It pointed out that certain passages from the publications accessible via the Movement’s website concerning the notions of “sensual meditation” or “sensual awakening” of children could “seriously shock its readers” and “lead adults to commit acts of sexual abuse”[64]. The Movement’s official position, as expressed on its website, is total condemnation of paedophilia. It even founded an organisation called “Nopedo”, which reports cases of paedophilia to the authorities[65].", "An objective assessment of this sensitive issue requires a distinction between two situations: (a) Final criminal convictions of members of the Raelian Movement for sexual abuse of children committed outside the context of the organisation’s activities could hardly be regarded as a relevant and sufficient reason for which to ban the poster campaign in question, in view of the tenuous and remote connection between any such convictions, related to conduct in the sphere of the private life of the persons concerned, and the content of the Raelian Movement’s website. (b) Final criminal convictions of members of the Raelian Movement for sexual abuse of children committed within the context of the organisation’s activities could potentially justify banning the Movement as such, and a fortiori the poster campaign in issue. The Government were asked to inform the Grand Chamber of all final convictions of members of the Raelian Movement for sexual abuse of children within and outside the context of the organisation’s activities. In fact, the only final criminal convictions definitely proven to date are the following. (i) A judgment of the Colmar Court of Appeal, dated 5 April 2005, pronouncing a conviction and a six-year prison sentence for “sexual assault on a minor under 15 by a parent or person with authority” as a result of sexual contact between a member of the Movement and his children in the years 1995 to 1997.", "These facts occurred within the boundaries of the private life of this member and should not be imputed to the Movement itself or its website. (ii) A judgment of the Lyons Court of Appeal of 24 January 2002 sentencing four members of the Movement to prison sentences of up to eighteen months (with and without suspension), for “corruption de mineures” (inciting female minors to engage in unlawful sexual activity). These crimes consisted in consensual sexual relationships with minors of 15 or more years of age within the context of meetings organised by the Movement in 1996 and 1997. Both these judgments were published after 2001, which means that at the material time of the poster ban there were no final criminal convictions on which the Neuchâtel police and the municipal council could base their decision against the applicant association. Even after the publication of the above-mentioned convictions, the Administrative Court concluded “it is true that the Movement cannot be found to advocate paedophilia”[66].", "Meanwhile, fourteen years have passed since the facts described in the criminal judgments occurred and no other convictions have followed. The publications mentioned by the domestic courts were released more than thirty years ago and no proceedings have ever been opened to withdraw them from the market. In such a situation the question is whether the reasons given by the authorities to justify the ban on the poster campaign suffice. No criminal actions were ever proven in Switzerland and those which were proven in France are not sufficient to show a pattern of behaviour of sexual abuse of minors within the applicant association. One criminal conviction for illicit consensual sexual practices committed within the context of the organisation’s activities in over thirty years is certainly no evidence of a dangerous pattern of behaviour attributable to the Movement, especially if one considers that the allegedly “dangerous” publications have been available to the general public during that same period of time.", "Moreover, neither in the reasons given by the domestic courts, nor in the Government’s observations before the Court, is there any indication whatsoever that there was a clear and imminent danger which justified the impugned interference at the precise time it was undertaken. Yet, the Court has established that measures interfering with freedom of expression which purport to safeguard public order, prevent crime and defend the rights of others require evidence of a clear and imminent danger. This standard has been ignored by the domestic authorities[67]. In those conditions, one cannot but conclude that it was not proportionate to ban the contested poster campaign in Neuchâtel. The necessity test The Government argued that the poster ban was limited in its scope, as the applicant association remained free to “express its beliefs through the numerous other means of communication at its disposal” and “there was never any question of banning the applicant association itself or its website”[68].", "There are two logical contradictions in this line of reasoning. Firstly, there is a contradiction between the prohibition of the poster, which referred to the website, and the official tolerance of the website itself. If the website is accepted by the Swiss authorities, it is because the ideas it imparts do not breach Swiss law. The website being lawful, the poster which simply refers to it is necessarily lawful. This is a simple question of logic[69].", "Secondly, there is a contradiction between the prohibition of the poster and the official tolerance of the applicant association itself. The statutory purposes of the applicant association include the advertising of a message supposedly communicated by extraterrestrials[70]. If the applicant’s statutory purposes are in accordance with Swiss law, as the domestic authorities and the respondent Government admit, a poster bearing a mere reference to the association and its website is also legal. In the absence of a legal decision of dissolution of the association, taken under Article 78 of the Swiss Civil Code, it is illegitimate to prohibit the dissemination of the applicant association’s website. The Government claimed that the particular danger of the poster lay in the fact that it allowed the broader public to look at the site.", "This contradictory line of argument does not stand up. It cannot at the same time be said that the website remained a good alternative by which to impart ideas of the Movement and that the same website should be hidden from the broader public because of the ideas that it imparted. Furthermore, the mere evidence of facts suffices to show that the Internet has a much larger audience than any poster would have. Even assuming that the message of the website was the evil to avoid, there is no possible justification for prohibiting a lesser evil (a poster referring to the website) and permitting the greater evil (the website itself). Lastly, the poster ban in Neuchâtel was all the less “necessary” in that a host of similar posters of the applicant association had been duly authorised in other Swiss municipalities, without any knowledge of public inconvenience or disorder being recorded.", "Thus the prohibition of the poster was not the least possible prejudice chosen by the domestic authorities. It was an ineffective and useless means of restricting in a particular city of Switzerland a lawful speech which had a nationwide and even worldwide audience. Given the uncontested presence of the Movement and its message throughout the country and the world, the poster ban was a futile measure, and futile measures cannot be necessary. The Murphy case-law does not support the domestic authorities’ conduct either, contrary to what the Federal Court concluded. In fact, in Murphy the Court admitted the general prohibition of religious advertising on television owing to the circumstance that television advertising had a “more immediate, invasive and powerful impact” on the passive recipient[71].", "But in the present case the respondent Government did not produce evidence that the City of Neuchâtel had a policy of prohibiting all religious advertising through poster campaigns and, even if they had done so, that evidence would not prove valid for an association with a broader message such as that of the Raelian Movement. In addition, even if the applicant association’s message was restricted to its religious aspects and its website was considered a mere religious advertisement, Murphy would still not be applicable to the current case, since a website is not analogous to broadcasting. It is self-evident that the website does not have the same “immediate, invasive and powerful impact” on the general public that television broadcasting has[72]. Be that as it may, the existence of alternative means of communication available to the applicant association could not by itself justify the interference with its freedom of expression[73]. The limited scope of the interference does not free the State of the duty to provide a sufficient reason for it, which it did not do in the present case.", "The mere fact that public authorities choose to interfere with a limited means of communication does not excuse them from having to provide a convincing argument to support the pressing social need for the interference. Moreover, since the poster ban was based on the content of the website, the applicant association can legitimately fear that questions concerning the legality of the site itself will arise later on and that this alleged alternative will be suppressed in the near future. This places the applicant association in a situation of uncertainty that is hardly compatible with the spirit of Article 10 of the Convention. It would thus suffice for a city or a State to decide that it did not wish its name to be associated with certain non-majority but lawful ideas in order to justify a systematic denial and oppose the expression of such ideas in public on a permanent basis. In fact, that was exactly what happened in the instant case, as the subsequent sequence of events demonstrates.", "The Government’s argument is definitely prejudiced by the fact that the Neuchâtel authorities refused not once, not twice, but three times to allow the applicant access to the public forum. In June 2004, another poster campaign proposed by the applicant association was prohibited in Neuchâtel. Prior to these rejections of 2001 and 2004, a request to publish on a billboard in the public space of Neuchâtel had already been refused in 1999. These facts show an inadmissible pattern of content-based discriminatory conduct of public authorities towards a minority. The systematic prohibition of any expression through billboards and posters in a public area casts strong doubt on the objectiveness and impartiality of the State conduct.", "And where there is no objective or impartial judgment, there is no proportionality assessment, but rather arbitrariness. Content-based expression control ends up as pure speaker-based discrimination. Such State conduct inevitably produces a chilling effect not only in regard to the applicant association, but also in regard to any person wishing to communicate ideas not shared by the majority[74]. Individuals do not have an unconditional or unlimited right to the extended use of public space, especially in relation to State facilities intended for advertising or information campaigns. That being said, the State has a duty to respect freedom of expression when it is called upon to supervise the terms of use of a concession such as that in issue in the present case.", "Such limitations or restrictions must in particular respect the principle of equality of all citizens. In other words, the public authorities must above all refrain from reserving different treatment for groups or organisations with whose actions or opinions they do not agree. Conclusion The very purpose of Article 10 of the Convention is to preclude the State from assuming the role of watchman for truth and from prescribing what is orthodox in matters of opinion. The State must strictly adhere to the principle of content-neutrality when it decides how to make a public space available, refraining from banning a campaign on the pretext that authorisation could imply approval or tolerance of the opinions in question. Such prohibitions are not compatible with the pluralism inherent in democratic societies, where ideas are freely exchanged in a public space and truth and error emerge from an unrestricted confrontation of ideas.", "As John Stuart Mill put it, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”[75]. In the instant case, having regard to the State’s negative obligation to refrain from interfering with the applicant association’s freedom of expression, the mixed nature of the association’s speech, the legality of the speech, the association’s website and statutory purposes at the material time, the inexistence of any clear and imminent danger resulting from this speech and the contradictory and arbitrary scope of the poster ban, and after examining the decisions given by the competent authorities in the light of the narrow margin of appreciation applicable to the case, I cannot but conclude that the reasons on which the impugned ban was based were not sufficient and that the interference did not correspond to a pressing social need. [1] Dudgeon v. the United Kingdom, 22 October 1981, § 56, Series A no. 45.", "[2] Handyside v. the United Kingdom, 7 December 1976, § 54, Series A no. 24. [3] Müller and Others v. Switzerland, 24 May 1988, § 36, Series A no. 133. [4] Otto-Preminger-Institut v. Austria, 20 September 1994, § 50, Series A no.", "295‑A. [5] On the Convention protection granted to proselytising, see Kokkinakis v. Greece, 25 May 1993, Series A no. 260‑A. [6] Compare with the definition quoted by the US Supreme Court: “ ‘Advertising displays [sic] signs’ include any sign that ‘directs attention to a product, service or activity, event, person, institution or business.’” (Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 494 (1981)). [7] Comparative jurisprudence indicates that billboards are public fora for compelling reasons related to freedom of expression.", "See the Appendix. [8] This issue was addressed in regard to access to private space in Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003‑VI), with reference to the positions of the US Supreme Court and the Supreme Court of Canada. Given that the present judgment does not reflect such comparative-law aspects, though the prevailing trend is of relevance, an overview is given in the Appendix. [9] http://national.rael.org/index.php?", "[fr] (Last visited 15 May 2012). [10] For a review of the emerging jurisprudence on hyperlinks, see Article 19’s third-party intervention. [11] The “mosaic theory” is an approach that pieces together information that is in itself irrelevant for the finding, for example the piecing together of publicly available information to disclose classified information (see the Der Spiegel Case (20 BVerfGE 162 (1966)) where the German Federal Constitutional Court held that a suspicion a newspaper was guilty of treason could not be based on a mosaic theory, as this was an unconstitutional violation of freedom of expression). [12] Compare this with the opposite approach in TV Vest AS and Rogaland Pensjonistparti (cited above, § 64), where the Court said that “[i]rrespective of the fact that it was presented as a paid advertisement … the content of the speech in question was indisputably of a political nature. Thus, …, the impugned advertisement obviously fell outside the commercial context of product marketing, an area in which States traditionally have enjoyed a wide margin of appreciation.” The relationship between (commercial) advertising and business goals is considered crucial.", "According to the Audiovisual Media Services Directive (2010/13/EU): “... ‘audiovisual commercial communication’ means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement; ... ‘television advertising’ means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods and services including immovable property, rights and obligations, in return for payment; ...”. [13] Article 10 is applicable “not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.” (Autronic AG v. Switzerland, 22 May 1990, § 47, Series A no. 178).", "[14]. President John F. Kennedy: “We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.” [15]. Appleby and Others v. the United Kingdom, no. 44306/98, §§ 47-49, ECHR 2003-VI, referring to Marsh v. Alabama, 326 US [United States Supreme Court Reports] 501.", "[16]. Murphy v. Ireland, no. 44179/98, §§ 76-77, ECHR 2003-IX. [17]. Women On Waves and Others v. Portugal, no.", "31276/05, §§ 39-40, 3 February 2009. [18]. See the reference in Appleby and Others, cited above, § 26. [19]. In the foundational case Hague v. CIO, 307 US 496 (1939), the US Supreme Court decided that a municipal ordinance requiring a permit for a public assembly in or upon the public streets, highways, public parks or public buildings of the city was void.", "The principle established by the Supreme Court was that “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”. Other cases of public fora concern the area outside the Supreme Court building (United States v. Grace, 461 US 171 (1983)), or sidewalks (Frisby v. Schultz, 487 US 474 (1988)). [20]. Among designated or limited public fora are a municipally owned theatre open for private productions (Southeastern Promotions Ltd. v. Conrad, 420 US 546 (1975)), open school-board meetings (City of Madison v. Wisconsin Employment Relations Comm’n, 429 US 167 (1976)), state fairgrounds opened to different community groups (Heffron v. International society for Krishna Consciousness, 452 US 640 (1981)) and university meeting facilities (Widmar v. Vincent, 454 US 263 (1981)). [21].", "In Perry Education Association v. Perry Local Educators’ Association, 460 US 37 (1983), a very thin majority considered that an interschool mail system and teacher mail folders were non-public fora. The court established a distinction between, on the one hand, content discrimination, i.e., discrimination against speech because of its subject matter –which may be permissible if it preserves the limited forum’s purposes, and, on the other, viewpoint discrimination, i.e., discrimination because of the speaker’s specific motivating ideology, opinion, or perspective, which is presumed impermissible when directed against speech otherwise within the forum’s limitations. Other non-public fora are, according to the Supreme Court, jails (Adderlewy v. Florida, 385 US 39 (1966)), schools (Grayned v. City of Rockford, 408 US 104 (1972)), city buses (Lehman v. City of Shaker Heights, 418 US 298 (1974)), military bases (Greer v. Spock, 424 US 828 (1976)), residential mailboxes (US Postal Service v. Council of Greenburgh Civil Associations, 453 US 114 (1981)), an annual charity drive created by the federal government to target federal employees (Cornelius v. NCAACP Legal Defense and Education Fund, 473 US 788 (1985)), postal premises, in particular a postal sidewalk near the entrance to a US post office (United States v. Kokinda, 497 US 720 (1990)), and airport terminals (International Society for Krishna Consciousness v. Lee, 505 US 672 (1992)). Public, designated or non-public fora may also include virtual fora, such as funding and solicitation schemes (Rosenberger v. Rector and Visitors of the University of Virginia, 515 US 819 (1995)), public access channels required by local cable franchise authorities (Denver Area Educ. Telecomm.", "Consortium, Inc. v. FCC, 518 US 727 (1996)) and a candidate debate on a State-owned television network (Arkansas Educational Television Commission v. Forbes, 523 US 666 (1998)). [22]. This doctrine has been much criticised, inter alia, for failing to address the values involved in finding a proper balance between the competing individual and public interests or to provide a true judicial review in cases where the reasonableness standard is applicable (see, for example, Jakab, “Public Forum Analysis After Perry Education Association v. Perry Local Educators’ Association – A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property”, Fordham L. Rev., 54 (1986), 545; and Dienes, “The Trashing of the Public Forum: Problems in First Amendment Analysis”, Geo. Wash. L.", "Rev., 55 (1986), 109). [23]. Metromedia, Inc. v. City of San Diego, 453 US 490 (1981). [24]. Committee for the Commonwealth of Canada v. Canada, (1991) 1 SCR [Canada Supreme Court Reports] 139.", "In her opinion, Justice L’Heureux-Dubé stated as follows: “If the government had complete discretion to treat its property as would a private citizen, it could differentiate on the basis of content, or choose between particular viewpoints, and grant access to sidewalks, streets, parks, the courthouse lawn, and even Parliament Hill only to those whose message accorded with the government’s preferences. Such a standard would be antithetical to the spirit of the Charter, and would stultify the true import of freedom of expression.” [25]. Ramsden v. Peterborough (City), (1993) 2 SCR 1084. [26]. Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, (2009) 2 SCR 295.", "[27]. See judgment of the German Federal Constitutional Court, 22 February 2011, § 106. [28]. The political philosophy underlying this case-law was formulated in Abrams v. United States, 250 US 616 (1919) by Justice Oliver Wendell Holmes with these words: “When men have realised that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” Imbedded in the Socratic method, the “marketplace of ideas” theory holds that truth arises out of the competition of widely various ideas in free, transparent public discourse.", "The concept is rooted in John Milton’s Areopagitica: A speech for the Liberty of Unlicensed Printing to the Parliament of England, 1644, and was later developed by John Stuart Mill’s On Liberty, 1859. Milton’s speech could be summarised in his much-quoted sentence: “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter?” In continental philosophy, the same theory was put forward first by Immanuel Kant’s article on political enlightenment entitled “Beantwortung der Frage : Was ist Aufklärung?”, published by the newspaper Berlinische Monatsschrift, in December 1784. Four years later, Mirabeau published De la liberté de la presse, imité de Milton, which adapted Milton’s work to the French political situation on the eve of the Estates-General. More recently, this fundamental idea was placed at the heart of the philosophical debate by the non-metaphysical approach of John Rawls’ redefined theory of a “well-ordered society” and the role of “public reason” therein and the post-metaphysical approach of Jürgen Habermas’ theory of the “public sphere” and its “communicative rationality” (see respectively, Rawls’ Political Liberalism, New York, 1993, and Habermas’s Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt, 1992).", "[29]. See Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24. [30]. See The Sunday Times v. the United Kingdom (no.", "1), 26 April 1979, § 59, Series A no. 30. This judgment clarified the initial formulation of the principle in § 49 of the Handyside judgment. [31]. The “adequacy” test verifies whether there is a “rational connection” between the interference and the social need, by establishing a plausible instrumental relationship between them, as the Court first stated in Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no.", "93. The test of the less intrusive measure envisages the minimal impairment of the right or freedom at stake, by asking if there is an equally effective but less restrictive means available to further the same social need. [32]. On the protection of the “essence” or the minimum core of the Article 10 freedom, see Appleby, cited above, § 47, which reiterates the principle established in Ashingdane, cited above, § 57. Thus, the test of proportionality (or “reasonableness” or “fair balance”) does not overlap entirely with the protection of the minimum core (or the “essence”) of the rights and freedoms at stake.", "[33]. See Handyside, cited above, § 49, and Women On Waves and Others, cited above, § 42. [34]. Eric Arthur Blair wrote a preface to the first edition of his Animal Farm (1945), where this sentence was included. The preface was not published and was only discovered in the author’s original typescript some years later.", "It was published in The Times Literary Supplement, 15 September 1972. [35]. Like the Government, the domestic courts decided the matter based essentially on this same argument (see the decision of the Administrative Court of 22 April 2005, p. 11, and especially the Federal Court’s judgment of 20 September 2005, p. 11: “it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question.” [36]. The most arduous of these fighters on the European continent was Voltaire, who wrote in his Dictionnaire Philosophique, 1764: “We have a natural right to make use of our pens as of our tongue, at our peril, risk and hazard.” But well before him, the publication in England of the illuminating Areopagitica of John Milton, itself a banned work, marked the beginning of the philosophical and political opposition to pre-publication censorship of the content of speech as a logical consequence of the freedom of expression. [37].", "Referring to the powers of the State, Kant wrote that the monarch did not have the power to rule over ideas and therefore could not submit the public discussion of opinions to prior governmental content-control: “It indeed detracts from His Majesty if he interferes in these affairs by subjecting the writings in which his subjects attempt to clarify their ideas to governmental supervision, when he does so acting upon his own highest insight – in which case he exposes himself to the reproach: Caesar non est supra grammaticos …” (“Es tut selbst seiner Majestät Abbruch, wenn er sich hierin mischt, indem er die Schriften, wodurch seine Untertanen ihre Einsichten ins reine zu bringen suchen, seiner Regierungsaufsicht würdigt, sowohl wenn er dieses aus eigener höchsten Einsicht tut, wo er sich dem Vorwurfe aussetzt : Caesar non est supra grammaticos, …”); Immanuel Kant, “Beantwortung der Frage : Was ist Aufklärung?”, 1784. [38]. See, for example, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 82, ECHR 2009.", "[39]. See Women On Waves and Others, cited above, § 40. [40]. See Handyside, cited above, § 50, and The Sunday Times (no. 1), cited above, § 60.", "[41]. The open and non-discriminatory access to and use of the Internet has been a major concern of the Parliamentary Assembly of the Council of Europe, which approved Resolution 1877 (2012) on the protection of freedom of expression and information on the Internet and online media, and Recommendation 1906 (2010) on rethinking creative rights for the Internet age, and the Committee of Ministers, which approved, among others, CM/Rec(2007)16 on measures to promote the public service value of the Internet, CM/Rec(2008)6 on measures to promote the respect for freedom of expression and information with regard to Internet filters, together with a Declaration on network neutrality, a Declaration on the management of the Internet protocol address resources in the public interest and a Declaration on the digital agenda for Europe, all of 29 September 2010 and inspired by the Granada Ministerial Declaration on the European Digital Agenda, of 19 April 2010. The same concern has been felt on the other side of the Atlantic. In response to the Federal Government’s interest in regulating the content of speech on the Internet in order to promote its growth, the US Supreme Court stated in Reno v. American Civil Liberties Union, 521 US 844 (1997): “We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention.", "The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” A narrow majority confirmed this laudable approach in Reno’s follow-up, Ashcroft v. American Civil Liberties Union, 542 US 656 (2004). One year before, the Supreme Court had made a step backwards, by refusing public-forum status to Internet access in public libraries (see United States v. American Library Association, 539 US 194 (2003)), based on an unconvincing parsimonious interpretation of the traditionality component of the public-forum doctrine and an unfortunate categorisation of the Internet as a technological extension of a book stack, thus overlooking the fact that if libraries had the right to curtail the public’s receipt of already available Internet information, that would equate to the right to prevent access to books already available on the stack, in other words, the right to censorship. As the far-sighted dissenting opinions of Justices Stevens and Souter note, the majority admit the risks of overblocking the access of adults to a substantial amount of non-obscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one.", "[42]. This so-called principle of “Internet neutrality”, recently affirmed by the Committee of Ministers of the Council of Europe, shares the exact same ideological grounds as the public-forum doctrine. The Committee adds that traffic management and filtering of illegal content should not be seen as a departure from the principle of network neutrality, since exceptions to this principle should be considered with great circumspection and need to be justified by “overriding public interests”. [43]. An eloquent justification of this was given by Justice Abella of the Supreme Court of Canada in Wayne Crookes, et al.", "v. Jon Newton, (2011) 3 SCR 269, 2011 SCC 47: “The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential ‘chill’ in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.” [44]. See Murphy, cited above, § 67. Nonetheless, the Court stated clearly that its assessment was restricted to the question whether a prohibition of a certain type (advertising) of expression (religious) through a particular means (the broadcast media) could be justified in the particular circumstances of the case.", "Anyway, the compatibility of this line of reasoning with the Court’s own interpretation of the freedom of religion and the neutral role of the State in religious matters is problematic, as will be demonstrated. [45]. See markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165; Groppera Radio AG and Others v. Switzerland, § 72, 28 March 1990, Series A no. 173; Casado Coca v. Spain, 24 February 1994, § 50, Series A no.", "285‑A; Demuth v. Switzerland, no. 38743/97, § 42-43, ECHR 2002-IX; and Krone Verlag GmbH & Co. KG v. Austria (no. 3), no. 39069/97, § 30, ECHR 2003-XII. The Court’s task has been confined in these cases to ascertaining whether the measures taken at the national level are “justifiable in principle and proportionate”, which in fact leaves room for full Convention supervision.", "Added to this quite broad criterion of supervision, the Court’s justification of the alleged wide margin of appreciation in regard to commercial speech is problematic. In fact, the “complex and fluctuating area” of trade, competition and advertisement should not be a cover for a lesser protection of consumer rights, especially in view of the growing international consensus on standards of fairness in business and advertisement. At this juncture, it is also relevant to stress that the Court itself has significantly diminished the impact of the markt intern jurisprudence, in so far as it has admitted that commercial statements, i.e., commercially motivated or otherwise commercial in their origin, may also be involved in a debate of general interest and thus the margin of appreciation should be concomitantly reduced (see Hertel v. Switzerland, 25 August 1998, § 47, Reports of Judgments and Decisions 1998-VI, and VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, §§ 69-71, ECHR 2001-VI). The distinction between “purely commercial speech” and commercial speech with political overtones shows the intrinsic weakness of the apparently generous standard of margin of appreciation established by a minimum majority of the Court in markt intern.", "[46]. See Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Castells v. Spain, 23 April 1992, § 43, Series A no. 236; and Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239.", "[47]. To use the exact words of VgT Verein gegen Tierfabriken and Demuth (both cited above), the applicant association’s speech was not “purely commercial”, or “primarily commercial”. This same conclusion was reached in the decision of the Land Management Directorate of 27 October 2003 (p. 8): “Indeed, the poster in issue does not advertise the sale of books, courses or other items. Some works may be obtained via the above-mentioned website, but this is an item of information among others.” [48]. As Justice Brennan wrote in the landmark case of New York Times v. Sullivan, 376 US 255 (1964), “that the Times was paid for the advertisement is immaterial in this connection as is the fact that newspapers and books are sold”.", "The same rationale applies to rented public billboards in the City of Neuchâtel. [49]. The domestic authorities admitted the existence of a “spiritual conception of life”. The decision of the Land Management Directorate of 27 October 2003 (p. 7) refers to a “global conception of the world”, which is based on “a new vision of the universe that gives us keys to awaken our potential and values to revolutionise society, ... to enable humanity to change war into peace, work into leisure, poverty into self-fulfilment and money into love”. The Directorate also noted the political connotation of the Movement’s speech, highlighting their campaign against female genital mutilation in African countries and in favour of the protection of women’s rights in Afghanistan and Africa.", "The same characterisation is found in the judgment of the Administrative Court of 22 April 2005 (p. 8): “this vision corresponds to a global vision of the world.” [50]. Federal Court judgment of 20 September 2005, p. 8. [51]. See the leading case Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A, and the later case of Buscarini and Others v. San Marino [GC], no.", "24645/94, § 34, ECHR 1999-I. [52]. See Giniewski v. France, no. 64016/00, ECHR 2006-I. [53].", "See Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004-XI. [54]. See Otto-Preminger-Institut v. Austria, 20 September 1994, Series A no. 295-A; Wingrove v. the United Kingdom, 25 November 1996, Reports 1996-V; and İ.A v. Turkey, no.", "42571/98, ECHR 2005-VIII. [55]. Also pointing in this direction, see the Parliamentary Assembly of the Council of Europe Resolution 1510 (2006) on freedom of expression and respect for religious beliefs, according to which freedom of expression should not be further restricted to meet increasing sensitivities of certain religious groups, but at the same time hate speech against any religious group is not compatible with the fundamental rights and freedoms; Recommendation 1804 (2007) on State, religion, secularity and human rights, which reiterated that freedom of expression could not be restricted out of deference to certain dogmas or the beliefs of a particular religious community; and Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion, which underlined that religious groups must tolerate, as must other groups, critical public statements and debate about their activities, teachings and beliefs, provided that such criticism did not amount to intentional and gratuitous insults or hate speech and did not constitute incitement to disturb the peace or to violence and discrimination against adherents of a particular religion. [56]. See Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996-IV; Hasan and Chaush v. Bulgaria [GC], no.", "30985/96, § 78, ECHR 2000‑XI; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003-II; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005‑XI. From this point of view, the suppression of all kinds of religious or anti-religious speech in public space or in public means of communication is not a Convention compatible, non-discriminatory form of regulation of expression. As Justice Kennedy put it, it is “simply wrong” to say that debate is not skewed so long as multiple voices are silenced: the debate is skewed in multiple ways (see Rosenberger v. Rector and Visitors of the University of Virginia, 515 US 819).", "[57]. In a judgment of the Federal Court of 16 September 2003, the Movement’s criticism of paedophile priests was found to be in conformity with Swiss law, with the argument: “It is indeed public knowledge that there are paedophile priests and that their hierarchy have not always taken the necessary steps to prevent those who have committed such acts from continuing.” [58]. Federal Court’s judgment of 20 September 2005, p. 9. [59]. See to this effect the Federal Court judgment of 5 July 1985 (BGE 111 IV 152: von einer gewissen Eindringlichkeit, die nach Form und Inhalt geeignet ist, den Willen der Adressaten zu beeinflussen) and, among legal scholars, Stratenwerth and Wohlers, Schweizerisches Strafgesetzbuch Handkommentar, Berne, 2007, p. 649; Stratenwerth and Bommer, Schweizerisches Strafrecht, Besonderer Teil II: Straftaten gegen Gemeininteressen, Berne, 2008, pp.", "194-95; and Fiolka, in Niggli/Wiprächtiger, Baseler Kommentar Strafgesetzbuch, II, Basle, 2007, annotations 10-13 to Article 259. Similar provisions are to be found, for instance, in the Austrian Criminal Code (§ 282), the German Criminal Code (§ 111), the French Law of 29 July 1881 (section 23), the Italian Criminal Code (Article 414) and the Portuguese Criminal Code (Article 297). [60]. According to the Federal Council’s response of 10 September 1997, the activities of the Movement should not even be – and in fact were not – covered by police prevention (“In accordance with the directives of the [Federal Department of Justice and Police] – as approved by the Federal Council – dated 9 September 1992 on the implementation of State protection, it is not in principle for the Federal Police, in its capacity as police prevention authority, to deal with such organisations. Consequently, the Federal Police have no information concerning the area of activity of the Raelian sects”).", "[61]. See the judgment of the Federal Court of 20 September 2005, p. 9. [62]. Ibid. [63].", "See, for example, Refah Partisi (the Welfare Party) and Others, cited above, § 132. [64]. See the judgment of the Federal Court of 20 September 2005, pp. 9-11. [65].", "In its judgment of 16 September 2003, the Federal Court decided that Nopedo’s reporting action did not breach the law. [66]. Judgment of the Administrative Court of 22 April 2005, p. 12. [67]. This standard was established in Gül and Others v. Turkey, no.", "4870/02, § 42, 8 June 2010, and reiterated in Kılıç and Eren v. Turkey, no. 43807/07, § 29, 29 November 2011. A similar test was first used by the US Supreme Court when it upheld the convictions of anti-war socialists under the 1917 Espionage Act (Schenk v. United States, 249 US 47 (1919)). Writing the opinion of the court, Justice Oliver Wendell Holmes reasoned that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. In his dissent in Abrams v. United States, 250 US 616 (1919), Holmes refined the standard by saying that the State may punish speech “that produces or is intended to produce a clear and imminent danger that will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent”.", "In Brandenburg v. Ohio, 395 US 444 (1969), the Supreme Court substituted the clear and present danger test for a direct incitement test, which coincides with the immediacy test of Holmes. This same standard was established by the United Nations Human Rights Committee in Coleman v. Australia, Communication No. 1157/2003, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006), on criminal punishment for taking part in a public address in a pedestrian mall without a permit, on issues such as bills of rights, land rights and freedom of speech, without being threatening or unduly disruptive or otherwise likely to jeopardise public order in the mall. The test of a “concrete fear of serious damage” of the German Federal Constitutional Court, although not referring directly to the immediacy requisite, presupposes it, in view of the “concreteness” that the fear is required to have. [68].", "Judgment of the Federal Court of 20 September 2005, p. 11. [69]. In logical terms, a simple argument maiore ad minus describes an obvious inference from a claim about a stronger entity, greater quantity, or general class to one about a weaker entity, smaller quantity, or specific member of that class. The reasoning from greater to smaller is imperative, as in the example “If a door is big enough for a person two metres high, then a shorter person may also come through”. If the applicant association’s website is in accordance with the Swiss law, the poster which merely refers to it is also lawful.", "[70]. See Article 2 of the statuts révisés de la religion raëlienne en Suisse. [71]. See Murphy, cited above, § 74. [72].", "See, along the same line, Reno v. American Civil Liberties Union, 521 US 844 (1997), stating that “communications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden”. [73]. See Women On Waves and Others, cited above, § 39. [74]. See Women On Waves and Others, cited above, § 43, and Bączkowski and Others v. Poland, no.", "1543/06, § 67, 3 May 2007. [75]. John Stuart Mill, On Liberty, 1859." ]

[ "FIFTH SECTION CASE OF AŽDAJIĆ v. SLOVENIA (Application no. 71872/12) JUDGMENT STRASBOURG 8 October 2015 FINAL 01/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aždajić v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Síofra O’Leary, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 15 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 71872/12) against the Republic of Slovenia, lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Zlatka Aždajić (“the applicant”), on 5 November 2012. 2. The applicant was represented by Ms B. Marčič, a lawyer practising in Maribor. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.", "3. The applicant complained that she could not effectively enjoy the rights guaranteed by Article 6 of the Convention since she had been unaware of proceedings which had been instituted against her. 4. On 27 August 2014 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1949 and lives in Ruše. 6. On 11 November 2006 K.R. sent a letter to the applicant by registered mail.", "In the letter, she asked the applicant to repay a loan which she had given to her in 2004 within thirty days of receipt of the letter, and stated that she would institute court proceedings if the applicant failed to pay. 7. Following the applicant’s refusal on 13 November 2006 to accept the letter and sign the notice of receipt, K.R. resent it by ordinary mail. 8.", "On 20 November 2006 the applicant replied to K.R. with a letter, the relevant parts of which read: “I do not owe you anything! It is true that you gave me some money as a gift. I did not want to take it, but you literally forced me, saying that you did not have anyone to whom you could give it and that I had helped you a lot... Those were your words, remember! For the time being, I do not have any money.", "I have a loan that I have not yet repaid; therefore, for now, I cannot return your gift. ... When I have it, I will gladly return your gift!” 9. On 13 December 2006 K.R. brought an action against the applicant, claiming repayment of the loan (totalling 14,000 euros (EUR)) which she had allegedly given to her in July and August 2004, on the basis of oral agreements.", "In order to prove that the loan existed, K.R. attached to her claim the letter written by the applicant on 20 November 2006 (see paragraph 8 above), as the only evidence in support of her claim. 10. On 22 January 2007 the applicant, allegedly unaware of the claim which had been brought against her, travelled to Vienna in order to obtain a visa for a trip to Namibia. She stayed in Vienna until 26 January 2007, when she obtained a visa, and flew to Namibia on the same day.", "11. On 24 January 2007 the Maribor District Court forwarded K.R.’s claim to the applicant, advising her that she had thirty days to file her observations. Referring to section 277 of the Civil Procedure Act, the District Court warned the applicant that, in the event that she failed to reply within the given time-limit, it would grant the claim by default judgment. 12. On 25 January 2007 the postman tried (unsuccessfully) to serve the applicant with the court documents, including the claim, at her home address.", "He left in her mailbox a standard official delivery slip used in registered mail deliveries, which was printed on a thin piece of paper measuring 7.3 cm by 10 cm. The slip informed her that he would return the following day. 13. The following day, having not located the applicant at her address, the postman left another delivery slip of identical dimensions in her mailbox, informing her that she could collect the relevant correspondence at the post office within the next fifteen days. The delivery slip included a reference to sections 140 and 141 of the Civil Procedure Act (see paragraph 26 below).", "14. As the applicant did not collect the mail from the post office within fifteen days, the letter in question was returned to the Maribor District Court by the post office, with a note indicating that the correspondence had not been collected, and that a delivery slip had been left in the applicant’s mailbox. Service was deemed to have been effected on 26 January 2007, when the delivery slip was left in her mailbox; therefore, the deadline for her to file any observations expired on 26 February 2007. 15. The applicant claims that, upon her return from Namibia on 24 March 2007, she did not find either of the two delivery slips allegedly left by the postman in her mailbox, and that she was entirely unaware of the proceedings which were pending.", "16. On 14 September 2007 the Maribor District Court issued a default judgment, allowing K.R.’s claim and ordering the applicant to pay her EUR 14,000 with default interest within fifteen days. The relevant reasoning of the District Court was as follows: “The court had to establish from the facts which were submitted with the claim whether or not the claim was well-founded, and whether or not the facts on which the claim was based contradicted the evidence submitted by the plaintiff herself, or facts which are generally known. The plaintiff submitted with the claim a letter from the defendant dated 20 November 2006 (A3), from which it appears that she received ‘some money’ as a gift. The submissions of the defendant in the letter dated 20 November 2006 – that she received some money as a gift – do not, of themselves, negate the plaintiff’s submissions that the plaintiff gave the money as a loan, yet the defendant was given the opportunity and the right to defend her position in the proceedings before the court by submitting a response to the claim [and] has failed to do so.", "In addition, the submissions of the defendant in the letter dated 20 November 2006 that she would return the money which had been given to her (‘When I have it, I will gladly return your gift!’) cannot be ignored either.” 17. The default judgment was served on the applicant on 19 September 2007. 18. On 28 September 2007 the applicant lodged an appeal against the District Court’s default judgment and an application to reinstate the proceedings. She explained that she had failed to respond to the claim owing to her absence from Slovenia, submitted that she had not received the delivery slips allegedly left in her mailbox, and asked the court to set aside the decision and order the reservice of K.R.’s claim.", "As proof of her absence, she attached to both the appeal and the application to reinstate the proceedings a document issued by a travel company, L., confirming that she had been issued with a plane ticket for a flight from Munich to Windhoek on 26 January 2007 and a return ticket for 24 March 2007. She also attached copies of pages from her passport which contained a valid tourist visa for Namibia for the period between 26 January 2007 and 21 April 2007, and Namibian border control stamps confirming her entry to Namibia on 27 January 2007 and her departure on 24 March 2007. 19. On 13 December 2007 the Maribor District Court rejected the applicant’s application to reinstate the proceedings, on the basis that the application had been lodged outside the three-month time-limit. It held that the applicant should have found the delivery slips left in her mailbox by the end of March at the latest after she had returned from Namibia.", "Therefore, she should have lodged an application to reinstate the proceedings within three months of her return. The applicant appealed. 20. On 9 September 2008 the Maribor Higher Court dismissed the applicant’s appeal against the 14 September 2007 and 13 December 2007 decisions of the District Court. It held that it could not accept the applicant’s submissions that there had been no delivery slips in her mailbox, as it had been noted on the notice of delivery that they had been left there.", "It further dismissed the applicant’s submissions that the evidence used by the plaintiff (namely the letter of 20 November 2006) contradicted the facts alleged. 21. On 4 November 2008 the applicant lodged an appeal on points of law. 22. On 11 November 2010 the Supreme Court dismissed the applicant’s appeal on points of law.", "It held that the conditions for issuing a default judgment had been fulfilled. In respect of the issue of whether or not the evidence used by the plaintiff contradicted the submissions set out in the claim, the Supreme Court held as follows: “It appears from the evidence that the plaintiff attached to the claim [the applicant’s letter of 20 November 2006 – see paragraph 8 above] that the letter referred to a gift as well as to the return of a gift. It should be stressed that, for the purpose of issuing a default judgment, it is not important that the evidence submitted confirms the plaintiff’s allegations (in the present case, allegations concerning a loan). It is only important that the allegations contained in the claim do not contradict either the evidence which has been submitted or generally known facts. Since it cannot be concluded from the letter that [the money] was not a loan but a gift, the issuing of the default judgment was correct.” 23.", "On 17 January 2011 the applicant lodged a constitutional complaint. 24. On 22 May 2012 the Constitutional Court dismissed the applicant’s constitutional complaint by referring to section 55(b) of the Constitutional Court Act (see paragraph 30 below). 25. On an unknown date after the decision of 14 September 2007 became final, K.R.", "instituted enforcement proceedings against the applicant. She later withdrew the application for enforcement after the applicant paid her the sum of EUR 4,000. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Civil Procedure Act 26.", "The relevant provisions of the Civil Procedure Act in force at the relevant time (consolidated version published in the Official Gazette no. 36/2004) regarding the service of court documents read: Section 140 “If the intended recipient is not located at his place of residence, service shall be effected by delivering the court documents to an adult member of his household, who shall be obliged to accept them. If adult members of the intended recipient’s household also cannot be reached, the court documents may be left with a housekeeper or neighbour if they are willing to accept them. ...” Section 141 “If court documents cannot be served in the manner prescribed in the preceding section, service on a natural person shall be effected by delivering the court documents to the court which has ordered service or, in case of service by mail, to the post office nearest to the intended recipient’s permanent residence, and by leaving on the door or in the accessible mailbox of the intended recipient’s permanent residence a notice indicating the place where the documents have been left, including a reference to the fifteen-day time-limit within which they are to be collected. The person attempting to effect service shall state on the notice and on the documents to be served the reasons for such service and the day on which the notice was left for the intended recipient, and shall put his signature thereon.", "If the intended recipient fails to collect the documents within fifteen days, service shall be deemed to have been effected on the day that the notice was left on his door or in his accessible mailbox, and he shall be advised thereof in the notice. ...” Section 142 “Claims, court decisions against which a special appeal or an extraordinary legal remedy is allowed, and warning notices regarding payment of court fees in respect of a claim shall be personally served on a party, ... ... If the intended recipient of a document which is to be personally served is not located at the address for service, the person attempting to effect service shall enquire as to when and where the intended recipient can be located, and shall leave with an adult member of the household or with any other person indicated in [section 140], and in accordance with the conditions laid down in that section, a written notice requesting the intended recipient to be present at a certain time and date at either his place of residence or place of work in order to receive the document. If service of the notice mentioned in the preceding subsection is not possible in the manner prescribed above, the person attempting to effect service shall leave the notice in the main mailbox for the building, in the accessible mailbox or on the door. If, afterwards, the person attempting to effect service still cannot trace the intended recipient, he should act in accordance with section 140 or 141 of this Act, and service shall be deemed to have been effected.", "...” Section 143 “If it is established that the intended recipient is absent and that the persons indicated in [section 140] cannot deliver the document to him in time, the document shall be returned to the court with an indication of the whereabouts of the intended recipient.” 27. The relevant provisions of the Civil Procedure Act in force at the relevant time regarding default judgments read: Section 277 “The defendant shall file his defence within 30 days of the claim being served on him, unless otherwise provided for by the present Act. The defendant shall be instructed by the court that, in the event of his failure to file a defence within the time-limit set down in the first paragraph of this section... the court shall give a judgment allowing the claim (default judgment).” Section 318 “If the defendant has failed to file a defence within the time-limit provided for in section 277 of the present Act, the court shall give a judgment allowing the claim (default judgment), provided that: 1. the claim has been duly served upon the defendant in order to allow him to file his defence; 2. the claim does not contain any element which the parties may not dispose of; 3. the claim is founded upon the facts stated in the action; and 4. the facts upon which the claim is based do not contradict the evidence adduced by the plaintiff or judicial knowledge. The issuing of a default judgment shall be postponed if prior enquiries need to be made with regard to the circumstances referred to in the preceding subsection. If the facts stated in the action do not substantiate the claim to a sufficient extent, the court shall deliver a judgment dismissing the claim.” Section 324 “The written judgment shall contain an introductory part, an operative part, reasoning, and a legal notice as to any appeal.", "... In a default judgment ... the reasoning shall contain only an indication of the reasons for issuing the judgment concerned. ...” Section 338 “A judgment may be challenged on the following grounds: 1. a serious violation of civil procedure provisions; 2. erroneous or incomplete determination of the facts; 3. a violation of substantive law. A default judgment may not be challenged on the grounds of the erroneous or incomplete determination of the facts. ...” 28.", "Two types of legal remedies are envisaged in situations where a default judgment has been issued and the defendant was unaware of an action having been brought against him. If the defendant argues that service of the action has not been effected in accordance with the law, he may file an appeal against the default judgment on the grounds that the conditions for giving a default judgment have not been fulfilled owing to a serious violation of procedural rules (see section 338 cited above). If, on the contrary, service has been effected in accordance with the law, but the defendant claims that, for justified reasons, he was unaware of service, he may lodge an application to reinstate the proceedings, as provided for by section 116 of the Civil Procedure Act. Such an application can be lodged within fifteen days of the date on which the reasons for the defendant’s failure to respond to the claim ceased to exist, but no later than three months after the expiry of the deadline for responding to the action. B.", "Decisions of the higher courts regarding service of documents 29. According to the case-law of the Supreme Court (for example, decisions no. II Ips 242/2008 of 23 October 2008; no. II Ips 344/2009 of 17 September 2009; no. II Ips 170/2008 of 11 November 2010; and no.", "VIII Ips 236/2009 of 7 June 2011), section 143 of the Civil Procedure Act (see paragraph 26 above) applies solely to situations where the absence of the addressee is such as to prevent him from acquainting himself with the court documents in time, and the person attempting to effect service is aware that the addressee’s absence is of that nature. Therefore, if the person attempting to effect service is aware that the intended recipient will not receive the documents in time, but nonetheless attempts to effect service in that way, such service will constitute a violation of the rules on civil procedure. If, on the other hand, the person attempting to effect service is unaware of the fact that the intended recipient will not be able to receive the court documents in time, that assumed service will not constitute a violation of the procedural rules, notwithstanding the fact that the intended recipient was not able to acquaint himself with the correspondence in time to respond to the court documents within the prescribed time-limit. C. The Constitutional Court Act 30. The relevant parts of section 55b of the Constitutional Court Act (consolidated version published in the Official Gazette no.", "64/2007) read: “(1) A constitutional appeal shall be rejected: - if it does not concern an individual act by which a state authority, local authority, or a holder of public power determined the rights, obligations or legal interests of the complainant; - if the complainant does not have a legal interest in the decision on the constitutional appeal; - if it is not admissible, except in the instance referred to in the third subsection of the preceding section; - if it was not lodged in time; ... (2) A constitutional appeal shall be considered: - if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or - if it concerns an important constitutional question which goes beyond the importance of the actual case. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 31. The applicant complained that she had not been properly served with the claim which had been brought against her, and that the reasoning of the domestic courts in the default judgment, as well as in the decisions dismissing the legal remedies she had attempted, was arbitrary and insufficient. She relied on Article 6 § 1 of the Convention, the relevant parts of which read: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 32.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 33. The applicant complained that she had not been properly served with the action brought against her on 13 December 2006. She argued that, upon her return from Namibia on 24 March 2007, she had not found any of the delivery slips allegedly left in her mailbox, and that the only mail she had received in respect of the proceedings was the default judgment which had been served on her on 20 September 2007. She referred to the fact that both she and her representative had, on occasion, had experience of delivery slips mistakenly being placed in the mailbox of a third party instead of that of the correct addressee. 34.", "She maintained that section 143 of the Civil Procedure Act (see paragraph 26 above) applied to her situation. She challenged its interpretation by the domestic courts (see paragraph 29 above), which had held that the application of section 143 was dependent on whether or not the person attempting to effect service was aware of the absence of the intended recipient. She submitted that, because the application of section 143 was dependent on the diligence of the person attempting to effect service, the domestic court should, in a situation such as hers, where she had proved, by providing relevant documents that she had been absent, have upheld her appeal and set aside the default judgment. 35. She further disagreed with the Government’s suggestions that she had failed to succeed in her application to reinstate the proceedings because she had failed to attach a copy of her (belated) defence to the application (see paragraph 44 below).", "She argued that her application had never had any prospect of success, as the absolute time-limit of three months had already expired by the time that she had been served with the default judgment and had found out about the proceedings. 36. Moreover, she submitted that the conditions for issuing a default judgment had, in any case, not been satisfied, regardless of the issue of whether or not she had been properly served with the claim. She also argued that the fourth condition of the first subsection of section 318 of the Civil Procedure Act (see paragraph 26 above) had not been fulfilled, namely that the facts upon which the claim was based should not contradict the evidence adduced by the plaintiff. She stressed that the sole piece of evidence attached to the claim had been a letter which she had written in response to K.R.", "on 20 November 2006, in which she had explicitly denied that the money had been given to her as a loan, and had maintained that she had been given the money as a gift. She further suggested that the Supreme Court’s reasoning about that matter also contradicted itself. 37. Lastly, the applicant stressed that she had in no way waived her right to participate and defend herself in the proceedings, and that she had also not been given the opportunity to obtain a fresh determination of her case. (b) The Government 38.", "The Government argued that, in contrast with the case of Dilipak and Karakaya v. Turkey (nos. 7942/05 and 24838/05, 4 March 2014), the applicant had been correctly served with the action which had been brought against her, and suggested that the Court should conclude that, in failing to respond to the claim, she had unequivocally waived her right to participate in the proceedings. 39. They stressed that service had been effected in compliance with the applicable provisions and with all due diligence. They dismissed the applicant’s allegations that she had not found any delivery slips in her mailbox upon her return from Namibia, submitting that the person who had effected service had noted on the part of the delivery slip which had been sent back to the court that he had left a delivery slip in the applicant’s mailbox.", "40. They further noted, in respect of the issue of whether or not the person effecting service should have known that the applicant had been absent, and in relation to the application of section 143 of the Civil Procedure Act (see paragraph 26 above), that the applicant had provided no arguments to support the assumption that that person would have known about her extended absence from, for example, the accumulation of mail in her mailbox. The applicant had also not informed the post office that she would be absent for an extended period of time, and had not authorised another person to receive mail on her behalf. 41. Moreover, in their view, the applicant could have anticipated that an action was going to be brought against her, since K.R.", "had warned her in her letter of 11 November 2006 that she intended to initiate court proceedings if the applicant did not return her money. Therefore, the applicant could have been expected to make proper arrangements for her mail to be redirected in her absence. 42. The Government further emphasised that the delivery slips were authentic documents which confirmed that service had been effected. Although it had been open to the applicant to contest that assertion, in their view she had failed to provide any evidence to support her allegations.", "For example, she had not asked for a hearing about that issue, or for the person who had effected service or a third party to be examined by the court. She had also failed to explain how the collection of mail from the mailbox had been dealt with during her absence, and to provide other relevant details, such as whether or not she lived alone at that address and whether or not she lived in an apartment building with several mailboxes. Lastly, she had also not provided any evidence to confirm that she had actually stayed in Vienna immediately before flying to Namibia, and had not instead returned home between 22 January 2007 (when she had applied for a visa) and 26 January (when she had obtained it). 43. In that connection, they maintained that if all it took to contest effective service was for a party merely to state that they had not received any notice of service, then no form of service other than personal service would be viable, and parties could therefore easily evade service of legal documents.", "That would endanger the right to judicial protection and the right to a trial without undue delay. 44. In addition, they also argued that the applicant could not have succeeded in her application to reinstate the proceedings, because she had not attached her (belated) defence to it. 45. Finally, the Government dismissed the applicant’s allegations that the reasoning behind the decisions of the domestic courts had been arbitrary and insufficient as to whether or not the conditions for issuing a default judgment had been satisfied.", "They considered that the first-instance court had given sufficient reasons for its decision. They referred to the fact that, in considering the letter which the applicant had written in response to K.R. on 20 November 2006 (see paragraph 8 above) as evidence, the domestic court had also taken note of the applicant’s statements and arguments in respect of the claim, as she had presented them in the letter. Furthermore, the higher courts had also duly responded to the arguments raised in her appeals, by stating why they considered that she had been correctly served with the action and why the claim did not contradict the evidence produced by the plaintiff. 2.", "The Court’s assessment (a) General principles 46. The applicant alleged that, owing to the fact that she had not been properly served with the claim which had been brought against her, she had been deprived of any proper opportunity to participate in the proceedings. She also alleged that the reasoning of the domestic courts was arbitrary and insufficient. The Court is therefore called upon to examine whether or not those facts compromised the applicant’s right to a fair hearing under Article 6 of the Convention, and, in particular, whether or not the principles of an adversarial hearing and equality of arms were respected in those proceedings. 47.", "The Court reiterates that the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997-I; Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI; Yvon v. France, no. 44962/98, § 31, ECHR 2003-V; and Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). It further emphasises that it is for the national authorities to ensure that the requirements of a “fair hearing” are met in each individual case (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no.", "274). 48. It observes that Article 6 § 1 of the Convention does not provide for a specific form of service of documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004). However, the general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no.", "262), requires that all parties to civil proceedings should have the opportunity to have knowledge of and comment on the observations filed or evidence adduced with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports 1996‑I). Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact (see Dilipak and Karakaya, cited above, § 77). If court documents, including summonses to hearings, are not served in person, then an applicant might be prevented from defending himself in the proceedings (see Ozgur-Karaduman v. Germany (dec.), no. 4769/02, 26 June 2007, and Weber v. Germany (dec.), no. 30203/03, 2 October 2007).", "49. The Court further notes that Article 6 requires and allows the States to organise their legal systems in a manner which facilitates expeditious and efficient judicial proceedings (see, for instance, Boddaert v. Belgium, 12 October 1992, § 39, Series A no. 235-D), including provision for the possibility of issuing default judgments. However, that cannot be done at the expense of other procedural guarantees, notably the principle of equality of arms (see, among many other authorities, Dombo Beheer B.V., cited above, § 33, and Ankerl v. Switzerland, 23 October 1996, § 38, Reports 1996‑V). 50.", "The Court reiterates that it decided in the case of Dilipak and Karakaya (cited above, §§ 76-80) to apply the principles initially developed in respect of criminal trials in absentia to civil proceedings as well. In that case, it referred in particular to the rule that, although proceedings that took place in the accused’s absence were not, of themselves, incompatible with Article 6 of the Convention, a denial of justice nevertheless occured, where a person convicted in absentia was subsequently unable to obtain a fresh determination on the merits of the charge, in respect of both law and fact, from a court which had given him a hearing, in circumstances where it had not been established that he had waived his right to appear and to defend himself (see, for instance, Colozza v. Italy, 12 February 1985, § 29, Series A no. 89; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001‑XI; Krombach v. France, no. 29731/96, § 85, ECHR 2001‑II; Somogyi v. Italy, no.", "67972/01, § 66, ECHR 2004-IV; and Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006‑II). 51. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving, of his or her own free will, either expressively or tacitly, the safeguards of a fair trial (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII).", "However, such a waiver must be established in an unequivocal manner, must be attended by the minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A), and must not run counter to any important public interest (see Sejdovic, cited above, § 86). 52. Finally, the Court reiterates that its task is not to review the relevant law and practice in abstracto, but to determine whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257‑B).", "(b) Application of those principles to the present case 53. It follows that the questions to be addressed in the present case are: (i) whether or not the authorities were diligent in informing the applicant of the proceedings, and whether or not she can be considered to have waived her right to appear before the court and to defend herself; and, if the response is negative, (ii) whether or not the domestic law provided the applicant with the appropriate means to secure a fresh adversarial hearing, once she learnt of the default judgment (see, Dilipak and Karakaya, cited above, § 80). 54. The Court observes in respect of the first question, that the two attempts to effect personal service of the claim on the applicant at her home address were made at the beginning of the applicant’s two-month absence. Following the second unsuccessful attempt, service was deemed to have been effected on 26 January 2007 (see paragraph 14 above).", "Such service was effected in compliance with the applicable provisions of the Civil Procedure Act in force at the relevant time (see paragraph 26 above). 55. The Court does not wish to question the compatibility with the Convention of the provisions on personal notification as set out in the above cited act. However, under the circumstances of the present case, the Court does have certain doubts whether such manner of service sufficed to secure that the applicant had indeed been apprised of the proceedings. 56.", "Recalling the letter which K.R. sent to the applicant (see paragraph 6 above), the Court agrees with the Government that the applicant might have expected that an action could be lodged against her. Therefore, in view of the fact that she planned to be absent from her home for two months, it would not be unreasonable to expect from her that she would take some measures to ensure the receipt of her mail in order to be able to comply with the requisite time-limits laid down in the domestic law, in case of institution of proceedings against her (see, for instance, Hennings v. Germany, 16 December 1992, § 26, Series A no. 251‑A, and Maas v. Germany (dec.), no. 71598/01, 15 September 2005).", "57. Nonetheless, despite the lack of diligence on the applicant’s side the Court cannot conclude that the applicant waived her right to defend herself in the proceedings. 58. It reiterates that the main precondition for waiving a right is that the person concerned is aware of the existence of the right in question, and therefore also aware of the related proceedings (see Dilipak and Karakaya, cited above, § 87). 59.", "The Court does not wish to doubt the veracity of the Government’s submission that the delivery slips had been left in the applicant’s mailbox. However, it also cannot consider the applicant’s arguments that she did not find the delivery slips in her mail upon her return as entirely implausible. 60. The same is true in respect of the Government’s suggestion that the applicant might have returned to her home at some point between 22 and 26 January 2007 (see paragraph 42 above). It is not for the Court to speculate on that matter, especially as the Government have not submitted any evidence in support of their suggestion.", "61. Lastly, the applicant’s statements in the letter she sent in reply to K.R. indicated that she contested K.R.’s allegations regarding the nature of the monetary transaction between them. 62. Accordingly, it remains to be determined whether or not the applicant was, with sufficient certainty, afforded an opportunity by the domestic law to have her case re-examined (see Dilipak and Karakaya, cited above, § 88).", "63. The Court observes that the applicant attempted two legal remedies in order to achieve that aim: an application to reinstate the proceedings, and an appeal against the default judgment (see paragraph 18 above). She lodged both remedies immediately after the receipt of the judgment, namely within eight days. 64. In respect of the application to reinstate the proceedings, the Court notes that, in the present case, this legal remedy could not have provided the applicant with an opportunity to obtain a fresh examination of her case.", "65. It observes that the absolute time-limit of three months for lodging the application to reinstate the proceedings had already expired on 26 May 2007 while the applicant was served with the first-instance court’s decision only on 19 September 2007 (see paragraph 17 above). The judicial proceedings hence lasted four more months after the expiry of the absolute time-limit while it took the first-instance court altogether almost seven months, after the deadline for the applicant to file observations had expired, to issue a simple default judgement. 66. In view of at least certain doubts as to whether the applicant had truly been apprised of the proceedings, the Court considers such a short absolute time-limit as too strict.", "It also notes that, had the absolute time-limit not already expired, the application to reinstate the proceedings would be lodged well within the relative time-limit of fifteen days, as foreseen by section 116 of the Civil Procedure Act (see paragraph 28 above). 67. In respect of the appeal against the default judgment, the Court observes that such a judgment may only be challenged on the grounds of a serious violation of procedural rules (including a violation of service rules) or a violation of substantive law. However, it cannot be challenged on the grounds of the erroneous or incomplete determination of facts (see paragraph 26 above). Accordingly, the review is limited to the question of whether or not the formal conditions for issuing a default judgment were satisfied, including whether or not the party was properly served with the claim or summons to a hearing.", "68. The Court considers that the above provision was applied too strictly in the applicant’s case. 69. It is open to certain doubt as to whether or not the applicant had any realistic means of proving a negative fact, namely the absence of the delivery slips in the mailbox. The Court furthermore finds it difficult to follow the Government’s arguments (see paragraph 40 above) concerning the application of section 143 of the Civil Procedure Act (see paragraph 26 above) to the present case.", "The Court cannot see how the applicant could have proved knowledge on the part of the postman regarding her absence. Both attempts to serve her with the claim were made only a few days after her departure, so it is unlikely that there would have been any accumulation of mail in her mailbox to indicate that she was away. Even though the applicant can, on the one side, be criticised for lack of diligence, the Government have, on the other side, not argued, let alone shown, that she was obliged under domestic law to authorise a third party to receive mail on her behalf (contrast Weber, cited above) or to notify the post office of her prolonged absence. 70. In the Court’s view, the domestic courts hence took an excessively formalistic approach, both in assessing whether or not the applicant had been properly apprised of the proceedings instituted against her, and in dismissing her appeal against the default judgment.", "71. The Court agrees that the applicant’s conduct demonstrates a certain lack of diligence. However, the consequences which the domestic judicial authorities attributed to it are disproportionate, having regard to the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see, also, F.C.B. v. Italy, 28 August 1991, § 35, Series A no. 208‑B).", "72. In view of the above, the Court is therefore unable to accept that the applicant waived her right to participate in the proceedings and that she was given a fair opportunity to secure a fresh examination of the merits of her case. 73. Accordingly, there has been a violation of Article 6 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. The applicant claimed 5,696.62 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 76.", "The Government contested the claims as unspecified, and argued that no causal link existed between the alleged violation of Article 6 and the pecuniary damage. 77. The Court does not discern any causal link between the violation found and the pecuniary damages sought; it therefore rejects this claim. Concerning non-pecuniary damage, the Court considers that the applicant can be considered to have suffered a certain amount of distress on account of the violation found. Deciding on an equitable basis, it awards the applicant EUR 2,000 in this respect.", "B. Costs and expenses 78. The applicant also claimed EUR 2,690.95 for costs and expenses incurred before the domestic courts, and EUR 1,649.36 for those incurred before the Court. 79. The Government contested the claim as unspecified and excessive.", "80. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,869 to cover costs under all heads. C. Default interest 81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,869 (three thousand eight hundred and sixty-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "FIFTH SECTION CASE OF NEKHANCHENKO v. UKRAINE (Application no. 18255/05) JUDGMENT STRASBOURG 28 October 2010 This judgment is final but it may be subject to editorial revision. In the case of Nekhanchenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Rait Maruste, President,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 5 October 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18255/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Semyonovich Nekhanchenko (“the applicant”), on 6 May 2005.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3. On 19 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application is assigned to a Committee of three Judges. THE FACTS 4. The applicant was born in 1948 and lives in Zaporizhzhya. A. The first set of proceedings 5.", "In October 1995 the applicant lodged a claim with the Ordzhonikidzevskyy Court against the local prosecutor’s office and the police department for compensation for pecuniary and non-pecuniary damage. In the course of the proceedings he also lodged a similar claim against the State Treasury. 6. On 22 October 1998 the court delivered a judgment in the applicant’s case. On 21 January 1999 the Zaporizhzhya Regional Court quashed it and remitted the case for fresh consideration.", "On 19 February 1999, following the protest of the President of the Regional Court, the Presidium of the same court quashed the ruling of 21 January 1999. 7. On 22 April 1999 the Regional Court quashed the judgment of 22 October 1998 and remitted the case for fresh consideration by the first instance court. 8. On 9 February 2004 the Ordzhonikidzevskyy Court allowed in part the applicant’s claims and awarded him certain amounts of compensation.", "9. On 23 November 2004 the Zaporizhzhya Regional Court of Appeal quashed the judgment and remitted the case for fresh consideration. On 12 December 2007 the Supreme Court quashed the ruling of 23 November 2004 and remitted the case to the Court of Appeal for fresh consideration. 10. On 4 March 2008 the Court of Appeal quashed the judgment of 9 February 2004 and rejected the applicant’s claim as unsubstantiated.", "11. On 21 May 2008 the Supreme Court refused to grant leave for the applicant’s appeal in cassation. 12. According to the Government, in the course of the proceedings the applicant amended his claim and appeals on ten occasions. The courts adjourned twelve hearings following the applicant’s requests or due to his failure to appear, which resulted in several delays of the overall duration of one and a half years.", "Some thirteen hearings were also adjourned due to the respondents’ failure to appear, absence or sickness of a judge or because the courts needed to collect additional evidence. B. The second and third sets of proceedings 13. In October 1990 the applicant instituted civil proceedings before the domestic courts against the local police department, seeking compensation for damages. These proceedings ended on 19 October 1994 with the court decision partly granting the applicant’s action.", "14. In 1989-1999 the applicant unsuccessfully sought institution of criminal proceedings against certain police officers, who had allegedly taken some of his personal belongings and inflicted light bodily injuries on him. THE LAW I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS 15. Relying on Article 6 § 1 of the Convention, the applicant complained that the length of the first set of proceedings had not been reasonable.", "The above provision reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” 16. The Government contested that argument. 17. The Court notes that the period to be taken into consideration began on 11 September 1997, the date of the entry of the Convention into force in respect of Ukraine. However, in assessing the reasonableness of the time elapsed after that date, account will be taken of the fact that at that time the proceedings had been pending since October 1995.", "The final decision in the case was given on 21 May 2008. The proceedings thus lasted for about ten years and eight months for three levels of jurisdiction. A. Admissibility 18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "20. The Court considers that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraph 12 above), cannot explain their overall length. It finds that substantial delays, mainly caused by the lengthy consideration of the case by the Ordzhonikidzevskyy Court (see paragraphs 7-8 above) and by the Supreme Court (see paragraph 9 above) and by the repeated adjournment of the hearings, were attributable to the domestic courts. The Court concludes, therefore, that the main responsibility for the protracted length of the proceedings rested with the State. 21.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for instance, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006; and, more recently, Chubakova v. Ukraine, no. 17674/05, § 16, 18 February 2010). 22.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. It finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. II. REMAINDER OF THE APPLICATION 23.", "Relying on Articles 6 § 1, 13 and 17 of the Convention and Article 1 of Protocol No. 1, the applicant also complained about the unfavourable outcome of the first set of proceedings and about the outcome and length of the second and third sets of proceedings. 24. Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 25.", "It follows that this part of the application must be declared inadmissible for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27.", "The applicant claimed 6,000 euros (EUR) for non-pecuniary damage. The Government contested that amount. 28. The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the violation found. Ruling on an equitable basis, it awards him EUR 2,400 under this head.", "B. Costs and expenses 29. The applicant claimed EUR 2,000 for the expenses incurred in the domestic proceedings. He also claimed 267.92[1] Ukrainian hryvnias (UAH) for correspondence expenses in the proceedings before the Court, having provided postal receipts for the total amount of UAH 176,66[2]. 30.", "The Government invited the Court to reject the above claims as unsubstantiated. 31. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria, the Court awards the applicant EUR 17 for correspondence expenses. C. Default interest 32.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicant’s complaint under Article 6 § 1 of the Convention about the length of the first set of proceedings admissible and the remainder of the complaints inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 17 (seventeen euros) for costs and expenses, plus any tax that may be chargeable on the above amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy Registrar President [1]. About EUR 25 [2]. Around EUR 17" ]

[ "FORMER SECOND SECTION CASE OF JUCYS v. LITHUANIA (Application no. 5457/03) JUDGMENT STRASBOURG 8 January 2008 FINAL 08/04/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jucys v. Lithuania, The European Court of Human Rights (Former Second Section), sitting as a Chamber composed of: Jean-Paul Costa, President,András Baka,Ireneu Cabral Barreto,Riza Türmen,Mindia Ugrekhelidze,Antonella Mularoni,Danutė Jočienė, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 24 October 2006 and 4 December 2007, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "5457/03) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Pranas Jucys (“the applicant”), on 7 February 2003. 2. The applicant was represented by Mr J. Jasiulevičius, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "On 7 September 2005 the Court decided to communicate the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1953 and lives in Birštonas.", "5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 23 December 1995 the applicant was arrested while crossing the Lithuanian border. He was suspected of attempting to smuggle untreated mink furs.", "The furs were forfeited as evidence in the context of the criminal case. 7. On the basis of a decision taken by the prosecution, on 14 March 1996 the furs were auctioned – being goods prone to deterioration - for 882,173 Lithuanian litai (LTL, or about EUR 255,495[1]). The money received from the auction was transferred to the State budget. 8.", "On 30 January 1997 the applicant was acquitted by the Klaipėda Regional Court in view of the lack of any elements of a crime. The court did not rule on the issue of the forfeited evidence. 9. The applicant brought an appeal, requesting that this issue be resolved. However, on 26 March 1997 the Court of Appeal refused to deal with it, ruling that, since the furs had been sold, the handling of the proceeds from the sale was no longer within the jurisdiction of the criminal courts.", "10. The applicant then brought an application before the Vilnius Regional Court, requesting compensation for the forfeited furs. On 8 October 1997 that court ruled that the question should be determined in civil proceedings. 11. On an unspecified date the applicant brought a civil action, claiming the LTL 749,847 (about EUR 217,171), i.e.", "the proceeds minus the auction expenses. 12. On an unspecified date, he brought a separate civil action, claiming the sum allegedly paid for the furs at the Copenhagen Fur Centre, corresponding to USD 327,542.57 or, at the then exchange rate, LTL 1,310,170 (EUR 379,451). 13. On 7 November 1997 the Klaipėda City District Court found that the tax authorities were obliged to pay the applicant LTL 749,847 (EUR 217,171).", "On 25 March 1998 that decision was quashed on procedural grounds by the Klaipėda Regional Court. The court held that the applicant should have applied to a Vilnius civil court. That decision was upheld by the Court of Appeal on 28 September 1998. 14. On 25 March 1998 the applicant re-applied, this time submitting his action to the Vilnius Regional Court and claiming the full proceeds of the auction sale - LTL 882,173 (about EUR 255,495).", "15. On 28 January 2000 the court refused to admit the applicant's claim because he should have applied to the newly-created administrative courts (operational since May 1999). However, on 2 March 2000 the Court of Appeal quashed the decision of 28 January 2000, returning the case for a fresh examination by the Vilnius Regional Court by way of the civil procedure. 16. On 21 April 2000 the Klaipėda Regional Court decided to adjourn the examination of the applicant's claim pending the examination of his claim for the auction proceeds.", "17. On 28 July 2000 the Vilnius Regional Court accepted the applicant's suit for the whole proceeds of the auction, awarding him LTL 882,173 (about EUR 255,495) against the Inland Revenue. 18. Upon appeal by the tax authorities, on 17 October 2000 the Court of Appeal quashed the lower court decision on the ground that the Ministry of Justice should have been the defendant in the proceedings. The case was remitted to the first instance court.", "19. On 28 February 2001 the Supreme Court upheld the appellate decision, stating that both the Inland Revenue and the Ministry of Justice should have been the defendants in the proceedings. The Supreme Court further noted that the first-instance court should consider whether to join the case to the applicant's other claim for damages in the amount of LTL 1,310,170 (USD 327,542.57). It noted that in both cases the parties were the same, as was the nature of the claim, i.e. a request for compensation in respect of the value of the furs.", "20. On 1 May 2004 the applicant re-submitted his claim of LTL 882,173 to the Vilnius Regional Court. The State, the Office of the Prosecutor General, the Ministry of Finance and the Inland Revenue were cited as the respondents. 21. On 20 June 2005 the Vilnius Regional Court rejected the applicant's claim as he had not proved that he had owned the furs.", "22. On 2 November 2005 the Court of Appeal upheld that decision. 23. The applicant lodged a cassation appeal, reiterating his claim for LTL 882,173. On 26 May 2006 the Supreme Court quashed the lower decisions, accepting the applicant's claim.", "It held that, following the applicant's acquittal, he had been entitled to compensation for the proceeds of the auction. In this respect the Supreme Court noted: “A person who has acquired property without a legal ground shall return it. The obligation arises where the ground on which the property was acquired ceases to exist. Such property can be goods forfeited upon suspicion of criminal acts. If the suspected person is acquitted ... the State no longer has any legal ground to retain the items seized, or their value, where the items have been sold as perishable.", "... Unjust enrichment occurs to the detriment of the interests of a person whose property has been seized. ... When returning the property acquired without a legal ground or, as in the present case, the value of the objects sold, being quickly perishable, the debtor has a right to require compensation for the expenses incurred in maintaining the property (Article 513 of the Civil Code). This is the right of an honest debtor.", "Therefore, it has to be established whether the State had grounds to start the investigation and forfeit the goods in order to ensure the effectiveness thereof. The fact that no evidence of a crime has eventually been found is not in itself sufficient to assume the lack of honesty on the part of the State. ... Indeed, [the applicant] had incorrectly filled in the customs declaration ... and this was a sufficient ground to start the investigation against him and seize the material evidence. Therefore, in accordance with Article 513, the State should be entitled to recover the expenses incurred during the sale; those expenses appear to have been necessary in order to safeguard the value of the goods.” 24.", "The applicant was finally awarded LTL 590,056.05 (about EUR 170,892) in pecuniary damages, corresponding to the value of the auctioned furs from which was deducted the auction expenses (LTL 132,325.95, or about EUR 38,324) and value-added tax (LTL 158,791, or about EUR 45,989), which the applicant should anyway have paid on importing the furs into Lithuania. 25. It appears that the examination of the applicant's claim for the purported full value of the furs at LTL 1,310,170 (USD 327,542.57), which had been stayed on 21 April 2000, was not resumed (paragraphs 12, 16, and 19 above). (The parties have not provided the Court with up-dated information on this aspect of the case.) 26.", "On an unspecified date the applicant claimed interest on LTL 882,173 (the whole sum of the auction proceeds), calculated from the moment of his acquittal. On 21 November 2006 the Vilnius Regional Court awarded him interest in the amount of LTL 1,616 (approximately EUR 468) – the sum corresponding to 5% interest calculated on the basis of the sum awarded as damages by the Supreme Court on 26 May 2006 (LTL 590,056), from the moment of that award to its actual payment 20 days later. The court dismissed the applicant's allegation that the interest should be calculated on the basis of the whole sum of the auction proceeds. It also refused to award interest for the whole period of civil litigation for damages. The court considered that the State was liable to pay interest only from the date when the fact of unjust enrichment became known – i.e.", "when it was so concluded by the Supreme Court on 26 May 2006. Until then, the State was deemed an honest acquirer, even after the acquittal of the applicant. The decision was upheld by the Court of Appeal on 30 March 2007. On 12 October 2007 the Supreme Court upheld the lower courts' decisions. It stated that in accordance with the rules of criminal procedure, the confiscated goods should be returned to the acquitted person after his acquittal.", "It further stated that, as an honest acquirer of the auction proceeds, the State could not be liable to pay interest until the end of the criminal proceedings. 27. The applicant has presented an invoice issued by the Copenhagen Fur Centre on 15 December 1995, indicating that the furs had been purchased for USD 327,542.57 (about EUR 232,254). II. RELEVANT DOMESTIC LAW AND PRACTICE 28.", "According to Article 92 of the Code of Criminal Procedure (as then in force), an item which has been seized as material evidence pending criminal proceedings, and which is prone to deterioration, shall be sold in accordance with the applicable civil procedure. 29. Article 512 of the old Civil Code (valid until 30 June 2001) dealt with situations of unjust enrichment, providing for an obligation to return property acquired without a legal ground or to reimburse its value. Article 513 further stipulated: “A person who has acquired property without any legal ground shall return or reimburse all the receipts that he [or she] obtained or ought to have obtained in using that property from the moment when he [or she] knew or ought to have known about the lack of grounds for ... enrichment. This person has a right to require compensation for all the necessary expenses incurred during the same period in maintaining the property acquired without legal ground.” 30.", "Article 6.272 § 1 of the new Civil Code (which entered into force on 1 July 2001) allows a civil claim for pecuniary and non-pecuniary damage, in view of the unlawful actions of the investigating authorities or courts, in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement or the imposition of an unlawful administrative penalty. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 31.", "The applicant complained that he had suffered damage as a result of the length of the criminal proceedings against him which resulted in considerable financial loss for him, commencing with the forfeiture and sale by the State of his mink furs. In particular, he alleged that, due to the incompetent assessment of the State experts, the furs had been sold for less than their market value. He also complained that he could not use his property during a prolonged period and had suffered a loss of profits. Furthermore, he complained about his inability to obtain adequate compensation, at least for the amount of the auction proceeds, and that, due to the long-lasting civil litigation, the value of those proceeds had depreciated. The applicant alleged a violation of Article 1 of Protocol No.", "1, which states as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 32. The Court considers that the main problems arising in the present case under Article 1 of Protocol No. 1 to the Convention were the difficulty for the applicant – who had been acquitted – to recover the sum corresponding to the value of the goods auctioned by the State and the length of the related proceedings.", "33. The applicant's complaints in this respect are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor are they inadmissible on any other ground. They must therefore be declared admissible. B.", "Merits 34. The Court considers that both the forfeiture and sale of the furs, whilst involving a deprivation of property, in the circumstances formed a constituent element of the procedure by which the customs authorities control importations. The measures thus also involved a restriction on the movement of goods falling within the scope of the second paragraph of Article 1 of Protocol No. 1, concerning “a control of the use of property” (see, AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, § 51).", "35. It was not contested by the applicant that the forfeiture and sale of his furs was “lawful,” as required by Article 1 of Protocol No. 1. 36. The Court recalls that any seizure or confiscation entails damage.", "However, to be compatible with Article 1 of Protocol No. 1 to the Convention, the actual damage sustained should not be more extensive than that which is inevitable (see Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, § 33). The Court considers that the “innocent” owner of smuggled goods should in principle be entitled to recover the forfeited items. This principle should apply equally in cases where such an owner is acquitted of smuggling.", "37. The Court observes that, following his acquittal, the applicant was able to claim the actual proceeds of the auction. However, it took more than eight and a half years for the courts to resolve this matter, even though it presented no complexities. The facts had already been determined in the preceding criminal proceedings against the applicant (paragraphs 6-8 above). Instead, several years of these civil proceedings were taken up with the domestic courts' endeavours to determine the jurisdictional question (paragraphs 9-10 and 13-15 above) or the appropriate respondents (paragraphs 18-19 above).", "There is nothing to indicate any lack of diligence on the part of the applicant. 38. Consequently, after having undergone the strains of an unfounded criminal prosecution, and having lost the control of his possessions which were hurriedly auctioned off as perishable goods, the applicant was then precluded from at least enjoying the auctioned fruits of those possessions for many years. 39. Having regard to the above factors and in particular the delay in the proceedings, the Court concludes that the applicant has had to bear a disproportionate and excessive burden in the circumstances of the present case.", "Having dealt with the main issue raised by the applicant, the Court considers that there is no need to examine other aspects of his complaint under Article 1 of Protocol No. 1. There has accordingly been a violation of Article 1 of Protocol No. 1. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS 40. The applicant complained that the length of the civil proceedings for damages had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 41. The Government submitted that the applicant had failed to exhaust domestic remedies because he should have filed a claim for damages before a civil court under Article 6.272 of the Civil Code, in conjunction with the general domestic provisions on compensation for breaches of personal rights. However, the Court rejects the Government's argument for the same reasons as those stipulated in the Simonavičius v. Lithuania judgment (no. 37415/02, §§ 32-34, 27 June 2006; see also, more recently, Baškienė v. Lithuania, no.", "11529/04, §§ 67-74, 24 July 2007). 42. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other ground. It must therefore be declared admissible.", "However, in view of the finding of a violation of Article 1 of Protocol No. 1 above (paragraphs 36-38), it finds it unnecessary to examine the merits of essentially the same issue under Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 44. The applicant claimed LTL 2,174,253.60 (about EUR 629,707) in pecuniary damage. He also claimed LTL 1,000,000 (about EUR 289,168) for non-pecuniary damage. 45. The Government contested these claims as being unjustified.", "46. The Court considers that, in view of the violation of Article 1 of Protocol No. 1, the applicant has suffered both pecuniary and non-pecuniary damage. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the global sum of EUR 25,000 for all forms of damage suffered. B.", "Costs and expenses 47. The applicant also claimed LTL 2,800.00 (EUR 810.94) for legal costs and expenses, this amount being based on a bill issued to the applicant by his lawyer for the preparation of his pleadings. 48. The Government contested the claim. 49.", "According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court awards the claim in full. C. Default interest 50. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that it is not necessary to make a separate examination of the merits of the claim under Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, (i) EUR 25,000 (twenty five thousand euros) for both pecuniary and non-pecuniary damage, and (ii) EUR 810.94 (eight hundred and ten euros and ninety-four cents) in respect of costs and expenses, (iii) plus any tax that may be chargeable.", "These amounts to be converted into the national currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 8 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosJean-Paul CostaDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Cabral Barreto; (b) partly concurring opinion of Judge Jočienė. J.-P.C.F.E.P.", "CONCURRING OPINION OF JUDGE CABRAL BARRETO (Translation) Although I voted with the majority in finding that there has been a violation of Article 1 of Protocol No. 1 in this case, I am unable to follow its reasoning. I am unable to accept the majority's reasoning on the following grounds: 1.I agree that, once acquitted, the applicant was entitled to have his property returned; the domestic authorities have never challenged this longer contested in themselves; the applicant could therefore expect to receive compensation from the State, corresponding to the market value of the furs. The applicant thus had a claim against the State. However, the specific amount of compensation was not defined: in particular, the costs of auctioning the furs and the taxes to be deducted from the sale proceeds had to right.", "The furs had been sold, for reasons which are no be taken into account in calculating the sum to be awarded to the applicant. In short, the debt towards the applicant had to be “liquidated” in order to become payable; prior to the Supreme Court's decision of 20 May 2006, the amount that the State had to pay the applicant was not known and, in addition, the debt could not be the subject of enforcement proceedings. In contrast to the situations examined in the judgments AGOSI v. the United Kingdom (24 October 1986, Series A no. 108) and Raimondo v. Italy (22 February 1994, Series A no. 281‑A), where the assets in dispute were well defined, in the case before us the debt towards the applicant was, prior to the “liquidation” phase, certain and current, but not enforceable.", "The Court has reiterated that “a claim cannot qualify as a “possession” within the meaning of Article 1 of Protocol No. 1 unless it has been recognised and determined by a judicial decision having final effect. That is the condition for determining whether a claim may be regarded as definite and enforceable and so entitled to the protection of Article 1 of Protocol No. 1 (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B)” (Fernandez-Molina Gonzalez and Others v. Spain (dec.), no.", "64359/01, ECHR 2002-IX, p. 299). After the Supreme Court had specified the amount to be paid to the applicant, the existing information suggests that the applicant received compensation within a short time; Article 1 of Protocol No. 1, which was undoubtedly applicable from the moment that the Supreme Court's judgment became final, was respected in this case once the State had unhesitatingly complied with the Supreme Court's order. 2. It is true that the phase of “liquidating” the applicant's right lasted from 30 January 1997, date of his acquittal, to May 2006 (date of the Supreme Court's judgment): in other words, more than nine years.", "This is a long period, which is mainly attributable to the conduct of the authorities, and especially the domestic courts, in proceedings which were of no particular complexity. I therefore considered that there had been a violation of Article 6 of the Convention. However, by following another line of case-law inspired by the judgments in Akkuş v. Turkey (9 July 1997, Reports of Judgments and Decisions 1997‑IV, pp. 1309-1310, § 29) and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, pp.", "130-131, § 54, ECHR 2000‑I), I also conclude that there has been a violation of Article 1 of Protocol No. 1, but on the basis of reasoning which I believe to be more solid. I consider that the applicant could claim to be entitled to recover his debt against the State, which would make it possible to conclude, in principle, that Article 1 of Protocol No. 1 was applicable. In my opinion, the disputed situation comes within the first sentence of that paragraph, which lays down the principle of peaceful enjoyment of property (see Matos e Silva, Lda., and Others v. Portugal, judgment of 16 September 1996, Reports 1996‑IV, p. 1113, § 81, referred to in the Almeida Garret, Mascarenhas Falcão and Others judgment, cited above, § 48).", "It remains to rule on compliance with the provision in question. Continuing to follow the reasoning in the Almeida Garret, Mascarenhas Falcão and Others judgment, it is necessary to ascertain whether a proper balance has been struck between the demands of the community's general interest and the requirements of protecting the fundamental rights of the individual. I note that nine years elapsed without the applicant receiving the sum corresponding to the value of the furs. It is undeniable that the length of time in question is imputable to the State, and that no valid justification has been put forward. In addition, the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay (see Akkuş, cited above, pp.", "1309-1310, § 29; and, mutatis mutandis, Stran Greek Refineries and Stratis Andreadis, cited above, p. 90, § 82). The difference between the value of the applicant's claim at the time of his acquittal and its value when actually paid caused the applicant to sustain a loss which, moreover, was not compensated by adequate default interest. Equally, by deferring for nine years the payment of the disputed compensation, the domestic authorities left the applicant in a state of uncertainty, which leads me to consider that he has had to bear an individual and excessive burden which has upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions. There has therefore been a violation of Article 1 of Protocol No. 1.", "Partly Concurring Opinion oF JUDGE Jočienė 1. I am in agreement with the majority in finding a violation of Article 1 of Protocol No. 1 of the Convention in this case. However, my conclusion is based on some further arguments which I explain below. I do not share the majority's conclusion that the finding of a violation of Article 1 of Protocol No.", "1 makes it unnecessary to examine separately the merits of the claim under Article 6 § 1 of the Convention (right to a hearing within a reasonable time). In my opinion, Article 6 and Article 1 of Protocol No. 1 reflect two separate values of the Convention, both of which are of fundamental importance, namely the rule of law and fair administration of justice on the one hand, and the peaceful enjoyment of possessions on the other, and which should have been dealt with separately in this particular case. 2. It should be reiterated that it is for the Contracting States to organise their legal systems in such a way that their courts are able to guarantee to everyone the right to a final decision within a reasonable time in the determination of one's civil rights and obligations (see Caillot v. France, no.", "36932/97, § 27, 4 June 1999, unreported). No one disputes that the applicant's civil rights were at issue in the present case. Furthermore, under the well-established case-law of the European Court of Human Rights, the “reasonableness” of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among other authorities, Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV; Frydlender v. France, no. 30979/96, §§ 43, 45, 27 June 2000; Simonavicius v. Lithuania, no.", "374158/02, § 39, 27 June 2006, etc.). 3. In the present case, the applicant was acquitted in the criminal case and had been seeking to recover his seized possessions for more than eight and a half years (see paragraphs 11, 23 and 24 of the judgment). In my opinion, all of the arguments used by the Court in paragraph 37 of the judgment reflect a violation of the right enshrined in Article 6 § 1 of the Convention, namely the right to have one's civil rights determined within a reasonable time. The Court in paragraph 37 based its analysis on factors – such as the period of time which elapsed from the moment of bringing the civil action to claim LTL 749,847 and the date of the final decision in that case; the absence of complexity; the domestic courts' disputes in determining the jurisdictional question and establishing appropriate respondents; and no lack of diligence on the part of the applicant – which, under the above-mentioned principles as developed by the Court, must be assessed when analysing the “reasonableness” of the length of proceedings.", "Accordingly, I have departed in this case from my colleagues' decision not to examine separately the merits of the claim under Article 6 § 1 with regard to the “reasonableness” of the length of proceedings since, in my opinion, there has been a separate violation of this provision. 4. While agreeing with the finding of a violation of Article 1 of Protocol No. 1, I would add another set of considerations which influenced me in voting for a breach of this provision. 5.", "In my opinion, the Court should placed greater emphasis on the most important aspect of the applicant's claims, namely the fact that he could not obtain adequate compensation, at least the value of the auction proceeds, for a prolonged period of time. In my opinion, this aspect contains two different elements. Firstly, it should be remembered that the applicant was awarded LTL 590,056.05 in pecuniary damages by the decision of the Supreme Court of Lithuania of 26 May 2006 (see paragraphs 23 and 24 of the judgment). The question to be determined is whether, in these particular circumstances, the deduction of the total amount of the auction expenses (LTL 132,325.95) from the sum awarded to the applicant is to be regarded as a disproportionate and excessive burden, placed solely on the applicant even after his final acquittal. In my opinion, this question should be answered in the affirmative, despite the fact that the State was acting as an honest acquirer in the case, and had had legitimate grounds to start an investigation and the right to require compensation for the expenses incurred in maintaining the property, in line with the Civil Code of Lithuania.", "Ultimately, however, the applicant was acquitted of the criminal charges brought against him. This crucial factor should have led the State to reconsider and to agree to pay at least some of the auction expenses, which have now been placed solely on the applicant's shoulders. 6. Secondly, my main problem in this case relates to the interest paid to the applicant for only 20 days (see paragraph 26 of the judgment). I cannot agree with the domestic courts' evaluation concerning the period for which the State was liable to pay interest.", "I accept the argument that the State is obliged to pay interest only from the date on which the fact of unjust enrichment became known. However, I do not share the domestic courts' conclusion that this date was 26 May 2006, when the Supreme Court of Lithuania adopted a decision under which compensation for the seized mink furs was to be paid to the applicant. In my opinion, the starting point was the day of the applicant's final acquittal. It should be noted that certain contradictions may be observed in the reasoning of the domestic courts. On the one hand, the Supreme Court of Lithuania, in its decision of 12 October 2007 (see paragraph 26 of the judgment) upholding the decisions of the lower courts, clearly stated that, in accordance with the rules of criminal procedure, the confiscated goods should be returned to the acquitted person after his acquittal.", "It further added that, as an honest acquirer of the auction proceeds, the State could not be liable to pay interest “until the end of the criminal proceedings”. On the other hand, the State was deemed an honest acquirer, even after the applicant's acquittal. Consequently, an issue arises, namely the fact that the applicant was acquitted in January 1997 but the State was deemed an honest acquirer even after that date, until the issue of compensation for the auction proceeds was resolved by the civil courts approximately nine years later. In my opinion, this means that the applicant should have been paid interest for the whole period from his acquittal on 30 January 1997 until the compensation for the seized mink furs was actually paid to him (20 days after the decision of the Supreme Court of Lithuania was adopted on 26 May 2006). [1] At the current rate of exchange" ]

[ "FIRST SECTION CASE OF RAHIMOVA v. AZERBAIJAN (Application no. 21674/05) JUDGMENT STRASBOURG 17 January 2008 FINAL 07/07/2008 This judgment may be subject to editorial revision. In the case of Rahimova v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Loukis Loucaides,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 11 December 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21674/05) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Natalia Onufriyevna Rahimova (Nataliya Onufriyevna Rəhimova – “the applicant”), on 2 June 2005.", "2. The applicant was represented by Ms S. Suleymanova, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov. 3. The applicant alleged, in particular, that the civil proceedings in the domestic courts had failed to meet the requirement of “reasonable time” and that, as a result, her right to respect for her home and her property rights had been violated.", "4. On 29 May 2006 the President of the Chamber decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility. 5. Both the Government and the applicant failed to submit any observations on the admissibility and merits of the application within the time-limits specified by the Court.", "However, in her letter of 2 October 2007, the applicant indicated her intention to pursue the application on the basis of the materials available in the case file. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1949. 7.", "The applicant lived with her family in an apartment in Baku. On 18 November 1999 her apartment was damaged by fire caused by the occupants of the neighbouring apartment. The neighbouring apartment was owned by A., a police officer. According to the applicant, her apartment became unfit to live in and she and her family had to move out and find temporary accommodation. 8.", "On 15 January 2001 the applicant brought an action against A., seeking monetary compensation of an amount equivalent to 10,000 US dollars for damage caused to her apartment. The Sabunchu District Court instituted civil proceedings. 9. It appears that for several years after this the Sabunchu District Court fixed dates for several hearings, all of which were postponed either due to the defendant’s failure to appear or for other unspecified reasons. 10.", "On 12 August and 29 September 2003 the applicant sent two similar letters to the President of the Sabunchu District Court, complaining of the court’s failure to conduct the proceedings in a timely manner. 11. On 23 June 2004 and 15 December 2004 the applicant complained to the Ministry of Justice and the Ombudsman about the Sabunchu District Court’s failure to examine her case. 12. On 16 February 2005 she wrote a letter addressed to the President, Chief Prosecutor, President of the Supreme Court, President of the Court of Appeal, Chairman of the Milli Majlis and other authorities, complaining about the length of proceedings in the first-instance court.", "13. It is unclear whether the applicant received any replies to her letters. 14. In the meantime, on an unspecified date in August 2004 the Sabunchu District Court sought an expert opinion on the damage caused to the applicant’s apartment by the fire. On 27 August 2004 the expert issued an opinion, according to which the damage was estimated at 2,537,000 Azerbaijani manats (AZM).", "15. On 31 January 2005 the Sabunchu District Court held a hearing and delivered its judgment, partially upholding the applicant’s claim and awarding her AZM 2,637,000. This amount included compensation for damage of the amount estimated by the expert, as well as compensation for court fees paid by the applicant. According to the applicant, she received the full text of the judgment on 31 May 2005. 16.", "The applicant lodged an appeal, claiming that the amount awarded was too low and did not reflect the actual damage caused. On 13 July 2005 the Court of Appeal upheld the first-instance court’s judgment. Following an appeal in cassation by the applicant, on 6 October 2005 the Supreme Court upheld the lower courts’ judgments. II. RELEVANT DOMESTIC LAW 17.", "In accordance with Article 172.1 of the Code of Civil Procedure of 2000, a court of first instance must examine a civil case and deliver a judgment within three months of the date the civil action is lodged with the court. Shorter examination periods are required for certain categories of cases (Articles 172.2 and 172.3). 18. Immediately after the conclusion of the last hearing of the case, the first-instance court must deliberate and deliver a judgment (Articles 213 and 214.1). The full text of the judgment must be drafted at this time and sent to the parties within three days (Articles 227.1 and 227.3).", "19. In complex cases, the court may decide to deliver only the operative provisions of the judgment after the hearing (Article 214.3). In such an event, the parties and their representatives must be informed of the date when the full text of the judgment will be available (Article 214.4). 20. In exceptional circumstances where the case is particularly complex, the first-instance court may deliver either the full judgment or its operative provisions no later than three days after the end of the judicial examination of the case (Article 215).", "If only the operative provisions of the judgment have been delivered, the full text of the judgment must be drafted within the next ten days. The presiding judge must inform the parties of the date when the full text of the judgment will be available (Article 227.2). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 21. The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 22.", "The applicant also complained of a lack of an effective remedy within the meaning of Article 13 of the Convention in respect of her complaint of the excessive length of proceedings. This provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 23. As both parties failed to submit any observations within the time‑limits indicated by the Court, the Court will examine the complaints on the basis of the materials available. A. Admissibility 24. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 6 § 1 of the Convention 25.", "The Court observes that the civil proceedings in the present case were instituted on 15 January 2001 and ended with the Supreme Court’s final decision of 6 October 2005. Thus, in total, the proceedings in three instances lasted more than four years and eight months. 26. As the Convention entered into force with respect to Azerbaijan on 15 April 2002, the period to be taken into consideration in the present case amounted to three years, five months and twenty-three days in the post‑ratification period. Nevertheless, in order to determine the reasonableness of the length of time in question, regard must also be had to the state of affairs that existed at the beginning of the period under consideration (see, for example, Proszak v. Poland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, p. 2772, § 31).", "27. The reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities, and what was at stake for the applicant (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000‑IV). 28.", "As the proceedings concerned compensation for damage caused to the applicant’s apartment, the Court considers that much was at stake for the applicant and that special diligence was required from the domestic courts in view of the possible consequences which the excessive length of proceedings might have on her enjoyment of her home and possessions. 29. Having regard to the nature of the case, the Court finds that it was not complex. Apart from hearing the parties, the only procedural action undertaken by the courts was obtaining an expert opinion on the damage caused to the applicant’s apartment. 30.", "Furthermore, nothing in the case file indicates that the applicant’s conduct contributed to the length of the proceedings. As regards the conduct of the authorities, the Court notes that, although the appellate and cassation proceedings, taken separately, could not be considered excessively protracted, there was a considerable delay at the first-instance stage of the proceedings (compare with, mutatis mutandis, Aresti Charalambous v. Cyprus, no. 43151/04, § 45, 19 July 2007). In particular, the first-instance proceedings lasted more than four years (from 15 January 2001 to 31 January 2005), out of which more than two years and nine months fell within the period after the Convention’s entry into force with respect to Azerbaijan on 15 April 2002. The only event that appears to have happened during this period was the obtaining of the expert opinion in August 2004.", "However, there were significant periods of inactivity, both prior to this event and between this event and the hearing held on 31 January 2005. Moreover, the full text of the Sabunchu District Court’s judgment of 31 January 2005 was made available to the applicant with a delay of four months. This also contributed to the prolongation of the proceedings, as the applicant could not appeal to the higher courts during this period. 31. In such circumstances, the Court considers that, in the present case, the significant and unjustified periods of inactivity which occurred at the first-instance stage contributed significantly to the prolongation of the proceedings as a whole.", "In this connection, the Court reiterates that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to hear cases within a reasonable time (see Pélissier and Sassi, cited above, § 74, and Frydlender v. France [GC], no. 30979/96, § 45, ECHR 2000‑VII). 32. Having regard to the considerations above, the Court finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.", "2. Article 13 of the Convention 33. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). A remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., §§ 157-59).", "34. Although the applicant has tried, unsuccessfully, to have the proceedings expedited by complaining to various domestic authorities (see paragraphs 10-13 above), it does not appear that, at the relevant time, there was an effective domestic remedy available to the applicant in respect of the length of the proceedings. No information has been forthcoming from the Government to indicate any remedy that could have expedited the determination of the applicant’s case or provided her with adequate redress for delays that had already occurred (see, among many other authorities, Kormacheva v. Russia, no. 53084/99, § 61, 29 January 2004; Merit v. Ukraine, no. 66561/01, § 78, 30 March 2004; and Gavrielides v. Cyprus, no.", "15940/02, §§ 51-52, 1 June 2006). 35. Accordingly, there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby she could enforce her right to a “hearing within a reasonable time” as guaranteed by Article 6 § 1 of the Convention. II. ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 36. The applicant complained that the domestic courts’ failure to hear her case within a reasonable time had resulted in a violation of her right to respect for her home, as guaranteed by Article 8 of the Convention, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 37.", "She also complained that the excessive length of the proceedings had led to a violation of her right to peaceful enjoyment of her possessions under Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 38. The Court notes that these complaints are linked to those examined above and must therefore likewise be declared admissible.", "39. However, having regard to its findings in paragraphs 31-32 above, the Court considers that, in the circumstances of the present case, no separate issues arise under Article 8 of the Convention and Article 1 of Protocol No. 1 and, therefore, it is not necessary to examine these complaints separately. III. ARTICLE 14 OF THE CONVENTION 40.", "The applicant complained under Article 14 of the Convention, in conjunction with her other complaints, that she had been discriminated against. She contended that the domestic courts had been biased in the defendant’s favour, because he was a police officer. 41. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the right set out in Article 14 of the Convention. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 43. The applicant did not submit a claim for just satisfaction in the manner required by Rule 60 of the Rules of Court. Accordingly, the Court considers that there is no call to award her any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 6 § 1, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4.", "Holds that there is no need to examine the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention; 5. Holds that there is no call to award any just satisfaction. Done in English, and notified in writing on 17 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF GÓMEZ OLMEDA v. SPAIN (Application no. 61112/12) JUDGMENT STRASBOURG 29 March 2016 FINAL 29/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gómez Olmeda v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Luis López Guerra,George Nicolaou,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 8 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "61112/12) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Jorge Gómez Olmeda (“the applicant”), on 11 September 2012. 2. The applicant was represented by Mr J.J. Bravo Iglesias, a lawyer practising in Plasencia. The Spanish Government (“the Government”) were represented by their Agents, Mr F.A. Sanz Gandasegui and Mr R.A. León Clavero, State Attorneys.", "3. The applicant alleged that his conviction for false accusation of a crime on appeal without being able to defend himself in open court amounted to a violation of his right to a fair hearing under Article 6 § 1 of the Convention. 4. On 19 March 2013 the application was communicated to the Government. The Government and the applicant filed written observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Plasencia. 6. On 3 January 2011 following a trial, the Plasencia criminal judge (juez de lo penal) no.", "1 sentenced the applicant to six months’ imprisonment for serious disobedience to public authority (desobediencia grave a la autoridad). The applicant was acquitted of other charges against him, namely false accusation of a crime (calumnias), defamation (injurias) and concealment (encubrimiento). 7. The judge established that the applicant was the webmaster of an Internet forum on which defamatory messages against the complainants in the proceedings had been published, and that he had deliberately disregarded the request made to him by a police officer within the framework of the criminal investigation not to alter the messages in question. In fact, the applicant had proceeded to have the forum webpage removed altogether, despite the police officer’s request to leave it unchanged.", "As regards the charges for defamation and false accusation of a crime, the judge held that there were reasonable doubts as to whether the applicant had been aware of the messages in question before his police interview and that he should therefore be acquitted in that regard. It was also alleged that he had protected the individuals who had made the defamatory statements; however, the judge considered that he could not be found guilty of concealment as it had not been proved that he had been aware at the time of his police interview that it had been possible for him to have access to the Internet Protocol (IP) numbers of the participants on the forum. 8. Both the prosecution and defence appealed against the judgment before the Cáceres Audiencia Provincial. The applicant did not request a hearing, nor did the Audiencia Provincial order one.", "Instead, the court watched a video-recording of the trial. 9. On 16 May 2011 the Audiencia Provincial upheld the applicant’s conviction for serious disobedience to public authority and, unlike the first-instance judge, found him guilty of continuous and false accusation of a crime (delito continuado de calumnias). His punishment was a daily fine of 15 euros (EUR) for a period of eighteen months. He was also required to pay damages.", "In finding the applicant guilty, the appellate court stated that it had relied on the facts established by the first-instance judge and on the testimony given by the complainants, the applicant and the witnesses in the earlier trial. The court stated: “Fourth. The facts declared proved in the first-instance judgment constitute continuous and false accusation of a crime and defamation regulated and punished by section 205 and seq. of the Criminal Code in relation to section 74 of the same Code for which the defendant Jorge Gómez Olmeda should be declared guilty as a principal pursuant to sections 28 and 30 of the Code with the mitigating factor of undue delays pursuant to section 21 paragraph six of the Code. ...", "It is undisputed that documentary evidence does not require judicial immediacy for its assessment because it is written down and can be read and interpreted in the light of the circumstances of the case, which had been perfectly outlined in the complainants’ brief and proved in the hearing, both with respect to what was written on the forum and the people against whom those expressions were directed. Those expressions imputed the commission of crimes to the complainants (sexual assault, sexual slavery of a person) and were detrimental to their fame and reputation to the extent that it is obvious that the imputations were serious in themselves and related to public understanding, which is an open-ended concept of which interpretation depends on the particular facts of the case. It is worth remembering that we are speaking here of a small town where everybody knows each other, where everybody runs into each other, where everybody attends the same places, where everyday life is routine and there is little room for novelties, where anything breaking the monotony is something which attracts public attention, where the genealogy of every inhabitant is known to the rest. For these reasons we find the applicant guilty of the crime of continuous and false accusation of a crime ...which he had been acquitted of at first instance. The applicant states that he was the administrator of the forum; that he did not log onto it very often; that he lacked computer skills and that he had removed some phrases and messages which in his view might be considered insulting for the purposes of the case now before us.", "We disagree with the accused when he states that he was unaware of what was written on the forum, the argument on which the first-instance judge relied to acquit him of false accusation of a crime and defamation. And we disagree for the following two reasons. Firstly, because it was part of his duties as the administrator of the forum to be aware of what was written on it, to the extent that he was its ‘censor’, so to speak, on account of the fact that he had created it; and secondly, because it is untrue that he was unaware of what was written on it, since he had removed some phrases and messages which were insulting to the complainants, thus proving that he had read what was written on the forum in question and demonstrating that he had regarded what was written there as insulting to a specific individual or individuals, which led him to the decision to remove what he regarded as defamatory or insulting.” 10. The applicant applied to the Audiencia Provincial to have the previous proceedings before it declared void. His application was dismissed on 29 September 2011 on the grounds that no legal provision had been infringed and none of his rights had been breached in those proceedings.", "11. The applicant lodged an amparo appeal with the Constitutional Court. He cited Article 24 of the Constitution (right to a fair hearing), complaining that the Audiencia Provincial had convicted him on appeal without giving him the opportunity to plead his case in open court. 12. By a decision served on 13 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible as it had no special constitutional significance.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 13. The relevant provision of the Spanish Constitution reads as follows: Article 24 “1. Everyone has the right to obtain the effective protection of judges and the courts in the exercise of his or her legitimate rights and interests, and in no event may he or she go undefended. 2.", "Likewise, everyone has the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public hearing without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence; not to make self-incriminating statements; not to declare himself or herself guilty; and to be presumed innocent.” 14. The relevant provisions of the Spanish Criminal Code read as follows: Section 21 The following are mitigating circumstances: ... 6. Extraordinary or undue delay of the proceedings, as long as this is not due to the accused, where such delay is disproportionate to the complexity of the cause. Section 28 “Principals are those who perpetrate the act themselves, alone, jointly, or by means of another used to aid and abet. The following shall also be deemed principals: (a) Whoever directly induces another or others to commit a crime; (b) Whoever co-operates in the commission thereof by an act without which a crime could not have been committed.” Section 30 “1.", "In the case of both serious and minor offences committed by the use of media or mechanical means of dissemination, neither accomplices nor those who have personally and actually facilitated the commission of such offences shall be held criminally liable. 2. The principals to whom section 28 refers shall be held criminally liable in a series of stages, in an exclusive and subsidiary fashion, in the following order: (1) Those who actually wrote the text or produced the symbol in question and those inducing the commission of those acts. (2) The directors of the publication or broadcast through which the material has been disseminated. (3) The directors of the publishing, issuing or broadcasting company.", "(4) The directors of the recording, production or printing company. ...” Section 74 1. (...) whoever perpetrates multiple acts or omissions in the execution of a preconceived plan or by taking advantage of an identical occasion and where these acts or omissions offend one or several subjects and infringe the same criminal provision or provisions that are equal to or of a similar nature, shall be punished as the principal of a continued serious or minor offence (...). ... 3. What is set forth in the previous sections does not include offences against eminently personal property, except offences against honour and sexual freedom and indemnity that affect the same victim.", "In these cases, criminal continuity shall be determined, or otherwise, by the nature of the fact and the provision infringed. Section 205 “False accusation of a crime means accusing someone of committing a criminal offence while being aware that the accusation is false or with reckless disregard for the truth.” Section 208 “Acts or expressions which undermine another’s dignity by attacking his or her reputation or self-esteem shall constitute insults. Only insults which, by virtue of their nature, effects and context are generally acknowledged to be serious shall constitute an offence ...” Section 211 “Defamatory statements and insults shall be regarded as made public when they are circulated by printing, broadcasting or by any other media having a similar effect.” 15. The relevant provision of the Spanish Criminal Procedural Law in force at the time the appeal proceedings took place reads as follows: Section 791 “1. If the ratification or submissions brief include a request for the production of evidence or for the watching or hearing of the evidence recorded, the court shall rule on its admission within three days and shall, if appropriate, order the court clerk to set a date for the hearing.", "A hearing can also be held, ex officio or at a party’s request, where the court deems it necessary to reach a sound decision.” 16. The Constitutional Court has had the opportunity to rule on whether, where a defendant has been acquitted by the first-instance court of committing an offence but has been subsequently convicted on appeal, the viewing by the appellate court of a video-recording of the hearing at first instance satisfies the requirements of Article 24 of the Constitution. In its judgment no. 120/2009 of 18 May 2009 it stated that: “6. ... we must now examine the issue which singularises the instant amparo appeal, namely whether the guarantees of immediacy and adversarial procedure have been duly safeguarded or not by the appellate court’s viewing of the video-recording of the hearing held before the first-instance judge.", "... In this connection, an examination of the aforementioned case law of the European Court of Human Rights makes it clear that in cases where the requirements to which this case-law refers are fulfilled, it is necessary for the appellate court to conduct a ‘direct and personal’ examination of the accused and of the statements given by him or her in person, at a new hearing in the presence of other interested persons or complainants. ... 7. ... The Audiencia Provincial considered [in the instant case] that after having watched the video-recording of the criminal trial, it was entitled to conduct a new assessment of the oral evidence produced at that hearing.", "The appellate court found that the judge of the lower court had made a mistake in the assessment of that evidence and accordingly it proceeded to establish a new account of the facts which led to the conviction of those who had been initially acquitted. However, the truth is that that court was not entitled to assess that oral evidence ‑ which concerned the credibility of the witnesses – in a different way from the first-instance judge insofar as it had not held a public hearing at which the witnesses at the hearing at first instance had been heard in person and directly by the court and there were no legal grounds precluding the appearance of those witnesses before the court. Accordingly, as the appellate court did not comply with that requirement, it violated the appellant’s right to a fair hearing under Article 24 § 2 of the Spanish Constitution.” 17. The Constitutional Court reached similar conclusions in their subsequent judgments no. 2/2010 of 11 January 2010, no.", "30/2010 of 17 May 2010 and no. 105/2014 of 23 June 2014. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant complained that he had been convicted on appeal without being heard in person by the appellate court for an offence he had been acquitted of at first instance, which in his view constituted a violation of his right to a fair hearing as provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 19.", "The Government contested that argument. A. Admissibility 20. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 21. The applicant considered that his conviction meant that the Audiencia Provincial had reviewed evidence against him without having heard him in person. He explained that he had not requested a hearing by the fact that as he had been acquitted of false accusation of a crime by the criminal judge he had not had any particular reason to ask to be heard. 22.", "The applicant alleged that the screening of a video during the appeal proceedings was not the equivalent of a hearing at second instance, given that the Audiencia Provincial carried out a new assessment of the facts which went beyond strictly legal questions. 23. The Government firstly stated that the instant case was restricted to determining whether the applicant’s conviction on appeal by the Cáceres Audiencia Provincial for false accusation of a crime, the only crime he had been acquitted of by the criminal judge and convicted of on appeal, amounted to a violation of his right to a fair hearing. The case did not concern his conviction for serious disobedience to public authority imposed on him by the criminal judge, which the Audiencia Provincial had merely upheld. 24.", "Relying on the Court’s case-law in the cases of Sakhnovskiy v. Russia ([GC], no. 21272/03, § 96, 2 November 2010) and Bazo González v. Spain (no. 30643/04, § 38, 16 December 2008), the Government argued that even where an appellate court had full jurisdiction to review the case on questions of both fact and law, Article 6 did not always entail a right to be present in person, and that in order to determine whether a hearing should have been held on appeal attention should be paid to the nature of the issues examined on appeal by the appellate court and to whether the applicant had been able to make written submissions throughout the entire proceedings. 25. Turning to the circumstances of the present case, the Government referred to section 791(1) of the Criminal Procedural Law to highlight that it was illogical for the applicant to complain of no hearing on appeal when he could have requested one under that provision (see paragraph 15 above) but had failed to do so.", "They stressed in this regard that the applicant had been fully aware that the complainants had lodged an appeal to have his acquittal reversed and have him convicted of false accusation of a crime. 26. The Government further contended that the nature of the issues the Audiencia Provincial had ultimately decided had not required that a new hearing be held. The appellate court had not changed the facts of the case as established by the criminal judge at first instance but rather had limited itself to redefining them from a legal point of view. The appellate court had concluded, in the light of the evidence produced at first instance, that the facts had been false accusation of a crime.", "27. Lastly, the Government argued that the viewing of the video-recording by the judges of the Audiencia Provincial equated to holding a hearing for the purposes of Article 6 § 1 of the Convention. They conceded that a public hearing was not exactly the same as a viewing of a video-recording but stressed that this viewing had provided the judges with full access to all the evidence produced to the criminal judge. In the Government’s opinion, the viewing of the video-recording had placed the judges of the Audiencia Provincial in a better position to take a sound decision on the case than if a new hearing had been held, since the former had allowed them to have full and personal access to all the evidence produced to the criminal judge. The Government accordingly submitted that there had not been a violation of Article 6 § 1 of the Convention.", "28. The Court notes at the outset that the facts giving rise to the present application are similar to those in the cases of Valbuena Redondo v. Spain (no. 21460/08, 13 December 2011); Almenara Alvarez v. Spain (no. 16096/08, 25 October 2011); García Hernández v. Spain (no. 15256/07, 16 November 2010); Marcos Barrios v. Spain (no.", "17122/07, 21 September 2010); Igual Coll v. Spain (no. 37496/04, 10 March 2009); and Bazo González (cited above), in which the applicants, acquitted of criminal charges at first instance, were convicted on these charges without being heard in a public hearing. In the present case, however, the Government have contended that the viewing of the video-recording by the members of the Audiencia amounted to holding a hearing for the purposes of Article 6 § 1 of the Convention. 29. As to the relevant general principles applicable to the present case, the Court refers to those stated in the case of Lacadena Calero v. Spain (no.", "23002/07, §§ 36-38, 22 November 2011). 30. In the instant case, it is undisputed that the applicant was convicted by the Audiencia Provincial for an offence of which he had been acquitted at first instance without being heard in person. 31. In order to determine whether there has been a violation of Article 6 of the Convention, therefore, it is necessary to examine the role of the Audiencia and the nature of the issues before it.", "32. The Court does not share the Government’s argument that the applicant could not reproach the fact that a hearing had not been held since he had failed to request one. The Court reiterates its findings in the case of Igual Coll (cited above, § 32), where it found that there had been no particular reason for the applicant to request a public hearing as he had been acquitted at first instance after a public hearing during which different evidence had been taken and he had been heard. The Court therefore considers that the appellate court was under a duty to take positive measures to this effect, notwithstanding the fact that the applicant had not expressly requested a hearing to be held (see, mutatis mutandis, Dănilă v. Romania, no. 53897/00, § 41, 8 March 2007, and mutatis mutandis, Botten v. Norway, 19 February 1996, § 53, Reports of Judgments and Decisions 1996‑I).", "33. The Court reiterates that a public hearing is necessary where the appellate court is called upon to examine anew facts taken to have been established at first instance and reassess them, going beyond strictly legal considerations (see Igual Coll, cited above, § 36). 34. The Audiencia took into account the objective element of the offence – the existence of messages insulting to the complainants – and also examined the applicant’s intentions, conduct and credibility. Specifically, the Audiencia, unlike the first-instance judge, found that the applicant had been aware that there were insulting messages.", "It also imposed, for the first time in respect of this offence, a sentence on him. However, the Audiencia examined all this without hearing the applicant in person. 35. The Audiencia therefore departed from the first-instance judge’s conclusions and made a full assessment of the question of the applicant’s guilt after reassessing the case as to the facts and the law (see, among other authorities, Ekbatani v. Sweden, 26 May 1988, § 32, Series A no. 134; Constantinescu v. Romania, no.", "28871/95, § 55, ECHR 2000‑VIII; Lacadena Calero, cited above, §§ 36 and 38; and mutatis mutandis, Ion Tudor v. Romania, no. 14364/06, § 21, 17 December 2013). In this regard, the Court has found that where an appellate court is called upon to carry out an assessment of the subjective element of the offence, as has been the case, it would in the circumstances have been necessary for the court to conduct a direct and personal examination of the evidence given in person by the accused who claims that he has not committed the act alleged to constitute a criminal offence (see Lacadena Calero, cited above, § 47). 36. Failure to hear the accused in person is even more difficult to reconcile with the requirements of a fair trial in the specific circumstances of this case, where the court of last resort was the first court to convict the applicant in the proceedings brought to determine a criminal charge against him (see Constantinescu, cited above, § 59, Andreescu v. Romania, no.", "19452/02, § 70, 8 June 2010, Igual Coll, cited above, § 35, Marcos Barrios, cited above, § 40; and Popa and Tănăsescu v. Romania, no. 19946/04, § 52, 10 April 2012). 37. Furthermore, contrary to what the Government contended, the Court considers that the viewing of the video-recording by the Audiencia did not compensate for the lack of a hearing because rather than responding to the applicant’s right to address the Audiencia, it merely represented part of the Audiencia’s review of the first instance proceedings. 38.", "The Court notes that the Spanish Constitutional Court, in ruling on similar cases, has found that the viewing of a video-recording of the first-instance trial does not enable an appellate court to assess personal evidence (see paragraphs 16-17 above). 39. Consequently, it may not be considered that the viewing of the video-recording placed the Audiencia Provincial in the same position as the first-instance judge for the purposes of Article 6 § 1 of the Convention. 40. In view of the foregoing, the Court concludes that in the instant case, the Audiencia Provincial failed to comply with the requirements of a fair trial.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42.", "The applicant claimed 23,100 euros (EUR) in respect of pecuniary damage, comprising the fine and damages he was ordered to pay by the Audiencia Provincial. He also claimed EUR 25,000 in respect of non‑pecuniary damage. 43. The Government submitted that the amounts claimed by the applicant were disproportionate and that there was no causal link between the alleged violations and the damage allegedly sustained. 44.", "As to the pecuniary damage, the Court does not discern any causal link between the violation found and the damage alleged. Indeed, it cannot speculate what outcome the appellate proceedings would have had if a hearing had been held (see Igual Coll, § 51, and Valbuena Redondo, § 48, both cited above). It therefore rejects this claim. Instead, it awards the applicant EUR 6,400 in respect of non-pecuniary damage. B.", "Costs and expenses 45. The applicant claimed a total amount of EUR 7,777.24 for the following costs and expenses in the domestic proceedings: (i) EUR 6,277.24 for the complainants’ legal expenses, which the applicant was ordered to pay by the Audiencia Provincial; and (ii) EUR 1,500 for his legal expenses in the proceedings before the Constitutional Court. Lastly, without providing any documentary justification in this regard, the applicant claimed EUR 3,000 for his costs and expenses before the Court. 46. The Government did not agree with the assessment criterion used by the applicant as regards the costs and expenses ordered by the Audiencia Provincial.", "Specifically, the Government alleged that account must be taken to the fact that the costs and expenses incurred by the applicant in the domestic proceedings also comprised those relating to the crime of serious disobedience to public authority, whose first-instance sentence the Audiencia had limited itself to uphold. As to the legal expenses in the proceedings before the Constitutional Court, the Government left to the Court’s discretion the matter of fixing the amount to be granted to the applicant, stating that, in any case, the amount claimed was excessive. As to the costs and expenses for the proceedings before the Court, the Government claimed that the applicant had failed to justify them and that the amounts requested were in any event excessive. 47. 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 respect of costs and expenses ordered to pay by the Audiencia Provincial¸ the Court, given that the violation relates only to the conviction on appeal in respect of continuous and false accusation of a crime, while the costs and expenses related also to other charges, awards him EUR 3,138.62. As regards the proceedings before the Constitutional Court, the applicant failed to support by appropriate documentary evidence the amount actually incurred pursuant to the contractual relationship with his lawyer. It follows that no award shall be made for the proceedings before the Constitutional Court. As regards the proceedings before the Court, the applicant failed to provide the Court with any justification of the costs incurred. It therefore rejects this claim.", "C. Default interest 48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 6,400 (six thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,138.62 (three thousand one hundred and thirty-eight euros and sixty-two cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident" ]

[ "SECOND SECTION CASE OF ALPARSLAN ALTAN v. TURKEY (Application no. 12778/17) JUDGMENT STRASBOURG 16 April 2019 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 Alparslan Altan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President, Paul Lemmens, Julia Laffranque, Ivana Jelić, Arnfinn Bårdsen, Darian Pavli, judges, Harun Mert, ad hoc judge, and Stanley Naismith, Section Registrar, Having deliberated in private on 19 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "12778/17) 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 Alparslan Altan (“the applicant”), on 16 January 2017. 2. The applicant was represented by Mr E.Y. Aras, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.", "3. The applicant alleged, in particular, that he had been deprived of his liberty in breach of Article 5 of the Convention. 4. On 29 September 2017 notice of the complaints concerning Article 5 §§ 1 and 3 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The applicant and the Government each filed observations on the admissibility and merits of the case.", "5. Ayşe Işıl Karakaş, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). Harun Mert was accordingly appointed by the President to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant, a former member of the Turkish Constitutional Court, is a Turkish national who was born in 1968 and lives in Ankara. He is currently detained. A. The applicant’s professional career 7. In 1993 the applicant began his career as a public prosecutor.", "In 2001 he was appointed as a rapporteur at the Constitutional Court. On 27 March 2010 he was appointed by the President of Turkey as a judge of the Constitutional Court for a term of office due to expire when he reached the age of 65. On 26 October 2011 he was elected Vice-President of the Constitutional Court (Anayasa Mahkemesi Başkanvekili) by the court’s judges for a four-year term, which ended on 26 October 2015. At the time of the events to which the application relates, he was a judge at the court. B.", "Attempted coup of 15 July 2016 and declaration of a state of emergency 8. During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically installed parliament, government and President of Turkey. 9. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, also attacked television channels and fired shots at demonstrators. During the night of violence, more than 250 people were killed and more than 2,500 were injured.", "10. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of an organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in respect of suspected members of that organisation. 11. On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President.", "12. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 13. During the state of emergency, the Council of Ministers, chaired by the President, passed thirty-seven legislative decrees (nos. 667-703) under Article 121 of the Constitution.", "One of them, Legislative Decree no. 667, published in the Official Gazette on 23 July 2016, provided in Article 3 that the Constitutional Court was authorised to dismiss any of its members who were considered to belong or be affiliated or linked to terrorist organisations or organisations, structures or groups found by the National Security Council to have engaged in activities harmful to national security. The legislative decrees also placed significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention (for example, extension of the police custody period, and restrictions on access to case files and on the examination of objections against detention orders). 14. The Government stated that during and after the coup attempt, prosecutors’ offices had initiated criminal investigations in respect of individuals involved in the attempt and those who were not involved but had links to the FETÖ/PDY organisation, including members of the judiciary.", "They specified in that connection that on 16 July 2016, in the context of a criminal investigation opened by the Ankara public prosecutor’s office, some 3,000 judges and prosecutors, including two judges of the Constitutional Court (including the applicant) and more than 160 judges of the Court of Cassation and the Supreme Administrative Court, had been taken into police custody and subsequently placed in pre-trial detention. In addition, warrants had been issued for the arrest of thirty judges of the highest courts who were deemed to be fugitives. 15. On 18 July 2018 the state of emergency was lifted. C. The applicant’s arrest and pre-trial detention 16.", "On 16 July 2016, in the course of the criminal investigation opened by the Ankara public prosecutor’s office (see paragraph 14 above), the applicant was arrested and taken into police custody on the instructions of the same office, which described him as a member of the FETÖ/PDY terrorist organisation and urged that he be placed in pre-trial detention. The relevant parts of the instructions were worded as follows: “The offence of overthrowing the Government and the constitutional order through force and violence is currently being committed across the country; there is a risk that members of the [FETÖ/PDY] terrorist organisation committing the offence in question might flee the country ...” On the same day, the police conducted a search of the applicant’s home and seized computers and other IT equipment belonging to him. 17. On 19 July 2016 the applicant was questioned by the Ankara public prosecutor. He was suspected of having sought to overthrow the constitutional order (Article 309 of the Criminal Code) and being a member of the FETÖ/PDY terrorist organisation (Article 314 of the Criminal Code).", "During the questioning, the applicant, who was assisted by a lawyer, denied all the allegations against him and argued that they could only have been based on his dissenting opinions as set out in judgments of the Constitutional Court. His lawyer challenged the applicant’s detention in police custody, arguing that the requirements of a case of discovery in flagrante delicto were not satisfied and that his client could not be the subject of a criminal investigation without permission from the Constitutional Court. He requested that his client be released on bail. 18. Later that day, the Ankara public prosecutor’s office ordered the applicant, together with thirteen other suspects – six judges of the Supreme Administrative Court, six judges of the Court of Cassation and another judge – to appear before the 2nd Magistrate’s Court (sulh ceza hakimliǧi).", "He called for the applicant to be placed in pre-trial detention, bearing in mind that certain members of the FETÖ/PDY organisation had fled after the events and that evidence had yet to be gathered. 19. On 20 July 2016 the applicant, assisted by his lawyer, Mr M. Orak, appeared before the 2nd Magistrate’s Court with the thirteen other suspects. According to the record of the questioning, they were suspected of attempting to overthrow the constitutional order and being members of the FETÖ/PDY organisation, offences punishable under Articles 309 and 314 of the Criminal Code. The suspects’ statements, including those made by the applicant, were recorded using the SEGBİS sound and image information system (Ses ve Görüntü Bilişim Sistemi).", "The transcripts of the recordings indicate that the applicant, after describing his career as a judge at the Constitutional Court, denied all the accusations against him. They also show that his lawyer challenged all the measures taken against his client, relying on the latter’s special status linked to his position as a Constitutional Court judge. The relevant parts of the transcripts read as follows: “The suspect’s lawyer, Mr M. Orak: ‘... it appears that Articles 109 and 114 [this in fact refers to Articles 309 and 314 of the Criminal Code] were mentioned in the record of the hearing; is the request for detention under Article 114 [314] also being made on the basis of Article 109 [309]?’ The magistrate, M.C. : ‘Not [on the basis of Article] 109 [309].’ The suspect’s lawyer, Mr M. Orak: ‘OK ... Since my client has been brought before you on the basis of Article 114 [314], this is not a case of discovery in flagrante delicto.", "So all the steps taken in connection with that offence have been ultra vires and unlawful ... In this case, the criminal investigation and trial should be conducted from the start by the plenary Constitutional Court ... There is no concrete evidence that could justify pre-trial detention, and the accusations were based on abstract allegations ... [Furthermore], in this particular case, the cumulative conditions for pre-trial detention were not met, and in any event, we are asking for alternative measures to be ordered ...” 20. On the same day, the magistrate ordered the pre-trial detention of the applicant and the thirteen other suspects, holding as follows: “... In view of the fact that some suspects and their representatives contended that the Ankara public prosecutor’s office and our court did not have jurisdiction [to deal with the case], it should be noted that in accordance with section 16(1) of Law no.", "6216 ..., the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a ‘continuing offence’ (temadi olan suç) and that there was a case of discovery in flagrante delicto. Following an examination of the investigation file, the suspects’ pre-trial detention is ordered, regard being had to the nature of the alleged offence, the state of the evidence, [all the] records included in the file, the decisions of 17 July 2016 by the presidents’ offices at the Court of Cassation and the Supreme Administrative Court, the reports on searches and seizures and the entire contents of the case file, and also the fact that there is concrete evidence giving rise to a strong suspicion that the offence in question has been committed. [It is also noted that] the alleged offence was among the so-called ‘catalogue’ offences listed in Article 100 of the Code of Criminal Procedure, that pre-trial detention is a proportionate measure in view of the length of the sentence provided for by law, and that alternative measures to detention are insufficient on account of the risks of absconding and of damage to evidence.” 21. Also on 20 July 2016 the Government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President. In addition, on 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15 (see paragraphs 11-13 above).", "22. On the same day, the applicant lodged an objection against the order for his pre-trial detention. In support of the objection, he argued that there was no concrete evidence that could justify detention, and that such a measure did not comply with the relevant domestic law. He also asked for alternative measures to be applied on the grounds that his son was severely disabled and dependent on his personal assistance. 23.", "In a decision of 4 August 2016 the Constitutional Court, meeting in plenary session, dismissed the applicant from his post. In reaching that decision it noted, on the basis of Article 3 of Legislative Decree no. 667, that “information from the social environment” (sosyal çevre bilgisi) and the “common opinion emerging over time” (zaman içinde oluşan ortak kanaatleri) among members of the Constitutional Court suggested that the applicant had links to the organisation in question, making him no longer fit to practise his profession. 24. On 9 August 2016 the 3rd Magistrate’s Court dismissed the applicant’s objection against the order for his detention.", "25. On 26 September 2016 the applicant applied for release on bail. In support of his application, he repeated his argument that his detention did not comply with the relevant domestic law. He argued firstly that as he had not been accused of having taken part in the attempted coup, this was not a case of discovery in flagrante delicto. He further noted that the cases of in flagrante delicto were listed in Article 2 of the Code of Criminal Procedure (CCP) and that his own situation did not fall into any of those categories.", "In addition, he argued that the order for his detention did not contain any specific grounds relating to him and was not based on any fact justifying such a measure. Lastly, he again asked for alternative measures to be applied, referring to the health of his son, who was seriously disabled and dependent on his personal assistance. 26. On various other occasions, the applicant applied for release on bail. In decisions adopted on 7 November and 5 December 2016, in line with an earlier decision of 21 September 2016, the competent magistrates refused his applications.", "27. In a letter dated 8 November 2017 the public prosecutor’s office at the Court of Cassation forwarded the case file to the 10th Criminal Division of the same court. On several occasions the Criminal Division reviewed whether it was necessary to keep the applicant in pre-trial detention and ordered the extension of his detention. D. Summary report by the Ankara public prosecutor’s office 28. On 25 October 2017 the Ankara public prosecutor’s office submitted a summary report (fezleke) to the public prosecutor’s office at the Court of Cassation with a view to instituting criminal proceedings against the applicant.", "In the report it stated that the FETÖ/PDY organisation was the instigator of the attempted coup of 15 July 2016 and that a judicial investigation was being conducted in respect of judges deemed to be members of that structure and to have acted under its orders and instructions. The public prosecutor’s office pointed out that the risk of a coup had not been entirely eliminated and that a case of discovery in flagrante delicto was at issue, falling within the jurisdiction of the Assize Court; accordingly, a criminal investigation had been initiated in respect of the applicant on 16 July 2016 on the basis of the provisions of ordinary law. It noted that statements by anonymous witnesses and suspects, the content of communications between other individuals via the ByLock messaging service and information about signals from mobile telephones (see paragraphs 32-40 below) all showed that the applicant had committed the offence of membership of an armed terrorist organisation. E. Individual application to the Constitutional Court 29. On 7 September 2016 the applicant lodged an individual application with the Constitutional Court.", "He complained that he had been arbitrarily arrested and placed in pre-trial detention, in breach of the relevant law, namely the Constitutional Court Act (Law no. 6216) and that court’s rules of procedure. He also alleged that there was no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. Furthermore, he maintained that the domestic courts had not given sufficient reasons for the decisions ordering his detention. He argued in addition that he had been arrested and detained for reasons other than those provided for in the Constitution.", "He also complained that the magistrates who had ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. In addition, he contended that his dismissal and the various measures taken against him had infringed his rights to a fair trial, to respect for his private life and home and to freedom of expression, and had constituted discrimination. 30. On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/15586) in which it decided, unanimously, to reject the following complaints as manifestly ill-founded: the complaint concerning the lawfulness of the detention order and the lack of reasonable suspicion justifying it; the complaint concerning the alleged lack of independence and impartiality of the magistrates who had ordered the applicant’s pre-trial detention; and the complaints concerning the right to a fair trial, the right to respect for private life and the home and the prohibition of discrimination.", "With regard to the complaint concerning the lawfulness of the applicant’s detention in police custody, the Constitutional Court held that he should have brought an action under Article 141 § 1 (a) of the CCP but had refrained from doing so. It found that the same applied to his complaints concerning his dismissal. Furthermore, it noted that there was no information in his application or the appended material as to whether the applicant had lodged an objection under Article 91 § 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies. 31.", "In its judgment the Constitutional Court, after describing the characteristics of the FETÖ/PDY organisation and its covert structure within the judiciary, first summarised the evidence gathered by the Ankara public prosecutor’s office (1) and then addressed the complaints concerning the lawfulness of the detention order and the alleged lack of reasonable suspicion justifying it (2). 1. The evidence 32. According to the Constitutional Court’s judgment, the allegation that the applicant had knowingly joined the judicial branch of the FETÖ/PDY organisation was based on the following facts and evidence: (a) statements by anonymous witnesses; (b) statements by a suspect; (c) messages exchanged via ByLock; and (d) other facts. The evidence can be summarised as follows.", "(a) Statements by anonymous witnesses 33. An anonymous witness referred to as “Defne” made several statements to the Kahramanmaras and Ankara public prosecutors’ offices. In her statements of 4 August 2016 the witness said the following: “... I was appointed as a rapporteur at the Constitutional Court. While I was working at the Constitutional Court, we kept seeing friends who belonged to this structure [the FETÖ/PDY organisation] ...", "There, I noticed that certain files were monitored ... Some practices came to my notice; for instance, applications relating to the election threshold and the funding of political parties ... were monitored by the rapporteurs and members [of the Constitutional Court] belonging to the FETÖ/PDY organisation. After such applications were lodged, [these rapporteurs and members of the Constitutional Court] started to keep track of the cases by enquiring about their outcome. The ones monitoring these cases were Alparslan Altan, who was the mentor, and the chief rapporteurs belonging to this structure. I recall that Alparslan Altan would write a dissenting opinion whenever a decision was not adopted [along the lines] that he wanted.” In her statement of 6 October 2016 the same witness said the following: “On the basis of my own observations, the contacts I had while working at the Constitutional Court as a rapporteur, and the comments and behaviour of rapporteurs whom I know to be members of this structure, I can say that the former member and rapporteur of the Constitutional Court Alparslan Altan was a member of this cemaat [the term ‘cemaat’ literally means ‘community’; however, at the time of the events, the term was commonly used to denote followers of Fetullah Gülen, the presumed head of the FETÖ/PDY organisation – hereinafter ‘the cemaat’].", "As in other judicial institutions there was a ‘secret cell’-type organisation within the Constitutional Court ...” 34. In a statement taken on 27 December 2016 another anonymous witness, referred to as “Kitapçı”, said the following: “... When I started working at the Constitutional Court as a rapporteur, I was convinced that, given his social contacts, Alparslan Altan was a member of the cemaat. His social contacts were what led me to reach this conclusion ...” (b) Statements by a suspect 35. In addition, R.Ü., a former public prosecutor and a former rapporteur of the Constitutional Court who was accused of being a member of the FETÖ/PDY organisation, made several statements to the Ankara public prosecutor’s office.", "The relevant parts of his statement recorded on 9 September 2016 read as follows: “... Previously, I did not know that the former member of the Constitutional Court Alparslan Altan was a member of the cemaat ... However, when I noticed that this member was always in the minority in [decisions on] individual applications in which members of the cemaat were involved, I became firmly convinced that he could be a member of the cemaat ... I had already imagined, from conversations between members of the cemaat, that some members of the Constitutional Court might belong to [this structure]. But I did not know who.", "Over time, on account of his [positions] in these decisions, I became certain that this member [of the Constitutional Court] belonged to the cemaat ...” 36. In statements taken on 21 October 2016 and 19 July and 5 September 2017 R.Ü. confirmed his previous statements and asserted that although he had not met the applicant at meetings held between members of the FETÖ/PDY organisation, he was convinced that the applicant belonged to that structure. In particular, in his statements of 19 July and 5 September 2017 he mentioned that the applicant’s codename was “Selahattin”. (c) Messages exchanged via ByLock 37.", "According to information in the case file, it was not established or alleged during the investigation that the applicant was a user of the ByLock encrypted messaging service. However, transcripts of ByLock conversations between other individuals suspected of being members of the FETÖ/PDY organisation, namely Ö.İ., S.E. and B.Y., indicate a number of references to the applicant. According to the investigating authorities, Ö.İ., a teacher, was the “lay imam” responsible for members of the judiciary belonging to the FETÖ/PDY organisation (according to the public prosecutor’s office, each of the structure’s cells that had infiltrated the administrative and judicial authorities was led by a “lay imam”); S.E., a former rapporteur of the Constitutional Court, was in charge of the cell at that court; and B.Y., another former rapporteur of the Constitutional Court, was a member of the structure. Various measures had been taken against these three individuals in the course of the criminal investigations carried out in the aftermath of the attempted coup: in the case of Ö.İ., who had left the country, a warrant had been issued for his arrest; the same applied to S.E., who had been dismissed from his post and had fled; as for B.Y., he had been dismissed from his position as a judge by the Council of Judges and Prosecutors and had been placed in pre-trial detention on suspicion of being a member of the FETÖ/PDY organisation.", "According to the investigating authorities, in the messages in question each member of the FETÖ/PDY organisation was designated by a codename. According to the suspect R.Ü., the applicant’s codename was “Selahattin” (see paragraph 36 above). It appears from the transcripts of messages exchanged between Ö.İ., S.E. and B.Y. via ByLock that the name “Selahattin” was mentioned on several occasions in connection with cases then pending before the Constitutional Court.", "The transcripts of the conversations also indicate that certain internal matters of the Constitutional Court, such as the election of the vice‑president, and various cases pending before the court had been discussed by Ö.İ. and the former Constitutional Court rapporteurs. More specifically, the conversations show that, in relation to certain cases that had been brought by suspected members of the FETÖ/PDY organisation and rejected, the dissenting opinion by “Selahattin” had been praised. The transcripts also indicate that “Selahattin” had been provided with a telephone line by the FETÖ/PDY organisation. 38.", "The Government did not provide any information about the date on which these various items of evidence had been added to the case file. The applicant, however, stated that the Ankara public prosecutor’s office had received the physical digital evidence of the ByLock conversations in December 2016, that the Ankara 3rd and 5th Magistrates’ Courts had asked to have a copy of that evidence forwarded to them on 9 December 2016 and 24 March 2017, and that an expert report had been drawn up four months after the latter date. (d) Other facts 39. After information had been obtained to suggest that a telephone line had been supplied by the FETÖ/PDY organisation to the individual known as “Selahattin” (see paragraph 37 above), investigations were carried out to ascertain whether the telephone line registered in the applicant’s name (“telephone line no. 1”) had sent signals from the same base station as the one used by the telephone line supplied by the FETÖ/PDY organisation (“telephone line no.", "2”). It emerged that between 22 November 2015 and 16 July 2016 the two telephone lines had sent signals from the same base station. It also transpired that telephone line no. 2 was used solely for internet access and that both telephone lines had sent signals from the same location for twenty-nine days over different periods. 40.", "It was also established that two other telephone lines had been used to call individuals who had subsequently been arrested on suspicion of being members of the FETÖ/PDY organisation. 2. The Constitutional Court’s assessment of the complaints concerning the lawfulness of the order for the applicant’s pre-trial detention and the alleged lack of reasonable suspicion justifying it 41. Addressing the complaint about the lawfulness of the applicant’s initial detention, the Constitutional Court held at the outset that this issue should be examined under Article 15 of the Constitution, by which, in an emergency, the exercise of fundamental rights and freedoms could be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution for those rights and freedoms could be taken. 42.", "As to the merits of the complaint, it held firstly that it was not disputed that the alleged offence – membership of an armed terrorist organisation – was an ordinary offence punishable by a heavy sentence and thus falling within the jurisdiction of the assize courts. Secondly, it noted: “123. The offence of which [the applicant] is accused, punishable under Article 314 of the Criminal Code, namely membership of an armed terrorist organisation, undoubtedly falls within the jurisdiction of the Assize Court, and this is not disputed by [him]. Moreover, although [the applicant] claims to have been prosecuted on account of his dissenting opinions as expressed in certain judgments of the Constitutional Court, he does not contend that the alleged offence is not an ordinary offence, that is to say, an offence [that was not] committed in connection with or during the performance of official duties. The classification of an offence (as an ordinary offence or as an offence linked to the performance of official duties) is a matter falling within the competence of the judicial authorities.", "The compliance of such classification with the law may also be reviewed in the context of an ordinary appeal or an appeal on points of law. Provided that there is no arbitrary interpretation – manifestly breaching the Constitution – and [entailing], as a result, [a violation of] rights and freedoms, it is primarily the task of the courts dealing with the case (derece mahkemeleri) to interpret and apply the law, including [the question of] the classification of an offence. It cannot be concluded that the classification of the offence of which [the applicant] is accused as an ordinary offence was unjustified and arbitrary, bearing in mind the findings reached and the reasons given [by the investigating bodies and judicial authorities], and in particular, the documents concerning [his] pre-trial detention. 124. In the present case, when the investigating bodies found that this was a case of discovery in flagrante delicto, they based that finding on the attempted coup of 15 July 2016 and the fact that the offence of which [the applicant] was accused, namely membership of an armed terrorist organisation, is a continuing offence.", "125. According to the Court of Cassation’s consistent practice, the offence of membership of an armed terrorist organisation is a continuing offence (temadi eden suç). ... 127. ... The plenary criminal divisions of the Court of Cassation have also held in a case concerning the conviction of two judges ... that ‘as the current and consistent position of the Court of Cassation makes clear, regarding the offence of membership of an armed terrorist organisation, which is a continuing offence, except in cases where [its continuing nature ends with] the dissolution of the organisation or termination of membership, the continuing nature [of the offence] may be interrupted by the offender’s arrest.", "The time and place of the offence must therefore be established to that end. For this reason, there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation.’ 128. Having regard to the Court of Cassation judgments cited above, and to the fact that [the applicant] was arrested on suspicion of membership of the FETÖ/PDY organisation – deemed by the judicial authorities to constitute an armed terrorist organisation that premeditated the attempted coup – on 16 July 2016, at a time when [the authorities were taking steps to] defeat the coup attempt, it cannot be concluded that there was no factual and legal basis for the finding by the investigating bodies that the offence of membership of an armed terrorist organisation, of which [the applicant] was accused, involved a situation of discovery in flagrante delicto. 129. In the light of the foregoing, the allegation that [the applicant], a Constitutional Court judge, was placed in pre-trial detention in an manner not complying with law and the safeguards enshrined in the Constitution and Law no.", "6216 is unfounded. Accordingly, the order for [the applicant’s] detention had a legal basis. 130. Before examining whether the detention order – which had a basis in law – pursued a legitimate aim and was proportionate, it should be ascertained whether there are ‘facts giving rise to a strong suspicion that the offence has been committed’, this being a prerequisite for pre-trial detention. 131.", "The [impugned] detention order states, with reference to ‘[all] the reports on searches and seizures and the entire contents of the case file’, that there was concrete evidence giving rise to a strong suspicion in respect of the suspects, including [the applicant]. 132. It also appears from the summary report (fezleke) concerning [the applicant] that the accusation that [he] was a member of a terrorist organisation was based on the following evidence: statements by anonymous witnesses and a suspect, the contents of communications between other individuals and information concerning the signals from [the applicant’s] mobile telephones. 133. It should be noted that in the messages exchanged between other individuals (Ö.I., S.E.", "and B.Y.) via ByLock, certain references were made to [the applicant]. The investigating bodies found, on the basis of evidence such as the statements by suspects/witnesses and the messages exchanged via ByLock, that Ö.I., who is in fact a teacher, was the ‘lay imam’ responsible for the judges belonging to the FETÖ/PDY organisation, that S.E. (a rapporteur) was in charge of the organisation [within] the Constitutional Court and that B.Y. was a member of this structure.", "Among those individuals, an arrest warrant has been issued in respect of Ö.I., who has left the country. [Similarly], S.E., who has been dismissed from his post, has fled and a warrant has been issued for his arrest. As for B.Y., he has been dismissed from the position of judge by the Council of Judges and Prosecutors and has been placed in pre-trial detention on suspicion of being a member of the FETÖ/PDY organisation. ... [In paragraphs 134-37 of its judgment, the Constitutional Court assessed the evidence. It then went on to conclude:] 138.", "It can therefore be observed that there is evidence in the file forming a basis for the suspicions against [the applicant].” The Constitutional Court also observed that, in view of the very specific circumstances surrounding the attempted coup, the extent to which the FETÖ/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was among the so-called “catalogue” offences, the order for the applicant’s pre-trial detention could be said to have been based on justifiable grounds and proportionate. In the Constitutional Court’s view, there was a risk that individuals involved in the coup attempt and those who had not been directly involved but had links to the FETÖ/PDY organisation – which was identified as the instigator of the attempted coup – might abscond, tamper with evidence or take advantage of the disorder that had emerged during or after the coup attempt. The Constitutional Court held that these particular circumstances entailed a higher risk than might arise in what could be described as “normal” circumstances. It added that it was obvious that the applicant, as a member of that court himself, might be in an easier position than others to interfere with the evidence. F. The indictment 43.", "On 15 January 2018 the public prosecutor’s office at the Court of Cassation filed a bill of indictment in respect of the applicant, charging him in particular, under Article 314 of the Criminal Code, with being a member of an armed terrorist organisation, namely the FETÖ/PDY organisation. After describing the characteristics of that organisation and its covert structure within the judiciary, it set out the following items of evidence against the applicant: the statements by two anonymous witnesses (see paragraphs 33-34 above); the statements by a former rapporteur of the Constitutional Court accused of belonging to the FETÖ/PDY organisation (see paragraphs 35-36 above); the messages exchanged via ByLock and other facts (relating to information about telephone lines and records of journeys abroad). 44. In a summary judgment of 6 March 2019 the 9th Criminal Division of the Court of Cassation sentenced the applicant to eleven years and three months’ imprisonment, in accordance with Article 314 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713), for membership of an armed terrorist organisation.", "The judgment indicated that the applicant had fifteen days in which to lodge an appeal with the plenary criminal divisions of the Court of Cassation. G. Other individual applications 45. The applicant also lodged two further individual applications with the Constitutional Court. In his application of 3 July 2017 he alleged a violation of Articles 6, 8 and 14 of the Convention. In his application of 26 July 2018 he complained in particular that the length of his pre-trial detention had been excessive.", "According to the material available to the Court, both cases are still pending before the Constitutional Court. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant provisions of the Constitution 46. Article 11 of the Constitution provides: “The provisions of the Constitution are fundamental legal rules binding on the legislative, executive and judicial organs, the administrative authorities and all other institutions and individuals.", "Laws shall not be contrary to the Constitution.” 47. Article 15 of the Constitution reads as follows: “In the event of war, general mobilisation, a state of siege or a state of emergency, the exercise of fundamental rights and freedoms may be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution [in relation to those rights and freedoms] may be taken to the extent required by the situation, provided that obligations under international law are not violated. Even in the circumstances listed in the first paragraph, there shall be no violation of: the individual’s right to life, except where death occurs as a result of acts compatible with the law of war; the right to physical and spiritual integrity; freedom of religion, conscience and thought or the rule that no one may be compelled to reveal his or her beliefs or blamed or accused on account of them; the prohibition of retrospective punishment; or the presumption of the accused’s innocence until a final conviction.” 48. The relevant parts of Article 19 of the Constitution read as follows: “Everyone has the right to personal liberty and security. ...", "Individuals against whom there are strong presumptions of guilt may be detained only by order of a judge and for the purposes of preventing their absconding or the destruction or alteration of evidence, or in any other circumstances provided for by law that also necessitate their detention. No one shall be arrested without an order by a judge except when caught in flagrante delicto or where a delay would have a harmful effect; the conditions for such action shall be determined by law. ... A person who has been arrested or detained shall be brought before a judge within forty-eight hours at the latest or, in the case of offences committed jointly with others, within four days, not including the time required to convey the person to the nearest court to the place of detention. No one shall be deprived of his or her liberty after the expiry of the aforementioned periods except by order of a judge. These periods may be extended during a state of emergency or a state of siege or in time of war.", "...” B. Law no. 6216 on the establishment and rules of procedure of the Constitutional Court 49. The relevant parts of Law no. 6216, published in the Official Gazette on 3 April 2011, provide as follows: Preliminary examination (inceleme) and investigation (soruşturma) in respect of the President and members [of the Constitutional Court] Section 16 “(1) The opening of an investigation in respect of the President and members [of the Constitutional Court] for offences allegedly committed in connection with or during the performance of their official duties, ordinary offences and disciplinary offences shall be subject to a decision by the plenary court.", "However, in cases of discovery in flagrante delicto falling within the jurisdiction of the assize courts (ağır ceza mahkemesinin görevine giren suçüstü hâllerinde), the investigation shall be conducted in accordance with the rules of ordinary law. ... (3) Where appropriate, the President may appoint a member to carry out a preliminary examination of the case before it is referred to the plenary court. After completing the preliminary examination, the member thus appointed ... shall submit a report to the President. (4) Once the case has been placed on the agenda by the President, the plenary court shall deliberate on it. The member concerned may not take part in the deliberations.", "Where the plenary court decides not to open an investigation, the member concerned and the complainants shall be notified of the decision. (5) Where a decision is taken to open an investigation, the plenary court shall elect three of its members to form the investigation committee. The investigation committee shall be chaired by the senior member. It shall be vested with all the powers conferred upon the public prosecutor by the Code of Criminal Procedure (Law no. 5271 of 4 December 2004).", "Any procedural steps requested by the investigation committee shall be carried out immediately by the competent local judicial bodies. ...” Judicial investigation and prosecution Section 17 “(1) Except in cases of discovery in flagrante delicto of ordinary offences within the jurisdiction of the assize courts, preventive measures against the President and members [of the Constitutional Court] on account of alleged offences committed in connection with or during the performance of official duties may be ordered only in accordance with the provisions of this section. (2) In cases of discovery in flagrante delicto of ordinary offences within the jurisdiction of the assize courts, the investigation shall be conducted in accordance with the rules of ordinary law. Where an indictment is drawn up, the prosecution shall be conducted by the plenary criminal divisions of the Court of Cassation [since 2 January 2017: ‘by the appropriate criminal division of the Court of Cassation’]. (3) In the case of alleged offences committed in connection with or during the performance of official duties and also of ordinary offences, except in cases of discovery in flagrante delicto of ordinary offences within the jurisdiction of the assize courts, where the investigation committee requests a preventive measure as provided for in Law no.", "5271 [the CCP] and other laws the plenary court shall give a decision on the request. (4) Where the investigation committee, after completing its investigation, considers that no charges are necessary, it shall give a decision not to prosecute. If the committee considers it appropriate to bring charges, it shall refer the matter to the Constitutional Court, in the case of offences linked to the performance of official duties, in order for it to adjudicate as the supreme court, or to the President [of the Constitutional Court], in the case of ordinary offences, in order for him or her to refer the case to the plenary criminal divisions of the Court of Cassation [since 2 January 2017: ‘to the appropriate criminal division of the Court of Cassation’]. The suspect and, where appropriate, the complainants shall be notified of the decisions of the investigation committee.” C. Law no. 5237 of 26 September 2004 instituting the Criminal Code 50.", "Article 309 § 1 of the Criminal Code is worded as follows: “Anyone who attempts to overthrow by force or violence the constitutional order provided for by the Constitution of the Republic of Turkey or to establish a different order in its place, or de facto to prevent its implementation, whether fully or in part, shall be sentenced to aggravated life imprisonment.” 51. Article 314 §§ 1 and 2 of the Criminal Code, which provides for the offence of membership of an illegal organisation, reads as follows: “1. Anyone who forms or leads an organisation with the purpose of committing the offences listed in the fourth and fifth parts of this chapter shall be sentenced to ten to fifteen years’ imprisonment. 2. Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years’ imprisonment.” D. Law no.", "5271 of 4 December 2004 instituting the Code of Criminal Procedure (CCP) 52. The relevant parts of Article 2 of the CCP provide: “... (j) the following shall be classified as cases of discovery in flagrante delicto (suçüstü): 1. an offence in the process of being committed; 2. an offence that has just been committed, and an offence committed by an individual who has been pursued immediately after carrying out the act and has been apprehended by the police, the victim or other individuals; 3. an offence committed by an individual who has been apprehended in possession of items or evidence indicating that the act was carried out very recently. ...” 53. Article 91 § 2 of the CCP provides: “Placement in pre-trial detention shall be dependent on the necessity of this measure for the investigation and on evidence giving rise to a suspicion that the individual has committed an offence.” 54. Article 91 § 5 of the CCP provides that the arrested person or his or her representative, partner or relatives may lodge an objection against the arrest, the police custody order or the extension of the police custody period with a view to securing the person’s release.", "The objection must be examined within twenty-four hours at the latest. 55. The relevant parts of Article 100 §§ 1 and 2 of the CCP provide: “1. If there are facts giving rise to a strong suspicion that the [alleged] offence has been committed and to a ground for pre-trial detention, a detention order may be made in respect of a suspect or an accused. Pre-trial detention may only be ordered in proportion to the sentence or preventive measure that could potentially be imposed, bearing in mind the significance of the case.", "2. In the cases listed below, a ground for detention shall be presumed to exist: (a) if there are specific facts grounding a suspicion of a flight risk ...; (b) if the conduct of the suspect or accused gives rise to a suspicion (1) of a risk that evidence might be destroyed, concealed or tampered with; (2) of an attempt to put pressure on witnesses or other individuals ...” For certain offences listed in Article 100 § 3 of the CCP (the so-called “catalogue offences”), there is a statutory presumption of the existence of grounds for detention. The relevant passages of Article 100 § 3 of the CCP read: “3. If there are facts giving rise to a strong suspicion that the offences listed below have been committed, it can be presumed that there are grounds for detention: (a) for the following crimes provided for in the Criminal Code (no. 5237 of 26 September 2004): ... 11. crimes against the constitutional order and against the functioning of the constitutional system (Articles 309, 310, 311, 313, 314 and 315); ...” Article 101 of the CCP provides that reasons must be given for extending detention and for finding that alternative measures would be insufficient.", "Under Article 109 of the CCP, as in force at the material time, even if all the grounds for detention were present, the court had the option of placing a suspect under judicial supervision instead of ordering detention where the suspect faced a maximum sentence of three years’ imprisonment. 56. Article 141 § 1 (a) of the CCP provides: “Compensation for damage ... may be claimed from the State by anyone ...: (a) who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law; ...” 57. Article 142 § 1 of the CCP reads as follows: “The claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final.” 58. According to the practice of the Court of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a claim brought under Article 141 of the CCP for compensation for the excessive length of pre-trial detention (decisions E.2014/21585, K.2015/10868 and E. 2014/6167, K. 2015/10867).", "E. Jurisdiction of the assize courts 59. Under section 12 of Law no. 5235 of 7 October 2004, the offence of membership of an armed organisation falls within the jurisdiction of the assize courts. F. Relevant case-law 60. In a judgment of 20 April 2015 (E.2015/1069, K.2015/840) the 16th Criminal Division of the Court of Cassation held as follows: “...", "The offence of membership of an armed organisation is committed by means of voluntary submission to the organisation’s hierarchy and acceptance of the organisation’s founding aims and its activities ... Although the offence is completed by the act of joining the organisation, it continues to be committed throughout membership ...” 61. In a judgment of 6 April 2016 (E.2015/7367, K.2016/2130) the same Criminal Division of the Court of Cassation held as follows: “The continuing nature of an offence ends at the time of the arrest. Where acts of a certain seriousness that are capable of [achieving] the organisation’s aims are carried out between the time of joining the organisation and the time of the arrest, consideration must be given both to the legal rules governing each of the offences and to the provisions governing the combination of offences ...” 62. In a judgment of 18 July 2017 (E.2016/7162, K.2017/4786) the same division held: “...", "Membership of an organisation is punishable under Article 220 § 2 of the Criminal Code. ... A member of an organisation is a person who adheres to the hierarchy [of the structure] and as a result submits to the will of the organisation by being ready to discharge the duties entrusted to him or her. [Membership of] an organisation means joining it, having a bond with it and submitting to its hierarchical authority. A member of the organisation must have an organic link with it and participate in its activities. Although it is not an essential prerequisite for punishment of a member of an organisation that the member has committed an offence in connection with the organisation’s activities and for the achievement of its aims, the individual must nevertheless have made a specific material or moral contribution to the organisation’s actual existence and moral reinforcement.", "As membership is a continuing offence, such acts must be of a certain intensity ... The fact of belonging to the organisation, which constitutes a continuing offence, is treated as a single offence up to the termination of a legal and factual situation. Membership of the organisation ends with the individual’s arrest, the dissolution of the organisation, or the individual’s exclusion or departure from the organisation. ... Offence of creating and being a member of a terrorist organisation: For a structure to be classified as a terrorist organisation under Article 314 of the Criminal Code, in addition to satisfying the essential requirements for the existence of an organisation as set forth in Article 220 of the Criminal Code, the organisation must also be established with the aim of committing the offences [listed in certain chapters of the Criminal Code] ... and must also have access to sufficient weapons or the possibility of using them in order to achieve that aim ...” 63. In a leading judgment of 10 October 2017 (E.2017/YYB-997, K.2017/404) the plenary criminal divisions of the Court of Cassation ruled on the jurisdiction of the assize courts in relation to alleged offences by members of the judiciary.", "They held as follows: “... as the current and consistent position of the Court of Cassation makes clear, regarding the offence of membership of an armed terrorist organisation, which is a continuing offence, except in cases where [its continuing nature ends with] the dissolution of the organisation or termination of membership, the continuing nature [of the offence] may be interrupted by the offender’s arrest. The time and place of the offence must therefore be established to that end. For this reason, there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation, and [consequently] the investigation must be carried out in accordance with the provisions of ordinary law ...” 64. In a judgment of 11 January 2018 (no. 2016/23672) concerning the detention of a journalist, Mehmet Hasan Altan, the Constitutional Court examined a complaint concerning the lawfulness of that measure (see Mehmet Hasan Altan v. Turkey, no.", "13237/17, §§ 35-44, 20 March 2018). After examining the evidence forming the basis for the applicant’s pre-trial detention, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the case before it. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution. On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless.", "Accordingly, it held that Mr Altan’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached. III. COUNCIL OF EUROPE DOCUMENTS 65. The Government referred to Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States, entitled “Judges: independence, efficiency and responsibilities” and adopted on 17 November 2010. The relevant parts of the Recommendation read as follows: “Liability and disciplinary proceedings 66.", "The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence. ... 68. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice. ... 71. When not exercising judicial functions, judges are liable under civil, criminal and administrative law in the same way as any other citizen.” IV.", "NOTICE OF DEROGATION BY TURKEY 66. On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation: “I communicate the following notice of the Government of the Republic of Turkey. On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.", "The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20 July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/1b). ... The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016.", "Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention. I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate.", "...” THE LAW I. PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY 67. The Government emphasised at the outset that all of the applicant’s complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21 July 2016 under Article 15 of the Convention. Article 15 provides: “1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.", "2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.” A.", "The parties’ submissions 68. The Government submitted that in availing itself of its right to make a derogation from the Convention, Turkey had not breached the provisions of the Convention. In that context, they noted that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation. 69. The Government submitted in particular that recourse to pre-trial detention had been inevitable in the prevailing circumstances, since alternative measures to detention were manifestly inadequate.", "They pointed out that many individuals suspected of belonging to or providing aid and assistance to the FETÖ/PDY organisation had fled the country despite being banned from doing so. That being so, the Government maintained that following the coup attempt, the detention of such individuals had been the only appropriate and proportionate choice. 70. The applicant submitted in reply that Article 15 of the Convention permitted derogations from the obligations under the Convention only “to the extent strictly required by the exigencies of the situation” and that the Court should therefore find a violation of Article 5 of the Convention. B.", "The Court’s assessment 71. The Court considers that the question thus arising is whether the conditions laid down in Article 15 of the Convention for the exercise of the exceptional right of derogation were satisfied in the present case. 72. In this connection, the Court notes firstly that the notice of derogation by Turkey, indicating that a state of emergency has been declared in order to tackle the threat posed to the life of the nation by the severe dangers resulting from the attempted military coup and other terrorist acts, does not explicitly mention which Articles of the Convention are to form the subject of a derogation. Instead, it simply announces that “measures taken may involve derogation from the obligations under the Convention”.", "73. However, the Court observes that the applicant did not dispute that the notice of derogation by Turkey satisfied the requirement laid down in Article 15 § 3 of the Convention. It further notes that in Mehmet Hasan Altan v. Turkey (no. 13237/17, § 93, 20 March 2018) it held, in the light of the Constitutional Court’s findings on this point and all the other material in its possession, that the attempted military coup had disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. In addition, it takes note of the position expressed by the Turkish Constitutional Court, which in its judgment of 11 January 2018 found that the case brought by the applicant should be examined under Article 15 of the Constitution, by which, in an emergency, the exercise of fundamental rights and freedoms may be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution in relation to those rights and freedoms may be taken (see paragraph 41 above).", "74. In the light of the foregoing, the Court is prepared to accept that the formal requirement of the derogation has been satisfied and that there was a public emergency threatening the life of the nation (see Mehmet Hasan Altan, cited above, § 89). With regard to the scope ratione temporis and ratione materiae of the derogation – a question which the Court could raise of its own motion, seeing that the date of the applicant’s initial detention under the relevant legislation was 20 July 2016, one day before the state of emergency took effect – it considers that, in view of its conclusion below (see paragraphs 119 and 148-49 below), it does not have to determine this issue here. 75. In any event, the Court observes that the applicant’s detention on 20 July 2016, following his arrest on 16 July 2016, occurred a very short time after the attempted coup – the event that prompted the declaration of a state of emergency.", "It considers that this is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case (see, mutatis mutandis, Hassan v. the United Kingdom [GC], no. 29750/09, § 103, ECHR 2014). II. ADMISSIBILITY A. Complaints concerning the applicant’s arrest and detention in police custody 76.", "The Government raised two objections of failure to exhaust domestic remedies in respect of the applicant’s arrest and detention in police custody. Firstly, they argued that he should have lodged an objection against his arrest on the basis of Article 91 § 5 of the CCP – a remedy that was capable of ending the deprivation of liberty complained of by the applicant. Secondly, they submitted that a compensation claim had been available to him under Article 141 § 1 (a) of the CCP. In support of their contentions, they produced two judgments delivered by the 12th Criminal Division of the Court of Cassation, from which it could be seen that the complainants had received compensation for being unlawfully deprived of their liberty. 77.", "The applicant contested the Government’s argument. He asserted that a compensation claim did not offer reasonable prospects of success in terms of securing his release. 78. As regards complaints concerning the lawfulness of arrest and detention in police custody, the Court observes that the Turkish legal system provides two remedies in that respect, namely an objection aimed at securing release from custody (Article 91 § 5 of the CCP) and a compensation claim against the State (Article 141 § 1 (a) of the CCP) (see Mustafa Avci v. Turkey, no. 39322/12, § 63, 23 May 2017).", "79. The Court notes in this connection that the Turkish Constitutional Court dismissed the applicant’s complaints concerning his arrest and detention in police custody, finding that he had not availed himself of the remedies afforded by the domestic system (see paragraph 30 above). 80. In the light of the Constitutional Court’s conclusion on this issue, the Court considers that, as regards the above-mentioned complaints, the applicant was required to use at least one of the remedies afforded by the national legal system, namely an objection aimed at securing release from custody (Article 91 § 5 of the CCP) and a compensation claim against the State (Article 141 § 1 (a) of the CCP). However, it notes that the applicant did not avail himself of those remedies.", "It therefore allows the Government’s objection and rejects the complaints concerning the applicant’s arrest and detention in police custody for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (see Mehmet Hasan Altan, cited above, § 101). B. Complaints concerning the applicant’s initial detention 81. With regard to the complaints under Article 5 of the Convention concerning the lawfulness of the order for the applicant’s pre-trial detention, the Government again stated that a compensation claim had been available to him under Article 141 § 1 (a) and (d) of the CCP. They further submitted that in his individual application lodged on 7 September 2016 with the Constitutional Court (see paragraph 29 above), the applicant had not raised any complaints under Article 5 § 3 of the Convention.", "In that connection they drew the Court’s attention to the individual application lodged with the Constitutional Court on 26 July 2018 in which the applicant had complained in particular of the length of his pre-trial detention. They pointed out that that application was still pending before the Constitutional Court (see paragraph 45 above). Accordingly, they urged the Court to declare these complaints inadmissible for failure to exhaust domestic remedies. 82. In addition, after summarising the Constitutional Court’s judgment rejecting the applicant’s complaints concerning the lawfulness of his pre-trial detention and the alleged lack of reasonable suspicion that he had committed a criminal offence, the Government submitted that a decision had been adopted at national level on the issues of which they had been given notice by the Court and that a legal assessment had been conducted on the basis of those complaints.", "Referring to Pentikäinen v. Finland ([GC], no. 11882/10, § 111, ECHR 2015) and Bédat v. Switzerland ([GC], no. 56925/08, § 54, 29 March 2016), they contended that the applicant did not have victim status. 83. The applicant contested the Government’s argument.", "He asserted that a compensation claim did not offer reasonable prospects of success in terms of securing his release. 84. With regard to the applicant’s complaints concerning his pre-trial detention, the Court reiterates that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Mehmet Hasan Altan, cited above, § 103). It notes, however, that the remedy provided for in Article 141 of the CCP is not capable of terminating the applicant’s deprivation of liberty. The Court therefore concludes that the objection raised by the Government on this account must be dismissed.", "85. As to the applicant’s victim status, the Court refers to its consistent and well-established case-law to the effect that a favourable decision or measure is not, in principle, sufficient to deprive applicants of their status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). In the present case, it fails to see how a decision declaring all of the applicant’s complaints inadmissible can deprive him of victim status. 86.", "Lastly, the Court does not accept the Government’s argument that the complaint under Article 5 § 3 of the Convention should be rejected for failure to exhaust domestic remedies on the grounds that the applicant had not raised such a complaint in the context of his individual application to the Constitutional Court giving rise to the judgment of 11 January 2018. The Court observes firstly that the application before it does not concern the length of the applicant’s pre-trial detention. Consequently, the individual application which the applicant lodged on 26 July 2018 – complaining of the length of his pre-trial detention – and which is still pending before the Constitutional Court (see paragraph 45 above) is of no relevance to the present case, seeing that, as the Government indicated, he did not raise a complaint of that kind before the Court. However, the Court observes that in his application form the applicant raised a complaint alleging that insufficient reasons had been given for the order for his pre-trial detention. In this connection it would emphasise that it held in Buzadji v. the Republic of Moldova ([GC], no.", "23755/07, § 102, 5 July 2016) that the requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion that the arrested person had committed an offence – already applied at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest. When it gave notice of the application in the present case, the Court, referring to the case-law cited above and to Article 5 §§ 1 (c) and 3 of the Convention, put a question to the parties concerning the alleged lack of reasons for the pre-trial detention order, given that the applicant had expressly raised this complaint before the Constitutional Court (see paragraph 29 above). Furthermore, the Court observes, in the light of the Constitutional Court’s reasoning in its judgment, that this complaint – concerning solely the order for the applicant’s pre-trial detention – was central to the assessment performed by that court, although it did not provide specific reasoning on that issue. The Court therefore dismisses this preliminary objection. 87.", "Observing that the complaints concerning the lawfulness of the applicant’s pre-trial detention, the alleged lack of reasonable suspicion that he had committed an offence and the alleged failure to provide reasons for his initial pre-trial detention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds, the Court declares them admissible. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 88. The applicant complained that he had been arbitrarily placed in pre-trial detention, in breach of domestic law, namely Law no. 6216.", "He also argued that there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. He complained on that account of a violation of Article 5 of the Convention, without specifying the exact provisions on which he was relying. The Court considers it appropriate to examine these complaints under Article 5 §§ 1 and 3 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...” 89. The Government contested the applicant’s argument.", "A. Lawfulness of the applicant’s pre-trial detention 1. The parties’ submissions (a) The applicant 90. The applicant submitted that on account of his position as a judge at the Constitutional Court, he enjoyed a special status in criminal investigations of which he was the subject. Under section 16 of Law no. 6216, the opening of a criminal investigation in respect of members of the Constitutional Court was in principle subject to a decision by the plenary court.", "He accepted that in cases of discovery in flagrante delicto falling within the jurisdiction of the assize courts, the investigation could be conducted under the rules of ordinary law. Nevertheless, he had not been specifically accused of having taken part in the attempted coup and this could therefore not be treated as a case of in flagrante delicto. Moreover, such cases were listed in Article 2 of the CCP and his situation clearly did not fall into any of the categories concerned. 91. The applicant added that his alleged offence could only have been committed in connection with the performance of his official duties, given that it was said to relate to actions he had carried out under the instructions of the terrorist organisation.", "(b) The Government 92. The Government stated firstly that the relevant Council of Europe instruments did not preclude the prosecution of a judge suspected of committing an offence. The applicant’s pre-trial detention in the present case had been in accordance with domestic law, which itself was compatible with the Convention. 93. The Government stated that the applicant had been placed in pre-trial detention on the basis of Article 100 of the CCP.", "They pointed out that he was suspected of being a member of the FETÖ/PDY terrorist organisation. Although sections 16 and 17 of Law no. 6216 provided for a special procedure for conducting criminal proceedings against members of the Constitutional Court, in cases of discovery in flagrante delicto falling within the assize courts’ jurisdiction the investigation was conducted in accordance with the rules of ordinary law and preventive measures could be ordered. 94. The Government submitted that the Ankara public prosecutor’s office had called for the applicant to be detained on the basis of suspicion that he had committed the offences of “attempting to overthrow or change the constitutional order” and “membership of an armed terrorist organisation”, in connection with the attempted coup of 15 July 2016.", "Referring to the position taken by the Constitutional Court (see paragraph 123 of the judgment cited in paragraph 42 above), they contended that it was obvious that these were ordinary offences falling within the jurisdiction of the Assize Court, as opposed to offences committed in connection with or during the performance of official duties. 95. The Government further noted that the applicant’s argument that he was entitled to the status granted to members of the Constitutional Court by sections 16 and 17 of Law no. 6216 had not been accepted by the judicial body that had ordered his detention, namely the 2nd Magistrate’s Court. Moreover, the magistrate in question had found that the criminal investigation had been governed by the rules of ordinary law, on the grounds that the suspect’s alleged offence – membership of an armed terrorist organisation – was a “continuing offence” and that there had been a case of discovery in flagrante delicto.", "The Government cited the findings of the Ankara public prosecutor’s office in its summary report of 25 October 2017 in noting that the risk of a coup had not been entirely eliminated at the material time, that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the Assize Court, and that an investigation had therefore been initiated in respect of the applicant on 16 July 2016 on the basis of the provisions of ordinary law. 96. The Government further maintained that it was clearly established in the settled case-law of the Court of Cassation that the offence of membership of an armed terrorist organisation was a continuing offence falling within the jurisdiction of the Assize Court. In addition, they referred to the conclusion reached by the plenary criminal divisions of the Court of Cassation in their judgment of 10 October 2017, to the effect that “there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation, and [consequently] the investigation must be carried out in accordance with the provisions of ordinary law” (see paragraph 63 above). 97.", "The Government submitted in conclusion that, in view of the case-law referred to above and the circumstances of the present case, there had been a situation entailing discovery in flagrante delicto of the offence of membership of an armed terrorist organisation. In support of that argument, they noted that the applicant’s arrest and detention in police custody had taken place following the coup attempt that had been foiled by the authorities during the night of 15 to 16 July 2016. In addition, the applicant had been placed in pre-trial detention on suspicion of the offence of membership of the FETÖ/PDY organisation, a structure regarded as the instigator of the coup attempt and deemed by the courts to constitute an armed terrorist organisation. 98. Accordingly, the Government argued that the applicant’s complaint that he had been placed in pre-trial detention without being afforded the guarantees enshrined in the Constitution and Law no.", "6216 was unfounded, and that his detention in the present case had complied with the relevant legislation. 2. The Court’s assessment (a) Relevant principles 99. The Court would refer to the following principles applicable in this sphere as established in its case-law. Article 5 § 1 of the Convention guarantees the fundamental right to liberty and security, which is of primary importance in a “democratic society” (see Merabishvili v. Georgia [GC], no.", "72508/13, § 181, 28 November 2017). The key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X). More generally, Article 5 is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount (see Buzadji, cited above, § 84). 100.", "All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty, save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention. The list of exceptions set out in Article 5 § 1 is an exhaustive one (see Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000‑IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Mehmet Hasan Altan, cited above, § 123, with further references). 101. It is well established in the Court’s case-law on Article 5 § 1 of the Convention that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful” (see Del Río Prada v. Spain [GC], no.", "42750/09, § 125, ECHR 2013). 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. This primarily requires any arrest or detention to have a legal basis in domestic law. 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. The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty (see Mooren v. Germany [GC], no.", "11364/03, § 72, 9 July 2009, with further references). 102. The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties (see Baka v. Hungary [GC], no. 20261/12, § 165, 23 June 2016, with further references). This consideration, set out in particular in cases concerning the right of judges to freedom of expression, is equally relevant in relation to the adoption of a measure affecting the right to liberty of a member of the judiciary.", "In particular, where domestic law has granted judicial protection to members of the judiciary in order to safeguard the independent exercise of their functions, it is essential that such arrangements should be properly complied with. Given the prominent place that the judiciary occupies among State organs in a democratic society and the growing importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018), the Court must be particularly attentive to the protection of members of the judiciary when reviewing the manner in which a detention order was implemented from the standpoint of the provisions of the Convention. 103. Where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty should be satisfied.", "It is therefore essential that the conditions for deprivation of liberty under domestic law should be clearly defined and that the law itself should be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires all law to be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Del Río Prada, cited above, § 125; Medvedyev and Others v. France, no. 3394/03, § 80, 10 July 2008; Creangă v. Romania [GC], no. 29226/03, § 120, 23 February 2012; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 92, 15 December 2016). (b) Application of the above principles in the present case (i) Article 5 § 1 of the Convention 104.", "The Court observes that the applicant was arrested on 16 July 2016 and taken into police custody on the same day. He was later placed in pre-trial detention on 20 July 2016 on suspicion of being a member of an armed terrorist organisation. Subsequently, on 6 March 2019, he was convicted of that offence. 105. Since the subject of the application is the applicant’s initial detention, the first question to be determined is accordingly whether, as a judge serving on the Constitutional Court at the material time, he was placed in pre-trial detention on 20 July 2016 “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention, following his arrest on 16 July 2016.", "In order to ascertain whether the applicant was “lawfully” detained for the purposes of Article 5 § 1 and was deprived of his liberty “in accordance with a procedure prescribed by law”, the Court will first examine whether his detention complied with Turkish law. 106. The Court notes that it was not disputed among the parties that the applicant was arrested and placed in pre-trial detention on the basis of Articles 100 et seq. of the CCP, notwithstanding the guarantees afforded to members of the Constitutional Court under the relevant legislation. The question to which the parties’ arguments and differing positions relate is whether the applicant’s detention – as a judge serving on the Constitutional Court at the time of the events and as such enjoying a special status – under the rules of ordinary law may be said to satisfy the “quality of the law” requirement.", "107. The Court observes that the applicant’s argument on this issue was raised before the Constitutional Court, which held, with reference to the case-law of the Court of Cassation, that the measure in question, ordered in accordance with the rules of ordinary law, complied with the relevant legislation. In the Constitutional Court’s view, notwithstanding the procedural safeguards afforded to its members by the Constitution and Law no. 6216, it could not be concluded “that there was no factual and legal basis for the finding by the investigating bodies that the offence of membership of an armed terrorist organisation, of which [the applicant] was accused, involved a situation of discovery in flagrante delicto” (see paragraph 42 above). 108.", "The Court observes that it has not been alleged that the applicant was arrested and placed in pre-trial detention while in the process of committing an offence linked to the attempted coup of 15 July 2016, although the Ankara public prosecutor’s office, in its instructions of 16 July 2016, also mentioned the offence of attempting to overthrow the constitutional order. In fact, the latter offence was not taken into consideration by the magistrate who subsequently questioned the applicant and ordered his pre-trial detention (see paragraphs 19-20 above). The applicant was therefore deprived of his liberty primarily on suspicion of membership of FETÖ/PDY, a structure considered by the investigating authorities and the Turkish courts to be an armed terrorist organisation that had premeditated the coup attempt. The Constitutional Court found that those aspects constituted the factual and legal basis for the finding by the investigating authorities that there had been a case of discovery in flagrante delicto. In reaching that conclusion, it referred to recent case-law of the Court of Cassation (see paragraph 42 above).", "109. On this point, the Court notes that in a leading judgment adopted on 10 October 2017, the plenary criminal divisions of the Court of Cassation held that at the time of the arrest of judges suspected of the offence of membership of an armed organisation, there was a situation of discovery in flagrante delicto (see paragraph 63 above). The leading judgment indicates that in cases involving an alleged offence of membership of a criminal organisation, it is sufficient that the conditions laid down in Article 100 of the CCP are satisfied in order for a suspect who is a member of the judiciary to be placed in pre-trial detention on the grounds that there is a case of discovery in flagrante delicto. This new judicial interpretation of the concept of in flagrante delicto, adopted long after the applicant was taken into detention, was based on the settled case-law of the Court of Cassation concerning continuing offences. 110.", "In this connection, the Court observes that, as it has frequently held, it has only limited power to deal with alleged errors of fact or law committed by the national courts, which have primary responsibility for interpreting and applying domestic law. Unless their interpretation is arbitrary or manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007-I), the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015).", "The Court is therefore required to verify whether the way in which domestic law is interpreted and applied in the cases before it is consistent with the Convention (see, mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). 111. On this issue, the Court would emphasise that in general, the principle of legal certainty may be compromised if domestic courts introduce exceptions in their case-law which run counter to the wording of the applicable statutory provisions. In this connection, the Court observes that Article 2 of the CCP provides a conventional definition of the concept of in flagrante delicto, which is linked to the discovery of an offence while or immediately after it is committed.", "However, according to the case-law of the Court of Cassation as cited above, a suspicion – within the meaning of Article 100 of the CCP – of membership of a criminal organisation may be sufficient to characterise a case of discovery in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act. 112. In the Court’s view, this amounts to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary, including the applicant, a judge serving on the Constitutional Court and hence entitled to such protection under Law no. 6216. As a result, in circumstances such as those of the present case, this interpretation negates the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.", "113. The Court observes that judicial protection of this kind is granted to judges not for their own personal benefit but in order to safeguard the independent exercise of their functions (see paragraph 102 above). As the Government rightly pointed out, such protection does not mean impunity. Its purpose is to ensure that the judicial system in general and its members in particular are not subjected, while discharging their judicial functions, to unlawful restrictions by bodies outside the judiciary, or even by judges performing a supervisory or review function. In this connection, it is important to note that Turkish legislation does not prohibit the detention of a member of the Constitutional Court, provided that the safeguards enshrined in the Constitution and Law no.", "6216 are observed. Indeed, judicial immunity may be lifted by the Constitutional Court itself and prosecutions may be brought and preventive measures ordered, such as pre-trial detention, in accordance with the procedure set out in sections 16 and 17 of that Law. 114. Furthermore, from a reading of the Court of Cassation’s judgment of 10 October 2017 (see paragraph 63 above) the Court cannot see how that court’s settled case-law concerning the concept of a continuing offence could have justified extending the scope of the concept of discovery in flagrante delicto, which relates to the existence of a current criminal act, as provided in Article 2 of the CCP (see paragraph 52 above). It appears from previous judgments of the Court of Cassation that it developed that approach for the purpose of determining the characteristics of continuing offences, the jurisdiction of the criminal courts and the applicability of the rule on limitation periods for prosecution in such cases (see paragraphs 60‑62 above).", "115. In the light of the foregoing, the Court concludes that the national courts’ extension of the scope of the concept of in flagrante delicto and their application of domestic law in the present case are not only problematic in terms of legal certainty (see paragraph 103 above), but also appear manifestly unreasonable. Accordingly, the applicant’s detention, ordered on the basis of Article 100 of the CCP in conditions depriving him of the procedural safeguards afforded to members of the Constitutional Court, did not take place in accordance with a procedure prescribed by law, as required by Article 5 § 1 of the Convention. (ii) Article 15 of the Convention 116. When the Court comes to consider a derogation under Article 15, it allows the national authorities a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency.", "Nonetheless, it is ultimately for the Court to rule whether the measures were “strictly required”. In particular, where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 184, ECHR 2009). 117. The Court observes at the outset that the application in the present case does not strictly involve the measures taken to derogate from the Convention during the state of emergency and mainly concerns the applicant’s detention on 20 July 2016 following his arrest on 16 July 2016.", "It should be noted that during the state of emergency, the Council of Ministers, chaired by the President and acting in accordance with Article 121 of the Constitution, passed thirty-seven legislative decrees (nos. 667-703). The decrees did indeed place significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention (for example, extension of the police custody period, and restrictions on access to case files and on the examination of objections against detention orders; see paragraph 13 above). However, in the present case the applicant was taken into police custody and subsequently into pre-trial detention mainly on suspicion of membership of an armed terrorist organisation, an offence punishable under Article 314 of the Criminal Code. It should be noted in particular that the legislation applicable in his case, namely Article 100 of the CCP and the provisions governing the status of judges at the Constitutional Court, was not amended during the state of emergency.", "Instead, the measures complained of in the present case were taken on the basis of legislation which was in force prior to and indeed after the declaration of the state of emergency, and which, moreover, is still applicable. 118. The Court considers in this connection that an extensive interpretation of the concept of in flagrante delicto can clearly not be regarded as an appropriate response to the state of emergency. Such an interpretation, which, moreover, was not adopted in response to the exigencies of the state of emergency, is not only problematic in terms of the principle of legal certainty, but also, as already noted (see paragraph 112 above), negates the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive. In addition, it has legal consequences reaching far beyond the legal framework of the state of emergency.", "Accordingly, it is in no way justified by the special circumstances of the state of emergency. 119. Having regard to the foregoing, the Court finds that the decision to place the applicant in pre-trial detention, which was not taken “in accordance with a procedure prescribed by law”, cannot be said to have been strictly required by the exigencies of the situation (see, mutatis mutandis, Mehmet Hasan Altan, cited above, § 140). There has therefore been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s pre-trial detention. B.", "Alleged lack of reasonable suspicion that the applicant committed an offence 1. The parties’ submissions (a) The applicant 120. The applicant submitted that there were no facts or information that could satisfy an objective observer that he had committed the offence of which he was accused. In particular, he argued that at the time when his detention had been ordered by the magistrate, the investigating bodies and the judicial authorities had had no evidence to justify that measure. There had been scarcely any difference between his situation on 16 July 2016 and on 14 July 2016, the day before the coup attempt.", "Furthermore, the evidence referred to in the summary report and in the Constitutional Court’s judgment had been obtained after he had been placed in pre-trial detention and in any event provided no indication that he had been caught perpetrating criminal acts and/or arrested and detained on reasonable suspicion of having committed an offence. 121. In addition, the applicant disputed the relevance of all the evidence obtained after he had been taken into detention. He argued that the statements by the suspect and the two anonymous witnesses that had been admitted in evidence against him were not such as to justify the suspicion against him, since they mainly involved subjective observations or assessments. As for the digital evidence, he categorically rejected it.", "(b) The Government 122. The Government submitted that the FETÖ/PDY organisation was an atypical terrorist organisation which had extensively infiltrated influential State institutions and the judicial system under the guise of lawfulness. It had developed its structure by building its own network across all domains, including the media, trade unions, finance and education. It had also sought to control media outlets in order to ensure that they carried out activities corresponding to its aims, and to that end it had surreptitiously placed its members in media outlets, institutions and organisations not affiliated to it. In that way, the organisation in question had manipulated public opinion in line with its aims, by sending out “subliminal” messages from time to time.", "123. With regard to the present case, the Government stated firstly that the order for the applicant’s pre-trial detention indicated that there was concrete evidence giving rise to strong suspicion against him. Furthermore, in the summary report issued on 25 October 2017 by the Ankara public prosecutor’s office, reference had been made to the statements by anonymous witnesses and suspects, the content of messages exchanged between other individuals via ByLock and information about signals from mobile telephones as evidence showing that the applicant had committed the offence of membership of an armed terrorist organisation. 124. After summarising the contents of the evidence in the file and the Constitutional Court’s judgment declaring the applicant’s individual application inadmissible, the Government submitted that in view of the very specific circumstances surrounding the coup attempt, the extent to which the FETÖ/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was one of the “catalogue” offences, the applicant’s pre-trial detention could be said to have been based on justifiable grounds and proportionate.", "There had been a risk that individuals involved in the coup attempt and those who had not been directly involved but had links to the FETÖ/PDY organisation – which had been identified as the instigator of the attempted coup – might abscond, tamper with evidence or take advantage of the disorder that had emerged during or after the coup attempt. Supporting their argument by referring to the position taken by the Constitutional Court (see paragraph 42 above), the Government contended that those circumstances had entailed a higher risk than might arise in what could be described as “normal” circumstances, and it was obvious that the applicant, as a member of the Constitutional Court, might be in an easier position than others to interfere with the evidence. 125. The Government accordingly submitted, taking into account the general context at the time of the order for the applicant’s pre-trial detention, the particular circumstances of the case as set out above and the contents of that order, that the grounds for the measure in question could not be said to be devoid of any factual basis, given that the risk of his absconding and tampering with evidence had formed such a basis. 2.", "The Court’s assessment (a) Relevant principles 126. The Court reiterates that a person may be detained under Article 5 § 1 (c) of the Convention only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000‑IX, and Mehmet Hasan Altan, cited above, § 124). The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.", "What may be regarded as “reasonable” will, however, depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182; O’Hara v. the United Kingdom, no. 37555/97, § 34, ECHR 2001‑X; and Mehmet Hasan Altan, cited above, § 125). 127. The Court further reiterates that Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities have obtained sufficient evidence to bring charges at the time of arrest.", "The purpose of questioning during detention under Article 5 § 1 (c) is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A, and Yüksel and Others v. Turkey, nos. 55835/09 and 2 others, § 52, 31 May 2016). 128.", "The Court’s task is to determine whether the conditions laid down in Article 5 § 1 (c) of the Convention, including the pursuit of the prescribed legitimate purpose, have been fulfilled in the case brought before it. In this context it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts, which are better placed to assess the evidence adduced before them (see Mergen and Others v. Turkey, nos. 44062/09 and 4 others, § 48, 31 May 2016, and Mehmet Hasan Altan, cited above, § 126). 129. As it has consistently held, when assessing the “reasonableness” of a suspicion, the Court must be able to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured.", "Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine ; O’Hara, cited above, § 35; and Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 89, 22 May 2014). 130. The Court would also reiterate that the suspicions against a person at the time of his or her arrest must be “reasonable” (see Fox, Campbell and Hartley, cited above, § 33). This applies a fortiori when a suspect is detained.", "The reasonable suspicion must exist at the time of the arrest and initial detention (see Ilgar Mammadov, cited above, § 90). Furthermore, the requirement for the judge or other judicial officer to give relevant and sufficient reasons in support of detention – in addition to the persistence of reasonable suspicion – already applies at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see Buzadji, cited above, § 102). (b) Application of the above principles in the present case (i) Article 5 § 1 of the Convention 131. In the present case the Court observes that the applicant was taken into police custody on 16 July 2016, the day after the coup attempt, on suspicion of being a member of a terrorist organisation and that he was placed in pre-trial detention on 20 July 2016. It further notes that in a bill of indictment filed on 15 January 2018, the public prosecutor’s office at the Court of Cassation sought the applicant’s conviction under Article 314 of the Criminal Code for membership of the FETÖ/PDY organisation.", "On 6 March 2019 he was convicted by the 9th Criminal Division of the Court of Cassation, hearing the case as a first-instance court. 132. The Court takes note of the applicant’s position that there were no facts or information that could satisfy an objective observer that he had committed the offence of which he was accused. In particular, the applicant contended that the evidence referred to by the Government had been obtained a long time after his arrest and initial detention and that as a result, at the time his detention had been ordered, the investigating bodies and the judicial authorities had had no evidence that could justify such a measure. 133.", "The Court must have regard to all the relevant circumstances in order to determine whether there was any objective information showing that the suspicion against the applicant was “reasonable” at the time of his initial detention. It notes that the Government argued that in view of the very specific circumstances surrounding the coup attempt, the extent to which the FETÖ/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was one of the “catalogue” offences, the applicant’s pre-trial detention could be said to have been based on justifiable grounds and proportionate. It observes that the Government also maintained that the order for the applicant’s pre-trial detention indicated that there was concrete evidence giving rise to strong suspicion against him. Lastly, it observes that the Government substantiated their arguments by referring to the summary report issued on 25 October 2017 by the Ankara public prosecutor’s office. 134.", "The Court considers that the very specific context of the present case calls for a high level of scrutiny of the facts. In this connection, it is prepared to take into account the difficulties facing Turkey in the aftermath of the attempted military coup of 15 July 2016 (see Mehmet Hasan Altan, cited above, § 210). 135. The Government emphasised the atypical nature of the organisation in question – considered by the Turkish courts to have premeditated the coup attempt of 15 July 2016 – and argued that it had extensively infiltrated influential State institutions and the judicial system under the guise of lawfulness (see paragraph 122 above). Such alleged circumstances might mean that the “reasonableness” of the suspicion justifying detention cannot be judged according to the same standards as are applied in dealing with conventional offences (see, for similar reasoning, Fox, Campbell and Hartley, cited above, § 32).", "136. Nevertheless, in the Court’s view the exigencies of dealing with organised crime cannot justify stretching the notion of “reasonableness” to the point where the essence of the safeguard secured by Article 5 § 1 (c) of the Convention is impaired (compare Fox, Campbell and Hartley, cited above, § 32). The Court’s task in the present case is therefore to ascertain whether there were sufficient objective elements at the time of the applicant’s initial detention to satisfy an objective observer that he could have committed the offence of which he was accused by the prosecuting authorities. In so doing, it must assess whether the measure in question was justified on the basis of information and facts available at the relevant time which had been submitted to the scrutiny of the judicial authorities that ordered the measure. It should be borne in mind that these considerations are especially important for members of the judiciary, and in this instance the applicant, a member of the Constitutional Court at the time he was placed in pre-trial detention (see paragraph 102 above).", "137. The Court notes that in examining the measure in issue, the Constitutional Court, after describing the characteristics of the FETÖ/PDY organisation and its covert structure within the judiciary, referred to the following items of evidence against the applicant: the statements by two anonymous witnesses; the statements by a former rapporteur of the Constitutional Court accused of belonging to the FETÖ/PDY organisation; the messages exchanged via ByLock and other facts (relating to information about telephone lines and records of journeys abroad) (see paragraphs 32-40 above). 138. It should be noted, however, that these items of evidence were gathered long after the applicant’s initial detention. The first item to be obtained, namely the statement by an anonymous witness accusing the applicant of being a member of the FETÖ/PDY organisation, was recorded on 4 August 2016, more than two weeks after the applicant had been placed in pre-trial detention.", "The other statements and evidence were obtained a considerable time afterwards. The applicant repeatedly drew the national courts’ attention to this fact, arguing in particular that there was no concrete evidence that could justify his pre-trial detention (see paragraphs 19, 22 and 29 above), and he also reiterated that argument before the Court. However, in the reasoning that led it to dismiss the applicant’s application, the Constitutional Court did not address that argument. Likewise, the Government remained silent on the matter and did not submit any specific argument to counter the applicant’s assertion on that point, even though an examination of the various items of evidence made available to the Court bears out his contentions. 139.", "Accordingly, unlike the Constitutional Court (see paragraph 42 above), the Court considers that it is not necessary to examine these items of evidence, which were obtained long after the applicant’s initial detention, to ascertain whether the suspicion grounding the order for his detention was “reasonable”. It should be noted in this connection that in the context of the present case, the Court’s task is to examine whether the applicant’s initial detention on 20 July 2016 was based on reasonable suspicion, and not whether such suspicion persisted during his ongoing detention. In accordance with the Court’s consistent approach to this matter, although the subsequent gathering of evidence in relation to the charge against the applicant could have reinforced a suspicion linking him to the commission of terrorist-type offences, it could not have formed the sole basis of a suspicion justifying his initial detention (see, to similar effect, Fox, Campbell and Hartley, cited above, § 35). In any event, the Court considers that the subsequent gathering of such evidence does not release the national authorities from their obligation to provide a sufficient factual basis that could justify an applicant’s detention. To conclude otherwise would defeat the purpose of Article 5 of the Convention, namely to prevent arbitrary or unjustified deprivations of liberty.", "140. The Court observes that the applicant was clearly not suspected of having been involved in the events of 15 July 2016. Admittedly, on 16 July 2016, the day after the coup attempt, the Ankara public prosecutor’s office issued instructions describing the applicant as a member of the FETÖ/PDY terrorist organisation and calling for his pre-trial detention (see paragraph 16 above). However, the Government have not produced any “facts” or “information” capable of serving as a factual basis for these instructions by the prosecutor’s office. 141.", "The fact that, before being placed in pre-trial detention, the applicant was questioned on 20 July 2016 in connection with an offence of membership of an illegal organisation reveals, at most, that the police genuinely suspected him of having committed that offence; but that fact alone would not satisfy an objective observer that the applicant could have committed the offence in question. 142. In particular, the Court notes that it does not appear from the order by the magistrate for the applicant’s detention that that measure was based on any factual evidence indicating the existence of a strong suspicion, such as witness statements, or any other fact or information giving cause to suspect the applicant of having committed the offence in question (see paragraph 20 above). Admittedly, the magistrate sought to justify his decision by referring to Article 100 of the CCP and to the evidence in the file. However, he simply cited the wording of the provision in question and listed the material in the file (namely the evidence as it stood, the records included in the file, the decisions of 17 July 2016 by the presidents’ offices at the Court of Cassation and the Supreme Administrative Court, the reports on searches and seizures and the entire contents of the case file), without taking the trouble to specify the individual items in question, even though they concerned not only the applicant but also thirteen other suspects.", "In the Court’s view, the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicant’s detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information that could have justified the suspicion against the applicant, or of any other kinds of verifiable material or facts (see, mutatis mutandis, Lazoroski v. the former Yugoslav Republic of Macedonia, no. 4922/04, § 48, 8 October 2009, and Ilgar Mammadov, cited above, § 97). 143. For the reasons set out above, the Court considers that no specific facts or information giving rise to a suspicion justifying the applicant’s detention were mentioned or produced during the initial proceedings, which nevertheless concluded with the adoption of such a measure in respect of him. 144.", "The Court is mindful of the fact that the applicant’s case has been taken to trial. It notes, however, that the complaint before it relates solely to his initial detention. Moreover, it would emphasise that the fact that he has been convicted by the Court of Cassation, hearing the case as a first-instance court (see paragraph 44 above), has no bearing on its conclusions concerning this complaint, in the examination of which it is called upon to determine whether the measure in issue was justified in the light of the facts and information available at the relevant time, that is, on 20 July 2016. 145. In view of its above analysis, the Court considers that the evidence before it is insufficient to support the conclusion that there was a reasonable suspicion against the applicant at the time of his initial detention.", "Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that there was a “reasonable suspicion”, at the time of the applicant’s initial detention, that he had committed the alleged offence, it finds that their explanations do not meet the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying an individual’s detention. (ii) Article 15 of the Convention 146. As regards the notion of “reasonableness” of the suspicion on which arrest or detention must be based during the state of emergency, the Court observes that the Constitutional Court has already examined the applicability of Article 15 of the Turkish Constitution to a detention order whose lawfulness had been challenged. It held, in particular, that the guarantees of the right to liberty and security would be meaningless if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence (see paragraph 64 above). This conclusion is also valid for the Court’s examination (see Mehmet Hasan Altan, cited above, § 140).", "147. Furthermore, as already noted (see paragraph 135 above), the difficulties facing Turkey in the aftermath of the attempted military coup of 15 July 2016 are undoubtedly a contextual factor which the Court must fully take into account in interpreting and applying Article 5 of the Convention in the present case. Indeed, this consideration played a significant role in the Court’s analysis above (see paragraphs 134-36 and 140 above). This does not mean, however, that the authorities have carte blanche under Article 5 to order the detention of an individual during the state of emergency without any verifiable evidence or information or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion. After all, the “reasonableness” of the suspicion on which deprivation of liberty must be based forms an essential part of the safeguard laid down in Article 5 § 1 (c) (see, mutatis mutandis, O’Hara, cited above, § 34).", "148. More specifically, concerning the order for the applicant’s pre-trial detention on 20 July 2016, the Court notes that it has found that the evidence before it is insufficient to support the conclusion that there was a reasonable suspicion against the applicant at the time of his initial detention (see paragraph 145 above). That being so, the suspicion against him at that time did not reach the required minimum level of reasonableness. Although it was imposed under judicial supervision, the detention order was based on a mere suspicion of membership of a criminal organisation. Such a degree of suspicion cannot be sufficient to justify an order for a person’s detention.", "In these circumstances, the measure in issue cannot be said to have been strictly required by the exigencies of the situation. To conclude otherwise would negate the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion justifying deprivation of liberty and would defeat the purpose of Article 5 of the Convention. In the Court’s view, these considerations are especially important in the present case, given that it involves the detention of a judge serving on a high-level court, in this instance the Constitutional Court. 149. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention in the present case on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence.", "C. Alleged lack of reasons for the order for the applicant’s pre-trial detention 150. Having regard to its finding under Article 5 § 1 of the Convention (see paragraph 149 above), the Court considers that it is unnecessary to examine whether in the present case the authorities satisfied their requirement to give relevant and sufficient reasons for detention – in addition to the persistence of reasonable suspicion that the arrested person had committed an offence – from the time of the first decision ordering pre-trial detention, that is to say “promptly” after the arrest. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 151. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage and costs and expenses 152. The applicant alleged that he had sustained pecuniary damage corresponding to the wages he would have received as a judge had he not been dismissed, and to the loss of earnings resulting from restrictions to his civic rights. He claimed 1,000,000 euros (EUR) on that account. In addition, he sought an award of EUR 200,000 in respect of non-pecuniary damage. He also claimed EUR 9,500 in respect of costs and expenses incurred before the Court, without producing any supporting documents.", "153. The Government contested those claims. 154. The Court observes that this judgment concerns the applicant’s initial pre-trial detention, and not his dismissal as ordered on 4 August 2016. Accordingly, it cannot discern a causal link between the violation it has found and the pecuniary damage alleged, and rejects the applicant’s claim under that head.", "155. As regards non-pecuniary damage, the Court observes that it has found that the applicant, a judge serving on the Constitutional Court at the material time, was placed in pre-trial detention without being afforded the protection available under Turkish legislation and in the absence of reasonable suspicion, at the time of his initial detention, that he had committed an offence. On that account, it considers that he must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. It therefore awards the applicant the sum of EUR 10,000 in respect of non-pecuniary damage. 156.", "As regards the claim in respect of costs and expenses, the Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. It reiterates in addition that Rule 60 §§ 2 and 3 of the Rules of Court requires the applicant to submit itemised particulars of all claims, together with any relevant supporting documents, failing which the Court may reject the claims in whole or in part. In the present case, seeing that the applicant did not produce any documents in support of his claim, the Court decides to reject it in its entirety (see Paksas v. Lithuania [GC], no. 34932/04, § 122, ECHR 2011 (extracts)). B.", "Default interest 157. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the complaints concerning the lawfulness of the applicant’s initial pre-trial detention, the alleged lack of reasonable suspicion that he had committed an offence and the alleged failure to provide reasons for his detention admissible and the remainder of the application inadmissible; 2. Holds, by six votes to one, that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s initial pre-trial detention; 3.", "Holds, by six votes to one, that there has been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence; 4. Holds, unanimously, that there is no need to examine the complaint under Article 5 §§ 1 (c) and 3 of the Convention as to the alleged failure to provide reasons for the applicant’s pre-trial detention; 5. Holds, by six votes to one, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sum of EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 16 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley Naismith Robert SpanoRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of ad hoc Judge Harun Mert is annexed to this judgment. R.SS.H.N PARTLY DISSENTING OPINION OF JUDGE MERT 1. I respectfully dissent from the majority’s finding that there has been a violation of Article 5 § 1 and Article 5 § 1 (c) of the Convention in the present case on account of the unlawfulness of the applicant’s pre-trial detention and the lack of reasonable suspicion, at the time of his initial pre-trial detention, that he had committed an offence. I 2. The majority conclude that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s initial pre-trial detention.", "3. The applicant was arrested on 16 July 2016, immediately after the coup attempt, and was taken into police custody on the same day. He was placed in pre-trial detention on 20 July 2016 on suspicion of being a member of the FETÖ/PDY armed terrorist organisation, which is regarded as the instigator of the 15 July 2016 coup attempt. 4. The applicant claimed that under section 16 of Law no.", "6216, the opening of a criminal investigation in respect of members of the Constitutional Court was subject to a decision by the plenary court, and that since he was accused of being a member of a terrorist organisation, there could not be a case of in flagrante delicto. The first subsection of section 16 of Law no. 6216 reads as follows: “The opening of an investigation in respect of the President and members [of the Constitutional Court] for offences allegedly committed in connection with or during the performance of their official duties, ordinary offences and disciplinary offences shall be subject to a decision by the plenary court. However, in cases of discovery in flagrante delicto falling within the jurisdiction of the assize courts, the investigation shall be conducted in accordance with the rules of ordinary law.” 5. The applicant’s argument that he was entitled to the status granted to members of the Constitutional Court by Law no.", "6216 was not accepted by the magistrate who ordered his pre-trial detention. The magistrate found that the criminal investigation was governed by the rules of ordinary law, on the grounds that the suspect’s alleged offence – membership of an armed terrorist organisation – was a “continuing offence” and that there had been a case of discovery in flagrante delicto. 6. This decision was based on the settled case-law of the Court of Cassation to the effect that the offence of membership of an armed organisation is a “continuing offence” falling within the jurisdiction of the assize courts. The magistrate had also taken into account the state of the evidence and other circumstances in his decision (see paragraph 20 of the judgment).", "7. The plenary criminal divisions of the Court of Cassation subsequently confirmed the above-mentioned settled case-law in their leading decision of 10 October 2017, by accepting that “there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation, and [consequently] the investigation must be carried out in accordance with the provisions of ordinary law” (see paragraph 63 of the judgment). 8. The majority criticise the case-law of the Court of Cassation as amounting to an “extensive interpretation” of the concept of discovery in flagranto delicto, which negates the procedural safeguards that members of the judiciary are afforded in order to protect them from interference by the executive. According to the majority, Article 2 of the Code of Criminal Procedure (CCP) provides a conventional definition of the concept of in flagrante delicto, but the interpretation by the domestic courts in their case-law was contrary to the wording of the applicable law (see paragraphs 111 and 112 of the judgment).", "9. Cases of discovery in flagrante delicto are defined in Article 2 of the CCP as follows: “... (j) the following shall be classified as cases of discovery in flagrante delicto: 1. an offence in the process of being committed; 2. an offence that has just been committed, and an offence committed by an individual who has been pursued immediately after carrying out the act and has been apprehended by the police, the victim or other individuals; 3. an offence committed by an individual who has been apprehended in possession of items or evidence indicating that the act was carried out very recently. ...” 10. As can be seen, there are three different cases of discovery in flagrante delicto set forth in the CCP. The situation of the applicant falls into the first category of these cases, as is apparent from the case-law of the Court of Cassation.", "Since the offence of membership of a terrorist organisation is a “continuing” offence, it is considered to be “an offence in the process of being committed”. 11. In other words, as established in the Court of Cassation’s case-law and by legal scholars, joining a criminal organisation, affiliation with it and subordination to the hierarchical power prevailing in the organisation are regarded as constituting membership of an organisation. Joining an organisation is also possible on the basis of unilateral will, and the consent of the executives of the organisation is not necessary. The offence of membership of a terrorist organisation is unlike offences such as murder and theft, which are committed through an act confined to a certain amount of time and completed upon the commission of that act.", "For this reason, membership of an organisation continues to be committed as long as the organisation itself and the affiliation with its hierarchical structure continue to exist. 12. In the framework of the definition of discovery in flagrante delicto under Article 2 (j-1) of the CCP, as long as a person knowingly and willingly remains a member of a terrorist organisation, the continuous character persists and the offence is considered to be a continuing offence. Therefore, in consideration of this explanation, it can be said that the Court of Cassation’s interpretation of the concept of discovery in flagranto delicto in its case-law is in conformity with Article 2 of the CCP. 13.", "On the other hand, the Court says that “... according to the case-law of the Court of Cassation ..., a suspicion – within the meaning of Article 100 of the CCP – of membership of a criminal organisation may be sufficient to characterise a case of discovery in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act” (see paragraph 111 of the judgment). The judgment also states that “In the Court’s view, the national courts’ extension of the scope of the concept of in flagrante delicto and their application of domestic law in the present case ... appear manifestly unreasonable” (see paragraph 115). 14. I think that there is a misinterpretation by the Court on this point. The key aspect here is that a distinction should be drawn between the procedural provisions on pre-trial detention for an offence and the level of proof required for such detention.", "From this point of view, the case-law of the Court of Cassation lays down the principle that membership of a criminal organisation is a continuing offence, which is being committed throughout membership. The case-law does not say that there is no need to establish any evidence or indication of an offence that is being committed. The presence of a factual basis in relation to a continuing offence is another issue, to be considered separately. 15. The applicant’s argument that his pre-trial detention was not “in accordance with a procedure prescribed by law” was also raised before the Constitutional Court, and following a detailed analysis, that court held, with reference to the case-law of the Court of Cassation, that the measure in question, ordered in accordance with the rules of ordinary law, had complied with the relevant legislation.", "16. For these reasons, in my view, the interpretation by the Court of Cassation and the application by the national courts of the concept of discovery in flagrante delicto have a reasonable legal basis. 17. When evaluating this issue, we also need to fully take into account the severity of the threat to Turkey which has been posed by the 15 July 2016 coup attempt. In addition, it is crucial to keep in mind the sui generis covert structure of the FETÖ/PDY organisation, which had extensively infiltrated influential State institutions and the judiciary under the guise of lawfulness (for general information on the events that occurred during the coup attempt and the aim and structure of the FETÖ/PDY organisation, see paragraphs 11-15 and 18 of the partly dissenting opinion of Judge Ergül in Mehmet Hasan Altan v. Turkey, no.", "13237/17, 20 March 2018). Likewise, the applicant’s complaints should be assessed in the light of the notice of derogation given on 21 July 2016 under Article 15 of the Convention, a day after the Government had declared a state of emergency. 18. In this regard, I agree with the findings expressed in the judgment that “the attempted military coup had disclosed the existence of a ‘public emergency threatening the life of the nation’ within the meaning of the Convention” (see paragraph 73) and that “In any event, the Court observes that the applicant’s detention ... occurred a very short time after the attempted coup – the event that prompted the declaration of a state of emergency ... This is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case” (see paragraph 75).", "However, I regret to say that the judgment has not sufficiently taken into consideration the specific circumstances which Turkey experienced immediately after the coup attempt, and the notice of derogation. 19. Of course, the judiciary has a special role in a democratic society (see paragraph 102 of the judgment) and it is necessary to fully respect the independence of judges. Nevertheless, when considering this matter, it is essential to keep in mind the unlawful aims of the FETÖ/PDY organisation and its covert structure in the judiciary, including the Constitutional Court. It is well known that members of this terrorist organisation within the judiciary acted only in accordance with the demands of the organisation and irrespective of any legal principles or rules.", "Accordingly, abusing judicial powers and safeguards – granted to members of the judiciary in order to exercise their functions independently and impartially – by acting under the instructions of a terrorist organisation should not give rise to a broadly interpreted form of legal protection. 20. As mentioned in the judgment, “It is well established in the Court’s case-law on Article 5 § 1 of the Convention that ... where the ‘lawfulness’ of detention is in issue, ... the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof” (see paragraph 101). In the present case, the investigation in respect of the applicant was conducted in accordance with the rules of ordinary law, pursuant to section 16(1) of Law no. 6216, since there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts; the pre-trial detention order was given by the competent judge; and the conditions for detention set forth in Article 100 of the CCP were satisfied.", "The judicial practice applied was in conformity with the substantive and procedural rules of Turkish law. Also, the relevant legislation – as outlined in paragraphs 45-57 of the judgment – was foreseeable and there was no problem in terms of the principle of legal certainty. So, under these circumstances, I can say that the order for the applicant’s pre-trial detention was not arbitrary and was made “in accordance with a procedure prescribed by law”. 21. Therefore, I disagree with the conclusion in the judgment that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s pre-trial detention.", "II 22. The majority conclude that there has been a violation of Article 5 § 1 (c) of the Convention on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence. 23. It can be seen that the competent magistrate detained the applicant because of the indication of a strong suspicion that he was a member of a terrorist organisation, with reference to Article 100 of the CCP and the evidence in the file. In addition to other documents, he especially referred to the reports on searches and seizures in the file.", "The magistrate also indicated that there was a risk that individuals who had links to the FETÖ/PDY organisation might abscond, tamper with evidence or take advantage of the disorder that had emerged after the coup attempt. 24. The aforesaid reports of the searches and seizures dated 16 July 2016, the day on which the applicant was arrested, mention that there was a list of members of the Constitutional Court (known by the authorities to be) linked to the FETÖ/PDY organisation. It is understood that the applicant’s name was on that list. On the basis of this information and other evidence, appropriate steps were taken by the competent judicial authorities.", "25. As specified in the judgment, “Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities have obtained sufficient evidence to bring charges at the time of arrest. The purpose of questioning during detention ... is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion at the initial stage need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation” (see paragraph 127). In other words, “the standard of proof required for making an arrest [and ordering pre-trial detention] is lower than that required for a criminal charge and subsequently a conviction” (see B. Rainey, E. Wicks, and C. Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights, 7th edition, 2017, p. 246).", "26. Such an approach would provide relevant justification that the factual basis was sufficient for pre-trial detention in the present case. As a matter of fact, the evidence assessed by the authorities during the investigation, such as the witness statements, ByLock messages and other facts, confirmed the initial suspicion that the applicant had committed the alleged offence. As a consequence of the trial before the Court of Cassation, the applicant was sentenced to eleven years and three months’ imprisonment on 6 March 2019 for the offence of membership of an armed terrorist organisation. 27.", "In this context, due consideration should also be given to the above-mentioned specific circumstances of the coup attempt, the illegal activities of the FETÖ/PDY organisation, and the notice of derogation. On this point, the observation that “such ... circumstances might mean that the ‘reasonableness’ of the suspicion justifying detention cannot be judged according to the same standards as are applied in dealing with conventional offences” (see paragraph 135 of the judgment) is highly valid. In other words, in the case of fighting against terrorism, especially in extraordinary times, the level of “reasonable suspicion” needs to be lower than for ordinary offences. 28. The Court, in principle, “considers that the very specific context of the present case calls for a high level of scrutiny of the facts.", "In this connection, it is prepared to take into account the difficulties facing Turkey in the aftermath of the attempted military coup of 15 July 2016” (see paragraph 134 of the judgment). However, I cannot see that the relevant circumstances have been considered thoroughly in the judgment in the present case. 29. On the other hand, following the individual application lodged by the applicant, the evidence and the special circumstances of this case were assessed in detail by the Constitutional Court in its decision. It observed that “in view of the very specific circumstances surrounding the attempted coup, the extent to which the FETÖ/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was among the so-called ‘catalogue’ offences, the order for the applicant’s pre-trial detention could be said to have been based on justifiable grounds and proportionate” (see paragraph 42 of the judgment).", "In the Constitutional Court’s view, “there was a risk that individuals involved in the coup attempt and those who had not been directly involved but had links to the FETÖ/PDY organisation – which was identified as the instigator of the attempted coup – might abscond, tamper with evidence or take advantage of the disorder that had emerged during or after the coup attempt ... These particular circumstances entailed a higher risk than might arise in what could be described as ‘normal’ circumstances ... It was obvious that the applicant, as a member of that court himself, might be in an easier position than others to interfere with the evidence” (ibid.). 30. In my opinion, the findings in the decision of the Constitutional Court are more relevant to the present case.", "In the light of the explanations above, it cannot be said that there was a lack of reasonable suspicion at the time of the applicant’s pre-trial detention. 31. Therefore, I do not subscribe to the conclusion in the judgment that there has been a violation of Article 5 § 1 (c) of the Convention." ]

[ "FOURTH SECTION CASE OF MISIAK v. POLAND (Application no. 43837/06) JUDGMENT STRASBOURG 3 June 2008 FINAL 03/09/2008 This judgment may be subject to editorial revision. In the case of Misiak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Päivi Hirvelä,Ledi Bianku, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 13 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43837/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Roman Misiak (“the applicant”), on 17 October 2006.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 5 March 2007 the President of the Fourth Section decided to communicate the complaint concerning the monitoring of the applicant’s correspondence to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1958 and lives in Gdańsk. A. Criminal proceedings against the applicant 5.", "On 9 August 2006 the applicant was arrested on suspicion of fraud and placed in pre-trial detention. The grounds for this decision are unknown, since the applicant has not produced a copy of it. 6. On 3 November 2006 the Gdańsk District Court (Sąd Rejonowy) extended the applicant’s detention until 9 February 2007. It relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged.", "It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the need to secure the proper conduct of the proceedings. The court further found that there was a risk that the applicant might go into hiding, given that earlier he could not be found at his place of permanent residence. 7. The applicant submitted that he unsuccessfully appealed against decisions extending his detention. 8.", "The applicant maintained that during his arrest he was treated in a degrading manner by police officers and that he was subjected to threats. On 19 February 2007 the Gdańsk District Prosecutor instituted an investigation into the applicant’s complaints against the police officers. The investigation is still continuing. B. Censorship of the applicant’s correspondence 9. The applicant submitted that during his detention his correspondence was censored by the authorities.", "He produced five envelopes. All the envelopes bear a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator). Those envelopes contained letters from: 1) the Penitentiary Association “Patronat” (Stowarzyszenie Penitencjarne “Patronat”), a non-governmental organisation, acting, inter alia, on behalf of prisoners and former prisoners, sent on 30 August 2006; 2) the Supreme Court, sent on 26 September 2006; 3) the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, sent on 27 September 2006; 4) the Ministry of Justice; sent on 27 September 2006; 5) the Ombudsman, sent on 28 September 2006. 10. The applicant produced one envelope that indicates as the addressee of the letter the Governor of Sztum Prison and bears a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator).", "A hand-written note indicates case file no. IC 119/05. 11. One envelope bears traces of having been opened - its sides were cut open and resealed using self-adhesive tape. 12.", "The applicant submitted that a letter addressed to him by the Court had been opened and read by the authorities. In a note sent to the applicant from Sztum Prison (Zakład Karny) on 21 December 2006, he was informed that on 29 November 2006 a letter from the European Court of Human Rights to the applicant had been delivered by the District Prosecutor’s Office. The note further states that the letter had clearly been damaged. II. RELEVANT DOMESTIC LAW AND PRACTICE 13.", "The relevant domestic law and practice concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 14. The applicant complained under Article 8 of the Convention that during his detention his correspondence was censored by the authorities.", "The relevant part of this provision reads: “1. Everyone has the right to respect for ... his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The Government’s preliminary objection on exhaustion of domestic remedies 15.", "The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 24 §§ 1 and 2 in conjunction with Article 448 of the Civil Code. These provisions would have allowed him to assert that by censoring his correspondence the authorities had breached his personal rights protected by the Civil Code and to make a claim in respect of non-pecuniary damage. 16. In this connection, the Government relied on the Warsaw Regional Court’s judgment of 27 November 2006 in which a prisoner had been awarded PLN 5,000 in damages from the State Treasury for a breach of the confidentiality of his correspondence with the Central Board of the Prison Service and the Central Electoral Office.", "The Regional Court held that the confidentiality of correspondence was a personal right protected under Article 23 of the Civil Code, a breach of which could entitle the claimant to an award in respect of non-pecuniary damage. 17. The applicant did not comment. 2. The Court’s assessment 18.", "The Court notes that the censorship concerned letters of 30 August 2006, 8 September 2006, 26 September 2006 and two letters of 27 September 2006 and 28 September 2006. The date of the letter sent by the European Court of Human Rights, which was damaged, is unknown; however, it must have been sent before 27 November 2006.Any relevance the aforementioned judgment might have to the present case is therefore reduced by the fact that it was delivered after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX). Furthermore, the Court observes that the judgment relied on by the Government was given by a first-instance court. In the aforementioned case an appellate judgment was given by the Warsaw Court of Appeal on 28 June 2007.", "The Court of Appeal upheld the Regional Court’s judgment. 19. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 3. Conclusion as to admissibility 20.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The submissions before the Court 21. The applicant submitted in general terms that the circumstances of his case disclosed a breach of the Convention. 22. The Government, having regard to the particular circumstances of the case and the Court’s case-law, refrained from expressing their opinion on the merits of the application. 2.", "The Court’s assessment (a) Existence of an interference 23. The Court first observes that the envelopes that contained letters from: 1) the Penitentiary Association “Patronat” (Stowarzyszenie Penitencjarne “Patronat”), a non-governmental organisation, acting, inter alia, on behalf of prisoners and former prisoners, sent on 30 August 2006; 2) the Supreme Court, sent on 26 September 2006; 3) the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, sent on 27 September 2006; 4) the Ministry of Justice; sent on 27 September 2006; 5) and the Ombudsman, sent on 28 September 2006, all bear a stamp that reads: “Censored, date ..., Prosecutor” (see paragraph 9 above). 24. The Court notes that one of the envelopes had been opened and resealed with adhesive tape (see paragraph 11 above). 25.", "Furthermore, the Court observes that one envelope that indicates as the addressee of the letter the Governor of Sztum Prison bears a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator). A hand written note indicates case file no. IC 119/05 (see paragraph 10 above). 26. The Court observes that, in a note from Sztum Prison (Zakład Karny) of 21 December 2006, the applicant was informed that on 29 November 2006 a letter from the European Court of Human Rights to the applicant was delivered by the District Prosecutor Office.", "The note further states that the letter had clearly been damaged. 27. The Court has held on many occasions that as long as the Polish authorities continue the practice of marking detainees’ letters with the “censored” stamp, the Court has no alternative but to presume that those letters have been opened and their contents read (see Matwiejczuk v. Poland, no. 37641/97, § 99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005; and Michta v. Poland, no.", "13425/02, § 58, 4 May 2006). 28. It follows that in respect of the applicant’s letters there was an “interference” with his right to respect for his correspondence under Article 8. (b) Whether the interference was “in accordance with the law” 29. The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, Series A no.", "61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; and Niedbała v. Poland no. 27915/95, § 78). 30. The Court observes that, according to Article 214 of the Code of Execution of Criminal Sentences, persons detained on remand, like the applicant, enjoy the same rights as those convicted by a final judgment.", "Article 102 (11) of the same Code provides that the convicted persons are entitled to uncensored correspondence with the State authorities and the Ombudsman. Furthermore, Article 103 of the same Code contains the prohibition of censorship of correspondence with the European Court of Human Rights. Both Articles expressly relate to convicted persons; however they are also applicable to detained persons (see Michta v. Poland, cited above, and Kwiek v. Poland, no. 51895/99, § 23 and 44, 30 May 2006). Thus, censorship of the applicant’s letters was contrary to the domestic law.", "It follows that the interference in the present case was not “in accordance with the law”. 31. That being so, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. Consequently, the Court finds that there has been a violation of Article 8 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 32. The applicant complained that during his arrest he was treated in a degrading manner by the police officers and subjected to threats. The Court notes that on 19 February 2007, at the applicant’s request, the Gdańsk District Prosecutor instituted an investigation against the police officers concerned and the investigation is still pending (see paragraph 8 above). It follows that this complaint is premature and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 33.", "The applicant further complained, in general terms under Article 5, that his pre-trial detention was unjustified, as no consideration was given to the possibility of imposing on him other, less severe, preventive measures. The Court finds nothing in the case file which might disclose any appearance of a violation of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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, who did not claim costs and expenses, left the amount of just satisfaction to be awarded to the Court’s discretion. 36. The Government submitted that they were not able to comment on this aspect, as the applicant had not specified an amount. 37.", "The Court considers that the applicant must have sustained some non-pecuniary damage on account of the unlawful interferences with his correspondence. Ruling on an equitable basis and having regard to its established case-law, the court awards him EUR 1,000 under that head. 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the monitoring of the applicant’s correspondence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 3 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF BULLEN AND SONEJI v. THE UNITED KINGDOM (Application no. 3383/06) This version was rectified on 27 January 2009 under Rule 81 of the Rules of Court JUDGMENT STRASBOURG 8 January 2009 FINAL 08/04/2009 This judgment may be subject to editorial revision. In the case of Bullen and Soneji v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Mihai Poalelungi,Nebojša Vučinić, judges,and Fatoş Aracı, Deputy Registrar, Having deliberated in private on 2 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3383/06) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr David Frederick Bullen and Mr Kamlesh Kumar Soneji (“the applicants”), on 19 January 2006.", "2. The applicants were represented by Mr N. Seeley, a lawyer practising in Hertford. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Sharif. 3. On 14 June 2007 the Acting President of the Chamber of the Fourth Section to which the case had been allocated decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 §3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 1. The applicants’ conviction and sentence 4. The applicants were born in 1946 and 1962 respectively and live in London.", "They were charged with involvement in a money laundering scheme together with a third co-accused, Mr E. 5. On 24 March 2000 the second applicant pleaded guilty at a Crown Court to conspiracy to launder the proceeds of criminal conduct contrary to section 1 of the Criminal Law Act 1977. On 3 April 2000 the first applicant pleaded guilty to the same offence. 6. On 21 June 2000 the prosecution served notice under section 71(1)(a) of the Criminal Justice Act 1988 (CJA 1988, see paragraphs 40-41 below), as amended by the Proceeds of Crime Act 1995, indicating their intention to seek confiscation orders to recover the proceeds of the applicants’ criminal conduct.", "7. On 29 June 2000 counsel for the second applicant requested an early confiscation hearing and counsel for the co-accused, Mr. E., requested a confiscation hearing in September. The trial judge pencilled in a date on the week beginning 30 October 2000, as that was the first occasion on which he would be available. The trial judge further directed that the date would be considered again on the proposed date for sentence, 18 August 2000. 8.", "On 18 August 2000 the second applicant was sentenced to four and a half years’ imprisonment and the first applicant was sentenced to six years’ imprisonment. Prior to sentence the confiscation hearing was formally postponed until after passing sentence and was fixed for 30 October 2000, outside the six-month period required under section 72A of the CJA 1988. 2. Adjournment pending R. v. Steele and Shevki 9. On 30 October 2000 the case was listed for the confiscation hearing with a time-estimate of five working days.", "The applicants objected that the court lacked jurisdiction to hear the confiscation proceedings on the grounds that more than six months had elapsed since their convictions and that the judge had not considered whether there were “exceptional circumstances” warranting the imposition of the confiscation orders outside the statutory time-limit, as required by section 72A (3) of the CJA 1988, as amended (see paragraph 35 below). 10. On 3 November 2000 the trial judge held that he had jurisdiction to hear the confiscation proceedings. It was then agreed by the parties that the confiscation proceedings should be adjourned to await the outcome of a similar case which was due to be heard by the Court of Appeal, R v Steele and Shevki. The confiscation proceedings were adjourned until 5 February 2001.", "11. On 21 November 2000 Mr E. was granted leave to appeal against his conviction. On 24 November 2000 both the applicants’ applications for leave to appeal against sentence were refused by a single judge of the Court of Appeal. 12. On 14 December 2000 the Court of Appeal delivered its judgment in R v. Steele and Shevki ([2000] EWCA Crim 70).", "It found that although adjournments beyond the six-month period prescribed by statute should be avoided, exceptional circumstances such as the unavailability of a judge would not deprive a subsequent confiscation order of its validity. 13. On 31 January 2001 the confiscation proceedings were listed again for mention. Renewal of argument in relation to the Crown Court’s jurisdiction to hear the confiscation proceedings, in light of the Court of Appeal’s judgment in R v. Steele and Shevki, was listed for 8 and 9 March 2001. Following the hearing on 8 March 2001, the judge held that the court retained a common law power to adjourn beyond the statutory six-month time-limit in compelling circumstances such as where there was an illness or the judge was unavailable.", "In his opinion a statutory postponement citing exceptional circumstances was required only where the purpose of the postponement was to gather further information, and not in the instant case where the issue had been the unavailability of the judge. 3. Mr E.’s appeal and application for an adjournment 14. On 26 and 27 March 2001 the Court of Appeal heard and dismissed Mr E.’s appeal against conviction. On 30 March 2001 the confiscation proceedings were listed again for mention before the trial judge, to notify him of the result of Mr E.’s appeal.", "At this stage Mr E. was seeking leave to appeal to the House of Lords and was awaiting the decision of the Court of Appeal on his application for leave to appeal. The substantive hearing of the confiscation hearing was again adjourned. 15. On 2 May 2001 the Court of Appeal refused Mr E.’s application for leave to appeal to the House of Lords and declined to find that a question of law of general public importance was involved in the decision. 16.", "On 12 June 2001 the confiscation proceedings were listed for directions and with the agreement of all parties, the hearing was fixed to begin on 15 October 2001. 17. On 20 September 2001 the confiscation proceedings were again listed for mention at the request of Mr. E. who sought to adjourn the confiscation hearing that was fixed for 15 October 2001. 18. On 26 September 2001 the confiscation proceedings were again listed to consider Mr E.’s application for adjournment.", "The proceedings were adjourned to 28 January 2002 with a time estimate of three weeks. 4. The proceedings before the Court of Appeal 19. On 28 January 2002 the Crown Court imposed a confiscation order on the second applicant in the amount of GBP 75,350, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of twelve months’ imprisonment to be served in default. 20.", "On 4 February 2002 the second applicant lodged an application for leave to appeal, challenging the confiscation order on the ground that the Crown Court had no jurisdiction to make it because of the lapse of the six-month period provided by section 72A(3) of the CJA 1988. 21. On 7 February 2002 the Crown Court imposed a confiscation order on the first applicant in the sum of GBP 375,000, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of 21 months’ imprisonment to be served in default. 22. On 25 February 2002 the first applicant lodged an application for leave to appeal challenging the confiscation order on the same grounds as the second applicant (see paragraph 20 above).", "23. On 12 December 2002 the second applicant obtained a Certificate of Inadequacy from the High Court. This entitled him to return to the Crown Court to seek a reduction of the confiscation order. 24. On 4 February 2003 the second applicant’s case was listed before the Crown Court and the confiscation order was reduced to GBP 30,284, taking into account the Certificate of Inadequacy.", "25. On 20 June 2003 the Court of Appeal allowed the applicants’ appeals and quashed the confiscation orders and default sentences of imprisonment. They noted that on 29 June 2000, defence counsel for the second applicant and the co-accused Mr. E. had requested an early hearing at the Crown Court. However, the earliest date that the trial judge would be available was the week beginning 30 October 2000. That date was pencilled in by the trial judge, even though it was “more than four months away”.", "The Court of Appeal considered that, given the importance attached by Parliament and the courts to the link between confiscation orders and sentencing, a high degree of judicial scrutiny was required before finding exceptional circumstances to justify the imposition of a confiscation order outside the six-month time-limit. In the present case, there was no evidence of any enquiry from 24 March 2000 (when the second applicant was the first to plead guilty) onwards into whether a space could be found for the confiscation hearing during the six-month period. 26. Furthermore, on 3 November 2000, the trial judge had acknowledged with “admirable candour” when finding that he had jurisdiction to hear the confiscation proceedings outside the six-month time-limit that “no enquiry was made of the (applicants) as to the postponement” when the decision to hold the confiscation hearing in the week beginning 30 October 2000 was finally confirmed on 18 August 2000. Neither had there been any analysis of any factors which might amount to exceptional circumstances.", "The trial judge had also “candidly acknowledged more than once” that there were no exceptional circumstances. The Court of Appeal ultimately found that the failure to address the question as to whether the circumstances could properly be described as exceptional and to make a finding to that effect was fatal to the upholding of the confiscation orders. Though in principle confiscation orders should not be quashed for mere defects in procedure, if the statutory requirement of exceptional circumstances was to be more than a “mere incantation”, enquiry into the circumstances and the possibility and feasibility of a timely hearing were required. 27. On 30 July 2003 the Court of Appeal certified that a point of law of general public importance was involved in the decisions.", "5. The proceedings before the House of Lords 28. On 1 April 2004 the House of Lords granted the prosecution leave to appeal against the decisions of the Court of Appeal. 29. On 21 July 2005 the House of Lords reversed the decisions of the Court of Appeal and ordered the latter to re-impose the confiscation orders in respect of both applicants.", "30. The House of Lords observed that the core problem before it was whether, as a matter of statutory construction, failure to comply with a statutory time-limit would have the effect of invalidating an act. The fact that Parliament cast statutory requirements in imperative form without expressly specifying the consequences of a failure to comply had caused difficulty and had been the source of a great deal of litigation over the preceding 130 years. A distinction had first evolved between mandatory and directory requirements; where a requirement was mandatory, a failure to comply had the effect of invalidating the act in question but where a requirement was merely directory, a failure to comply did not invalidate the act. Over the years, a further distinction had been made between two types of directory requirements: requirements of a purely regulatory character, where a failure to comply would never invalidate an act, and requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.", "In London & Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 WLR 182, 189E-190C, however, Lord Hailsham had emphasised that it was within the courts’ inherently discretionary jurisdiction to determine the nature of a particular statutory requirement and to examine the consequences of non-compliance before determining whether Parliament had intended total invalidity. In the later case of Wang v. Commissioner of Inland Revenue [1994] 1 WLR 1286, the Privy Council followed and applied the dictum of Lord Hailsham in London and Clydeside Estates (cited above). The House of Lords also took into consideration a number of cases in which the Court of Appeal had adopted the same approach, and parallel developments in the courts of New Zealand, Australia and Canada. 31. In the present case, the House of Lords considered that the prime purpose behind the statutory provision for confiscation orders was the recovery of any financial benefit that an offender might have obtained from his criminal conduct.", "The Law Lords rejected the applicants’ argument that, given the criminal law context, a strict approach to the construction of section 72A of the CJA 1988 should be adopted and instead applied a teleological approach. They noted that section 71(1) of the CJA 1988 imposed a positive duty to proceed with confiscation proceedings and that the time limits under section 72A were linked to the date of conviction rather than sentence. This was considered to be evidence that Parliament’s intention was the early disgorgement of an offender’s criminal gains. Though Parliament had envisaged that courts would make confiscation orders before sentencing, unless they exercised their postponement power under section 72(A)(1), it was of some significance that Parliament considered it more important that a confiscation order should be made than that it should be made before the defendant was sentenced. Though no common law power to adjourn existed, Parliament could not have intended to disable a court from making a confiscation order after sentence merely because the time-limits were not strictly adhered to.", "32. In the present case, the Crown Court had postponed its final decision on confiscation orders in good faith. The prejudice to the applicants was not significant and was outweighed by the countervailing public interest in not allowing convicted offenders to escape confiscation for what were no more than bona fide errors in the judicial process. In any event, there would always be the safeguard of judicial review should there be an apparent abuse of process. 33.", "In October 2005 the Court of Appeal re-imposed the confiscation orders and sentences of imprisonment in default on the applicants. II. RELEVANT DOMESTIC LAW 34. Section 1 of the Proceeds of Crime Act 1995 amends section 71 of the Criminal Justice Act 1988 as follows: “Section 1 (2) – For subsections (1) to (3) (orders confiscating the proceeds of an offence) there shall be substituted the following subsections— (1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court— (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.", "(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then— (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount.” 35. Section 28 of the Criminal Justice Act 1993 amends the Criminal Justice Act 1988 accordingly: “28. The following section shall be inserted in the Criminal Justice Act 1988, after section 72— Postponed determinations. 72A. — (1) Where a court is acting under section 71 above but considers that it requires further information before— (a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above; (b) determining whether his benefit is at least the minimum amount; or (c) determining the amount to be recovered in his case by virtue of section 72 above, it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.", "(2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which— (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction.” 36. The Human Rights Act 1998 (“1998 Act”) entered into force on 2 October 2000. Section 3(1) provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Section 4 of the 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.", "... (6) A declaration under this section ... - (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 8 provides (so far as relevant): “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.” Section 10 provides: “(1) This section applies if – (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies – (i) all persons who may appeal have stated in writing that they do not intend to do so; or (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 37. The applicants complained that the length of the criminal proceedings against them had contravened the “reasonable time” requirement. They further complained that they had been deprived of their right to a fair trial by the domestic courts’ failure to abide by the statutory time-limit for the imposition of confiscation orders. They invoked Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...” 38. The Government contested that argument.", "1.Admissibility 39. The Government contended that the applicants had failed to exhaust domestic remedies as they did not complain about the alleged unreasonable length of the proceedings before the national courts. The applicants’ argument before the domestic courts had been that the Crown Court had lost its jurisdiction to impose confiscation orders by failing to comply with the statutory requirements of the CJA 1988, and not that there had been a breach of the reasonable time requirement under Article 6 of the Convention. 40. The Government argued further that the applicants could have sought to expedite their confiscation hearings, by relying on the Human Rights Act 1998.", "The applicants had agreed that the confiscation hearing should be conducted by the trial judge and had not applied at any stage for their cases to proceed to a confiscation hearing on the basis that there would otherwise be a breach of the reasonable time requirement. Furthermore, they had not sought to sever their case from that of their co-accused Mr E., which might have speeded up the process. 41. The applicants contended that their argument before the domestic courts, which centred on the statutory time-limit provided by section 72A of the CJA 1988, was in effect a complaint concerning the reasonable time requirement under Article 6 § 1 of the Convention. 42.", "The applicants further asserted that all parties had agreed that the confiscation proceedings should be conducted by the trial judge. Moreover, the procedure under national law was that the trial judge should hear the confiscation proceedings. They contested the Government’s suggestion that they should have sought to sever their cases from that of their co-accused Mr E. Mr E. had at all material times been in a different position, as the Crown Court had retained its statutory jurisdiction to impose a confiscation order on him. 43. The Court reiterates that Article 35 § 1 of the Convention requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse need be had to remedies which are inadequate or ineffective (see, for example, Kucheruk v. Ukraine, no.", "2570/04, § 108, 6 September 2007). The existence of the remedy must be sufficiently certain, failing which it will lack the requisite accessibility and effectiveness. Article 35 of the Convention also provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; and Mifsud v. France (dec.), no.", "57220/00, § 15, ECHR 2002-VIII). 44. The Court will address the Government’s submissions on non‑exhaustion in turn. First, as regards the Government’s preliminary objection that the applicants never complained about the length of the confiscation proceedings domestically, the Court finds that in contesting the Crown Court’s jurisdiction to act outside the statutory time-limit contained in the CJA 1988, the applicants invoked the reasonable time requirement under Article 6 § 1 of the Convention in substance. 45.", "Second, in relation to the Government’s assertion that the applicants failed to expedite the confiscation proceedings by relying on the Human Rights Act 1998, the Court finds that the Government have neither cited with sufficient clarity a particular remedy that was available to the applicants, nor a similar case in which such an alleged remedy had been successfully pursued before the domestic courts. It follows that the Government have failed to identify a sufficiently certain remedy which was available to the applicants and which they failed to exhaust. They have therefore failed to discharge the burden of proof incumbent on them in claiming non-exhaustion. It follows that the Government’s objection on non-exhaustion must therefore be dismissed. 46.", "Finally, as to the Government’s submissions that the applicants agreed to their confiscation hearings being heard by the trial judge and did not seek to sever their cases from that of their co-accused, Mr E., the Court finds that these issues go to the merits of the application. 47. 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 48. The periods to be taken into consideration began on 24 March 2000 and 3 April 2000, respectively, when the second and first applicants were each convicted and became liable to have confiscation orders made against them. The periods ended in October 2005 when the Court of Appeal re‑imposed the confiscation orders and sentences of imprisonment in default, following the House of Lords’ order of 21 July 2005. The relevant proceedings thus lasted approximately five years and six months. (a) The parties’ submissions i) The Government 49.", "The Government submitted that the Crown Court and the Crown Prosecution Service were in a position to deal with the confiscation hearing in October 2000. This was just six months from the date of the applicants’ convictions and less than three months after they had been sentenced to imprisonment. The period of time was entirely reasonable having regard to the complexity of the case and the desirability of allowing the parties time to prepare for the confiscation hearing. They further maintained that any subsequent delay was attributable to the applicants’ conduct, as they had put in question the Crown Court’s jurisdiction to make confiscation orders against them, and that of Mr E., who had sought leave to appeal against his conviction. 50.", "As to the complexity of the case, the Government asserted that the confiscation proceedings in the applicants’ case involved an extremely complicated issue of law, which eventually had to be determined by the House of Lords. The factual issues were complicated by the proceedings against the co‑accused, Mr E., against whom a confiscation order was also being sought. 51. The Government cited the following instances as examples of delay attributable to the applicants’ conduct. First, the applicants’ request for an adjournment pending the Court of Appeal’s decision in R. v. Steele and Shevki, following their challenge to the Crown Court’s jurisdiction to impose confiscation orders against them outside the statutory time-limit.", "Second, the second applicant’s changing of his legal representative in January 2001, which led to a new timetable being agreed between the parties, with the substantive confiscation hearing fixed to take place between 2 April 2001 and 11 May 2001. Thirdly, the applicants did not press for the confiscation hearing to take place in April and May 2001, but rather agreed to the hearing being fixed for 15 October 2001. Finally, the Government asserted that it was the third co-accused, Mr E., who was responsible for the adjournment of the confiscation hearing from 15 October 2001 to 28 January 2002. 52. The Government argued that both the prosecution and Crown Court had acted with reasonable expedition at all times and that any delays were not attributable to the State.", "Had the applicants not raised objections to the Crown Court’s jurisdiction, the confiscation proceedings would have been concluded much earlier. ii) The applicants 53. The applicants submitted that the ultimate imposition of the confiscation orders against them did not take place until October 2005. They highlighted that, according to the relevant provisions of the CJA 1988, the confiscation order and sentence in default should have been imposed against the first applicant by 3 October 2000. In the case of the second applicant this should have been done by 24 September 2000.", "There was therefore a delay of over five years between when the confiscation orders should have been imposed and when they were eventually imposed. Relying on this Court’s judgment in Howarth v. the United Kingdom, (no. 38081/97, 21 September 2000) they argued that this delay constituted a breach of the reasonable time requirement under Article 6 § 1 of the Convention. 54. As to the Government’s contention that the confiscation proceedings would have been concluded by October 2000 but for the applicants’ conduct, the applicants replied that they were entitled in law to raise the argument that the Crown Court lacked jurisdiction to make the confiscation orders against them.", "They therefore could not be blamed for delaying the process by exercising their legal right. All parties had agreed that arguments in connection with the jurisdiction point should be adjourned to await the Court of Appeal’s decision in R. v Steele v Shevki. As the confiscation proceedings had been partly heard already it was also agreed that the same judge, prosecution counsel and defence counsel should be available to attend when the proceedings were eventually resumed. All parties had agreed that the confiscation hearing should be conducted by the trial judge and the procedure under domestic law was that the trial judge should hear the confiscation proceedings. 55.", "The applicants contested the Government’s assertion that the Crown Court and prosecution had acted at all times with reasonable expedition. They cited two specific examples of delay attributable to the State: first, the Crown Court failed to provide a confiscation hearing within six months of their convictions as required by statute and, secondly, the prosecution failed to serve the statutory notices that they intended to pursue confiscation proceedings against the applicants until 21 June 2000. 56. As regards the complexity of the case, the applicants submitted that their cases were not complicated by the presence of the third co-accused, Mr E. His case was to be distinguished from theirs in that he did not plead guilty but rather continued with his trial. Moreover, he was on 30 October 2000 still within the “six months from the date of conviction” time period required by section 72A of the CJA 1988.", "The applicants contested the Government’s assertion that the fact that the Crown Court’s jurisdiction to make confiscation orders outside the statutory time-limit was being challenged in a number of cases before the Court of Appeal was evidence of complexity. The issue in the present case was fairly straightforward: whether the Crown Court had complied with the statutory regime which governed the imposition of confiscation orders in the applicants’ case. 57. They asserted the importance of what was at stake for them, namely that they faced a return to prison after having served their original sentences and having been released in July 2005. They also argued that in the case of sentences of imprisonment in default of payment, offenders were not entitled to remission of their sentences and were obliged to serve full terms.", "Furthermore, the passage of time since their convictions had impaired their ability to pay the confiscation orders and thus rendered them more vulnerable to having to serve their respective sentences of imprisonment in default. b)The Court’s assessment 58. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II and Çaplik v. Turkey, no. 57019/00, § 37, 15 July 2005).", "59. The Court recalls its judgment in the case of Crowther v. the United Kingdom, (no. 53741/00, §§ 24 and 25, 1 February 2005) which also concerned a complaint concerning the length of criminal proceedings where a confiscation order had been imposed. The Court re-affirmed the principle that “Article 6 § 1 applies throughout the entirety of proceedings for... the determination of ... any criminal charge, including proceedings whereby a sentence is fixed” and went on to find that “confiscation proceedings of the type brought against the applicant are analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender.” 60. As to the complexity of the case, the Court observes that the issue in question, namely the exact legal consequences of non-compliance with the statutory time-limits under section 72(A) (3) of the CJA 1988, had been a point of contention for many years.", "Indeed, the Court of Appeal had certified in June 2003 that a point of law of general public importance was involved (see paragraph 27 above). The matter eventually fell to be resolved by the House of Lords, who were called upon to conduct a difficult and complex exercise of statutory interpretation, for which they examined the legislative history behind the provision for confiscation orders and the intention of Parliament in the event that the statutory time-limits were not complied with (see paragraphs 30 to 32 above). 61. As for the period prior to 30 October 2000, the Court notes the Court of Appeal’s criticisms of the trial judge for not conducting any enquiry from 24 March 2000 (when the second applicant was the first to plead guilty) onwards into whether a space could be found for the confiscation hearing during the six-month statutory period (see paragraph 25 above). It further takes into account the Court of Appeal’s observation that the trial judge had neither consulted the applicants about the postponement beyond the six-month period nor made any attempt to consider whether there existed any exceptional circumstances for the delay as required by statute (see paragraph 26 above).", "The Court finds no reason to disagree with the findings of the Court of Appeal on this matter and consequently considers that this period of delay is attributable to the conduct of the State authorities. 62. As regards the adjournment pending the Court of Appeal’s decision in R. v Steel and Shevki which was delivered on 14 December 2000, the Court notes that all parties agreed to it. Moreover, the applicants cannot be blamed for exercising their legal entitlement to have the question of the Crown Court judge’s jurisdiction resolved. It therefore finds that any delay that arose as a consequence cannot be attributed to the applicants’ conduct.", "Nor, however, can the State be criticised in respect of this delay. 63. As to the period after 14 December 2000, the Court does not find any evidence to substantiate the Government’s assertion that the second applicant’s changing his legal representatives significantly delayed the proceedings. 64. Nor, in the Court’s opinion, can the applicants be criticised for agreeing that their respective confiscation hearings should be conducted by the trial judge.", "In this vein, the Court notes that the Government do not contest the applicants’ assertion that all the parties had agreed that the trial judge should preside over the confiscation hearings. Moreover, examination of the applicable legislation, in particular, section 71 of the CJA 1988 as amended by section 1 of the Proceeds of Crime Act 1995 (see paragraph 34 above) demonstrates that it is for the Crown Court trial judge to make a confiscation order. 65. Finally, as regards the Government’s submissions that the applicants did not press for the confiscation hearing to take place in April and May 2001, but rather agreed to the hearing being fixed for 15 October 2001, and their preliminary objection that the applicants failed to exhaust domestic remedies by not seeking to sever their cases from that of their co-accused, Mr. E., the Court has had regard to its findings in the cases of Price and Lowe v. the United Kingdom (nos. 43185/98 and 43186/98, § 23, 29 July 2003) and Crowther v. the United Kingdom (no.", "53741/00, § 29, 1 February 2005) where it held: “a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings, does not dispense the State from complying with the requirement to deal with cases in a reasonable time...The manner in which a State provides for mechanisms to comply with this requirement, whether by way of increasing the numbers of judges, or by automatic time-limits and directions, or by some other method, is for the State to decide. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay.” 66. The domestic court could have decided to sever the applicants’ cases of its own motion at the hearing of 30 March 2001 and cannot rely on the applicants’ omission to apply for severance in attributing the delay entirely to the latter’s conduct. Similarly, it was open to the domestic court to expedite the confiscation hearing itself. The Government cannot therefore attribute delay to the applicants’ conduct in agreeing to the hearing being fixed for October 2001, when the domestic authorities did nothing to advance the proceedings themselves.", "This being so, the Government’s argument concerning the alleged failure of the applicants to sever their cases from that of their co-accused Mr E. cannot be accepted (see paragraph 46 above). 67. As to the conduct of the authorities, the Court notes certain periods of delay which appear to be attributable to the conduct of the State. First, there was a lapse of 11 months between the Crown Court’s decision on 8 March 2001 that it had jurisdiction to make the confiscation orders and their actual imposition of the orders against the applicants on 28 January 2002 and 7 February 2002. 68.", "Second, there was a delay of 18 months between the lodging of the applicants’ appeals in February 2002 and the Court of Appeal’s eventual delivery of its judgment on 20 June 2003. 69. Finally, the Court notes a delay of two years between the Court of Appeal’s certification of the case on 30 July 2003 and the House of Lords’ judgment of 21 July 2005. 70. As for what was at stake for the applicants during these proceedings, it is observed that the first and second applicants faced confiscation orders for substantial sums of money, namely GBP 375,000[1] and GBP 30,284 respectively.", "In the event that they were unable to pay these sums, they would be liable to considerable terms of imprisonment of 21 months’ and 12 months’ respectively. Due to the earlier quashing of the confiscation orders by the Court of Appeal and their subsequent re-imposition following the direction by the House of Lords, the applicants faced this prospect after the lapse of over five years since their convictions in early 2000 and at a time when they had both already served their original sentences of imprisonment and had been released from prison. The Court recalls its judgment in the case of Howarth v. the United Kingdom (no. 38081/97, §§ 29 and 30, 21 September 2000), relied on by the applicant at paragraph 58 above. There it found a delay of two years between the applicant’s original sentence which was non-custodial and his subsequent custodial sentence, following the Attorney General’s reference to the Court of Appeal for review of his sentence, to be in breach of the reasonable time requirement under Article 6 § 1 of the Convention.", "The Court also takes into consideration the applicants’ submission (see paragraph 57 above) that the passage of time had made it significantly more difficult for them to pay the sums involved in the confiscation orders. 71. In light of the importance of what was at stake for the applicants in this case and without discounting the complexity of the legal issue in question, the Court finds the periods of delay attributable to the State, when taken cumulatively, to be unreasonably long and in breach of the reasonable time requirement as provided by Article 6 of the Convention. 72. There has accordingly been a violation of Article 6 § 1 of the Convention.", "B. As regards the unfairness of the proceedings 73. The applicants further complained that the imposition of the confiscation orders against them outside the statutory time-limit, without consideration as to whether there were any exceptional circumstances, rendered the proceedings against them unfair. 74. The Government submitted that the House of Lords had authoritatively decided the fact that the confiscation orders were made outside the six‑month statutory time period did not deprive them of their validity.", "The applicants’ arguments were an attempt to use the Court as a fourth instance appeal against the House of Lords’ statutory interpretation of the relevant provisions of the CJA 1988. 75. The Court recalls at the outset that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, amongst many authorities, Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005).", "76. The Court further recalls its judgment in the case of C.R. v the United Kingdom, (22 November 1995, § 34, Series A no. 335‑C), which with regards to Article 7, held that it “cannot be read as outlawing gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could be reasonably foreseen.” 77. The House of Lords gave full and reasoned arguments in support of their interpretation of section 72A of the CJA 1988, giving careful consideration in particular to Parliament’s intention as to the consequences of non‑compliance with the applicable statutory provisions and the ultimate purpose behind the provision for confiscation orders (see paragraphs 30 to 32 above).", "78. The applicants acknowledged that the Crown Court’s jurisdiction to impose confiscation orders outside the statutory time-limit was a contested issue which had resulted in a spate of related cases being heard before the Court of Appeal. There are no grounds to suggest that the ultimate re-imposition of the confiscation orders against the applicants, albeit significantly delayed, was inconsistent with the essence of the offences to which they had pleaded guilty or that they were not reasonably foreseeable, given the contentious legal debate over the domestic courts’ jurisdiction outside the time-limit provided by section 72A(3) of the CJA 1988. In sum, the Court finds no evidence to substantiate the applicants’ complaint that the imposition of the confiscation orders against them outside the statutory time-limit rendered the proceedings unfair within the meaning of Article 6 § 1 of the Convention. 79.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 81. The applicants did not submit a claim for just satisfaction.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLech Garlicki Deputy RegistrarPresident [1] Rectified on 27 January 2009: “GBP 75,350” was changed to read “GBP 375,000”." ]

[ "FOURTH SECTION CASE OF MAGEE AND OTHERS v. THE UNITED KINGDOM (Applications nos. 26289/12, 29062/12 and 29891/12) JUDGMENT STRASBOURG 12 May 2015 FINAL 12/08/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Magee and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Päivi Hirvelä, President,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Faris Vehabović, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 14 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos.", "26289/12, 29062/12 and 29891/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mr Gabriel Magee, Mr Colin Francis Duffy and Ms Teresa Magee (“the applicants”), on 1 May 2012, 14 May 2012 and 10 May 2012 respectively. 2. The first and second applicants were represented by KRW Law - LLP, a firm of solicitors based in Belfast. The third applicant was represented by Mr P. Moriarty of O’Connor & Moriarty Solicitors, a firm practising in Lurgan. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign & Commonwealth Office.", "3. On 25 September 2012 the applications of the first and second applicant were communicated to the Government. The third applicant’s application was communicated to the Government on 7 November 2012. The applicants and the Government each filed observations on the admissibility and merits of the cases (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1972 and lives in Belfast. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon. A.", "The first and third applicants 5. On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009. 6.", "On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention. 7. Each of the applicants was interviewed on twelve occasions in the following five days.", "8. On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants for further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police Superintendent gave evidence on oath as to the necessity of the extensions and arguments were heard on behalf of the first and third applicants. 9.", "Following the hearings Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 on 28 March 2009 and the third applicant’s continued detention until 5.52 on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously. 10. In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail.", "She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either Habeas Corpus or judicial review proceedings. B. The second applicant 11. On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009.", "He was detained at Antrim Police Station on the same day. 12. On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending. 13. Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.", "14. The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers. 15. On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention.", "The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought. 16. On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009. C. Joint proceedings 17. The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention.", "They submitted first, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly that the judge had failed to give reasons for her decision that detention was required; and finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention. 18. Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009. 19. In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court.", "Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences. 20. With regard to the applicants’ second and third submissions, the High Court found that although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant.", "Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision. 21. Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that although there was no doubt that the “competent legal authority” referred to in Article 5 § 1(c) was the authority having competence to deal with a criminal charge (the Magistrate in the United Kingdom), in Schiesser v. Switzerland, 4 December 1979, § 29, Series A no.", "34 and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006‑X the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person should be charged well before the expiry of the twenty‑eight day period contemplated in the 2000 Act. 22. On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance: “(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (“the Convention”) (b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 ECHR; and (c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, (Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor [2010] 2 AC 269.” 23. However, the High Court refused leave to appeal to the Supreme Court.", "24. Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance. D. The applicants’ release from detention 25. The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer.", "26. The second applicant was immediately re-arrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused.", "Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of re-offending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010. 27. On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts on the indictment.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Powers of arrest and detention of terrorist suspects under the Terrorism Act 2000 28. Section 40 of the 2000 Act defines a terrorist as a person who has committed an offence under various sections of the Act or who is or has been concerned in the commission, preparation or instigation of acts of terrorism. 29.", "Section 41(1) of the Act provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist. 30. Part II of Schedule 8 to the 2000 Act deals with the detention of such a person by police during the first forty-eight hours. 31. Section 41 (3) of the Act provides that a detained person must be released not later than the end of the period of forty-eight hours beginning with the time of the arrest subject to subsections (4) to (7) set out below: “(4) If on a review of a person’s detention under Part II of Schedule 8 the review officer does not authorise continued detention, the person shall (unless detained in accordance with subsection (5) or (6) or under any other power) be released.", "(5) Where a police officer intends to make an application for a warrant under paragraph 29 of Schedule 8 extending a person’s detention, the person may be detained pending the making of the application. (6) Where an application has been made under paragraph 29 or 36 of Schedule 8 in respect of a person’s detention, he may be detained pending the conclusion of proceedings on the application. (7) Where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained, subject to paragraph 37 of that Schedule, during the period specified in the warrant.” 32. Paragraph 29 of Schedule 8 to the Act provides that the Director of Public Prosecution for Northern Ireland (“DPP”) may apply to a judicial authority for the issue of a warrant of further detention. Pursuant to paragraph 29(3), the period of further detention shall be seven days from the time of the arrest under section 41 of the 2000 Act unless the application is for a shorter period or the judicial authority is satisfied that there are circumstances that would make it inappropriate for the specified period to be as long as the period of seven days.", "33. In Northern Ireland the judicial authority under the 2000 Act is a County Court Judge or a District Judge (Magistrates’ Court) who has been designated for the purposes of the Act. 34. Paragraph 30 of Schedule 8 requires the application for the warrant to be made during the period of the initial detention or within six hours of the end of that period. 35.", "Paragraph 31 ensures that an application for a warrant cannot be heard until the person to whom it relates has been given a notice stating that the application has been made, the time at which it was made, the time at which it is to be heard and the grounds upon which further detention is sought. 36. Paragraph 32(1) provides that a judicial authority may only issue a warrant of further detention if satisfied that there are reasonable grounds for believing that the further detention of the person is necessary and that the investigation in connection with which the person is detained is being conducted diligently and expeditiously. 37. Paragraph 32(1A) provides that the further detention of a person is required if it is necessary:- “(a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.” 38.", "Relevant evidence is evidence which relates to the commission of an offence under section 40 or an indication that the person detained is a person falling within that section. 39. Paragraph 33 requires that a person to whom an application relates be given an opportunity to make oral or written representations to the judicial authority and be legally represented at the hearing. Paragraph 33(3) provides that the judicial authority may exclude the person to whom the application relates or anyone representing him from the hearing. 40.", "Likewise, paragraph 34 enables the DPP to apply to the judicial authority for an order that specified information upon which he intends to rely be withheld from the person to whom the application relates and anyone representing him. The judicial authority may make such an order only if satisfied that there are reasonable grounds for believing that if the information were disclosed:- “(a) evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed, (b) the recovery of property obtained as a result of an offence under any of those provisions would be hindered, (c) the recovery of property in respect of which a forfeiture order could be made under section 23 or 23A would be hindered, (d) the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted, (e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted, (f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or (g) a person would be interfered with or physically injured.” 41. Paragraph 36 deals with extensions of warrants of further detention up to a maximum of twenty-eight days. Each application for an extension may extend the period of detention for up to seven days. Any application which would extend the then total period beyond fourteen days must be made to a judge of the High Court; otherwise the application is made to a specially designated County Court Judge or a District Judge (Magistrates’ Court).", "B. Ward v. Police Service of Northern Ireland [2007] 1 WLR 3013; [2007] UKHL 50 42. In Ward v. Police Service of Northern Ireland the House of Lords held that the procedure contemplated by paragraph 33 of Schedule 8 was conceived in the best interests of the detained person and not those of the police. It stated: “27. The answer to this question is that the procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police.", "It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised. 28.", "As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. As Hart J said in his ex tempore judgment, that person’s safeguard is the judge, whose function it is rigorously and comprehensively to examine the basis on which the application is being made. 29.", "There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way.” THE LAW I. JOINDER OF THE APPLICATIONS 43. The three applications in the present case (nos. 26289/12, 29062/12 and 29891/12) raise the same issues. For the reasons set out at paragraphs 47‑59 below, the Court finds that the second applicant’s complaints are inadmissible.", "It considers, however, that the remaining applications (nos. 26289/12 and 29891/12) should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 5 § 1(c), 5 § 2 AND 5 § 3 OF THE CONVENTION 44. The applicants complained that their detention was in breach of Article 5 § 1(c), 5 § 2 and 5 § 3 of the Convention, which read as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... ... ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... ... ... 2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 45. The Court is not bound by the legal characterisation given by an applicant to the facts of the case (see, for example, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014). Therefore, as the substance of the applicants’ complaint under Article 5 § 1(c) was that they were not brought promptly before a “judge or other officer”, it considers that it would be more appropriate to examine that complaint under Article 5 § 3. 46.", "The Government contested the applicants’ arguments. A. Admissibility 1. Six months (the second applicant) 47. The Government argued that the second applicant failed to lodge his complaint within the six-month time-limit prescribed in Article 35 § 1 of the Convention. In the present case, given that the final domestic decision was the refusal by the Supreme Court on 14 November 2011 to grant the applicants permission to appeal (see paragraph 24 above), that time-limit expired at midnight on 14 May 2012.", "48. The Government submitted that the second applicant’s first letter to the Court, which was dated 14 May 2012, could not have been faxed to the Court on that date as the Court’s stamp indicated that it had been received on 21 May 2012, which was outside the six-month time-limit. In any case, that letter did not set out even summarily the subject-matter of the application as required by Rule 47 § 5 of the Rules of Court and could not, therefore, constitute a “letter of introduction” of the complaint. Indeed, the Government was not aware of any correspondence from the second applicant received within the six-month time-limit which met the requirements of Rule 47 § 5 of the Rules of Court. 49.", "The second applicant maintained that the letter of 14 May 2012 had been sent to the Court at 12.09 pm on that day. He submitted a confirmation slip which clearly recorded the date, time and successful transmission of the letter. 50. Although the second applicant accepted that this letter did not set out the object of the application, he argued that pursuant to Rule 47 he had received a letter from the Registry requiring him to submit a duly completed application form within eight weeks of the date of the letter. This request was complied with within the requisite time-frame, as the completed application was sent to the Court on 6 July 2012.", "51. It is clear from the documents submitted by the second applicant, and from the Court’s own records, that the letter dated 14 May 2012 was sent by fax to the Registry at 12.09 pm that day and was received at that same time. A hard copy followed by post, which was received by the Registry on 21 May 2012. Consequently, there is no doubt that this letter was received by the Court within the six-month time limit. However, it remains for the Court to decide whether or not this letter constituted a “letter of introduction” for the purposes of Rule 47 § 5 of the Rules of Court.", "52. In the version in force at the relevant time, Rule 47 § 5 of the Rules of Court provided as follows: “The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.” 53. The accompanying Practice Direction on the Institution of Proceedings further provided that: “An application should normally be made on the form referred to in Rule 47 § 1 of the Rules of Court and be accompanied by the documents and decisions mentioned in Rule 47 § 1 (h). Where an applicant introduces his or her application in a letter, such letter must set out, at least in summary form, the subject matter of the application in order to interrupt the running of the six-month rule contained in Article 35 § 1 of the Convention.", "If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form. Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.” 54. Finally, the Guidance Notes which accompanied application forms in May 2012 advised applicants that: “[The] six-month period will be interrupted when you send to the Court either a first letter clearly setting out – even if only in summary form – the subject-matter of the application you may wish to lodge or a completed application form. A mere request for information is not sufficient to stop time running for the purposes of complying with the six-month time-limit.” 55.", "It is clear that Rule 47 § 5, read together with the Practice Direction and the Guidance Notes accompanying the application form, required that a letter of introduction should set out the subject-matter of the complaint in order to stop the six-month time-limit from running. This was recently confirmed by the Court, which held that in accordance with the established practice of the Convention bodies and Rule 47 § 5 of the Rules of Court as worded at the relevant time, it would normally consider the date of introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Abdulrahmen v. the Netherlands (dec.), no. 66994/12 of 5 February 2013). 56.", "The letter sent by the applicant on 14 May 2012 reads as follows: “We refer to the above-named and an application for judicial review which was refused by the Divisional Court in Northern Ireland on the 24th February 2011. We were not previously the solicitors on record. Mr Duffy has now instructed us. We do not have the papers from the previous solicitor. Subsequent to that an application for leave to appeal to the Supreme Court of the UK was made in additional [sic] to an application to Certify Points of Law of General Public Importance.", "This application was lodged with the Court in March 2011. In April 2011 the Divisional Court considered the application for leave to appeal to the Supreme Court and the certified questions and reserved their decision. In April 2011 the Divisional Court refused leave to appeal to the Supreme Court but Certified Points of Law of General Public Importance. An application for Permission to Appeal to the Supreme Court was lodged in July 2011. The Appeal Panel of the Supreme Court considered the application for Permission to Appeal to the Supreme Court and an Order was made by the Supreme Court on the 15th November 2011 refusing Permission to Appeal.", "It is now our intention to lodge an application with the European Court of Human Rights. We note that the application to the European Court of Human Rights must be lodged within 6 months of the final decision in which all domestic remedies were exhausted. Therefore the application must be lodged with the Court no later than the 15th May 2012. Under the circumstances and in view of the urgency of this case we would be grateful if you could confirm that the Court will accept the completed application form which has been printed from the European Court website. In addition to that we would also ask the Court to confirm if you can provide us with the details of the Courts [sic] file reference, so that we can include this on the correspondence and the application form which we hope to submit to you within the next few days.", "We thank you for your assistance and await your reply. We would be grateful if you would confirm the position by fax or email.” 57. The letter did not, therefore, give any indication of the nature or subject-matter of the second applicant’s complaints. The solicitor has stated that at the time of writing he had not received papers from his client’s previous solicitor. However, this fact alone does not explain the failure to provide a basic outline of the complaints the second applicant was intending to make against the respondent State.", "Consequently, the Court considers that the letter of 14 May 2012 did not stop the six-month time-limit from running; on the contrary, no communication capable of having such an effect, that is to say, one setting out the nature of the application, be it in a summary manner, was received at the Court until the submission of a completed application form on 6 July 2012, by which stage the six-month time-limit had well expired. 58. Although the reply sent to the second applicant by the Registry on 15 May 2012 asked him to submit a completed application form within eight weeks, it did not expressly confirm that the letter of 14 May 2012 satisfied the requirements of Rule 47 § 5. While the second applicant’s argument invoking the Registry’s reply as an indication of compliance with Rule 47 is understandable, it was at all times open to the Government to challenge the contents of the letter of 14 May 2014 and for the Court, having considered the parties’ arguments in full, to uphold the Government’s objection. 59.", "Accordingly, by virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain the second applicant’s complaints as they have been lodged out of time. 2. Manifestly ill-founded 60. The Government further submitted that the first and third applicants’ (hereafter “the applicants”) complaints under Article 5 were manifestly ill‑founded. Insofar as the applicants have complained under Article 5 § 2 of the Convention, the Court agrees that their complaints are manifestly ill‑founded, as there is no suggestion that they were not promptly informed of the reasons for their arrest.", "It therefore declares this complaint to be inadmissible pursuant to Article 35 § 3(a). 61. However, the Court is satisfied that the complaints under Article 5 § 3 raise complex issues of fact and Convention law calling for examination on the merits. As such, they cannot be rejected as manifestly ill-founded. Since this part of the application is not inadmissible on any other grounds, it must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicants 62. The applicants relied on Schiesser v. Switzerland, 4 December 1979, Series A no. 34 as authority for the proposition that “competent legal authority” (in paragraph 1(c) of Article 5) was a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” (in paragraph 3 of Article 5).", "Pursuant to the scheme for commencement of criminal proceedings in Northern Ireland, the Magistrates Court was where a defendant was produced on a first appearance following charge. The applicants therefore submitted that in Northern Ireland the Magistrates Court was both the “competent legal authority” for the purposes of Article 5 § 1(c) and the “judge or other officer” for the purposes of Article 5 § 3 of the Convention and, as they were never brought before a Magistrates Court, their pre-charge detention was in breach of Article 5 § 3. 63. The applicants further submitted that it made perfect sense for the first post-charge appearance before the Magistrates Court to be the appearance before the “judge or other officer”, as it would provide further additional safeguards against arbitrary detention. In particular, it would ensure the prompt and public announcement of the charge against the detainee; it would ensure consideration of the detainee’s continued detention and, importantly, the possibility of conditional release; and if further detention was authorised it would be in prison rather than a police station, which was unlikely to be adequate for prolonged periods of detention.", "64. Even if the Court were to accept that the judicial control of detention contemplated by Article 5 § 3 of the Convention did not have to be fulfilled by a Magistrates Court, the applicant submitted that the “judicial authority” as constituted under the 2000 Act did not have the powers and characteristics to fulfil the requirements of that Article. 65. First, they argued that the scope of the inquiry carried out by the judicial authority at the first automatic review of detention was not compliant with Article 5 § 3 of the Convention. In the present case the High Court found that a review of the lawfulness of arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the necessary constraints that applied in many arrests for terrorist offences, where reasons of public safety prevented the disclosure of the full information upon which the decision to arrest was taken.", "The applicants submitted that this was not compliant with Article 5 § 3, as such a test prevented the effective review of arrest and detention required by that Article on the first automatic review by a judge and in subsequent reviews. Therefore, even if the Country Court Judge had proceeded on the basis approved by the High Court, it would not have been sufficient to comply with Article 5 § 3. 66. Secondly, the logical consequence of the creation of a separate and distinct mechanism outside the normal legal processes was that the “judicial authority” had to fulfil two separate judicial-supervision roles required by Article 5 § 3 of the Convention; the automatic review of detention and consideration of whether the detainee should be released on bail pending trial. Convention case-law established that the latter role had to be carried out with due expedition (McKay v. the United Kingdom [GC], no.", "543/03, ECHR 2006‑X). There was no dispute between the parties that the “judicial authority” as constituted under the 2000 Act did not possess the power to order conditional release; however, without the possibility of imposing conditions of release the judicial authority could only order unconditional release or continued detention. The position was particularly stark in a case such as the present, where the applicants should, at the very least, have been conditionally released. In this regard the applicants submitted that the police had sought to extend their detention when they had already been detained for seven days without charge; police interviews had come to an end save for the receipt of the results of forensic tests; the investigations had not produced any or sufficient evidence to charge the applicants; they were of good character and did not pose a flight risk; and they were entitled to the presumption of innocence. (b) The Government 67.", "The Government submitted that the essential requirement in Article 5 § 3 of the Convention was for the arrested person to be brought promptly before “a judge or other officer authorised by law to exercise judicial power”. The judicial bodies contemplated by Article 5 § 1(c) and 5 § 3 did not have to be identical; as Schedule 8 required a detained person to be brought before a judge, it conformed to the essential requirement contained in Article 5 § 3. In support of this assertion the Government relied on the wording of Article 5; the purpose underlying Article 5; and the Court’s judgments in Aquilina v. Malta [GC], no. 25642/94, ECHR 1999‑III and Schiesser v. Switzerland, cited above. 68.", "First, the fact that different language was used in Article 5 § 1(c) on the one hand and in Article 5 § 3 on the other demonstrated that the two judicial bodies referred to in those provisions did not need to be identical. 69. Secondly, in Medvedyev and Others v. France [GC], no. 3394/03, ECHR 2010 the Court stated that the purpose of Article 5 § 3 was to ensure that arrested persons were physically brought before a judicial officer promptly and the provisions of Schedule 8 served this purpose. In particular, they provided a safeguard against arbitrary detention, as there was independent judicial scrutiny of the reasons for a suspect’s detention and release had to be ordered if a suspect’s continued detention was not justified.", "To suggest that the “judge or other officer” in Article 5 § 3 should be the same as the “competent legal authority” in Article 5 § 1(c) would add nothing to the protection afforded to a detained person, would give priority to form over substance, and would limit for no good reason the organisation of judicial resources by the State concerned. 70. Thirdly, there was nothing in either Schiesser v. Switzerland or Aquilina v. Malta to suggest that the judicial body in Article 5 § 3 should be identical to that in Article 5 § 1(c). On the contrary, the Court had made it clear in those judgments that the important question was whether the judicial or other officer had the requisite independence from the executive and the parties. 71.", "The Government further submitted that the applicants had misunderstood the nature of the compulsory first review under Article 5 § 3 of the Convention. First, there was no requirement that a person detained pursuant to Article 5 § 1(c) must have been – or must eventually be – charged (Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B). Accordingly, prompt and public announcement of a criminal charge as part of the review of the lawfulness of detention under Article 5 § 3 was irrelevant. 72.", "Secondly, there was no ground for concluding that the review under Article 5 § 3 must, as a matter of automatic obligation, cover the release of the detainee pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that he or she had committed a criminal offence (McKay v. the United Kingdom, cited above, §§ 38 – 39). The requirements of Article 5 § 3 in relation to detention under Article 5 § 1(c) and the requirements of Article 5 § 3 in relation to continuing pre-trial detention (which did encompass consideration of conditional release) conferred distinct rights and were not on their face logically or temporally linked (Medvedyev and Others v. France, cited above, § 119). In the present case, although the applicants’ pre-trial detention was at a very early stage, the judge could only issue a warrant of further detention if satisfied that each applicant was a person reasonably suspected of having committed a terrorist offence or of being a terrorist; that there were reasonable grounds for believing that the further detention of each applicant was necessary; and that the investigation was being conducted diligently and expeditiously. In these circumstances it was not necessary for the judge to have the additional power to release the applicant on conditional bail. 2.", "The Court’s assessment (a) General principles 73. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30). 74. The Court notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly.", "Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill‑treatment (see, among other authorities, Brogan and Others, cited above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993, §§ 62‑63, Series A no. 258-B; Aquilina v. Malta, cited above, § 49; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000‑VIII). 75. Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions.", "These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999, McKay, cited above, § 31 and Medvedyev v. France, cited above, § 119). 76. Taking the initial stage under the first limb, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained “on reasonable suspicion of having committed [a criminal] offence”, that is to say, even before any criminal charge may have been brought (see Brogan and Others, cited above, § 53).", "Such control serves to provide effective safeguards against the risk of ill‑treatment, which is at its greatest in this initial stage of a perhaps continuing deprivation of liberty following the bringing of a criminal charge, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the requirements set out below (see McKay, cited above, § 32). (α) Promptness 77. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. Although each case has to be assessed according to its special features (Belousov v. Ukraine, no.", "4494/07, § 94, 7 November 2013), the strict time‑constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others, cited above, § 62, where periods of four days and six hours in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations). 78. The implication of Brogan (cited above) is that, even where, as in the context of anti-terrorism legislation, there exist exceptional circumstances or special difficulties justifying a longer period than normal before the authorities bring the arrested person before a judge, the first review must take place within a maximum of four days after the arrest. In McKay, cited above, the Court found no violation of Article 5 § 3 of the Convention in circumstances where a non-terrorist suspect was brought before the judicial officer within forty-eight hours of his arrest. Likewise, in Aquilina, cited above, the Court accepted that the applicant’s appearance before a Magistrate two days following his arrest satisfied the requirement of promptness.", "Nevertheless, while any period in excess of four days is prima facie too long, in certain circumstances shorter periods can also be in breach of the promptness requirement (see Ipek and Others v. Turkey, §§ 36-37, in which a period of three days and nine hours was not sufficiently prompt in relation to applicants who were minors; Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008, in which a period of three days and twenty-three hours was not sufficiently prompt where the applicant, who was arrested on charges of a minor and non‑violent offence, had already spent twenty‑four hours in custody when the police proposed to the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention; and Hassan and Others v. France, no. 46695/10, § 89, 4 December 2014, in which the applicants had already been detained for long periods before being taken into police custody). (β) Automatic nature of the review 79. The review must be automatic and not depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4, which gives a detained person the right to apply for release.", "The automatic nature of the review is necessary to fulfil the purpose of that paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (see Aquilina, cited above). (γ) The characteristics and powers of the judicial officer 80. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” in paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3, and Schiesser, cited above, § 29).", "81. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his or her subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149, Reports 1998-VIII). As regards the scope of that review, the formulation which has been at the basis of the Court’s long-established case-law dates back to the early Schiesser case (cited above, § 31): “In addition, under Article 5 § 3, there is both a procedural and a substantive requirement. The procedural requirement places the ‘officer’ under the obligation of hearing himself the individual brought before him [...]; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons [...].” 82. In other words, “Article 5 § 3 requires the judicial officer to consider the merits of the detention” (see T.W.", "v. Malta and Aquilina, both cited above, § 41 and § 47 respectively). 83. The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence; in other words, whether detention falls within the permitted exceptions set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release (see McKay, cited above, § 40). 84.", "However, an examination of the relevant case-law gives no ground for concluding that the review must, as a matter of automatic obligation, cover the release of the applicant pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that the applicant has committed a criminal offence. There is nothing therefore to suggest that, when referring in its Schiesser judgment to “the circumstances militating for or against detention”, the Court was doing more than indicating that the judicial officer had to have the power to review the lawfulness of the arrest and detention under domestic law and its compliance with the requirements of Article 5 § 1 (c) (McKay, cited above, § 36). 85. The Court has noted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61; Murray v. the United Kingdom, 28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey, 18 December 1996, § 78, Reports 1996-VI).", "In Brogan and others (cited above, § 61) the Court specifically acknowledged that “the difficulties ... of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 § 3, for example, in calling for appropriate procedural precautions in view of the nature of the suspected offences. This does not mean, however, that the investigating authorities have “carte blanche” under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Öcalan v. Turkey [GC], no. 46221/99, § 104, ECHR 2005‑IV). (δ) The pre-trial or remand period 86. The presumption is in favour of release.", "As established in Neumeister v. Austria (27 June 1968, p. 37, § 4, Series A no. 8), 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 or her provisional release pending trial. Until conviction, he or she must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable. 87. Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no.", "30210/96, §§ 110 et seq., ECHR 2000‑XI). 88. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this will no longer be enough to justify continued detention. The Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (Stögmüller v. Austria, no. 1602/62, § 4, 10 November 1969).", "Once the existence of “reasonable suspicion” is no longer enough, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. In particular, they must determine whether such grounds were “relevant” and “sufficient”, and whether the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319‑A). 89.", "The Court’s case-law has not yet had occasion to consider the very early stage of pre-trial detention in this context, presumably as, in the great majority of cases, the existence of suspicion provides a sufficient ground for detention and any unavailability of bail has not been seriously challengeable. It is not in doubt, however, that there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. There is no express requirement of “promptness” as in the first sentence of paragraph 3 of Article 5. However, such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum (see McKay, cited above, § 46). 90.", "In order to ensure that the right guaranteed is practical and effective, not theoretical and illusory, it is not only good practice, but highly desirable in order to minimise delay, that the judicial officer who conducts the first automatic review of lawfulness and the existence of a ground for detention also has the competence to consider release on bail. It is not, however, a requirement of the Convention and there is no reason in principle why the issues cannot be dealt with by two judicial officers, within the requisite time frame. In any event, as a matter of interpretation, it cannot be required that the examination of bail take place with any more speed than is demanded of the first automatic review, which the Court has identified as being a maximum of four days (see Brogan and Others, cited above). (b) Application of the general principles to the present case (α) Were the applicants brought promptly before a judge or other judicial officer satisfying the requirements of Article 5 § 3 of the Convention? 91.", "Although, as noted above (at paragraph 80), the “competent legal authority” in paragraph 1(c) of Article 5 § 3 is to be taken as a synonym of the “judge or other officer authorised by law to exercise judicial power” in paragraph 3, it does not follow that the judicial bodies to carry out the various judicial functions contemplated by the two provisions must necessarily be identical. On the contrary, in its case-law the Court has repeatedly stressed that the specific purpose of the first limb of Article 5 § 3 is limited to ensuring that a detained person is brought promptly before a judicial authority with the power to assess the lawfulness of the arrest, to review the merits of the detention, and to order release if continued detention would be unlawful. Where this is the case, the Court has found the requirements imposed by this first part of Article 5 § 3 to be satisfied. Accordingly, it considers that the correct question in the present case is not whether the applicants should have been brought before the Magistrates Court, the judicial authority in Northern Ireland before which an accused is to be produced on a first appearance following a criminal charge, but whether they were in fact brought before a judge or other officer satisfying the requirements of the first limb of Article 5 § 3 of the Convention in relation to an initial deprivation of liberty of the kind covered by Article 5 § 1(c). 92.", "Before addressing this question, the Court observes that during their detention the applicants were brought twice before a specially designated County Court Judge: forty-eight hours after their arrest, when the DPP made applications for warrants of further detention under paragraph 29 of Schedule 8, and five days later, when the DPP made applications under paragraph 36 of Schedule 8 for extensions to those warrants (see paragraphs 6-8 and 33 above). Although it was the paragraph 36 order which the applicants subsequently challenged by way of judicial review, the High Court held that paragraph 32, which sets out the grounds for granting a warrant of further detention, had to be interpreted in conformity with Article 5 § 3 of the Convention (see paragraphs 19 and 21 above). The Court will therefore proceed on the basis that there is no difference in the competency of the judge under paragraph 29 and the judge under paragraph 36. 93. With regard to the requirement of “promptness”, the Court notes that in the present case the applicants were adults who were brought before a judge within forty-eight hours of their arrest on suspicion of having committed a serious terrorism-related crime.", "Bearing in mind the principles set out at paragraphs 77 and 78 above, the Court accepts that they were brought “promptly” before the judge. 94. The second requirement of Article 5 § 3 is that the first appearance of the detained person before the judicial officer should be automatic. In the present case the applicants have not sought to argue the contrary. Police officers were required by paragraph 29 of Schedule 8 to the 2000 Act to apply to the County Court Judge to extend the initial period of detention beyond forty-eight hours (see paragraph 32 above); the applicants could not, therefore, have been detained any longer than forty-eight hours without first appearing before a judge.", "95. Thirdly, the Court has repeatedly held that the judicial officer in Article 5 § 3 of the Convention must offer the requisite guarantees of independence from the executive and the parties; he or she must be able to review the lawfulness of, and justification for, the arrest and detention (to include a review of the circumstances militating for or against detention in order to decide whether there were reasons to justify detention); and, if there were insufficient reasons to justify detention, he or she must have the power to order release. 96. It is common ground that the County Court Judge was independent. Therefore, the two principal questions for the Court to address are first, whether she had adequate jurisdiction to review the lawfulness of the applicants’ detention; and secondly, whether she had the necessary power to order their release.", "97. Although the High Court held that paragraph 32 had to be interpreted in conformity with Article 5 § 3 (see paragraphs 19 and 21 above), the applicants take issue with its subsequent suggestion that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences. 98. The Court observes that the guidance given by the High Court was given in the abstract and, as such, it has not had the benefit of seeing how it would be applied by the domestic courts in practice. Nevertheless, in principle the Court sees nothing in the ruling of the High Court which contradicts its own jurisprudence.", "In particular, it notes that in previous cases it has stopped short of defining the exact content and/or form of analysis required by Article 5 § 3; rather, it has simply stated that the judicial officer must be able to review the lawfulness of, and the justification for, the arrest and detention, review the circumstances militating for or against detention, including the existence of reasonable suspicion, and decide whether there are reasons justifying detention. Moreover, as noted above (at paragraph 83), while it has stated that the authorities do not have a “carte blanche” when investigating terrorist offences, it has specifically acknowledged the special problems that the investigation of such offences often present to the authorities. Therefore, on the evidence before it, the Court cannot agree with the applicants that the review foreseen by the High Court as being inherent in the impugned legislation would necessarily fall short of the standard required by Article 5 § 3 of the Convention. 99. In the present case the High Court, while quashing the County Court Judge’s extensions of the detention on account of her failure to address the initial lawfulness of the arrest, was satisfied that the County Court Judge had not failed to have regard to the need for detention as the basis for the grant of the warrant and that her decision was adequately reasoned (see paragraphs 19 – 20 above).", "100. With regard to the question of whether the County Court Judge had the power to order release in the event of an unlawful arrest or detention, the Court recalls that while there is no such express power stated in the 2000 Act, in the present case the High Court accepted that since the provisions of that Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention, the County Court Judge must have power to order release if there was no lawful basis for the initial arrest or continued detention (see paragraphs 19 and 21 above). In addition, it notes that where a warrant (or a further warrant) is either not sought or not granted, the person must be released as there is no longer any legal basis for continued detention. 101. The applicants have suggested that the County Court Judge should also have had the power to order conditional release.", "However, as noted at paragraph 84 above, there is no support in the Court’s case-law for the applicants’ assertion that the judicial authority conducting the first review of deprivation of liberty should have had power to order conditional release. The Court stated in McKay (cited above, § 47) that it would be “highly desirable” for the judicial officer conducting the first automatic review of lawfulness to also have competence to consider release on bail for reasons other than the lawfulness of the detention or the existence of a reasonable suspicion that the applicant had committed a criminal offence, but stressed that this was not a requirement of the Convention and there was no reason in principle why the issues could not be dealt with by two judicial officers. (β) Should there have been a possibility of conditional release during the period of the applicants’ detention? 102. Following the first review of their detention the applicants remained in police custody for a further ten days.", "Although they were brought for a second time before a County Court Judge after they had been in detention for seven days, it is accepted that at no time during their detention were they brought before a judge with power to order conditional release. The applicants have therefore complained that insofar as the scheme under Schedule 8 to the 2000 Act permitted their detention for a maximum period of twenty-eight days without charge, during which no consideration had to be given to their conditional release, it was not compatible with Article 5 § 3 of the Convention. 103. The Court cannot consider the scheme under Schedule 8 in abstracto; rather, it must confine itself to the facts of the case before it. Therefore, although the applicants could have been detained for a maximum of twenty-eight days, it cannot overlook the fact that in the present case they were released after twelve days.", "Moreover, it does not consider the absence of any eventual charge to be material; nothing in Article 5 § 3 suggests that detainees must be charged with a criminal offence in order for their detention to be compatible with that provision (Brogan, cited above, § 53). 104. As noted at paragraph 75 above, Article 5 § 3 is structurally concerned with two separate matters which confer distinct rights and which are not temporally linked: the early stages following an arrest on suspicion of having committed a criminal offence, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions (see T.W. v. Malta, cited above, § 49, McKay, cited above, § 31 and Medvedyev v. France, cited above, § 119). During the initial stage under the first limb of Article 5 § 3, the detainee’s detention may be justified by the existence, on its own, of a “reasonable suspicion” that he had committed a criminal offence.", "However, the persistence of suspicion will not suffice to justify, after a certain lapse of time, the prolongation of the detention, although the Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (Stögmüller v. Austria, cited above, § 4). It therefore falls to the Court in the present case to decide whether the applicants were at all times detained under the first limb of Article 5 § 3, or whether at some point their continued detention could no longer be justified by the existence of “reasonable suspicion”. 105. In the present case the applicants were detained for twelve days, which was a relatively short period of time. As such, the Court considers that they were at all times in “the early stages” of the deprivation of liberty, when their detention could be justified by the existence of a reasonable suspicion that they had committed a criminal offence; it was not, therefore, necessary that any consideration be given to their conditional release during this period.", "106. In any case, the Court notes that during the period of their detention there were a number of safeguards in place to protect the applicants against arbitrary detention. First, under the Schedule 8 scheme the judge could only extend detention for a maximum of seven days and the overall period could not exceed twenty-eight days. Before granting any extension the judge had to be satisfied that there were reasonable grounds for believing that further detention was necessary and that the investigation was being conducted diligently and expeditiously (see paragraph 36 above). Furthermore, following the ruling of the High Court, the judge also had to be satisfied that the arrest was lawful and consider the merits of detention.", "Although in certain cases detainees and/or their representatives could be excluded from the hearings, in the present case the first applicant gave evidence on oath during the first review and arguments from both applicants were heard during the second reviews (see paragraph 8 above). Finally, the applicants were able to challenge their continued detention by way of judicial review. 107. Stricter safeguards were in place for any extension that would prolong detention beyond fourteen days; however, that was not necessary in the present case as the applicants were released after twelve days. 108.", "In light of the factors set out above, the Court does not consider that the absence of a possibility of conditional release during the period of the applicants’ deprivation of liberty gave rise to any issues under Article 5 § 3 of the Convention. (γ) Conclusion 109. The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ detention under Schedule 8 to the 2000 Act did not breach Article 5 § 3 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the applications nos.", "26289/12 and 29891/12 lodged respectively by the first and third applicants; 2. Declares the second applicant’s application (application no. 29062/12) inadmissible; 3. Declares the first and third applicants’ complaints under Article 5 § 2 of the Convention inadmissible as manifestly ill-founded; 4. Declares the first and third applicants’ complaints under Article 5 § 3 of the Convention admissible; 5.", "Holds that there has been no violation of Article 5 § 3 of the Convention. Done in English, and notified in writing on 12 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosPäivi HirveläRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KORNEYKOVA AND KORNEYKOV v. UKRAINE (Application no. 56660/12) JUDGMENT STRASBOURG 24 March 2016 FINAL 24/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korneykova and Korneykov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Ganna Yudkivska,André Potocki,Faris Vehabović,Síofra O’Leary,Carlo Ranzoni,Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 1 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "56660/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Viktoriya Yuryevna Korneykova (“the first applicant”) and her son Mr Denis Yuryevich Korneykov (“the second applicant”), on 31 August 2012. 2. The applicants were represented by Ms Y. Zaikina and Mr G. Tokarev, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice. 3.", "The first applicant alleged that she had been shackled to her bed during her stay in a maternity hospital. She also complained about her placement in a metal cage during court hearings. Lastly, she complained on behalf of herself and the second applicant that the material conditions of their detention and the medical care provided to the second applicant in the Kharkiv Pre-Trial Detention Centre (“the Kharkiv SIZO”) had been inadequate. 4. On 12 October 2012 the President of the Fifth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should be kept in conditions suitable for a small child and a nursing mother.", "It was specified, in particular, that adequate medical supervision and care should be provided to the second applicant for the duration of the proceedings before the Court. 5. On the same date the application was given priority under Rule 41 of the Rules of the Court and it was communicated to the Government. 6. On 22 February 2013 the application of Rules 39 and 41 of the Rules of Court was discontinued at the Government’s request as by that time the first applicant had been released (see paragraph 75 below).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicants are a mother and child born in 1990 and 2012 respectively. A. Background facts 8.", "On 16 January 2012 the first applicant, who was in the fifth month of pregnancy, was detained by the police on suspicion of robbery. 9. On 26 January 2012 the Dzerzhynskyy District Court of Kharkiv (“the Dzerzhynskyy Court”) ordered her pre-trial detention as a preventive measure pending trial. 10. On the same date she was placed in the Kharkiv SIZO.", "B. Conditions of the first applicant’s stay in the maternity hospital 11. On 22 May 2012 the first applicant was taken to Kharkiv Maternity Hospital no. 7 (“the maternity hospital”). 12.", "On the same date she gave birth to the second applicant. He measured 49 cm and weighed 2.9 kg. 13. Three female security officers guarded the first applicant in the hospital. According to her, they stayed on the ward at all times.", "The Government submitted that they had left the ward during the delivery. 14. The first applicant alleged she had been continuously shackled to her hospital bed or to a gynaecological examination chair, the only exception being during the delivery when the shackles had been removed. It is not clear from her submissions exactly how she had been shackled; on one occasion, she submitted that after the delivery she had had her foot shackled to the bed. At the same time, she submitted that the guards had only removed the shackles from her wrists for breastfeeding.", "15. According to the Government, the first applicant was never handcuffed or shackled in the maternity hospital. 16. On 25 May 2012 the applicants were discharged. 17.", "On 12 November 2012 the first applicant wrote in a statement for the SIZO administration (see paragraphs 41 and 76) that the maternity hospital staff had treated her well, that she had not been handcuffed or shackled, and that the two female security officers who had been on her ward had been helping her take care of the baby. 18. In December 2012 and January 2013 the prosecution authorities questioned some maternity hospital staff and the security officers who had guarded the first applicant with a view to verifying her allegations, particularly as regards her shackling (see also paragraphs 76-82 below). 19. On 21 December 2012 the chief doctor of the maternity hospital wrote to the governor of the Kharkiv SIZO, in reply to an enquiry by the latter, to say that during her stay in the maternity hospital the first applicant had been guarded by SIZO officers at all times, that the officers in question had not been on the delivery ward, and that the first applicant had not been handcuffed or shackled during the delivery.", "20. On 24 December 2012 the chief obstetrician, Ms Ti., gave a written statement to the prosecution authorities. She submitted that the first applicant had been shackled by the wrists to the gynaecological examination chair during her examinations both in the admissions unit and later in the obstetric unit, and that it was usual practice for detainees to be shackled and guarded by three guards. 21. Two other obstetricians, Ms F. and Ms S., and a nurse, Ms To., made similar statements.", "Ms F. submitted that she could not remember any details regarding the second applicant’s delivery. Ms To. specified that the first applicant had not been shackled during the delivery or subsequently during breastfeeding. 22. The chief doctor of the neonatal unit Ms Vl.", "also submitted that the first applicant had been shackled to a gynaecological examination chair. Furthermore, she indicated that two guards had been staying on the ward near the applicants, with a third near the door. 23. The security officers who had guarded the first applicant denied that she had been handcuffed or shackled in hospital. 24.", "The applicant’s lawyer enquired with a former nurse, Ms P., about the conditions faced by women in detention during delivery, with reference to her related work experience. On 7 February 2013 Ms P. wrote to him indicating that she had indeed worked as a nurse at Donetsk Regional Childcare and Maternal Health Centre from 1996 to 2005, and that in 2004 or 2005 a detained woman had been shackled to her bed during her baby’s delivery there. C. Conditions of detention in the Kharkiv SIZO 1. Physical conditions of detention 25. While the first applicant was held in several different cells in the SIZO, her application form referred only to the conditions of her detention with her baby in cell no.", "408, in which she had been held from 14 March to 8 November 2012. The summary of facts below therefore only concerns that cell. (a) The first applicant’s account 26. The cell, situated in a semi-basement, was cold and damp. There was no hot water and only an irregular supply of cold water.", "The first applicant therefore rarely had the opportunity to take a shower and bath her new-born son. She also had to store cold water in plastic bottles for her own use. She boiled water on a defective electric cooker in a kettle, which she had to borrow from the administration and which was provided to her for no longer than fifteen minutes each time. The toilet and shower were in a niche not separated from the living area. The toilet was often blocked.", "There was no baby changing table or cot in the cell. 27. The first applicant was not provided with any baby hygiene products. Nor did she receive nutrition suitable to her needs. On the days of court hearings her only meal was breakfast, which consisted of bread and tea.", "No packed lunches were provided to her. 28. The applicants were able to have outdoor walks of about ten minutes per day, but not every day, in a communal walking area. 29. Lastly, one of the inmates she shared with was HIV positive.", "(b) The Government’s account 30. Cell no. 408 was a high-comfort cell designed for pregnant women and women with children. It was located on the ground floor, measured fifty-two square metres and could accommodate up to six people. The first applicant shared it with two or sometimes three inmates.", "31. The cell had three windows measuring over eight square metres in total. There was hot and cold water, as well as a drinking water cooler with a capacity of ten litres. 32. Furthermore, there were all the necessary furniture and facilities such as air conditioning, a refrigerator, an electric stove, a baby cot and a pram.", "There was also a supply of nappies and hygiene products. The toilet and shower were separated from the living area. 33. The first applicant was provided with adequate nutrition in accordance with the applicable standards (the total energy value of her daily meals being 3,284 kilocalories). She received three hot meals per day with the exception of hearing days, when she missed lunch.", "She breastfed her son and refused the baby food provided by the SIZO. There were no restrictions on food or other parcels she received from her relatives. 34. The applicants had a daily two-hour walk in a specially designated area. 35.", "They never shared a cell with inmates with HIV. 36. The Government provided four colour photographs of cell no. 408, showing a spacious and light room in a visually good state of repair. There were three large windows with sheer curtains.", "The cell had a washbasin. There was also a lavatory with a bidet and a shower cubicle, both separated from the living area by opaque glass doors. Also on the photographs were a wardrobe, two beds with bedside cabinets, a cot, a table with two stools, a baby stool, a shelf with some tableware, a microwave, a television and a baby changing table. 37. Another photograph showed a walking area for detained mothers with babies, with a flowerbed and a wall with a nature mural.", "The first applicant and her baby were on the photograph, as well as another woman with a pram. (c) Other detainees’ accounts and relevant information 38. On 1 and 2 February 2012 the local sanitary and epidemiological service inspected the SIZO in the context of an unspecified investigation. It observed that there was a special cell for women with babies, with all the essential amenities. It was noted in the report that there had been no pregnant inmates or inmates with babies in the SIZO at the time of the inspection.", "39. On 24 May 2012 the sanitary and epidemiological service also inspected the drinking water in the SIZO to check that it complied with the relevant standards. No irregularities were found. 40. On 22 October 2012 the Kharkiv Regional Prosecutor’s Office informed the Agent of the Government that there had been no complaints from the first applicant regarding the conditions of detention or the second applicant’s medical care in the SIZO.", "41. On 12 November 2012 the first applicant wrote a statement giving a detailed description of her cell in the SIZO similar to that submitted by the Government (see paragraphs 30-37 above). The last paragraph also concerned her stay in the maternity hospital (see paragraph 17 above). 42. On 13 November 2012 one of the SIZO staff wrote to the State Prisons Service to say that the first applicant’s statement had been made freely.", "43. During her detention in the Kharkiv SIZO the first applicant received about thirty food parcels from her mother, often with basic foodstuffs such as bread, butter, tea, sugar and milk. 44. The first applicant lodged numerous requests for release with the trial court dealing with her criminal case, subject to an undertaking not to abscond (dated 6 July, 6, 26 and 31 August, 3 September and 9 October 2012). She alleged, in particular, that the conditions in the SIZO were not adequate for her baby.", "The court rejected those requests. 45. The applicants’ case received some media coverage. For example, in November 2012 the article “Baby as a victim of inhuman treatment” was published online by the Kharkiv Human Rights Group. In December 2012 a television programme was broadcast, in which the first applicant and the State authorities gave accounts, particularly as regards the conditions of the applicants’ detention in the SIZO.", "The parties did not submit to the Court a copy of the relevant article or video footage or a transcript of the television programme. 46. On 12 December 2012 one of the detainees, Ms B., wrote a statement addressed to the head of the local department of the State Prisons Service. She submitted that in November 2012 she had been held in the same cell as the first applicant and had been satisfied with the conditions of detention there. It was noted in the statement that there had been large windows in the cell, a shower cubicle with hot and cold water and all the necessary furniture and appliances, including a refrigerator and a television.", "47. On 19 December 2012 the Kharkiv Regional Department of the State Prisons Service issued a memorandum stating that the first applicant had not submitted any complaints during her detention in the Kharkiv SIZO. 48. The case file contains three statements by detainee Ms M. concerning the conditions of detention in the SIZO. She wrote two of them while detained there (on an unspecified date and on 25 December 2012), and a third on 30 January 2013 when she had already begun serving her prison sentence elsewhere.", "In the first two statements Ms M. described the conditions of her detention in cell no. 408 as quite satisfactory and comfortable. Her account was similar to that given by the Government (see paragraphs 30-32 above). The first two statements also contained critical remarks regarding the first applicant claiming, in particular, that she had displayed a careless attitude towards her baby and had acted in bad faith in applying to the Court. In her third statement, Ms M. stated that the food in the SIZO had been poor.", "More specifically, the bread had been stale and the meat had been tinged blue. She also submitted that there had been no hot water in cell no. 408. Lastly, she submitted that on two occasions she had witnessed the first applicant requesting medical care for her baby when he had had stomachache, but her requests had been ignored. 49.", "On 28 December 2012 a former detainee, Ms Sa., wrote a statement for the first applicant’s lawyer and had it certified by a notary. She stated that she had shared cell no. 408 with the first applicant from an unspecified date in March to 19 April 2012. Ms Sa. had been pregnant at the time.", "She described the conditions of their detention as follows. The cell was located in a semi-basement and inmates saw practically no daylight. The windows were so high that they could not be opened without the assistance of a guard. There were about seven inmates in the cell, some of them with HIV and some suffering from other illnesses. The toilet was separated from the living area by a waist-high wall and leaked.", "As a result, there was always a bad smell. The shower also leaked and the cubicle door was broken. It was so humid in the cell that the plaster had fallen off the ceiling and the walls were covered in mould. The cell was infested with mice and lice. There were no household appliances like a kettle or microwave.", "Nor were there any beds or bedside cabinets as shown by the State Prisons Service on television (see paragraph 45 above). Ms Sa. specified that in fact none of the detainees had ever been held in the cell presented by the authorities on television. There was no hot water and the pressure in the cold water taps was so low that inmates had to store water for their own use. Furthermore, the SIZO administration did not provide them with any tableware.", "Their daily walk lasted only twenty minutes and took place in a small walking area covered with bars. Furthermore, according to Ms Sa., the food in the SIZO was neither fresh nor tasty. Lastly, she stated that she had been shackled to her bed when undergoing some treatment in the maternity hospital in Kharkiv while pregnant. 50. On an unspecified date Ms Ve., who had also shared cell no.", "408 with the first applicant (the exact period is unknown), wrote a statement about the conditions of detention there. Her description was similar to that given by Ms Sa. as regards the leaking toilet, high humidity levels, lack of hot water and irregular supply of cold water, as well as the duration and conditions of the daily outdoor walks and poor nutrition. 2. Medical care for the second applicant 51.", "On 25 May 2012 the applicants were discharged from the maternity hospital. The second applicant was found to be in good health. 52. According to a letter from its chief doctor to the first applicant’s lawyer dated 12 December 2012, on 25 May 2012 the second applicant was transferred to Children’s Hospital no. 19 (“the children’s hospital”).", "All the other relevant documents in the case file indicate that on 25 May 2012 both applicants were taken to the Kharkiv SIZO. 53. As submitted by the first applicant and noted in a letter by the chief doctor of the children’s hospital to the first applicant’s lawyer dated 6 September 2012, a paediatrician from that hospital had examined the second applicant on 28 May 2012. The baby was found to be in good health but to have phimosis (a condition of the penis where the foreskin cannot be fully retracted). 54.", "However, according to the second applicant’s medical file kept by the SIZO, the first time a paediatrician of the children’s hospital examined him was on 31 May 2012. He was found to be in an adaptation period and the first applicant received advice regarding childcare. 55. According to the second applicant’s medical file, on 12 June 2012 he was examined again by a paediatrician, who diagnosed him with intestinal colic and recommended Espumisan, massage, feeding on demand and outdoor walks. The doctor also suspected that the boy had a patent (open) foramen ovale (PFO; the foramen ovale allows blood circulation in the fetal heart and closes in most individuals at birth).", "56. The second applicant’s next medical examination appears to have taken place on 20 July 2012. It was noted in his medical file that the paediatrician had given advice to the first applicant regarding feeding and care. 57. The first applicant denied that any of the examinations following that on 28 May 2012 had taken place.", "She alleged that her baby had not been examined by a paediatrician until 10 September 2012. She submitted that the records of her son’s earlier examinations in the medical file had been forged. According to her, the first page of that book referred to an examination on 10 September 2012, whereas the records of his earlier examinations had been written on separate pages and subsequently glued into the file. The case file as it stands before the Court contains a separate copy of each page of the file, which makes it impossible to verify the first applicant’s allegation. 58.", "On 28 August 2012 the first applicant’s lawyer asked the Kharkiv SIZO administration to provide him with details of when the second applicant had been examined by a paediatrician and whether the conditions of detention had been appropriate for such a small baby. He also requested copies of the relevant documents. 59. On 4 September 2012 the SIZO administration replied that it would be able to provide comprehensive information on the second applicant’s health after a complete medical examination in the children’s hospital, which was due to take place. 60.", "On 31 August 2012 the first applicant asked the judge dealing with her case to order a medical examination of her son “given that the SIZO administration [was] ignoring her requests to that effect”. It appears that her request was rejected. 61. On 6 September 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer in reply to an enquiry by him dated 5 September 2012. He said that with no paediatrician at the Kharkiv SIZO, a paediatrician from that hospital monitored babies born there.", "He also indicated that the second applicant had been examined by the hospital paediatrician on 28 May 2012 (see also paragraph 53 above). In so far as the lawyer enquired about the baby’s medical condition at the material time, the chief doctor stated that it was impossible to provide him with such information because the first applicant had not requested any medical care for him until then. 62. On 10 September 2012 a dermatologist, cardiologist, ear, nose and throat specialist, neurologist and paediatrician all examined the second applicant. He was found to have allergic dermatitis, dysplastic cardiomyopathy and phimosis.", "Furthermore, the patent foramen ovale diagnosis had been called into question (see paragraph 55 above). The doctors concluded that the second applicant did not require any medical treatment, but recommended that the mother follow a hypoallergenic diet. 63. According to the first applicant, the examination was carried out in the context of custody proceedings initiated by the second applicant’s stepfather. She specified that it had been done with her consent so that the second applicant could be taken from the SIZO, where he was not receiving adequate care.", "64. On 14 September 2012 the SIZO sent a copy of the second applicant’s medical file to the applicants’ representative, further to a request made by him on 28 August 2012 (see paragraph 58 above). 65. On 18 October 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer, in reply to an enquiry made on 10 October 2012, to say that hospital was in charge of the medical supervision of children in the Kharkiv SIZO where needed, subject to the SIZO administration making the relevant application. It was also noted that the second applicant required an additional examination in the regional cardiology centre, and that the children’s hospital had already requested the SIZO administration’s cooperation in that regard.", "66. On 19 October 2012 a paediatrician and a cardiologist examined the second applicant again. He was diagnosed with a patent foramen ovale (a heart condition, see paragraph 55 above for further details) and an additional examination was recommended. 67. On the same date the second applicant underwent an echocardiogram and was found to be healthy.", "68. On 14 November 2012 the first applicant refused to allow her son to undergo a paediatrician examination, which she had been offered. 69. The following day the first applicant was released (see also paragraph 75 below). 70.", "On 30 November 2012 the first applicant’s lawyer enquired with the children’s hospital whether it had kept a medical file in respect of the second applicant and whether he had been vaccinated during his stay with the first applicant in the SIZO. 71. On 4 December 2012 the chief doctor replied that the children’s hospital provided medical care to children residing permanently in its catchment area. As regards children residing there temporarily, a written application by one of the parents was required. The first applicant had never submitted such an application.", "Accordingly, the hospital had not opened a medical file in respect of the second applicant. At the same time, its doctors had examined him when requested by the SIZO administration. The results of each examination had been reflected in the medical file provided by the SIZO. In so far as the second applicant’s vaccinations were concerned, it was noted that he had always been brought for examinations without his mother, and without her consent no vaccinations had been given. D. The first applicant’s placement in a metal cage during court hearings 72.", "On 12 April, 17 May, 15 June, 2 and 31 August and 15 November 2012 the first applicant participated in court hearings, during which she was held in a metal cage. Her requests not to be placed in a cage were rejected. 73. On 14 March 2013 the judge of the Dzerzhynskyy Court, who had been in charge of the first applicant’s case, wrote to the Agent of the Government, in reply to the latter’s request, to say that the first applicant had indeed been held in a metal cage in the courtroom during hearings. The judge emphasised that it was a legal requirement to place criminal defendants in a metal cage and there were no exceptions to this rule.", "Furthermore, he considered that allowing the first applicant to remain outside the cage in the courtroom would have been equal to her temporary release, contrary to the custodial preventive measure applied. 74. On 15 March 2013 the Ministry of the Interior confirmed once again to the Agent of the Government that the first applicant had been held in a metal cage in the courtroom during hearings. It further specified that the second applicant had remained with the SIZO medical specialist outside the cage and had been passed to her for breastfeeding when requested. E. The first applicant’s complaints after her release and their investigation 75.", "On 15 November 2012 the first applicant was released on an undertaking not to abscond. 76. On 25 December 2012 she complained to the Kharkiv Regional Prosecutor’s Office that she had been shackled to her bed in the maternity hospital at all times, including during the delivery. She also complained that the conditions of detention and nutrition in the SIZO had been inadequate. Lastly, the first applicant alleged that the statement she had written on 12 November 2012 expressing her satisfaction with the conditions of detention had been made under psychological pressure (see paragraphs 17 and 41 above).", "77. On 27 December 2012 the State Prisons Service completed the internal investigation it had undertaken following the media coverage of the applicants’ case (see paragraph 45 above). The first applicant’s allegations were dismissed as unsubstantiated. 78. On 2 January 2013 the first applicant complained to the Kharkiv Zhovtnevyy District Prosecutor’s Office (“the Zhovtnevyy Prosecutor’s Office”) that she had not been provided with adequate medical care during her pregnancy and the delivery; that she had been shackled by her wrists and feet to a gynaecological examination chair or her bed in the maternity hospital at all times, including during the delivery; that the conditions of her detention in the Kharkiv SIZO had been poor; and that neither she nor her baby had received adequate medical care there.", "On the same date her complaint was registered in the Integrated Register of Pre-trial Investigations and the investigation was started. 79. On 18 January 2013 the Zhovtnevyy Prosecutor’s Office ordered a forensic medical examination of the case material with a view to establishing: (i) whether the first applicant had any injuries and, if so, how they had been caused; (ii) whether there was any forensic medical evidence that the first applicant had been handcuffed or shackled between 26 January and 15 November 2012; (iii) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the Kharkiv SIZO; (iv) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the maternity hospital; and (v) if the applicants had not received adequate or sufficient medical care, whether this had had any negative impact on their health. 80. The aforementioned examination continued from 18 January to 26 March 2013.", "The answers in the report to all five questions were negative. 81. On 1 April 2013 the Zhovtnevyy Prosecutor’s Office discontinued the criminal investigation for lack of evidence of a criminal offence. 82. Also in April 2013 the State Prisons Service, following an enquiry by the Government’s Agent, undertook an internal investigation as regards the lawfulness of the second applicant’s detention in the SIZO.", "On 22 April 2013 it was completed, with the conclusion that there had been no violation. It was noted in the report that, although in August 2012 the first applicant had verbally expressed her intention to transfer the custody of her baby to her mother, she had later changed her mind as she had been breastfeeding. II. RELEVANT DOMESTIC LAW AND PRACTICE 83. Under Article 9 of the Pre-Trial Detention Act 1993, detained women are entitled to keep with them children up to the age of three.", "As further specified in this provision, all detainees are entitled to a daily outdoor walk for one hour, whereas the duration of such walks for pregnant women and women with children may be extended up to two hours. 84. The Rules on detention in pre-trial detention centres, approved in 2000, reiterate the above provisions (Rules 2.1.5 and 4.1.3). Under Rule 8.1.2, detainees at an advanced stage of pregnancy (over five months) and those with children should be provided with living space of at least 4.5 square metres. Beds for those categories of detainees should be on one level.", "Cots should also be provided. The annexes to the Rules require that walking areas for pregnant detainees and those with children should have grass, flowers and a children’s sandpit. 85. The Clinical Protocol for medical care of children up to the age of three, approved by Order no. 149 of the Ministry of Public Health in 2008, provides for integrated standards in this area.", "Section 2.1 provides that children under three must have medical examinations. More specifically, these should comprise a general health assessment; an assessment of the child’s physical and psychomotor development; an assessment of the child’s nutrition; a timely identification of any illnesses and pathologies; vaccinations; consulting the parents regarding childcare, nutrition, development and accident prevention; and defining the tactics of further medical supervision and care. 86. The Clinical Protocol also establishes the following schedule for the mandatory medical examinations (in so far as is relevant for this case): weekly during the first month of life and monthly thereafter until the child is one year old (section 2.2.9). 87.", "Under Article 27 of the Sanitary and Epidemiological Welfare of the Population Act 1994 (as worded at the material time), vaccinations against tuberculosis, poliomyelitis, diphtheria, pertussis, tetanus and measles are obligatory in Ukraine. 88. The vaccination schedule approved by an order of the Ministry of Public Health in 2011 (as worded at the material time) contains a list of vaccinations and the ages they should be given. A newborn child is supposed to receive twelve vaccinations by the age of six months (including booster injections). III.", "RELEVANT INTERNATIONAL MATERIALS A. United Nations documents 89. The relevant provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (1979) read as follows: Article 12 “... States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” 90. The Convention on the Rights of the Child (1989) provides, in so far as relevant: Preamble “... Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’, ...” Article 3 “1.", "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being ...” 91. The relevant parts of the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (2011) read as follows: “The General Assembly, ... Recalling further its resolution 58/183 of 22 December 2003, in which it invited Governments, relevant international and regional bodies, national human rights institutions and non-governmental organizations to devote increased attention to the issue of women in prison, including the children of women in prison, with a view to identifying the key problems and the ways in which they can be addressed ...” Rule 33 “... 3. Where children are allowed to stay with their mothers in prison, awareness‑raising on child development and basic training on the health care of children shall also be provided to prison staff, in order for them to respond appropriately in times of need and emergencies.", "...” Rule 48 “1. Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by a qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers. 2. Women prisoners shall not be discouraged from breastfeeding their children, unless there are specific health reasons to do so.", "3. The medical and nutritional needs of women prisoners who have recently given birth, but whose babies are not with them in prison, shall be included in treatment programmes.” Rule 49 “Decisions to allow children to stay with their mothers in prison shall be based on the best interests of the children. Children in prison with their mothers shall never be treated as prisoners.” Rule 50 “Women prisoners whose children are in prison with them shall be provided with the maximum possible opportunities to spend time with their children.” Rule 51 “1. Children living with their mothers in prison shall be provided with ongoing health-care services and their development shall be monitored by specialists, in collaboration with community health services. 2.", "The environment provided for such children’s upbringing shall be as close as possible to that of a child outside prison.” 92. According to the recommendations of the World Health Organisation (“the WHO”) which were adopted following its Joint Interregional Conference on Appropriate Technology for Birth (Fortaleza, Brazil, 22-26 April 1985), the healthy newborn must remain with the mother whenever both their conditions permit it. The WHO recommendations on postnatal care of the mother and newborn 2013 also state that the mother and baby should not be separated and should stay in the same room 24 hours a day. B. Council of Europe documents 93.", "The Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) Standards (document no. CPT/Inf/E (2002) 1 - Rev. 2015, p. 45) contain the following relevant provisions: Health care services in prisons Extract from the 3rd General Report [CPT/Inf (93) 12] “64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.", "i) mother and child 65. It is a generally accepted principle that children should not be born in prison, and the CPT’s experience is that this principle is respected. 66. A mother and child should be allowed to stay together for at least a certain period of time. If the mother and child are together in prison, they should be placed in conditions providing them with the equivalent of a creche and the support of staff specialised in post-natal care and nursery nursing.", "...” VI. Women deprived of their liberty Extract from the 10th General Report [CPT/Inf (2000) 13] Ante natal and post-natal care “26. Every effort should be made to meet the specific dietary needs of pregnant women prisoners, who should be offered a high protein diet, rich in fresh fruit and vegetables. 27. It is axiomatic that babies should not be born in prison, and the usual practice in Council of Europe member States seems to be, at an appropriate moment, to transfer pregnant women prisoners to outside hospitals.", "Nevertheless, from time to time, the CPT encounters examples of pregnant women being shackled or otherwise restrained to beds or other items of furniture during gynaecological examinations and/or delivery. Such an approach is completely unacceptable, and could certainly be qualified as inhuman and degrading treatment. Other means of meeting security needs can and should be found. 28. Many women in prison are primary carers for children or others, whose welfare may be adversely affected by their imprisonment.", "One particularly problematic issue in this context is whether - and, if so, for how long - it should be possible for babies and young children to remain in prison with their mothers. This is a difficult question to answer given that, on the one hand, prisons clearly do not provide an appropriate environment for babies and young children while, on the other hand, the forcible separation of mothers and infants is highly undesirable. 29. In the view of the CPT, the governing principle in all cases must be the welfare of the child. This implies in particular that any ante and post-natal care provided in custody should be equivalent to that available in the outside community.", "Where babies and young children are held in custodial settings, their treatment should be supervised by specialists in social work and child development. The goal should be to produce a child-centred environment, free from the visible trappings of incarceration, such as uniforms and jangling keys. Arrangements should also be made to ensure that the movement and cognitive skills of babies held in prison develop normally. In particular, they should have adequate play and exercise facilities within the prison and, wherever possible, the opportunity to leave the establishment and experience ordinary life outside its walls. Facilitating child-minding by family members outside the establishment can also help to ensure that the burden of child-rearing is shared (for example, by the child’s father).", "Where this is not possible, consideration should be given to providing access to creche-type facilities. Such arrangements can enable women prisoners to participate in work and other activities inside the prison to a greater extent than might otherwise be possible.” 94. The Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 29 November to 6 December 2011 (CPT/Inf (2012) 30) reads as follows: “43. The delegation gained a generally positive impression of the material conditions in the units for juveniles at the [SIZO] in ... Kharkiv. However, conditions of detention were quite simply appalling in many of the other detention units of the [SIZO].", "Numerous cells were in a poor state of repair and had only very limited access to natural light. In addition, the CPT is concerned about the severe overcrowding observed in a number of detention units of [the establishment]. At the time of the visit, the [...] Kharkiv SIZO [was accommodating] 3,415 prisoners (official capacity: 2,808 places).” THE LAW I. SCOPE OF THE CASE 95. In her submissions of 10 February 2013 made in reply to the Government’s observations, the first applicant complained for the first time about the conditions of her detention in cell no.", "409, in which she had been held from 27 January to 2 March 2012. More specifically, she alleged that although she had been pregnant, she had had to sleep on the upper level of a bunk bed. 96. The Court considers that this grievance is not an elaboration on the first applicant’s original complaint about the conditions of her detention with her baby from 14 March to 8 November 2012 in cell no. 408.", "Accordingly, the Court does not find it appropriate to take up this new matter in the context of the present application (see, for example, Irakli Mindadze v. Georgia, no. 17012/09, § 25, 11 December 2012, with further references). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED SHACKLING OF THE FIRST APPLICANT IN THE MATERNITY HOSPITAL 97. The first applicant complained that she had been shackled to her bed in the maternity hospital, contrary to Article 3 of the Convention.", "This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 99. The first applicant maintained her complaint, relying on her version of events as summarised in paragraph 14 above. She emphasised that her shackling had been grossly unjustified, painful and humiliating given her physical and psychological state. 100. The Government contended that the first applicant had failed to submit any evidence to substantiate her allegation.", "They considered the statement by former nurse Ms P. relied on by her of no relevance, because it concerned events which had supposedly taken place about seven years earlier in a different region (see paragraph 24 above). 101. Furthermore, they submitted that the first applicant’s allegation had been refuted by the statements of the security guards and numerous members of hospital staff. 102. They also observed that the first applicant had not been able to specify exactly how she had been shackled, and that her submissions in that regard had been inconsistent.", "103. Lastly, they claimed that there had been a considerable delay in the first applicant raising her complaint in that regard at the domestic level. 104. The first applicant submitted in reply to the Government’s observations that, given her condition at the time, she could not have been expected to remember all the factual details regarding her shackling in hospital. 105.", "She also contested their interpretation of the statements of the hospital staff. In her opinion, they rather confirmed the accuracy of her allegation. 2. The Court’s assessment 106. The Court observes at the outset that the parties are in dispute as to whether the impugned measure was applied in respect of the first applicant at all.", "107. The only evidence available in the case file relied on by both parties consists of the statements of the maternity hospital staff and the security guards. 108. The Court agrees with the Government in so far as it also considers the statement of former nurse Ms P. irrelevant to the circumstances of the present case. 109.", "The Court does not, however, share the Government’s opinion that the statements of the other witnesses refuted the first applicant’s allegation. It observes in this connection that none of the six maternity hospital staff questioned by the domestic authorities in respect of that allegation stated that she had not been subjected to shackling in hospital; on the contrary, most of them witnessed her being shackled to a gynaecological examination chair or her bed (see paragraphs 20-22 above). It is true that according to several of those witnesses, the first applicant was not shackled during the delivery; however, she has never denied this in her submissions before the Court (see paragraph 14 above). Lastly, the Court takes note of the fact that the application of any security measures to the applicant was the direct responsibility of her security guards. Accordingly, it is not prepared to take at face value their statements denying her handcuffing (see paragraph 23 above).", "110. In sum, from the evidence at hand the Court finds it sufficiently established that the first applicant was subjected to continuous shackling in the maternity hospital from 22 to 25 May 2012. 111. The Court notes that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been applied in connection with lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of a person absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997‑VIII, and Henaf v. France, no.", "65436/01, §§ 50-53, ECHR 2003‑XI). The Court has also held on many occasions that handcuffing or shackling of an ill or otherwise weak person is disproportionate to the requirements of security and implies an unjustifiable humiliation, whether or not intentional (see, for example, Okhrimenko v. Ukraine, no. 53896/07, § 98, 15 October 2009, and Salakhov and Islyamova v. Ukraine, no. 28005/08, §§ 155 and 156, 14 March 2013). 112.", "In the present case, the first applicant was already shackled to a gynaecological examination chair in the hospital admissions unit she had been taken to on the day of her baby’s delivery (see paragraph 20 above). Any risk of her behaving violently or attempting to escape would have been hardly imaginable given her condition. In fact, it was never alleged that she had behaved aggressively towards the hospital staff or the police, or that she had attempted to escape or had posed a threat to her own safety. 113. The Court notes that the first applicant’s unjustified shackling continued after the delivery, when she was particularly sensitive.", "114. The Court also attaches weight to the fact that she was guarded by three guards at all times. This measure appears to have been severe enough to respond to any potential risks. 115. Accordingly, the Court considers that in the circumstances of the present case, where the impugned measure was applied to a woman suffering labour pains and immediately after the delivery, it amounted to inhuman and degrading treatment.", "116. There has therefore been a violation of Article 3 of the Convention in this regard. III. ALLEGED VIOLATION OF ARTICLE 3 IN RESPECT OF THE CONDITIONS OF THE APPLICANTS’ DETENTION 117. The applicants further complained under Article 3 of the Convention that they had been detained in poor conditions in the Kharkiv SIZO (see also paragraphs 25, 95 and 96 above), and that the second applicant had not been provided with adequate medical care.", "A. Admissibility 118. The Court notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) Physical conditions of detention 119. The parties maintained their accounts as regards the physical conditions of the applicants’ detention in the SIZO (see paragraphs 26-37 above). 120. The Government referred to several statements of detainees who had shared the cell with the applicants and had been satisfied with the conditions of their detention (see paragraph 46 and the summary of the first two statements by Ms M. in paragraph 48 above). 121.", "The first applicant submitted that those detainees had been entirely dependent on the SIZO administration, so their statements could therefore not be relied on. She observed in this connection that Ms M. had changed her statement regarding the conditions of detention in the SIZO once she had been transferred to a prison (see paragraph 48 above). The first applicant, in her turn, referred to the statements of some other cellmates, criticising the conditions of their detention (see paragraphs 49 and 50 above). 122. The first applicant also submitted that cell no.", "408 had not been equipped for pregnant women or women with babies. She presumed that the administration had prepared that cell before each inspection. More specifically, she suggested that the refrigerator and other appliances and furniture had been placed in the cell merely for inspections. To support her suspicion, the first applicant submitted, in particular, that the inspection on 1 February 2012 did not report that there had been any pregnant women in the SIZO at the time, whereas her presence there was proof of the opposite (see paragraph 38 above). She also observed that there was no mess or any other indication that detainees with babies were being held in the cell on the photographs provided by the Government (see paragraph 36 above).", "123. As regards the photograph taken of her in the special walking area (see paragraph 37 above), the first applicant submitted that she had been allowed to walk there “only a couple of times”. 124. She did not contest the Government’s submission regarding the considerable number of food parcels from her mother; however, in her opinion, it was rather indicative that the SIZO administration had failed to provide her with adequate nutrition. 125.", "Lastly, the first applicant referred to the CPT report following its delegation’s visit to the Kharkiv SIZO from 29 November to 6 December 2011 (see paragraph 94 above) which, in her opinion, supported her allegation about poor detention conditions. (b) Medical care for the second applicant 126. The first applicant submitted that her newborn son, the second applicant, had not been provided with regular and adequate medical supervision and care. More specifically, she contended that he had not been examined by a paediatrician from 28 May to 10 September 2012. She noted that with no paediatrician in the medical unit of the SIZO, she had been fully dependent on the SIZO administration, who had ignored her requests for examinations of her son or for medical care for him, particularly when he had had stomachache.", "She also complained that her baby’s health issues, phimosis and a patent foremen ovale (see paragraph 55 above), had not received proper attention from medical specialists. She also submitted that the second applicant had not had any vaccinations, contrary to the applicable regulations. Lastly, she submitted that inadequate records had been kept in respect of his growth, development and health, and that the relevant medical file in the SIZO had been forged (see paragraph 57 above). 127. The Government maintained that the second applicant had been under constant medical supervision and provided with timely and sufficient medical care.", "They further contended that, even if there had been some minor issues with the child’s health, they could be characterised as a rather normal condition for a newborn and not warranting any medical treatment. Lastly, the Government observed that the first applicant had not raised any complaints in this regard at the domestic level. 2. The Court’s assessment (a) General considerations 128. The Court reiterates that in accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kalashnikov v. Russia, no.", "47095/99, § 95, ECHR 2002‑VI). 129. As recognised in the applicable international documents, in particular the CPT’s standards, it is a particularly problematic issue whether it should be possible for babies and young children to remain in prison with their mothers. The CPT has noted in this connection that “[this] is a difficult question to answer given that, on the one hand, prisons clearly do not provide an appropriate environment for babies and young children while, on the other hand, the forcible separation of mothers and infants is highly undesirable. ...", "In the view of the CPT, the governing principle in all cases must be the welfare of the child.” (see paragraph 93 above). Likewise, the UN Rules for the Treatment of Women Prisoners state that “decisions to allow children to stay with their mothers in prison shall be based on the best interests of the children” (see paragraph 91 above). 130. The principle of the protection of a child’s best interests has also been enshrined in the Court’s case-law where children have been affected (see, for example, Kleuver v. Norway (dec.), no. 45837/99, 30 April 2002), and X v. Latvia [GC], no.", "27853/09, § 95, ECHR 2013). 131. Furthermore, the Court takes note of the WHO recommendations, according to which a healthy newborn must remain with the mother (see paragraph 92 above). This imposes on the authorities an obligation to create adequate conditions for those requirements to be implemented in practice, including in detention facilities. 132.", "Turning to the circumstances of the present case, the Court observes that, strictly speaking, only the first applicant was detained, whereas her newborn son, the second applicant, was allowed to stay with her in the SIZO. He could not be separated from her, however, given his particularly young age. Accordingly, he remained under the full control of the authorities and it was their obligation to adequately secure his health and well-being. (b) Physical conditions of detention 133. The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in such instances only the respondent Government have access to information capable of corroborating or refuting such allegations.", "Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nonetheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). However, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce the relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Gubin v. Russia, no.", "8217/04, § 56, 17 June 2010, and Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005‑X (extracts)). 134. Turning to the present case, the Court notes that the parties disagreed on many aspects concerning the conditions of the applicants’ detention. Furthermore, both parties relied on the statements of the first applicant’s fellow detainees, which sometimes contradicted each other.", "It therefore remains to be seen which of the facts as presented in the case file could be regarded as being sufficiently established. 135. The Court notes from the outset that the first applicant’s statement of 12 November 2012, given in one month after the Court applied Rule 39, in which she declared that she was entirely satisfied with the conditions in the SIZO (see paragraph 41 above), cannot be taken at face value. As the Court has previously held in a case involving similar statements, the applicant’s position might be particularly vulnerable when he or she is held in custody with limited contact with his or her family or the outside world (see Enache v. Romania, no. 10662/06, § 68, 1 April 2014).", "136. The Court takes note of the photographs provided by the Government as evidence. It further notes that the first applicant, even though she submitted that some of the furniture and appliances had been displayed there merely for reporting purposes, did not contest that the photographs were of the cell in which she had actually been detained. Nor did she say that the cell had been refurbished at any point during her detention. The Court therefore discards the description of that cell by the former detainee Ms Sa., which clearly contradicts what can be seen on the photographs (see paragraphs 36 and 49 above).", "137. Accordingly, the Court considers it sufficiently established that the applicants were detained in a light cell in a good state of repair. As can also be seen from the photographs, the toilet was properly separated from the living area, contrary to the first applicant’s submission in that regard (see paragraphs 26 and 36 above). 138. The Court further notes that the first applicant did not provide any factual details to substantiate her allegation about inadequate heating or any health-related risks posed by her sharing the cell with other inmates.", "139. As regards her allegation about a lack of hot water and an irregular supply of cold water, the Court notes that her account is quite detailed and is corroborated by the statements of several fellow detainees (see paragraphs 26, 48 and 50 above). The Court does not consider that the Government’s generally-worded submission to the contrary rebuts that allegation. 140. The Court has already criticised a detention facility for having an insufficient water supply resulting in a dirty environment arousing in a person feelings of anguish (see, for example, Vitkovskiy v. Ukraine, no.", "24938/06, §§ 120 and 121, 26 September 2013). In the present case the Court cannot but stress that adequate hygienic conditions are vital for a new-born baby and a nursing mother. 141. The Court further observes that the first applicant’s allegation about insufficient and poor quality food in the SIZO is confirmed by the statements of her fellow detainee (see paragraph 48 above). The fact that her mother sent her about thirty parcels, often with the most basic foodstuffs, is another indication that such food was not provided to the first applicant by the SIZO administration (see paragraph 43 above).", "The Court has already held that where food given to an applicant is clearly insufficient, this in itself raises an issue under Article 3 of the Convention (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006, and Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007). The issue becomes crucial in the case of a breastfeeding mother.", "142. Furthermore, it does not escape the Court’s attention that, as acknowledged by the respondent Government, on the days of court hearings the first applicant was obliged to miss at least one of her meals and was not provided with a packed lunch instead (see paragraph 33 above). 143. The Court stresses that the absence of any restriction on the number of food parcels from the first applicant’s relatives and, possibly, on being allowed to take her own food on hearing days was not a substitute for appropriate catering arrangements, because it is primarily the State that is responsible for the well-being of people deprived of their liberty (see Vlasov v. Russia, no. 78146/01, § 96, 12 June 2008).", "144. The Court therefore concludes that the first applicant did not receive sufficient and wholesome food corresponding to her needs as a breastfeeding mother in detention. 145. The Court further notes that the Government did not provide convincing evidence to refute the first applicant’s complaint regarding the duration and place of her daily outdoor walks with her baby. Moreover, the applicable legal provisions do not clearly establish the duration of daily walks for detained women with children (see paragraph 83 above).", "As compared to ordinary detainees who are entitled to one-hour daily walk, women with children may have the duration of their outdoor walks extended “up to two hours”. In other words, the failure to grant such an extension or a very insignificant extension would not appear to contravene that requirement. 146. It is to be emphasised that when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II, and Idalov v. Russia [GC], no.", "5826/03, § 94, 22 May 2012). 147. The Court considers that in the circumstances of the present case the cumulative effect of malnutrition of the first applicant, inadequate sanitary and hygiene arrangements for her and her newborn son, as well as insufficient outdoor walks, must have been of such an intensity as to induce in her physical suffering and mental anguish amounting to her and her child’s inhuman and degrading treatment. 148. Accordingly, there has been a violation of Article 3 of the Convention in respect of the physical conditions of the applicants’ detention in the SIZO.", "(c) Medical care for the second applicant 149. The Court notes that the “adequacy” of medical care in detention remains the most difficult element to determine. The mere fact that a detainee has been seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical care provided was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept of the detainee’s state of health and his or her treatment while in detention (see, for example, Khudobin v. Russia, no.", "59696/00, § 83, ECHR 2006-XII), that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 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 curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (ibid., §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov v. Moldova, no.", "30649/05, § 117, 7 November 2006). 150. 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).", "151. As the Court has already held (see paragraph 132 above), it was the authorities’ obligation in the present case to provide adequate medical supervision and care for the second applicant as a newborn staying with his mother in a detention facility. 152. The Court notes that the second applicant remained in the SIZO for almost six months, starting from the fourth day of his life. As a newborn, he was particularly vulnerable and required close medical monitoring by a specialist; under the applicable regulations of the Ministry of Public Health, he was supposed to be examined by a paediatrician every week during the first month of his life and every month thereafter (see paragraph 86 above).", "The reality, however, was different. 153. The Court finds plausible the first applicant’s allegation that some of the records in her son’s medical file kept in the SIZO were inaccurate. 154. It observes in this connection that one such inaccuracy concerns the date of the baby’s initial medical examination after his discharge from the maternity hospital.", "As submitted by the first applicant and confirmed by the chief doctor of the children’s hospital, it had taken place on 28 May 2012, whereas the relevant record refers to an examination on 31 May 2012 (see paragraphs 53 and 54 above). 155. The Court also considers that the case material provides a sufficient basis for a factual inference that, as alleged by the first applicant, her son had had no medical examinations between 28 June and 10 September 2012. The Court observes, in particular, that neither the SIZO administration nor the chief doctor of the local children’s hospital was able to respond to the first applicant’s lawyer’s enquiries about the baby’s health sent on 28 August and 6 September 2012 respectively. It was only after the complete medical examination (undertaken in an unrelated context – see paragraphs 62 and 63 above) that the SIZO administration sent the baby’s medical file to the lawyer.", "Furthermore, if he had indeed been examined by a paediatrician on 12 June and 20 July 2012 as recorded in that file, it is not clear why the chief doctor of the children’s hospital referred only to the examination on 28 May 2012 in his letter of 6 September 2012. The doctor further stated that it was impossible to provide any information on the child’s health at the time in the absence of any requests for medical care for him until then (see paragraph 61 above). 156. Another contradiction in the available documents does not escape the Court’s attention. According to the chief doctor of the children’s hospital, whenever the second applicant was examined by a paediatrician, it was without the first applicant present, whereas the SIZO administration recorded in the baby’s medical file that the paediatrician had provided her with advice on childcare (see paragraphs 54, 56 and 71 above).", "157. Accordingly, the Court considers it established that the second applicant remained without any monitoring by a paediatrician from 28 May to 10 September 2012. Having particular regard to his young age, the Court considers this circumstance alone sufficient to conclude that adequate health-care standards were not met in the present case, without finding it necessary to analyse all the other factual details (such as the second applicant’s health issues and the lack of vaccinations). 158. The Court therefore finds that there has also been a violation of Article 3 of the Convention in this regard.", "IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE FIRST APPLICANT’S PLACEMENT IN A METAL CAGE DURING COURT HEARINGS 159. The first applicant also complained under Article 3 of the Convention about her placement in a metal cage during court hearings. A. Admissibility 160. The Court notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 161. The first applicant submitted that although she had been suspected of a violent criminal offence, her placement in a metal cage during court hearings had been grossly unjustified and humiliating. 162.", "The Government maintained that the first applicant had been held behind the metal bars in the courtroom in accordance with the relevant domestic legislation. They explained that the bars were intended to separate defendants upon whom the preventive measure of detention had been imposed from the bench and those present in the courtroom, so that those individuals could be securely guarded during the court hearings. 163. The Government argued that the State authorities had not intended to humiliate or debase the first applicant. She had been held behind the metal bars in the interest of public safety.", "Furthermore, the measure of holding the first applicant behind metal bars could in no way have caused her distress or humiliation of an intensity exceeding the unavoidable level of suffering or humiliation inherent in detention. The Government also observed that during the court hearing the first applicant’s baby had been with a SIZO medical worker outside the cage and that he had been transferred to her every time when requested. 164. The Court has held in its recent judgment of the Grand Chamber in the case of Svinarenko and Slyadnev v. Russia that holding a person in a metal cage during a trial constitutes in itself – having regard to its objectively degrading nature which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – an affront to human dignity in breach of Article 3 ([GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)).", "165. Turning to the present case, the Court notes that the first applicant was held in a metal cage during all the hearings in her case, which took place on 12 April, 17 May, 15 June, 2 and 31 August and 15 November 2012. During the first two hearings she was at a very advanced stage of pregnancy, whereas during the remaining four hearings she was a nursing mother separated from her baby in the courtroom by metal bars. In fact, no justification for such a restraint measure was even considered given the judge’s position that the mere placement of the first applicant outside the cage would have been equal to her release, contrary to the custodial preventive measure applied (see paragraph 73 above). 166.", "The Court therefore finds a violation of Article 3 of the Convention on this account. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 167. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 168. The applicants claimed 150,000 euros (EUR) in respect of non‑pecuniary damage, including EUR 50,000 for the first applicant and EUR 100,000 for the second applicant.", "169. The Government contested the above claim as unsubstantiated and exorbitant. 170. The Court considers that the applicants suffered non-pecuniary damage on account of the violations of their rights under Article 3 of the Convention, which cannot be compensated for by the mere finding of a violation of their Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, the Court awards the first applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "The Court also awards the second applicant EUR 7,000 under this head, plus any tax that may be chargeable. B. Costs and expenses 171. The applicants also claimed EUR 13,059 in respect of their legal representation, comprising approximately 124 hours of legal work in the domestic proceedings and the proceedings before the Court. 172.", "The Government contested the above claims. 173. The Court must first establish whether the costs and expenses indicated by the first applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). 174.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 3,000 covering costs under all heads. C. Default interest 175. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 3 of the Convention on account of the first applicant’s shackling in the maternity hospital; 3. Holds that there has been a violation of Article 3 of the Convention in respect of the physical conditions of the applicants’ detention in the Kharkiv SIZO; 4. Holds that there has been a violation of Article 3 of the Convention in respect of the medical care provided to the second applicant during his stay with the first applicant in the Kharkiv SIZO; 5. Holds that there has been a violation of Article 3 of the Convention on account of the first applicant’s placement in a metal cage during court hearings; 6. Holds (a) that the respondent State is to pay within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) to the first applicant: (α) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (β) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses; and (ii) to the second applicant: EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOMNATSKYY v. UKRAINE (Application no. 40753/07) JUDGMENT STRASBOURG 15 October 2009 FINAL 15/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Komnatskyy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "40753/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Viktor Ivanovych Komnatskyy (“the applicant”), on 4 September 2007. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 20 January 2009 the President of the Fifth Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The case was given priority under Rule 41 of the Rules of the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1925 and lives in Zhytomyr, Ukraine.", "He has been recognised as falling within Category I disabled status (the gravest one) on account of his service during the Second World War. 5. The applicant was an operative who dealt with the consequences of the Chernobyl disaster. From 1997 he was on a special priority list of persons to be allocated an apartment by the State. 6.", "On 31 August 2006 the Korolyovskyy District Court of Zhytomyr ordered Zhytomyr Town Council to provide the applicant with an apartment in accordance with the requirements of section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (see paragraph 12 below). This decision became final. Enforcement proceedings were commenced on 28 September 2006. 7. According to the Government, in February 2008 the bailiff requested from the Korolyovskyy District Court of Zhytomyr replacement of the in-kind award conferred by the decision of 31 August 2006 with an equivalent amount of money.", "On 8 July 2008 the court dismissed that request. The court's reasoning is unknown, as neither the party furnished a copy of that decision. The State Bailiffs' Service appealed and the proceedings are apparently still pending before the Kyiv Administrative Court of Appeal. 8. Although the debtor was fined several times by the bailiffs, the decision of 31 August 2006 has not been enforced.", "On several occasions, in their replies to the relevant applicant's complaints, the State authorities gave explanations based on a lack of funds in the budget to purchase or construct new apartments and the lack of available apartments. The enforcement proceedings are still pending. 9. According to the applicant, he lives in a rented house in poor living conditions (for example, without water supply). The local press described the house as “old” and “ramshackle”.", "II. RELEVANT DOMESTIC LAW 10. The general provisions of domestic legislation on enforcement of judicial decisions are set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-18). 11.", "Under section 33 of the Enforcement Proceedings Act the bailiff is entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision. 12. Section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (adopted on 28 February 1991) provides, inter alia, that the entitled persons must be housed within one year of the date of their relevant application. Construction of houses shall be funded from the State budget. THE LAW I.", "COMPLAINTS AS TO LENGTHY NON-ENFORCEMENT OF THE DECISION IN THE APPLICANT'S FAVOUR 13. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the decision of 31 August 2006 had not been enforced for a very long time. These provisions read, in so far as relevant, as follows: Article 6 § 1 of the Convention “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The applicant further complained that he had no effective remedy in respect of the non-enforcement of the decision in question. He relied in that respect on Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Lastly, in view of the State authorities' failure to provide him with an apartment as prescribed by the decision of 31 August 2006, the applicant also relied on Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 14. The parties did not submit any observations in respect of the admissibility of the application. 15. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Article 6 § 1 of the Convention 16. The Government submitted that the delay in the enforcement of the decision at issue was justified by the interests of many other persons awaiting apartments from Zhytomyr Town Council since the early 1990s.", "They maintained that the State authorities had to respect the order of application when allocating apartments among eligible persons. In any case the State authorities acted in good faith and therefore there was no violation of the invoked provision. 17. The applicant disagreed. 18.", "The Court notes that the decision in the applicant's favour has remained unenforced for more than three years. Having regard to the vulnerable status of the applicant, his present living conditions, and first and foremost to his age, the Court considers that the enforcement of the decision required particular diligence. 19. The Court admits that the enforcement of a judgment incorporating a ruling of a non-pecuniary nature may take more time than is the case with payment of money awarded under a court judgment (see Ganenko v. Ukraine (dec.), no. 27184/03, 11 January 2005).", "However, it finds it important to distinguish the present case from the Ganenko case, where the two-year delay in providing the applicant with a car designed for disabled persons was found to be compatible with the Convention. Firstly, in the instant case the decision has not yet been enforced to the present date, that is more than three years, regardless the circumstances which urged the domestic authorities to act with particular diligence (see preceding paragraph). Secondly, unlike in the Ganenko case, the decision of 31 August 2006 had explicit reference to the domestic law imposing time-limits for housing. 20. The Court further notes that in the present case the State authorities informed the applicant on several occasions that the decision at issue had not been enforced due to a lack of funds in the budget to purchase or construct new apartments (see paragraph 8 above).", "In this regard the Court reiterates that it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay must not be such as to impair the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V, and Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III).", "21. Even assuming that the decision remains unenforced solely due to the lack of available apartments, the Court finds that the Government have not demonstrated that sufficient attempts were made by the authorities to make alternative arrangements for the applicant's accommodation or a compensation (see, mutatis mutandis, Shpakovskiy v. Russia, no. 41307/02, § 29, 7 July 2005, and Malinovskiy v. Russia, no. 41302/02, § 38, ECHR 2005‑VII (extracts); see also section 33 of the Enforcement Proceedings Act at paragraph 11 above). In particular, they failed to advance any plausible explanation as to why the bailiff had sought a change of the means of enforcement almost a year and a half after the enforcement proceedings had been instituted, a period which is excessively long in the circumstances of the present case, whereas it was clear ab initio that the debtor lacked available apartments to enforce the decision in timely fashion as there were a lot of other eligible persons who had already been waiting for apartments since the early 1990s.", "22. Furthermore, although the domestic court's reasons not to change the means of enforcement of the decision at issue are unavailable (see paragraph 7 above), the Court takes the view that if the domestic court had granted the bailiff's request the applicant would inevitably have had to face the question of availability of funds in the budget to have such a monetary award enforced, the lack of which does not excuse the domestic authorities for failure to enforce a decision, as set out above. In any case, the Court reiterates that it is up to the respondent State to make the guarantees under the Convention effective within its jurisdiction and that the discrepancies between the domestic authorities should not prejudice the applicant's rights under the Convention (see, mutatis mutandis, Antonyuk v. Ukraine, no. 17022/02, § 38, 11 December 2008). 23.", "The foregoing considerations are sufficient to enable the Court to conclude that, by failing for years to take the necessary measures to comply with the final judicial decision in the instant case, the respondent State deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see Lukyanov v. Ukraine, no. 11921/04, § 25, 19 June 2008). There has accordingly been a violation of Article 6 § 1 of the Convention. 2. Article 1 of Protocol No.", "1 24. The Government admitted that the apartment awarded to the applicant by the decision of 31 August 2006 constituted a “possession” within the meaning of Article 1 of Protocol No. 1. They further contended that the interference in the applicant's right was legitimate and proportional, advancing arguments similar to those put forward with respect to Article 6 § 1 of the Convention. 25.", "The applicant disagreed that the interference was justified. 26. The Court concedes that the apartment in question falls within the notion of “possessions” contained in Article 1 of Protocol No. 1 (see, mutatis mutandis, Shpakovskiy v. Russia, cited above, § 32 et seq., and Malinovskiy v. Russia, cited above, § 42 et seq.). Taking into account the foregoing conclusions (see paragraphs 18-23), the Court notes that the impossibility for the applicant to obtain enforcement of the decision in his favour for an unreasonably long period of time constituted an interference with his right to the peaceful enjoyment of his possessions.", "The Government have not advanced any plausible justification for that interference. 27. The Court finds therefore that there has been an infringement of Article 1 of Protocol No. 1 to the Convention. 3.", "Article 13 of the Convention 28. The Government pleaded that there was no violation of Article 13 of the Convention in so far as there had been in their view no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1. 29. The Court reiterates that it has already found violations of Article 13 of the Convention in cases concerning the lengthy non-enforcement of the judgments (see, for example, Voytenko v. Ukraine, no.", "18966/02, §§ 30 and 48, 29 June 2004). 30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, there has been a breach of this provision. 4.", "Article 8 of the Convention 31. Having regard to the finding relating to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraphs 23 and 27 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 8 of the Convention (see, mutatis mutandis, Laino v. Italy [GC], no. 33158/96, § 25, ECHR 1999-I). II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant claimed 40,552 euros (EUR) in respect of pecuniary damage, namely the current cost of an apartment awarded to him by the decision of 31 August 2006. He further claimed the same amount in respect of non-pecuniary damage.", "34. The Government contested these claims as exorbitant. 35. The Court notes that it is undisputed that the State still has an outstanding obligation to enforce the decision at issue. 36.", "The Court further awards the applicant, on an equitable basis, EUR 1,000 in respect of non-pecuniary damage. B. Costs and expenses 37. The applicant also claimed EUR 500 for the costs and expenses incurred before the domestic courts and the Court. In support he submitted vouchers in the total amount of 209.01 Ukrainian hryvnias[1] for his postal expenses incurred before the Court.", "38. The Government contested the first-mentioned sum as unsubstantiated. 39. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 20 for the proceedings before the Court.", "C. Default interest 40. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 13 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1; 5. Holds that there is no need to examine the complaint under Article 8 of the Convention; 6. Holds (a) that the respondent State, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, is to enforce the decision of 31 August 2006; (b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 20 (twenty euros) for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] About EUR 20." ]