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[ "SECOND SECTION CASE OF ILJINA AND SARULIENĖ v. LITHUANIA (Application no. 32293/05) JUDGMENT STRASBOURG 15 March 2011 FINAL 15/06/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Iljina and Sarulienė v. Lithuania, 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,Giorgio Malinverni,András Sajó,Işıl Karakaş, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 22 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "32293/05) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Ms Danuta Iljina (“the first applicant”) and Ms Evelina Sarulienė (“the second applicant”), on 23 August 2005. 2. The applicants were represented by Ms D. Gumbrevičiūtė-Kuzminskienė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "The applicants alleged, in particular, that they and their close family members had been subjected to acts of police brutality and that the authorities had failed to carry out an adequate investigation into the incident. 4. On 10 July 2008 the President of the Second Section decided to give notice to the Government of the applicants' complaints under Articles 3 and 13 of the Convention. It was also decided to examine the merits of the complaints at the same time as their admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1958. The second applicant was born in 1978. Both of them live in Vilnius. The first applicant is the second applicant's mother.", "6. According to the second applicant, at about 5 p.m. on 3 August 2004 a police officer, in plain clothes, arrived at the applicants' apartment block to conduct a search for stolen goods in a flat which was situated next door to that of the applicants. The police officer was accompanied by a technical expert who worked for the company which owned the goods in question. The applicants' neighbour refused to let the police officer in, alleging that he was not the owner of the flat and that the officer was not wearing a uniform. At the same time, the second applicant, her uncle, O.B., and her brother, V.I., came out on to the staircase for a smoke.", "According to the second applicant, she and her brother told the police officer that he had no right to enter the flat by force. The policeman went for reinforcements, but before leaving said “get ready to go [with the police]”. 7. The further circumstances of the conflict on the staircase are in dispute between the parties. A.", "The applicants' version of events 8. According to the second applicant, two more uniformed policemen arrived later at the scene of the incident. One of them suddenly grabbed V.I., loaded his gun and pointed it at V.I. The second applicant screamed for help and the policeman pointed the gun at her. The other policemen told the first officer to put away the gun and both policemen started hitting V.I.", "The officers called for more reinforcements, and more policemen arrived; they hit V.I. and O.B. with rubber truncheons and punched and kicked them. At that time the second applicant's father, A.I., returned from work and asked the police to explain what was happening. Instead of replying, the police started hitting him on the head, shoulders and hands with a rubber truncheon.", "The second applicant's daughter, who was one year and seven months old, attempted to come out of the flat to see what was happening in the corridor; a policeman tried to push and close the flat's reinforced door. The second applicant placed her foot between the door and the wall to prevent her daughter from being hurt; consequently, the second applicant's foot was injured. O.B., V.I. and A.I. were arrested.", "The second applicant telephoned the first applicant. 9. According to the first applicant, she received a telephone call from her daughter and went straight to the scene of the incident. In the courtyard of the apartment block she saw three police cars and several policemen. O.B., V.I.", "and A.I. were in the police cars and there were a lot of people milling around. She asked the police officers what was going on. However, no explanation was given, and the officers started pushing people further away from the police cars. The first applicant tried to stop the police officers and lay down on the bonnet of a police car.", "The policemen started driving the car and the applicant felt pain in her whole body. An officer forcibly dragged her away from the car, tore off her blouse, kicked her bottom and threw her, wearing no blouse but only a bra, onto the grass. She came round as the police were leaving. B. The Government's version of events 10.", "In their submissions of 3 December 2008 the Government stated that as reinforcement, two more police officers arrived at the staircase. V.I. again came out of his flat and used offensive language towards the officers. The second applicant and her friend S.Š. came out on to the staircase.", "The police officers demanded that V.I. stop acting inappropriately and warned him of the impending consequences. V.I. did not comply and the police officers attempted to arrest him. He resisted the arrest, hitting the officers.", "Then O.B. ran out of the flat and started hitting the officers. More reinforcements were called for and four more officers arrived at the scene. The policemen attempted to arrest V.I. and O.B.", "At this point A.I. turned up and joined in the fight, trying to prevent the policemen from restraining his relatives. The second applicant and S.Š. were also obstructing the officers from carrying out their duty by jostling and pulling their clothes. The Government pointed out that as regards the second applicant's leg injury, the latter's friend S.Š., when questioned by police, stated that “the police officer slammed the door so loudly that the second applicant's daughter started crying”.", "Eventually V.I., O.B. and A.I. were handcuffed and put into police cars in the courtyard of the apartment block. None of the policemen used or showed a gun, nor did they threaten to use one. The first applicant tried to prevent the police cars from leaving the courtyard and lay down on the bonnet of the first car.", "At the time the engine was turned off and the car was not moving. One of the officers, with some help from two other officers, forcibly moved the second applicant away from the car, holding her by both hands. C. Further developments 11. The documents before the Court indicate that on 4 and 5 August 2004 a medical expert of the Lithuanian Law University Court Forensic Medicine Institute examined the applicants and three of their family members who had taken part in the incident. It was established that all five of them had sustained light health impairment.", "In particular, the first applicant had a scratch on her forehead and five bruises on her upper arms, ranging in size from 1.5 cm to 7 cm, which were the result of at least three impacts. A doctor's certificate attested that she was unfit for work from 4 to 13 August. 12. The second applicant had an injury to her right foot, caused by a single impact with a hard blunt object. The second applicant's brother, V.I., had sustained bruises and scratches on his elbows, forearms and left knee, caused by having had at least five traumatic impacts with small hard blunt objects.", "He received leave of absence from work until 13 August. 13. The second applicant's father, A.I., told the doctor that the police officer had hit him several times on the head and left shoulder with a rubber truncheon. The doctor found a 3-centimetre-diameter bruise on A.I. 's left temple and scratches on his right hand.", "Those injuries had been caused by at least three traumatic impacts. 14. The first applicant's brother, O.B., told the medical expert that during the altercation with the police the officers had beaten him, twisted his arms behind his back and kicked him in the chest. The medical expert established that there was a swollen 0.5 x 3-centimetre scratch on O.B. 's right forearm and a 2-centimetre-diameter swollen bruise on his right shoulder, which were the consequence of at least two traumatic impacts from hard blunt objects, possibly in the way and at the time described by O.B.", "He received leave of absence from work until 13 August. 15. The medical expert also concluded that the injuries mentioned above could have been received during the altercation with the police officers. 16. During the evening of 3 August 2004 the two applicants submitted written complaints about the police actions to the Vilnius City Police Headquarters and to the prosecutors.", "The applicants asked for an assessment of the actions of the policemen, and that the officers who had taken part in the events be identified. O.B., V.I. and A.I. were kept in police custody overnight. The following morning O.B., V.I.", "and A.I. were questioned and the same morning released from custody. 17. The police investigator charged A.I., V.I. and O.B.", "under Article 286 of the Penal Code (insulting a public servant or a person discharging public functions) and Article 290 of the Penal Code (resistance to a public servant or a person discharging public functions). However, on 15 December 2004 the prosecutor dropped the charges against A.I., V.I. and O.B. for lack of evidence of guilt (Article 212 § 1 (2) of the Code of Criminal Procedure). 18.", "On 4 August 2004 A.I., V.I. and O.B. submitted a written complaint to the Vilnius Region chief prosecutor. They stated that they had been beaten up by the policemen without any reason and even experienced a threat that a firearm would be used against them. Whilst arguing that the police officers had brought charges against them of obstruction of justice only to defend the uniform, A.I., V.I.", "and O.B. invoked Articles 169 and 170 § 1 of the Code of Criminal Procedure and asked the prosecutor that the actions of the policemen be scrutinised by a prosecutor, without delegating the inquiry to police investigators. 19. At the applicants' request, on 12 August 2004 the Internal Affairs Department of Vilnius City Police Headquarters began a pre-trial investigation into alleged ill-treatment by the police officers, under Article 228 § 1 of the Penal Code, which establishes criminal liability for abuse of power. 20.", "When testifying to the investigators of the Internal Affairs Department, the police officers stated that V.I. had tried to obstruct them in the performance of their duties and had insulted them. They had attempted to arrest him for this behaviour, but he had resisted, using violence against them; then O.B. had arrived and tried to stop the policemen from restraining V.I. Lastly, A.I.", "had appeared on the scene and also become involved in the fight. Moreover, there were two women on the staircase who grabbed the officers by the arms. Consequently, O.B., V.I. and A.I. had been arrested and taken to the police station.", "During the incident none of the policemen had used or shown a gun, nor had they threatened to use one. 21. Between 13 August and 3 November 2004 the Internal Affairs Department investigator at the Vilnius City Police Headquarters questioned the policemen, the applicants and their male family members as well as the applicants' neighbours who had witnessed the incident. The questioning took place on police premises. Neither the applicants nor A.I., V.I.", "or O.B. had lawyers present when they were being questioned. The policemen and the applicants maintained their respective versions of events. 22. On 1 December 2004 a prosecutor of the Vilnius City District Prosecutor's Office discontinued the pre-trial investigation, stating that there was not enough objective evidence to conclude that the police officers had abused their powers or used unnecessary force.", "23. On 12 and 14 January 2005 the applicants appealed against that decision to the Vilnius Regional Prosecutor's Office, claiming that “they could not have expected a different outcome of the inquiry, given that the [police] investigator was misleading the witnesses with the aim of obtaining testimony favourable to the [police] officers”. The applicants argued that the police officers had used excessive force against them and threatened to use a firearm. They also alleged that the testimony police officers had given during the pre-trial investigation was not comprehensive, given that the officers had not specified which special fighting actions (kovinių imtynių veiksmus) they had used. Moreover, the localisation of the wounds on the applicants' bodies allowed the assumption that the police had had recourse not only to restraining measures, but to clear physical violence.", "24. On 7 February 2005 the deputy chief prosecutor of the Vilnius Regional Prosecutor's Office dismissed the applicants' appeal as unfounded. He noted the prosecutor's decision of 15 December 2004 to drop the charges against A.I., V.I. and O.B. as unfounded, for lack of evidence.", "However, having, as it appears from his decision, analysed the statements of the parties to the incident, as written down by the police internal affairs investigator, the prosecutor found that there were no objective data to substantiate the applicants' allegations that the policemen had acted unlawfully. For the prosecutor, the applicants' request that the policemen be questioned one more time was not to be entertained, because “the testimony of the police officers about the actions of V.I., A.I. and the others who obstructed the police, as well as about the force used when arresting them, was sufficiently detailed and comprehensive”. 25. On 18 February 2005 the applicants appealed to the Vilnius City First District Court asking that the pre-trial investigation be reopened and the witnesses be comprehensively questioned one more time.", "They maintained that the police investigator had refused to record statements by certain witnesses, thereby destroying the evidence of the crime committed by the policemen. The investigation into the police actions had been superficial. The applicants asked the court to establish which particular actions should be attributed to each of the policemen. They also noted that on 15 December 2004 the prosecutor had decided to drop the criminal charges against A.I., V.I. and O.B.", "26. On 3 March 2005 the Vilnius City First District Court in a one-page ruling held that the pre-trial investigation had been thorough and that the prosecutors had taken reasoned decisions. According to the court, the medical experts' conclusions that the applicants and their family members had sustained light physical harm was not evidence of an abuse of powers by the police – the applicants had resisted the policemen and had been injured as a result. The court also noted that the applicants had not submitted new evidence. For those reasons the complaint was dismissed.", "That decision was final. II. RELEVANT DOMESTIC LAW AND PRACTICE 27. Article 228 of the Penal Code sets out that there is criminal liability for abuse of authority when such abuse by a civil servant or a person of equivalent status causes serious damage to a legal or natural person. Under Article 286 of the Code a person can be held criminally liable for having opposed a policeman's orders and threatened the latter with physical violence.", "Article 290 of the Code sets out that there is criminal liability for insulting a public officer or a civil servant. 28. Under Article 21 of the Law on Police Activities, a police officer must respect and protect human dignity, ensure and safeguard human rights and freedoms. The police officers have a right to use coercion when it is necessary to prevent violations of the law and to apprehend those who have committed such violations, as well as in other cases when lawful interests of an individual or the State are at stake. Physical coercion can be used when apprehending a person who has committed a violation of the law and who evades arrest by active actions (Articles 23 and 24).", "29. The Law on the Prosecutor's Office stipulates that in discharging his functions the prosecutor is independent (Article 11). It is for a prosecutor to conduct, organise and direct the pre-trial investigation and to supervise the procedural activities of pre-trial investigation officers. A prosecutor's decision can be appealed against to a superior prosecutor (Articles 15 and 16). 30.", "The Code of Criminal Procedure provides that parties to criminal proceedings can lodge complaints with the prosecutor against the procedural actions and decisions of the pre-trial investigating officer. The prosecutor's decision can be complained against to a superior prosecutor and subsequently to an investigating judge (Articles 62 and 63). When examining the complaint, the prosecutor and the investigating judge have a right to examine the pre-trial investigation materials and request statements from the pre-trial investigation officer or the prosecutor, provided that they had not been submitted before. The prosecutor, counsel, the accused and the complainant may be present during the examination of the complaint by the investigating judge. Furthermore, an investigating judge has a right to question witnesses, suspects and victims.", "Up to 31 August 2007 the decision of the investigating judge was final (Articles 64 and 173). Since that date, a decision of an investigating judge can be appealed against to a superior court (Article 214 § 3). 31. The pre-trial investigation can be conducted by the police, but it has to be organised and led by a prosecutor, who has an obligation to oversee the course of the investigation and who can decide to conduct all or part of the investigation himself (Articles 164, 165, 169 and 170 § 1 of the Code of Criminal Procedure). Under Articles 212 § 1 (2) and 214 § 1 of the Code, a prosecutor is to terminate the pre-trial investigation where insufficient evidence of the suspect's culpability in respect of a crime has been gathered.", "32. The Regulations of the Internal Affairs Department of Vilnius City Police Headquarters, approved on 13 May 2000, stipulate that the Department is an autonomous structural unit subordinate and accountable to the Chief of Police at Vilnius City Police Headquarters or his deputy. It is the Department's function to conduct pre-trial investigations of criminal acts committed by police officers. When conducting an investigation, the Department's officials have the right to question police officers and other persons. 33.", "In their observations on the admissibility and merits of the case, the Government provided the Court with examples of recent domestic courts' practice in cases of abuse by the police. In particular, the Government referred to the judgment of 21 July 2008 when the Vilnius City First District Court convicted two police officers of abuse of authority. The policemen were charged with using excessive force when apprehending two suspects and later beating them while they were in custody. The Government noted that after hearing and seeing various witnesses and evaluating their credibility, the court had accepted the victims' version as more credible. The Government also referred to the judgment of the same court of 21 July 2003, subsequently upheld by the Supreme Court, when two police officers were convicted of abuse of authority and beating up a suspect during questioning.", "The conviction was based on the version of events presented by the victim, supported by corroborating medical examination. The fact that fellow police officers had testified in favour of the accused policemen did not cast doubt for the court on the credibility of the victim's claims. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 34. The applicants complained that the treatment to which they and their close family members had been subjected by the police officers during the events of 3 August 2004 had caused them great physical and mental suffering, amounting to inhuman and degrading treatment contrary to Article 3 of the Convention.", "They also complained that the investigating and prosecuting authorities, as well as the court, had failed to proceed with an effective and impartial investigation into the incident capable of leading to the identification and punishment of the police officers responsible. In that connection the applicants invoked Article 3 as well as Articles 6 and 13 of the Convention. 35. The Court considers that the above complaints fall to be examined solely from the standpoint of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 36. The Government contested the applicants' arguments.", "A. Admissibility 37. The Court considers, in the light of the parties' submissions, that the applicants' complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. B.", "Merits 1. The parties' submissions 38. The applicants submitted that their injuries were the result of the unnecessary and disproportionate use of force by the police officers involved in the incident. Moreover, even worse than the pain of their physical injuries, they had suffered fear, distress, anguish, uncertainty, humiliation and a sense of injustice when they saw their family members being beaten up and arrested, apparently without a proper legal basis. The applicants were also critical of the manner in which the authorities had conducted the investigation into their allegations of ill-treatment.", "For the applicants, the investigating and prosecuting authorities had failed to proceed with a comprehensive and effective official investigation capable of leading to the identification and punishment of the police officers responsible. 39. The Government pointed out that in the applicants' case the alleged ill-treatment, resulting in minor injuries, had taken place in the course of the lawful arrest of the applicants' relatives. The applicants themselves had been actively involved in the conflict and had been obstructing the police officers in the performance of their lawful duties. Furthermore, the Government had serious doubts that the minor injuries sustained by the applicants reached a level of severity sufficient to bring them within the scope of Article 3 of the Convention.", "Whilst admitting that any recourse to physical force against the applicants, if it had not been made strictly necessary by the applicants' own conduct, could be seen as a possible breach of Article 3 requirements, the Government also submitted that the force used by the police officers was strictly necessary and not excessive, according to the applicants' actions. Lastly, as regards the effectiveness of the investigation and the judicial proceedings, the Government argued that the investigation into the incident had been prompt, independent and thorough and that twenty-two witnesses had testified. Given that two sets of proceedings concerning precisely the same incident had been conducted and the investigators in both cases had shared the material, there was no reason to hold that any of the evidence had not been secured and the establishment of the truth thereby precluded. 2. The Court's assessment a) General principles 40.", "As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports 1996-V). 41.", "The Court also recalls 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 (see Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports of Judgments and Decisions 1998‑VIII). 42. The Court has also consistently held that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no.", "26772/95, § 131, ECHR 2000‑IV). 43. When the use of force by the police is at issue, 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. The investigation into arguable allegations of ill-treatment must also be thorough. This 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.", "They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Corsacov v. Moldova, no. 18944/02, § 69, 4 April 2006). 44. Moreover, for an investigation into ill-treatment by agents of the State to be regarded as effective, the general rule is that the persons responsible for the inquiries and those conducting the investigation should be independent of anyone implicated in the events.", "This means not only that there should be no hierarchical or institutional connection, but also that the investigators should be independent in practice (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 135, ECHR 2004‑IV (extracts)) 45. Lastly, and as concerns the assessment of evidence and where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts.", "Where allegations are made under Articles 2 and 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). b) Application of those principles to the present case 46. The Court notes that the parties to the national proceedings did not dispute the fact that the injuries as shown by medical evidence actually arose in the course of the conflict with the police. In particular, the forensic expert concluded that the applicants and their three male family members had sustained light physical injuries, consisting of bruises and scratches, and that, except for the second applicant and A.I., all of them would recover within nine days.", "Having examined the materials submitted to it, the Court also finds that the applicants' injuries are consistent with their version of events, including being pulled by the arms off the police car (the first applicant), and having a foot shut in a door (the second applicant). 47. The Court further reiterates that Article 3 does not refer exclusively to the infliction of physical pain but also of mental suffering, which is caused by “creating a state of anguish and stress by means other than bodily assault” (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161). In this connection the Court observes that the three men arrested were the applicants' closest family members – V.I.", "was the first applicant's son and the second applicant's brother, A.I. was the first applicant's husband and the second applicant's father and O.B. was the first applicant's brother and the second applicant's uncle. There can be little doubt that the sight of them being beaten up by the police officers (as concerns the second applicant) and unsuccessful attempts to obtain information about the reason behind their arrest (as concerns the first applicant) intimidated the applicants on account of the arbitrariness of the situation and caused them emotional and psychological distress. Overall, having regard to the first applicant's physical injuries and the fact that due to them the forensic expert deemed her to be unfit to work for nine days, the traces of injuries on the second applicant's body and the fact that both applicants witnessed the police violence, the Court finds that the applicants were subjected to ill-treatment which was sufficiently serious to be considered degrading and thus to fall within the scope of Article 3 of the Convention.", "48. Against this background the burden rests on the Government to demonstrate with convincing arguments that the use of force was not excessive. 49. On the facts of the case the Court cannot ignore that the applicants were injured in the course of a random police operation which gave rise to unexpected developments. Thus, the police officers were called upon to react without prior preparation (see, by converse implication, Matko, cited above, § 102, and Rehbock v. Slovenia, no.", "29462/95, § 72, ECHR 2000‑XII). Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible burden on the authorities (see, mutatis mutandis, Mahmut Kaya v. Turkey, no. 22535/93, § 86, ECHR 2000-III). 50. The Court notes that as justification of the use of force against the applicants and their relatives the Government have advanced the argument that those family members had been arrested lawfully for obstructing the police officers in the performance of their legitimate duties and for insulting them.", "However, the Court cannot overlook the fact that by a prosecutor's order of 15 December 2004 those charges were dropped as unfounded. This, although not conclusive on its own, nevertheless does cast doubt on the real necessity to arrest the applicants' family members and to have recourse to physical force to put the arrest into effect. The Court also notes the absence of signs of physical injuries to the policemen which is a typical consequence of resistance to arrest in comparable cases. 51. As for the Government's argument that the use of force against the applicants was proportionate, the Court notes that there are two conflicting versions of events.", "The Internal Affairs investigator, the prosecutor and the Vilnius First District Court found against the applicants, noting that they and A.I., V.I. and O.B. would have sustained no physical damage had they not resisted arrest. In this connection the Court observes that, in contrast to the facts in Klaas (paragraph 30), in the present case the Vilnius City First District Court and even the prosecutor, who had to assure the independence and objectivity of the investigation, had no opportunity of hearing the parties to the criminal proceedings and witnesses at first hand and of evaluating their credibility. Quite the contrary, as it appears from the prosecutors' decisions to terminate the pre-trial investigation into the alleged police abuse, the prosecutors, although explicitly asked by the applicants to take over the pre-trial investigation, to question the witnesses one more time and to establish the concrete actions and involvement of each of the policemen, limited themselves to summing up the witness testimonies, as written down by Internal Affairs investigator within the police premises.", "52. Furthermore, the Court considers that it is not required to address the issue of hierarchical and institutional independence of the police directly, given that the investigation, taken as a whole, was ineffective for following further deficiencies. As concerns the Vilnius City First District Court, the Court notes that in a one-page ruling it merely succinctly repeated the procedural steps taken in the case and summed up the prosecutor's conclusions (see, in contrario, Peleckas v. Lithuania (dec.), no. 18293/03, 6 November 2007, as regards the effective and thorough investigation of the alleged ill-treatment by the police). The Court is mindful of the fact that the decision the court took was of a procedural nature, as opposed to examining the complaint of alleged police abuse on the merits and passing a judgment as to the actual guilt of the policemen.", "However, the Court is particularly concerned by the fact that the charges against the three men having being dismissed on 15 December 2004, neither the deputy chief prosecutor of the Vilnius Region Prosecutor's Office in his decision of 7 February 2005, nor the investigating judge on 3 March 2005 deemed it important and reasonable to take this circumstance into account and to reopen the pre-trial investigation, and to question the applicants, the policemen and the witnesses in a more transparent manner than mere questioning at the police station, where, naturally, the witnesses and victims were prone to more psychological pressure. On this latter point the Court draws attention to the applicants' accusation, irrespective of the question of whether it was founded, that the police investigator misled certain witnesses and wrote down their testimony in a way which was more beneficial to the police officers concerned. What is more, in their observations on the admissibility and merits the Government did provide examples of domestic case-law (see paragraph 33 above), albeit when the issue of police officers' responsibility was decided on the merits, where police officers had been convicted for abuse of office and where the victims and witnesses had been questioned in court. The Court also notes that the investigation failed to establish the particular roles of each of the policemen implicated in the events – to this day it is not clear to what extent each of them contributed to the applicants' injuries. Lastly, in their observations to the Court the Government themselves admitted that some of the contradictions could not have been eliminated in the applicants' case.", "53. In the light of the above, the Court concludes that the State is responsible for degrading treatment under Article 3 of the Convention on account of the physical and mental violence, considered as a whole, committed against the applicants as well as the lack of an effective investigation into the incident, and that therefore there has been a violation of this provision. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 54. Relying on Article 5 § 1 of the Convention, the applicants complained about the arrest of O.B., V.I.", "and A.I. In this connection the Court notes that the applicants themselves were not deprived of their liberty. Consequently, they cannot claim to be victims within the meaning of Article 34 of the Convention, and their complaint is to be rejected under Article 35 § 4 thereof. III. 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 applicants claimed 289,855 euros (EUR) in respect of non-pecuniary damage. 57. The Government contested that claim as excessive and unsubstantiated.", "58. The Court notes that it has found a violation of Article 3 in the present case. In these circumstances, it considers that the applicants have experienced a certain suffering and frustration, which the mere finding of a violation cannot compensate. Making its assessment on an equitable basis, the Court awards each of the applicants EUR 9,000 in respect of non-pecuniary damage. B.", "Costs and expenses 59. The applicants also claimed 1,250 Lithuanian litas (LTL, approximately EUR 360) for the costs and expenses incurred before the domestic authorities and LTL 2,380 (approximately EUR 690) for those incurred before the Court. 60. The Government contested above claims. 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 applicants, jointly, the sum of EUR 1,050 covering costs under all heads. 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 complaint concerning ill-treatment by the police and the lack of an effective investigation 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 according to Article 44 § 2 of the Convention: (i) EUR 9,000 (nine thousand euros) to each of the applicants in respect of non-pecuniary damage; (ii) EUR 1,050 (one thousand and fifty euros), to both applicants, jointly, in respect of costs and expenses; and (iii) any tax that may be chargeable, these amounts to be converted into Lithuanian litas at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF IVASHCHENKO v. UKRAINE (Application no. 22215/04) JUDGMENT STRASBOURG 14 December 2006 FINAL 14/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ivashchenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ. Borrego Borrego,MrsR.", "Jaeger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 20 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22215/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yevgeniy Ivanovich Ivashchenko (“the applicant”), on 11 June 2004. 2. The applicant was represented by Mr V. Bytchkovkiy.", "The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaitsev. 3. On 5 December 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in the town of Krasnyy Lutch, the Lugansk Region. 5. By two judgments of 17 October 2001 and 27 March 2002, the Krasnyy Lutch Town Court ordered the Novopavlivska State Mine to pay the applicant UAH 5,120.50[1] in salary arrears and to supply him with 11,800 kg of coal, respectively. 6.", "On 26 November 2001 and 17 May 2002 the Krasnyy Lutch Town Bailiffs' Service instituted enforcement proceedings concerning the judgments of 17 October 2001 and 27 March 2002, respectively. 7. The judgment of 17 October 2001 was partly enforced and the applicant was paid UAH 3,721.7[2], the outstanding debt being UAH 1,398.8[3]. The judgment of 27 March 2002 remains unenforced. II.", "RELEVANT DOMESTIC LAW 8. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW 9. The applicant complained about the State authorities' failure to enforce the judgments of the Krasnyy Lutch Town Court of 17 October 2001 and 27 March 2002 in full and in due time.", "He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” I. ADMISSIBILITY 10. The Court notes that the Government have not raised any objection as to the admissibility of the application. 11. The Court considers that the application raises 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.", "II. MERITS 12. 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 had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (see Romashov, cited above, § 37, and Voytenko v. Ukraine, no. 18966/02, 29 June 2004, § 37).", "13. The applicant disagreed. 14. The Court notes that to date the judgments of the Krasnyy Lutch Town Court of 17 October 2001 and 27 March 2002 have remained unenforced for around four years and eleven months, and four years and seven months, respectively. 15.", "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, Romashov, cited above, §§ 42-46, and Voytenko, cited above, §§ 53-55). 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 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 17. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 18.", "The applicant claimed UAH 12,712.87[4] in respect of pecuniary damage, which included the amount of the judgment debt of 17 October 2001 and the sums to which the applicant has allegedly been entitled due to the non-payment of this debt. Under the same head, he sought to be provided with 11,800 kg of coal. The applicant further claimed UAH 12,712.87[5] in respect of non-pecuniary damage. 19. The Government maintained that the applicant had not substantiated his claims.", "20. In so far as the applicant claimed the amounts of money and coal which he was awarded under the judgments at issue, the Court considers that the Government should pay him the outstanding debt under the judgment of 17 October 2001 and enforce the judgment of 27 March 2002. 21. As to the applicant's claim in respect of non-pecuniary damage, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,100 under this head. B.", "Costs and expenses 22. The applicant did not submit any claim under this head. The Court therefore makes no award. C. Default interest 23. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4.", "Holds (a) that, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the respondent State is to pay the applicant the judgment debt of 17 October 2001 still owed to him, and EUR 2,100 (two thousand one 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 on the date of settlement, as well as to enforce the judgment of the Krasnyy Lutch Town Court of 27 March 2002; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. Around 1,056 euros – “EUR”.", "[2]. Around EUR 768. [3]. Around EUR 288. [4].", "Around EUR 2,109. [5]. Around EUR 2,109." ]
[ "FOURTH SECTION CASE OF CIESIELCZYK v. POLAND (Application no. 12484/05) JUDGMENT STRASBOURG 26 June 2012 FINAL 22/10/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ciesielczyk v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 5 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 12484/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Marek Ciesielczyk (“the applicant”), on 20 December 2004. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that his freedom of expression had been violated. 4. On 27 November 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Tarnow. 6. On 16 July 2003 a television station, S.Tar TV Malopolska Telewizja Kablowa (hereafter “S.Tar TV”), and two individuals, Mr G. J. and Mr J. R., lodged with the Tarnow District Court (Sąd Rejonowy) a private bill of indictment against the applicant, charging him with several counts of defamation. 7.", "On 24 May 2004 the Tarnow District Court found the applicant guilty of five offences of defamation under Article 212 of the Criminal Code and acquitted him of the remaining charges. The applicant was ordered to pay a fine of 2,000 Polish zlotys (PLN), PLN 500 to a charity, and to reimburse the private prosecutors PLN 1,000 for the costs of the proceedings. 8. The court found him guilty of damaging the good name of S.Tar TV in that, between April 2002 and July 2003, through a means of mass communication, namely the Internet portal www.uczciwosc.org.pl, and by sending letters to the Tarnow Regional Prosecutor, the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji), the Minister of Justice, Bishop W. Sworc, and priests from several Tarnow parishes, he had made untruthful statements, in particular that S.Tar TV had been broadcasting pornographic material. 9.", "Secondly, the applicant was found guilty of disseminating, on the above-mentioned Internet site, inaccurate information about one of the journalists working for S.Tar TV, Mr G. J., which had debased the victim in the eyes of the public and had undermined public confidence in him: public confidence was necessary for his profession. The court referred to statements published by the applicant to the effect that the victim had “lacked objectivity and closely collaborated with the incompetent President of Tarnow, Mr M. Bień, and his political godfather, the Civic Platform’s Member of Parliament, Mr A. Grad.” 10. Thirdly, the applicant was convicted of disseminating, through the same Internet site, information to the effect that Mr J. R., another journalist employed by S.Tar TV, had provided viewers with inaccurate information, implying that the applicant had been pushing for the dismissal of the Tarnow President. 11. The fourth charge on which the applicant was convicted consisted of making statements during a session of the Tarnow Municipal Council, in full knowledge that the session was being broadcast by S.Tar TV, which were inaccurate and damaging to the station’s good name.", "The statements in question included allegations that the station had been presenting one-sided information on city issues and had received money from the local authorities to present information in support of the latter’s “official line”. 12. Finally, the applicant was found guilty of disseminating inaccurate information aimed at debasing Mr G. J. and undermining public confidence in him, by stating, in the presence of 100 people, that he had been responsible for manipulation of the media and was one of the greatest manipulators of cable television. 13. The applicant was acquitted of the charge of making statements during a session of the Tarnow Municipal Council, which was broadcast by S.Tar TV, claiming that it was not objective and behaved in a totalitarian manner.", "The applicant was also acquitted of the charge that he had disseminated a leaflet entitled ‘Demonstration in Tarnow’” in which he made inaccurate statements to the effect that S.Tar TV had obtained a substantial sum of taxpayers’ money following an agreement with the city council. 14. On 14 September 2004 the applicant lodged an appeal against the judgment. 15. On 19 November 2004 the Tarnow Regional Court (Sąd Okręgowy) allowed the appeal in part.", "The court acquitted the applicant of three charges of defamation of S.Tar TV and Mr J. R. However, the court agreed that the applicant had defamed Mr G. J. on two occasions, namely during the demonstration and on his Internet site. The court further decided to conditionally discontinue the proceedings for a probationary period of one year, as it had established that the guilt and social danger of the act committed by the applicant were not significant. The court ordered the applicant to pay PLN 500 to a charity and the private prosecutor’s costs in the proceedings, in the amount of PLN 1,420. In setting the payment the court took into account the fact that the applicant had no previous convictions and had regard to his financial standing. 16.", "The appeal court considered that the nature and context of the statements regarding S.Tar TV had not exceeded the boundaries of permissible criticism. The court found that the applicant had acted in the public interest, that his statements were not defamatory and that they did not therefore constitute an offence under the Criminal Code. As regards the applicant’s conviction for defamation of Mr J. R., the court quashed it and considered that there had been no evidence of an offence. 17. With regard to the part of the judgment which it upheld, concerning the defamation of Mr G. J., the court established that on 11 April 2003 the applicant had organised a demonstration against corruption, incompetence and poverty, which involved about 200 people.", "During the demonstration he pointed at Mr G. J., a journalist working for S.Tar TV, who was filming the event. The description of the subsequent events as established by the Regional Court and the latter’s conclusions, read: ...“[the applicant pointing at Mr G. J.] described him in the following words: ...’this is the person responsible for manipulation’... ‘this person is called [Mr G. J.]", "[and] is one of the greatest information manipulators of cable TV’... ‘down with [him] (precz)!’...Some time later, on [his Internet site] there appeared a notice about the demonstration which included the following statements: ... ‘during the demonstration local journalists, including Mr G. J. from Tarnów cable TV, on account of [the latter’s] lack of objectivity and tight collaboration with the incompetent President of Tarnow, Mr M. Bień, and his political godfather the Civil Platform’s MP, Mr A.Grad, was booed (“wygwizdany”) by Tarnow inhabitants... These were the statements which [the victim] considered defamatory. The legal analysis of these statements and the circumstances in which they were made allow the conclusion that the [applicant’s] behaviour fulfilled the criteria of the offence set out in Article 212 §§ 1 and 2 of the Criminal Code. In the Regional Court’s assessment it is beyond doubt that the term ‘manipulation’ has a highly negative connotation in the common understanding (in the Polish reality this is also caused by the negative experiences of the mass media before 1989).With regard to the process of transmitting information, this term means either telling direct untruths or presenting events in such a way as to make it impossible to see them as they are in reality – which also [amounts to telling] untruths. The same is true with regard to the term “collaboration”, which means direct cooperation with an imposed authority, and is linked with servility and being at the latter’s disposal...", "Thus, to make a charge against a journalist of participating in manipulation or collaboration with the city’s authorities, or directly calling him an ‘information manipulator’ and stating that he was booed on account of his lack of objectivity, could indisputably debase him in the eyes of the public and undermine the public confidence necessary for his profession. Society expects from the mass media and their representatives independence, objectivity, and a true description of those events which are interesting to the public. In conclusion, it is established that [the applicant’s] behaviour was verbally aggressive, had features typical of a personal attack, and was obviously aimed at debasing Mr G. J. in the estimation of those present at the demonstration....” 18. The court also dismissed the applicant’s submissions that his statements were a value judgment. It considered that even if they could be considered value judgments, they were not in any event supported by facts.", "The court established that the basis of the applicant’s statement was events which had taken place during the applicant’s campaign for the post of Tarnow’s President, which had its epilogue in the Regional Court’s decision of 25 October 2002. The latter court found that S.Tar TV, but not Mr G. J., had made inaccurate statements regarding the applicant. During the election campaign S.Tar TV had broadcast a debate between the candidates; however, every time the applicant took the floor a notice appeared to the effect that the applicant had not given permission for his views to be presented to the voters; this was not true. In reality, the applicant had not agreed to the particular conditions for his presentation as proposed by S.Tar TV. However, Mr G. J. was merely a camera operator and had no influence on the station’s policy or on the broadcasting of the inaccurate information about the applicant.", "19. The Regional Court considered therefore that the applicant should have limited himself to the comment that Mr G.J. “was a representative of the institution which had transmitted inaccurate information”. 20. On 16 December 2004 the Tarnow Municipal Council dismissed the applicant from his post as Vice-President of the Municipal Council.", "The Council considered that the applicant had been involved in unworthy conduct damaging its image by, in particular, insulting other people and constantly fighting and stirring up conflict. The Council referred to several court cases in which the applicant had been involved. II. RELEVANT DOMESTIC LAW 21. Article 212 of the 1997 Criminal Code provides: “§ 1.", "Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain 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 a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years.” § 4. The prosecution takes place under a private bill of indictment.” 22. In so far as relevant, Article 213 § 2 provides: “Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicant complained that his freedom of expression had been violated, in breach of 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.” 24. The Government contested that argument. A. Admissibility 25. The Government submitted that the applicant had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention.", "In particular, the applicant could have availed himself of the opportunity of lodging a constitutional complaint with the Constitutional Court. They relied on previous cases in which the Court had recognised the constitutional complaint as an effective remedy (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003, and Pachla v. Poland, no. 8812/02, 8 November 2005). 26.", "The applicant disagreed with the Government. He submitted that the constitutional complaint was not an effective remedy within the meaning of Article 35 § 1 of the Convention. The applicant claimed that he had appealed against the District Court judgment, by which means he had exhausted available domestic remedies. 27. The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no.", "30210/96, § 152, ECHR 2000‑XI). The Court further reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints, and that it 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).", "28. Turning to the circumstances of the instant case, the Court notes that the applicant was found guilty of defaming a journalist under Article 212 § 2 of the Criminal Code and acquitted of other charges of defamation. The applicant’s sanction was thus the result of judicial interpretation which applied this provision to the particular circumstances of the applicant’s case. In this connection the Court points to the established jurisprudence of the Constitutional Court, which provided that constitutional complaints based solely on the allegedly wrongful interpretation of a legal provision were excluded from its jurisdiction (see Palusinski v. Poland (dec.), no. 62414/00, ECHR 2006-...).", "Therefore the Court considers that the constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant’s case. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Arguments of the parties 30. The applicant submitted that the statements he had used, such as “manipulation”, “lack of objectivity” and “cooperation with the incompetent President of Tarnow” were value judgments which should not have been considered as a crime.", "He addressed such words not to private individuals but to journalists, and was acting in the public interest. 31. The applicant maintained that the sanction imposed was very harsh. As a direct consequence of the judgment against him he had lost his post of Vice‑President of the Municipal Council and, having a criminal record, for one year he had not been able to apply for a job. The sums which he had been ordered to pay were also very substantial, given his difficult financial situation.", "32. The Government admitted that the sanction against the applicant amounted to an “interference” with his right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued a legitimate aim, as it was intended to protect the reputation and rights of others. 33. Furthermore, the Government pointed out that the second-instance court considered the majority of the applicant’s statements to fall within the boundaries of permitted criticism.", "However, as regards his statements directed against Mr G. J., a journalist performing his professional duties, they were rightly considered defamatory and totally devoid of any factual basis. The applicant had overstepped the limits and undermined the credibility of a journalist. 34. The Government further considered that the applicant’s resentment against the cable TV channel should not have led to an uncontrolled explosion of frustration directed at a private individual. They also submitted that the applicant had lost his position as Vice‑President of the Council, not as a direct consequence of the adverse judgment of the Regional Court, but due to his general behaviour, which was considered by the City Council to be unworthy of that position.", "Moreover, the sanction against the applicant was not severe, as the court conditionally discontinued the proceedings for one year and ordered the applicant to pay PLN 500 to charity and pay the costs of the proceedings. That sanction should be considered a proportionate reaction to the applicant’s defamatory allegations, was justified by a “pressing social need”, and was proportionate to the legitimate aim pursued. 35. The Government concluded that there had been no violation of Article 10 of the Convention. 2.", "The Court’s assessment (a) General principles 36. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, 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, 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” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no.", "204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999‑VIII). 37. In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof.", "Where a statement amounts to a value judgment the proportionality of an interference may depend on whether there exists a sufficient factual basis for that statement, since even a value judgment may be excessive if it has no factual basis to support it (see, for example, Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, §§ 39‑40, ECHR 2002‑I; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004‑XI). 38. The notion of necessity implies a pressing social need.", "The Contracting States enjoy a margin of appreciation in this respect, but this goes hand in hand with European supervision, which is more or less extensive depending on the circumstances. In reviewing under Article 10 the decisions taken by the national authorities within their margin of appreciation, the Convention organs must determine, in the light of the case as a whole, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see, for instance, Hertel, cited above, § 46; Pedersen and Baadsgaard, cited above, §§ 68‑70; and Steel and Morris, cited above, § 87). (b) Application of the general principles to the present case 39. Turning to the circumstances of the instant case, the Court observes that it is not disputed between the parties that the domestic courts’ decisions complained of by the applicant amounted to an “interference” with the exercise of his right to freedom of expression. 40.", "The Court also finds that the interference complained of was prescribed by law, namely Article 212 of the Criminal Code, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect “the reputation or rights of others”. 41. Hence, the only point at issue is whether the interference was “necessary in a democratic society” to achieve that aim. 42. In the instant case the applicant, a local politician, was sanctioned for defaming a journalist of a local cable TV company by, in particular, calling him an “information manipulator” and a “collaborator” with local politicians, and stating that he had been publicly booed on account of his lack of objectivity.", "The domestic courts, which had the advantage of direct examination of the evidence before them, assessed the statements made by the applicant as both value judgments and statements of fact, and found that they did not have any factual basis and were objectively untrue (see paragraph 18 above). 43. In particular, they examined the decision of 25 October 2002, in a case against the cable TV company, where it had been found that the station had indeed given inaccurate information to the applicant’s detriment. However, in that set of proceedings all charges against the journalist, Mr G.J., were dismissed, as it had been established that he was not responsible for setting the policy of the station and had not been involved in any broadcasting decisions. 44.", "Thus although the applicant’s resentment against the cable TV was justifiable, he extended his criticism to a person working for it who did not have any personal responsibility for its actions. It does not appear that the applicant cited, either before the domestic authorities or before the Strasbourg Court, any other incident which could be considered as a justified basis for his assessment of Mr G. J. as a manipulator, a collaborator and a journalist lacking objectivity. 45. The Court reiterates that in the absence of any factual basis even value judgments can be considered excessive. In the light of the above, and taking into account the content of the statements in question and their context, the Court does not consider unreasonable the domestic courts’ findings that the applicant’s criticism lacked any factual basis and undermined the public confidence necessary for the exercise of the profession of a journalist.", "46. In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. The judgment of the second-instance court revealed that the authorities had taken into account the special mission of the applicant, a city councillor, in matters of public interest. The applicant was acquitted of several charges of defamation of the local cable television company and one of its journalists, as the domestic court considered his statements to be value judgments protected by Article 10 of the Convention. In finding that his other statements exceeded the limits of permissible criticism of Mr G.J., the domestic court carried out a detailed analysis of the statements in issue and their context, referring to the Convention case-law (see in this connection, MGN Limited v. the United Kingdom, no.", "39401/04, § 144, 18 January 2011). Although the Court has accepted on many occasions that a recourse to a degree of exaggeration, provocation, or immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006-..., and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006), nevertheless, it must be left open to the domestic courts to punish gratuitous insult. 47.", "The Court considers of relevance the Regional Court’s analysis that words such as “manipulation” and “collaboration” had a clearly negative connotation, particularly taking into account the totalitarian regime in Poland before 1989. The domestic court, adjudicating in 2004, noted that such statements implied telling untruths and a lack of independence, behaviour that cannot be expected of journalists (see paragraph 17 above). Taking into account this wider context of the case and the crucial role of journalists in a democracy the domestic court accepted that protecting them from unfounded allegations of the type at issue was justified. 48. Having regard to the foregoing, the Court is satisfied that the reasons adduced by the national courts were relevant and sufficient within the meaning of its case‑law.", "49. Lastly, the Court must satisfy itself that the penalty to which the applicant was subjected did not upset the balance between his freedom of expression and the need to protect Mr G.J.’s reputation (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004‑XI). It notes that the proceedings against the applicant were conditionally discontinued. While discontinuation implies that the domestic courts found that the applicant had committed a criminal offence of defamation, it does not amount to a conviction.", "The applicant was also ordered to pay in total approximately 450 euros (EUR) at the material time (PLN 500 to a charity and reimbursement of costs of PLN 1,420). The Court further observes that the criminal proceedings against the applicant originated in a private bill of indictment; no criminal proceedings on a public indictment were instituted or even envisaged against him (compare and contrast Kurłowicz v. Poland, no. 41029/06, § 54, 22 June 2010, and Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009). 50.", "The Court therefore considers that the penalty imposed on the applicant was relatively lenient and that the domestic court took into account various mitigating circumstances (see paragraph 15 above). 51. In sum, in view of the reasons adduced by the national courts and of the relative leniency of the punishment imposed on the applicant, the Court is satisfied that the authorities struck a fair balance between the interests of, on the one hand, protection of the private prosecutor’s reputation and, on the other, the applicant’s right to freedom of expression. The interference complained of may thus be regarded as “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention. 52.", "In such circumstances, the Court considers that, having regard to the margin of appreciation accorded to decisions of national courts in this context, there has been no violation of Article 10 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 53. The applicant further raised some general complaints under Articles 6, 7, 13 and 14 of the Convention. He alleged that the courts had breached his defence rights, assessed the evidence wrongly, dismissed his appeal, and that he had been discriminated against.", "54. The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, with further references).", "55. The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. 56. 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.", "FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning Article 10 of the Convention admissible and the remainder of the application inadmissible; 2. Holds by four votes to three that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 26 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıDavid Thór Björgvinsson Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges David Thór Björgvinsson, Hirvelä and De Gaetano is annexed to this judgment.", "D.T.B.F.A. JOINT DISSENTING OPINION OF JUDGES DAVID THÓR BJÖRGVINSSON, HIRVELÄ AND DE GAETANO 1. We disagree with the majority’s finding that there has been no violation of Article 10 of the Convention in the present case. 2. The majority’s conclusion is based on three main arguments.", "First that the applicant, a politician, was not justified in calling the Mr. G.J., a journalist, a “manipulator” and a “collaborator” and in saying that the said Mr G.J. “lacked objectivity” as these allegations lacked a factual basis (see § 45). Second, as is clearly implied in § 47, because of the importance of the media and of journalists in a democratic society, journalists are in need of some “special protection” of a kind offered by defamation legislation. Third, that the penalty imposed on the applicant was relatively lenient and the domestic court took into account various mitigating circumstances (§ 50).", "3. We accept that the penalties as such were modest and do not raise particular concerns under Article 10 § 1 of the Convention. However, since we cannot share the first and second argument (and, as a result, the conclusion based on those arguments), the leniency of the penalties is irrelevant in the present case: the conviction in the domestic defamation proceedings was already by itself an unjustified interference with the applicant’s right to freedom of expression. 4. Before proceeding further, we would underscore the fact that the case is somewhat unusual in that it originates from defamation proceedings brought by a journalist against a politician (the applicant) by way of reaction to the latter’s statements concerning the journalist’s alleged lack of impartiality and his alleged affiliation with, or leanings towards, certain political circles.", "Thus, this time round, the applicant before our Court, and who is claiming a violation of his right to freedom of expression, is a politician who, according to the domestic courts, has damaged the honour and reputation of a journalist. 5. As to the first point – namely the lack of a factual basis for the allegedly defamatory words – we agree that these statements may, on one view being taken, be considered as statements of fact susceptible of being proven or at least of being supported by reference to known facts. However we consider them to be more in the nature of value judgments, which express in a simple, crude or perhaps even angry way the applicant’s subjective appraisal of Mr. G.J. as a journalist.", "In either case, whether viewed as mere statements of fact or as value judgments, it is not in dispute in the present case that the Mr. G.J. was at the relevant time a journalist for the S .Tar TV. It is also established as a fact that Mr. G.J. was present at the broadcast of the TV debate described in § 18 of the judgment. Regardless of Mr. G.J.’s role as a camera operator during this particular broadcast, his presence there and his position as a journalist at the TV station are facts susceptible of being legitimately interpreted in such a way as the applicant did.", "In other words, regardless of whether the applicant’s appraisal of Mr. G.J.’s qualifications as a journalist is right or wrong, the existence of these facts is, in our considered view, a sufficient factual basis to explain the applicant’s resentment towards Mr. G.J., and thus his appraisal of him as a journalist. Moreover the domestic courts, and in particular the Tarnow Regional Court (see § 17), relied heavily on the negative connotations of the words “manipulation” and “collaboration” in Polish society while at the same time apparently ignoring the wider reality of the media’s agendas and their ability of, and the necessity for, selective reporting and nuanced presentation of facts if only to survive in a highly competitive and increasingly global market. The observation by Jock Young that the mass media “selects events which are atypical, presents them in a stereotypical fashion and contrasts them against a backcloth of normality which is overtypical” is as valid today as when it was first made in the early 1970’s[1]. The parochial approach of the domestic courts in this case is in direct contradiction to the very raison d’être of an international regional instrument safeguarding the right to freedom of expression.", "6. With regard to the second point, the Court has in numerous cases emphasised the essential role of the media in a democratic society, as also its duty to impart – in a manner consistent with its obligations and journalistic responsibilities – information and ideas on all matters of public interest (see, among the many authorities, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Bearing in mind the importance of the media and the possible impact the media and journalists can have on public debate, the media, and journalists in particular, must be ready, like politicians, to tolerate and accept criticism and commentary to a far greater extent than private individuals (see Petrina v. Romania, no.", "78060/01, § 19, 14 October 2008, § 40). A journalist, just like a regular blogger on the internet, becomes to a greater or lesser extent a public figure. In the same way as the applicant, as a politician and participant in public debate, was expected to be thick-skinned enough to allow his every word and act to be critically examined, so also Mr. G.J., as a journalist, should have been prepared for harsh, exaggerated and even unfair commentary on his past and present work in the media field, not only in the form of value judgments but also as concerns the presentation of “facts” (see, for instance, the observation in case no. 41486/04 Seleckis v. Latvia (dec.) 2 March 2010, § 32).", "Moreover, it is also highly relevant that as a journalist Mr. G.J. had ample opportunity to reply publicly to any insinuations which allegedly were directed at him concerning his work as a journalist, rather than resorting to defamation proceedings to suppress or punish such criticism. This is how a media-driven public debate in a democratic society works and should have worked in the instant case. 7. On the basis of the foregoing we believe that the interference with the applicant’s right to freedom of expression was not justified, and that there has therefore been a violation of Article 10 of the Convention in this case.", "[1]1. Young J ‘The role of Police as Amplifiers of Deviancy, Negotiators of Reality and Translators of Fantasy’ in S Cohen (ed) Images of Deviance Penguin Harmondsworth." ]
[ "FIFTH SECTION CASE OF NATALIYA MIKHAYLENKO v. UKRAINE (Application no. 49069/11) JUDGMENT STRASBOURG 30 May 2013 FINAL 30/08/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nataliya Mikhaylenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,André Potocki,Paul Lemmens,Aleš Pejchal, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 30 April 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49069/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Nataliya Petrovna Mikhaylenko (“the applicant”), on 29 July 2011. 2. The applicant, who had been granted legal aid, was represented by Ms A. Ivanković Tamamović, a lawyer from the Mental Disability Advocacy Center, a non-governmental organisation based in Budapest. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy. 3.", "The applicant alleged under Article 6 of the Convention that it had not been possible for her to apply directly to a court for restoration of her legal capacity. She further complained under Article 14 of the Convention that she had been subjected to discriminatory treatment on account of having no direct access to a court. 4. On 27 April 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Simferopol. 6. The applicant was born with congenital facial injury and was diagnosed with a “midline cranial cleft”. Between 1990 and 1997 she repeatedly underwent surgery in a clinic in the United States of America, following which her cranial disorders were mostly cured.", "However, owing to the extensive surgery, the applicant developed a mental illness. Since then she has needed regular supervision in the United States clinic. 7. In 2007 the applicant’s father applied to the Simferopol District Court of the Autonomous Republic of Crimea (“the District Court”), seeking to have her deprived of legal capacity on the ground that she suffered from serious mental illness. 8.", "Following a request by the District Court, on 5 June 2007 a forensic psychiatric expert issued an opinion stating that the applicant suffered from a chronic mental illness, namely paranoid schizophrenia, which prevented her from comprehending and controlling her actions. 9. On 10 July 2007 the District Court deprived the applicant of her legal capacity. The decision was not appealed against and became final. 10.", "On 21 November 2007 the applicant’s sister was assigned as the applicant’s guardian (опікун). 11. Gradually, the applicant’s mental health improved, so that on 3 April 2008 she took up a position at a local factory. 12. In 2009 the applicant’s guardian applied to the District Court for restoration of the applicant’s legal capacity.", "However, on 30 October 2009 the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. 13. On 1 November 2010 the applicant applied on her own to the District Court, seeking restoration of her legal capacity. She specified that Article 241 § 4 of the Code of Civil Procedure, which did not provide for the right for an incapacitated person to submit such an application, was not compatible with international legal standards and was discriminatory. 14.", "On 4 November 2010 the District Court returned the application to the applicant without considering it on the merits, noting that, by virtue of Article 121 § 3 and Article 241 § 4 of the Code of Civil Procedure, the applicant was not entitled to submit such an application. 15. On 12 January 2011 the court of appeal dismissed the applicant’s appeal against the decision of 4 November 2010 noting that Article 241 § 4 of the Code of Civil Procedure did not provide the applicant with the right to lodge an application for restoration of her legal capacity. The District Court had therefore lawfully returned the application without considering it on the merits, as required by Article 121 § 3 of that Code. On 12 March 2011 the court of cassation dismissed as unfounded the applicant’s appeal on points of law.", "II. RELEVANT DOMESTIC LAW A. Civil Code of 16 January 2003 16. Article 67 of the Code provides that a guardian is obliged to take measures for the protection of the civil rights and interests of the person who is under his or her guardianship. B.", "Code of Civil Procedure of 18 March 2004 17. Article 121 § 3 of the Code provides that a court cannot accept a claim for consideration on the merits if it has been submitted by a person deprived of legal capacity. 18. Article 241 § 4 of the Code provides that a court decision declaring a physical person entirely incapable may be quashed and the legal capacity of that person may be restored by another court decision provided that the person has been cured or his or her mental state has significantly improved. Such a decision is to be taken upon an application submitted by the guardian or the guardianship authority (орган опіки та піклування) and must be supported by relevant conclusions by a forensic psychiatric expert.", "C. Order of 26 May 1999 (No. 34/166/131/88) approved by the State Committee on Family and Youth Matters, the Ministry of Education, the Ministry of Health and the Ministry of Labour and Social Policy 19. This Order requires the guardianship authorities, among other things, to supervise the activities of guardians and to take measures for the protection of the rights of persons who have been placed under guardianship. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20.", "The applicant complained under Article 6 § 1 and Article 13 of the Convention that it had not been possible for her to apply directly to a court for restoration of her legal capacity. 21. The Court considers that this complaint should be examined solely under Article 6 § 1, 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 ...” A. Admissibility 1. The parties’ submissions 22. The Government contended that the applicant’s complaint had been submitted outside the six-month period laid down in Article 35 § 1 of the Convention.", "They noted that the range of persons entitled to apply to a court for restoration of legal capacity was clearly defined by provisions of domestic law and that the courts could not act contrary to those provisions. The Government further submitted that the applicant had had no other effective remedies. They therefore suggested that the six-month period had started to run from the date when she had become aware that her application for restoration of legal capacity had been dismissed by the District Court. 23. The applicant submitted that the six-month rule did not apply as her complaint referred to a continuing situation created as a result of the domestic legislation.", "2. The Court’s assessment 24. According to the Court’s settled case-law, where no domestic remedy is available the six-month period runs from the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, it runs from the end of that situation (see, for example, Kucheruk v. Ukraine, no. 2570/04, § 171, 6 September 2007). 25.", "The Government have admitted that the applicant had no direct access to a court as a result of the domestic procedural rules and that there was no effective remedy in respect of her complaint. The procedural rules in question remained in force on the date on which she lodged her application with the Court. It follows that the applicant’s complaint concerned a continuing situation which did not come to an end as a result of her unsuccessful attempt to secure access to a court. The Government’s objection is therefore dismissed. 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 asserted that her right of access to a court had been restricted, in breach of Article 6 § 1 of the Convention. 28. The Government maintained that the application was inadmissible. 29. The Court notes that under the domestic legislation it was for the applicant’s guardian or the guardianship authority to raise the issue of restoration of her legal capacity before a court.", "However, the guardian’s application was dismissed without being considered on the merits as the guardian did not appear before the court. The applicant had no procedural status in those proceedings and could not influence them. Subsequently, the applicant’s personal application for restoration of her legal capacity was not considered either, because the Code of Civil Procedure did not afford her the right to lodge such an application. At the same time, the Code did not indicate that a declaration of legal incapacity was subject to any automatic judicial review, and the duration for which that measure was ordered in respect of the applicant was not limited in time. 30.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 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, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009).", "31. The right of access to the courts 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, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field.", "Nonetheless, the limitations applied must not restrict 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 (ibid. ; see also, among many other authorities, Cordova v. Italy (no. 1), no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no.", "294-B). 32. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII).", "33. The Court observes at the outset that none of the parties disputed the applicability of Article 6 in the present case. The applicant, who has been deprived of legal capacity, complained that she did not have access to a court with regard to the restoration of her legal capacity, a matter which was directly decisive for the determination of her “civil rights and obligations” (see Stanev v. Bulgaria [GC], no. 36760/06, § 233, ECHR 2012). Article 6 § 1 of the Convention is therefore applicable in the instant case.", "34. It also appears to be common ground that, by virtue of clear and foreseeable rules of domestic law, the applicant could not personally apply to a court for restoration of her legal capacity. It remains to be determined whether the restriction on the applicant’s right of access to court pursued a legitimate aim and was proportionate to it. 35. As noted above, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57).", "The Court acknowledges that restrictions on the procedural rights of a person who has been deprived of legal capacity may be justified for that person’s own protection, the protection of the interests of others and the proper administration of justice. 36. The Court further notes that it is for the State to decide how the procedural rights of a person who has been deprived of legal capacity should be ensured at domestic level. In this context, States should be able to take restrictive measures in order to achieve the aims identified in the preceding paragraph. 37.", "On the other hand, the Court has stated that the importance of exercising procedural rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity (see Stanev, cited above, § 241). 38. The Court notes that the approach pursued by domestic law, according to which an incapacitated person has no right of direct access to a court with a view to having his or her legal capacity restored, is not in line with the general trend at European level. In particular, the comparative analysis conducted in the case of Stanev (cited above, §§ 88-90) shows that seventeen of the twenty national legal systems studied provided at the time for direct access to the courts for persons who have been declared fully incapable (ibid., § 243).", "39. Moreover, as regards the situation in Ukraine, the general prohibition on direct access to a court by that category of individuals does not leave any room for exception. At the same time, the domestic law does not provide safeguards to the effect that the matter of restoration of legal capacity is to be reviewed by a court at reasonable intervals. Lastly, in the present case it has not been shown that the relevant domestic authorities effectively supervised the applicant’s situation, including the performance of duties by her guardian, or that they took the requisite steps for the protection of the applicant’s interests. 40.", "In the light of the above considerations, the Court notes that in the present case the applicant’s inability to directly seek the restoration of her legal capacity resulted in that matter not being examined by the courts. The absence of judicial review of that issue, which seriously affected many aspects of the applicant’s life, could not be justified by the legitimate aims underpinning the limitations on access to a court by incapacitated persons. The facts of the present case lead the Court to conclude that the situation in which the applicant was placed amounted to a denial of justice as regards the possibility of securing a review of her legal capacity. There has therefore been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 41. The applicant complained that she had been subjected to discriminatory treatment on account of having no direct access to a court. She relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 42. The Court notes that this complaint is closely linked to the one examined above and must therefore likewise be declared admissible. However, given the Court’s findings under Article 6 of the Convention, the present complaint does not give rise to any separate issue.", "Consequently, the Court holds that it is not necessary to examine the complaint under Article 14 of the Convention 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.” A. Damage 44.", "The applicant claimed 16,000 euros (EUR) in respect of non‑pecuniary damage. 45. The Government submitted that the claim was unsubstantiated. 46. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found.", "Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 3,600 in respect of non-pecuniary damage. B. Costs and expenses 47. The applicant claimed 398.21 Ukrainian hryvnias (UAH) in respect of postal expenses and UAH 1,000 to cover expenses for local travel and printing and copying material. She further claimed EUR 8,734.55, less the amount already paid by way of legal aid, in respect of expenses incurred in connection with her legal representation before the Court.", "The applicant asked that any award in respect of the latter claim be paid directly to the bank account of the Mental Disability Advocacy Center. 48. The Government submitted that the claim for UAH 398.21 was not sufficiently substantiated and the claim for UAH 1,000 was not supported by any evidence. As to the claim for EUR 8,734.55, it had to be rejected as unfounded. 49.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 38 in respect of postal expenses incurred by the applicant and the sum of EUR 1,000 to reimburse the fees and expenses of the applicant’s lawyer. The latter amount is to be paid directly into the bank account of the Mental Disability Advocacy Center (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).", "C. Default interest 50. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there is no need to examine the complaint under Article 14 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 38 (thirty-eight euros), plus any tax that may be chargeable, in respect of postal expenses; (iii) 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 Mental Disability Advocacy Center; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMark VilligerDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge P. Lemmens is annexed to this judgment.", "M.V.J.S.P. CONCURRING OPINION OF JUDGE LEMMENS 1. I agree with the conclusion that there has been a violation of Article 6 § 1 of the Convention, but I would prefer to base that conclusion on a more narrow reasoning. Although the applicant states that her complaint refers to a “continuing situation created as a result of the domestic legislation” (paragraph 23), the application of that legislation has resulted in the judicial determination of a concrete claim. In cases arising from individual petitions the Court’s task is not to review the relevant legislation in the abstract.", "Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see, for a recent authority, Kotov v. Russia [GC], no. 54522/00, § 130, 3 April 2012). If we are to take subsidiarity seriously, it is, in my opinion, the decisions of the courts, in particular those of the court of appeal and the Court of Cassation, which should be the starting point of this Court’s review. 2. On the basis of that approach, the Government’s objection based on the six-month rule should be answered differently than the majority does in paragraphs 24-25.", "The majority rejects the objection on the ground “that the applicant’s complaint concerned a continuing situation which did not come to an end as a result of her unsuccessful attempt to secure access to a court”. In my opinion, the reason for rejecting the objection should be that the final decision in her case was delivered by the Court of Cassation on 12 March 2011, and that therefore the application, filed on 29 July 2011, was within the six-month time-limit. 3. As a result of this interpretation, there are further a number of paragraphs that I would prefer to draft with closer reference to the judgments handed down in the applicant’s case, in light of my more limited understanding of the object of the complaint. I should add that I agree with the majority that the general character of the prohibition on direct access to a court and the absence of any regular review by a court at reasonable intervals of the applicant’s legal capacity (or other procedural safeguards) (see paragraph 39) are indicative of the disproportionate character of the restriction applied in the applicant’s case, as they result in the restriction being absolute and of indefinite duration." ]
[ "THIRD SECTION CASE OF KLEPIKOV AND OTHERS v. RUSSIA (Applications nos. 3400/06, 1134/12, 27903/12, 15155/13, 1454/14, 43335/14, 43527/14, 60371/14, 68060/14, 36550/15, 39181/15, 41633/15 and 51162/15) JUDGMENT STRASBOURG 24 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Klepikov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention.", "In applications nos. 15155/13 and 41633/15 the 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 GOVERNMENT’S REQUEST TO STRIKE OUT SOME APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 6. The Government submitted unilateral declaration in some applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). III.", "ALLEGED VIOLATION OF ARTICLE 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 case of Dirdizov v. Russia, no.", "41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 11.", "These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. In application no. 41633/15, the applicant submitted another complaint which also raised issues under the Convention, in accordance with 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 violations of the Convention in the light of its findings in Lebedev v Russia, no. 4493/04, 25 October 2007; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Idalov v. Russia [GP], no.", "5826/09, 22 May 2012. V. REMAINING COMPLAINTS 13. In application no. 15155/13, the applicant also raised another complaint under Article 5 § 4 of the Convention. 14.", "The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Rejects the Government’s request to strike some applications out of its list of cases; 3. Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of application no. 15155/13 inadmissible; 4. Holds that these complaints 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 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 the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 3400/06 21/11/2005 Oleg Anatolyevich KLEPIKOV 02/12/1966 01/03/2005 to 25/07/2005 4 month(s) and 25 day(s) 1,000 1134/12 21/12/2011 Boris Nikolayevich ZHUKOV 27/10/1961 Mylnikov Yegor Nikolayevich Velikiy Novgorod 25/08/2011 to 25/01/2012 5 month(s) and 1 day(s) 1,000 27903/12 02/04/2012 Yelena Mikhaylovna ZOTOVA 19/11/1956 25/10/2011 to 09/06/2012 7 month(s) and 16 day(s) 1,000 15155/13 05/12/2012 Leonid Dmitriyevich MATSUKOV 21/04/1967 Dobrodeyev Aleksey Vladimirovich St Petersburg 05/09/2013 to 14/01/2014 4 month(s) and 10 day(s) 1,000 1454/14 17/12/2013 Andrey Aleksandrovich KOLESNIKOV 19/06/1985 07/02/2013 to 26/08/2015 2 year(s) and 6 month(s) and 20 day(s) 2,700 43335/14 24/05/2014 Sergey Vasilyevich DANILENKO 28/07/1968 Gak Irina Vladimirovna Rostov-na-Donu 15/11/2012 pending More than 3 year(s) and 10 month(s) and 19 day(s) 4,100 43527/14 30/04/2014 Spartak Sergeyevich MOSKVITIN 13/07/1991 19/06/2013 to 19/01/2015 1 year(s) and 7 month(s) and 1 day(s) 1,800 60371/14 29/08/2014 Eduard Grigoryevich PALADYAN 10/04/1955 Karpinskiy Roman Sergeyevich Moscow 27/03/2013 pending More than 3 year(s) and 6 month(s) and 7 day(s) 3,700 68060/14 30/09/2014 Igor Aleksandrovich NAYDENOV 24/06/1982 09/07/2013 pending More than 3 year(s) and 2 month(s) and 25 day(s) 3,300 36550/15 01/09/2015 Anatoliy Mikhailovich LEVIN 01/06/1977 05/02/2015 to 05/08/2015 6 month(s) and 1 day(s) 1,000 39181/15 04/08/2015 Akif Kerim Ogly SAYADOV 06/06/1951 Kulkov Vadim Aleksandrovich Kirov 27/10/2014 to 27/06/2015 8 month(s) and 1 day(s) 1,000 41633/15 16/07/2015 Andrey Antonovich POPLAVSKIY 20/05/1960 Moskalenko Karinna Akopovna Strasbourg 15/11/2014 pending More than 1 year(s) and 10 month(s) and 20 day(s) Art. 5 (4) - excessive length of judicial review of detention 2,700 51162/15 02/10/2015 Stepan Armenakovich ANANIKYAN 10/02/1949 Kanevskiy German Valeryevich Moscow 10/11/2013 to 17/08/2015 1 year(s) and 9 month(s) and 8 day(s) 2,000 [1] Plus any tax that may be chargeable to the applicants." ]
[ "THIRD SECTION CASE OF LIU v. RUSSIA (Application no. 13311/10) JUDGMENT STRASBOURG 10 April 2018 This judgment is final but it may be subject to editorial revision. In the case of Liu 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 20 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13311/10) 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 Chinese national, Mr Jingcai Liu (“the applicant”), on 6 March 2010.", "2. The applicant, who had been granted legal aid, was represented by Ms Y.V. Yefremova, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.", "On 6 July 2015 the complaints concerning conditions of detention and prohibition of family visits were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1968 and lives in Sovetskaya Gavan, Khabarovsk Region. A.", "Conditions of detention 1. The applicant’s account 5. On 22 October 2009 the applicant was arrested and brought to the Khabarovsk Administrative Detention Centre where he stayed until 27 November 2009. 6. Since 22 October 2009 he had been detained with more than 12 inmates in the cell no.", "9 designed for 12 persons and had to take turns to sleep. A month after he had been transferred to another cell with the area of 6 square meters which he had shared with another inmate. 7. The detention centre had no shower facilities or a place for outdoor walks. The applicant’s cell was cold and damp, iron banks were not covered by mattresses.", "Toilets were not separated from the living area, and the persons using them were in full view of others. Food supply was inadequate, the applicant was served meals only once a day and had no drinking water from within the cell. 2. The Government’s account 8. The Government submitted that the Khabarovsk Administrative Detention Centre comprised two cells: no.", "5 with the area of 14.6 square meters for 3 inmates and no. 6 with the area of 18 square meters for 4 inmates. There was no overcrowding; the toilet had been separate by a shoulder length fence. The detainees may take a shower once a week. The temperature was 23oC, there were kettles with boiled water in the cells.", "B. Prohibition on family visits 9. On 26 October 2009 the applicant’s wife, Mrs Liu, sought to visit the applicant but was refused. 10. On 6 and 10 November 2009 the applicant’s wife filed complaints with the Khabarovsk Prosecutor’s Office stating that she had not been allowed to see the applicant.", "11. In August 2010 the applicant brought a civil claim for compensation in respect of non-pecuniary damage, stating that the conditions of his detention had been inhuman and degrading, and that the prohibition on family visits was unlawful. 12. On 9 February 2011 the Industrialnyy District Court of Khabarovsk dismissed his claim. Relying on the statements of a representative of the detention centre, the court held that the Internal Rules of the Administrative Detention Centres approved by the Decree of the Ministry of Defence of Russia of 6 June 2000 no.", "605 dsp (“the Rules”) did not make provision for family visits, and that the applicant’s right to family life had not been breached as he had met his wife during court hearings. 13. On 18 May 2011 the Khabarovsk Regional Court upheld the above decision on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 14.", "Domestic provisions relating to conditions of detention are described in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-54, 10 January 2012). Moreover, according to the Rules every detainee shall be provided with not less than four square meters of personal space; the cells shall be equipped in accordance with the standards applied to temporary detention centres (points 18 and 19). 15. The Rules provide that the detainees may talk on the phone with their next-of-kin for up to three minutes only once during all period of their detention, except for intercity calls which are not allowed (point 25).", "THE LAW I. THE APPLICANT’S LOCUS STANDI 16. The Government stated in their observations that the applicant had failed to provide a properly executed power of attorney. 17. The applicant stated that he submitted two powers of attorney which had been properly signed by him.", "18. In a number of cases in which the applicant had not been in contact with the Court directly, the Court has held that it considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act (see Kaur v. the Netherlands (dec.), no. 35864/11, § 14, 15 May 2012; K.M. and Others v. Russia (dec.), no. 46086/07, 29 April 2010; Çetin v. Turkey (dec.), no.", "10449/08, 13 September 2011). 19. In the present case the file contains two powers of attorney. The applicant appointed his wife to represent him in all judicial proceedings relating to his case in his first power of attorney executed on 27 October 2009. In 2015 the applicant submitted another power of attorney executed on 14 August 2015 by which he authorized Ms Yefremova to act before the Court.", "Consequently, it considers that the applicant has duly authorized his representatives to lodge his application and represent him before the Court. 20. Therefore, the Court dismisses the Russian Government’s objections ratione personae and holds that the applicant has standing to continue the present proceedings. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 21.", "The applicant complained about poor conditions of detention under Articles 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 22. The Government submitted that that the conditions of the applicant’s detention had been satisfactory as his cell had not been overcrowded. 23. The applicant maintained his complaint. 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 25.", "The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others, cited above, §§ 139‑65, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36-40, 7 April 2005). 26.", "The Court notes that in the present case, in the beginning of his detention the applicant was detained in cell no. 9 designated for 12 inmates and he had to take turns to sleep. Afterwards he was transferred to another cell where he was afforded only 3 square meters of personal space. It seems that the applicant was deprived of adequate outdoor exercise. 27.", "The Government acknowledged that the toilet had been separated from the rest of the cell only by a low fence. The Court has noted in many cases that such close proximity of a lavatory pan and exposure was not only objectionable from a hygiene perspective but also deprived a detainee using the toilet of any privacy because he remained at all times in full view of other inmates (see Ananyev and Others, cited above, § 157, with further references). 28. Moreover, it seems that the applicant had access to showers once every seven days. The Court has frequently noted that the way the showering was organised in Russian detention centres has been manifestly inadequate for maintaining proper bodily hygiene (see Ananyev v. Russia, cited above, § 158, with further references).", "29. The Court considers that in the instant case the applicant’s conditions of detention were inadequate. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 30.", "The applicant complained of a violation of his right to family visits. 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.” 31.", "The Government submitted that the applicant’s complaint had been premature as it had been submitted before he had exhausted the relevant domestic remedies. They also noted that the applicant had had the possibility to meet his wife at the court hearings as she had acted as his representative. 32. The applicant stated that his complaint was not premature as he had filed complaints with competent authorities before submitting his application to the Court and that meeting his wife at the court hearings may not be considered as a family visit. A. Admissibility 33.", "The Court points out that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). 34. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and İçyer v. Turkey (dec.), no.", "18888/02, § 72, 12 January 2006). 35. At the same time, the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13, and Lehtinen v. Finland (dec.), no. 39076/97, ECHR 1999‑VII).", "36. Turning to the present case, the Court notes that the applicant’s wife complained about refusal of a family visit before the Khabarovsk Prosecutor’s Office for the first time in November 2009. In August 2010 the applicant claimed before the domestic courts to award him non-pecuniary damage for prohibition of family visits. The application had been lodged with the Court on 6 March 2010 and communicated on 6 July 2015. The Court is satisfied that the applicant had raised his complaint before the domestic authorities before lodging his application with the Court and before communication of the case.", "Therefore, the Court considers that the applicant’s complaint was not premature in the circumstances of the case. 37. The Court is satisfied that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 38. The Court has established extensive case-law concerning complaints relating to family visits. In particular, it has repeatedly held that detention entails inherent limitations on private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, among many other authorities, Messina v. Italy (no.", "2), no. 25498/94, §§ 59-74, ECHR 2000 X; Lavents v. Latvia, no. 58442/00, §§ 139-43, 28 November 2002; Estrikh v. Latvia, no. 73819/01, §§ 165-74, 18 January 2007; Vlasov v. Russia, no. 78146/01, §§ 120-27, 12 June 2008; Moiseyev v. Russia, no.", "62936/00, §§ 243-59, 9 October 2008; Trosin v. Ukraine, no. 39758/05, §§ 32-47, 23 February 2012; Khoroshenko v. Russia [GC], no. 41418/04, §§ 85-149, 30 June 2015). 39. It was submitted by the applicant, and not contested by the Government, that the applicant had not been allowed any family visits during his detention.", "The Court finds that such a prohibition amounted to an interference with the applicant’s right to respect for his family life (see Messina, cited above, § 62). It will now proceed to examine whether this prohibition was justified in the present case. It will first consider whether the interference in question was in accordance with the law. 40. The Court notes from its well established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law.", "The law must thus be adequately accessible and foreseeable. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82, and Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V). 41.", "The Court notes that in the present case the authorities prohibited the applicant’s wife to visit him on the ground that the Rules did not allow any family visits. 42. The Court further notes that the Rules fell short of the requirement of foreseeability because they did not contain any clear provisions on family visits or procedure to be followed when allowing or refusing family visits or reasons why a family visit could be refused. It follows that the provisions on which the refusal of family visits had been based, did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that the applicant did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (compare Ostrovar v. Moldova, no. 35207/03, § 100, 13 September 2005, Calogero Diana v. Italy, 15 November 1996, §§ 32-33, Reports of Judgments and Decisions 1996‑V).", "In view of the above, the Court considers that the refusal of family visits cannot be regarded as having been “prescribed by law”. In the light of this finding, it is not necessary to assess whether the other conditions set out in paragraph 2 of Article 8 have been complied with. 43. There has therefore been a violation of Article 8 on account of the restriction on the applicant’s right to family visits. 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 200,000 euros (EUR) in respect of non‑pecuniary damage. 46.", "The Government stated that the amount of compensation should be calculated in accordance with the Court’s case-law. 47. The Court awards the applicant EUR 3,250 in respect of non‑pecuniary damage. B. Costs and expenses 48.", "The applicant also claimed EUR 4,000 for the legal costs and expenses incurred before the Court. 49. The Government stated that the amount to be awarded should be calculated in accordance with the Court’s case-law. 50. 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.", "Taking into account that the amount of EUR 850 has already been paid to the applicant by way of legal aid, the Court does not consider it necessary to make an award under this head (see Pitalev v. Russia, no. 34393/03, § 66, 30 July 2009). C. Default interest 51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds 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 3,250 (three thousand two hundred fifty 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 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF ANDRIY RUDENKO v. UKRAINE (Application no. 35041/05) JUDGMENT STRASBOURG 21 December 2010 FINAL 21/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Andriy Rudenko 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,Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 30 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35041/05) 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 Andriy Ivanovych Rudenko (“the applicant”), on 12 September 2005. 2. The applicant was represented by Ms O. Chekotovska, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3.", "On 8 October 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 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1941 and lives in Kyiv.", "A. The proceedings concerning the applicant's title to part of a flat 5. On 30 July 2003 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against his former wife and mother-in-law, Ms R. and Ms I., seeking division of their jointly owned property, a three-room flat. In particular, the applicant requested the court to rule that one room be separated from the flat and to grant him title to that room. He submitted that the defendants did not allow him to enter the flat and that he had been forced to reside elsewhere.", "6. The defendants lodged a counterclaim, asking the court to grant them joint title to the applicant's part of the flat and to fix the amount of compensation they would have to pay the applicant. They argued that, due to personal conflicts with the applicant, they could not all live together in one flat. 7. On 28 May 2004 the court ruled in favour of the defendants.", "It found, relying on an expert's report, that it was not technically possible to separate a single room from the flat. Relying on Article 115 of the Civil Code of 1963, the court granted the defendants title to the entire flat and ordered them to pay the applicant 121,747.60[1] Ukrainian hryvnias (UAH) in compensation. 8. The applicant appealed, stating in particular that he had been deprived of his property against his will and in violation of the law, and that the defendants had failed to transfer the money to the deposit account of the court in order to prove their ability to pay the amount awarded to him in compensation. 9.", "On 14 September 2004 the Kyiv City Court of Appeal partially changed the judgment of the first-instance court. It ruled that the latter court had wrongly relied on Article 115 of the Civil Code of 1963, instead of Articles 364 and 365 of the Civil Code of 2003, which were applicable in the case. The Court of Appeal rejected the applicant's appeal, holding, inter alia, that the defendants' ability to pay the award had been confirmed by a bank statement, according to which the applicant's former wife had a balance of 23,000[2] United States dollars (USD) on her deposit account. 10. The applicant appealed in cassation, alleging that the lower courts had misinterpreted the law.", "According to him, the courts had failed to take into account the fact that he had not given his consent for compensation pursuant to Article 364 of the Civil Code of 2003 and that they had failed to ensure that the requirement laid down in paragraph 2 of Article 365 of the Civil Code of 2003 had been fulfilled by the defendants. 11. On 16 June 2005 a panel of three judges of the Supreme Court dismissed the applicant's appeal, finding no grounds on which to transfer the case for consideration by the chamber of the Supreme Court. 12. The applicant did not institute enforcement proceedings in order to recover the sum awarded to him by the courts.", "According to the applicant, he did not receive the compensation awarded in the judgment of 28 May 2004 because the debtors refused to pay it as they did not have sufficient funds. B. The proceedings concerning the applicant's registration at the flat 13. By a judgment of 11 July 2006, the Shevchenkivskyy District Court ruled to discontinue the applicant's registration at the flat. On 23 August 2006 an appeal by the applicant against that judgment was rejected as lodged out of time.", "The applicant did not appeal in cassation. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine of 28 June 1996 14. Relevant extracts from the Constitution read as follows: Article 41 “Everyone has the right to own, use and dispose of his property ... No one shall be unlawfully deprived of the right of property.", "The right of private property is inviolable. The expropriation of objects of the right of private property may be applied only as an exception for reasons of public necessity, on the grounds and through the procedure established by law, and on the condition of advance and full compensation of their value. The expropriation with subsequent full compensation of their value is permitted only in the conditions of martial law or a state of emergency. ...” B. Civil Code of 2003 (entered into force on 1 January 2004) 15.", "The relevant provisions of the Civil Code of 2003 read as follows: Article 364. Separation of a part of a jointly owned property with determined shares [of each co-owner] “1. An individual co-owner is entitled to the physical separation of a part of a jointly owned property with determined shares [of each co-owner]. 2. If [such] a separation ... is not permitted by the law or is impossible (paragraph 2 of Article 183 of this Code), the individual co-owner ... is entitled to receive monetary or other pecuniary compensation for his part from the other co-owners.", "Compensation may only be provided with his consent ...” Article 365. Termination of title to a part of a jointly owned property upon a request from other co-owners “1. The right to a part of a jointly owned property may cease to exist pursuant to a court decision [taken] further to a claim by other co-owners, if: 1) the part is minor and cannot be physically detached; 2) the object is indivisible; 3) joint possession and use of the property is impossible; 4) the cessation of the right will not cause substantial damage to the interests of the co-owner or members of his or her family. 2. The court shall take a decision terminating a person's title to a part of a joint property on the condition that the claimant makes an advance payment of the cost of that part to the court's deposit account.” C. Judicial practice of the Supreme Court in cases concerning the application of paragraph 2 of Article 365 of the Civil Code of 2003 16.", "By decision of 23 May 2007, the Supreme Court quashed the judgment of the lower court in a dispute between private persons concerning division of their jointly owned flat and remitted the case for fresh consideration for the following reasons: “... The Court of Appeal terminating the right of [a party] to part of the flat did not comply with the condition set in paragraph 2 of Article 365 of the Civil Code which led to the incorrect determination [of the dispute]. [The opposing party] was not present at the hearing before the Appeal Court and that court did not check the conditions of payment of compensation... Given the above breach of the law, the judgment of the Court of Appeal concerning the division of the flat shall be quashed ...” 17. The Supreme Court's decision of 17 February 2010, by which it quashed the lower courts' decisions in a dispute concerning division of the property jointly owned by private individuals, was inter alia based on the similar ground.", "In particular, the relevant parts of the Supreme Court's decision read as follows: “... By the decision of the Court of Appeal, [a party's] title to part of joint property was terminated, though in the case material there is no information concerning advance payment by [the opposing party] of the cost of that part into the court's deposit account. In such circumstances the challenged court decisions do not comply with the requirements of lawfulness and reasonableness ... and must be quashed with the referral of the case for new consideration...” 18. In that decision the Supreme Court also noted that: “... The legal nature of the provisions [of Articles 364 and 365] of the Civil Code of Ukraine differs; each of the provisions is a separate ground for lodging a claim; the first provides for the right of a owner, who withdraws [from joint ownership], to a part of a joint property, whereas the second provides for the possibility of terminating the right of a person to a part of a joint property upon a claim of other co-owners. In this context, monetary or other type of pecuniary compensation under Article 364 of the Civil Code of Ukraine may be paid to a co-owner, who withdraws [from joint ownership], only with his consent.", "Whereas, under Article 365 of the Civil Code of Ukraine no consent to obtain compensation ... by a person whose right to a part of a joint property is being terminated is necessary (the claimant is only required to pay the cost of the part of property, the right to which is being terminated, to the court's deposit account). ... [Articles 364 and 365 of the Civil Code] are mutually exclusive and cannot be applied at the same time ...” THE LAW I. SCOPE OF THE CASE 19. The Court notes that, after the communication of the application to the respondent Government, the applicant relying on Article 6 § 1 of the Convention alleged that the courts had not been impartial and that they had not respected the principle of equality of arms. 20.", "The applicant further raised complaints of an infringement of the right to vote and the right to free medical assistance of an adequate standard on account of his inability to be registered at the flat in which he used to live. 21. In the Court's view, the new complaints are not an elaboration of the applicant's original complaint under Article 1 of Protocol No. 1, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take the matter up separately (see, mutatis mutandis, Piryanik v. Ukraine, no.", "75788/01, § 20, 19 April 2005). It will be dealt with in a separate application. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 22.", "The applicant complained that he had been deprived of his property, part of a flat, in a manner which was not in accordance with the domestic law. He 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 1.", "Alleged abuse of the right of petition 23. The Government submitted that the applicant had failed to submit itemised particulars of his claims for just satisfaction together with any supporting documents. Stating that the claims should not serve a basis for unjustified enrichment, the Government requested the Court to strike the application out of its list of cases on the ground that the applicant had abused the right of petition. 24. At the outset, the Court notes that a question of substantiation of a claim for just satisfaction normally falls to be examined under Article 41 of the Convention – not in the context of the substance of an application.", "25. In any event, regard being had to the parties' submissions and other material in the Court's possession, it does not find that the right of petition was abused in the present case, within the meaning of Article 35 § 3 (a) of the Convention (see, for instance, Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). The Government's objection is wholly unsubstantiated and must be dismissed. 2.", "The applicant's victim status 26. The Government submitted that applicant could not claim to be a victim of a violation of Article 1 of Protocol No. 1, as he had not been deprived of his property and the interference with his right had been based on the law. On that ground, they invited the Court to declare the application incompatible ratione personae with the provisions of the Convention. 27.", "The applicant disagreed. 28. The Court considers that, in so far as they concern the questions of existence and lawfulness of the interference, the Government's submissions fall to be dealt with in the context of the merits of the case. 29. In so far as the Government's objection can be understood as based on the fact that the opposing party was ordered by the courts to pay compensation to the applicant, the Court considers that the award of compensation did not deprive the applicant of victim status.", "Although this measure was undeniably favourable to the applicant, it was not directly related to his complaint regarding the lawfulness of the interference with his right to property. Moreover, the national authorities have not acknowledged, either expressly or in substance, the breach of Article 1 of Protocol No. 1 (Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V).", "Accordingly, the Government's objection as to the applicant's victim status must be dismissed. 3. Conclusion as to the admissibility of the application 30. 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. Submissions of the parties 31. The applicant complained of unlawful deprivation of his property.", "He submitted that the domestic courts had not accurately established the facts and subject-matter of the case, that they had misapplied the substantive law, that they had not examined the possibility of separating his share of the flat, and that they had disregarded the fact that the defendants had failed to transfer the money to the deposit account of the first-instance court, as required by paragraph 2 of Article 365 of the Civil Code of 2003. 32. The Government stated that the case had not concerned a deprivation of the applicant's property. Rather, it was a matter of the “transformation of the applicant's possessions from one form [a share in] the flat [into] another form – [the] money.” 33. The Government submitted that, in any event, there had been no violation of Article 1 of Protocol No.", "1, as the courts had accurately assessed the evidence, correctly applied the law, and balanced the interests of all the persons involved in the dispute. According to the Government, despite the fact that the amount of compensation had not been transferred by the defendants to the first-instance court's bank account, the courts had decided that the defendants were able to pay the sum required to enforce the judgment. The Government further submitted that the amount of compensation for the applicant's property was adequate and based on an expert's report. 34. They also argued that, as the applicant had raised the matter before the domestic courts and had not complained of a violation of Article 6 of the Convention, he had confirmed that the dispute had been settled in accordance with the law.", "2. The Court's assessment (a) Whether there was an interference with the right of property 35. Having regard to the principles established in its case-law (see, for instance, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 78, ECHR 2005‑ VI), the Court notes that there was an interference with the applicant's right of property. According to the Government, it did not however constitute a “deprivation” of the applicant's possessions.", "36. The Court observes that pursuant to the decisions of the domestic courts in the context of a dispute between private parties the applicant lost his title to part of a flat. The fact that by the same decisions he was awarded compensation for that loss does not have a bearing on the question of the existence of a particular type of interference. Compensation terms are however material to the assessment of whether the contested measure respects the requisite fair balance under Article 1 of Protocol No. 1 (see, for instance, Ukraine-Tyumen v. Ukraine, no.", "22603/02, § 57, 22 November 2007). 37. Accordingly, the Court finds that the interference in the applicant's case amounted to a “deprivation” of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. The Court must therefore examine whether the interference was justified under that provision.", "(b) Whether the interference was justified 38. The Court reiterates that to be compatible with Article 1 of Protocol No. 1 any interference with the peaceful enjoyment of possessions should be lawful and not arbitrary (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). In particular, the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see Ukraine-Tyumen, cited above, § 49).", "39. The Court notes that its jurisdiction to verify compliance with the domestic law is limited and that it is not its task to take the place of the domestic courts (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 95, ECHR 2002‑VII). 40. In the present case the Court is not entitled to call into question the decisions reached by the Ukrainian courts.", "Its role is instead to verify whether the consequences of their interpretation and application of the domestic law were compatible with the principles laid down in the Convention. 41. The Court observes that in the decision terminating the applicant's title to a part of the flat the Court of Appeal relied on Articles 364 and 365 of the Civil Code of 2003 (see paragraph 9 above). However, as confirmed by the interpretation given by the Supreme Court, these provisions may not be applied together in the same circumstances as they concern different legal matters (see paragraph 18 above). In particular, the possibility of terminating one's title to a part of a joint property without consent is envisaged in Article 365 of the Code, whereas Article 364 deals with the situation when a co-owner wishes to withdraw from joint ownership and is not against obtaining compensation for his part of a joint property.", "42. Even assuming that, despite the above ambiguity in the decision of the Court of Appeal, Article 365 of the Code was the legal provision applicable in the applicant's case and that the conditions set out in its first paragraph were met, the Court observes that under paragraph 2 of Article 365 the opposing party had to make an advance payment of the cost of the applicant's part of the flat into the first-instance court's deposit account. This was, and remains, a precondition for a court decision on termination of title to a part of a jointly owned property (see paragraph 15 above). In the applicant's case, the opposing party failed to make such a payment. The applicant's specific and pertinent submissions concerning the opposing party's failure to make the requisite payment remained unaddressed by the domestic courts.", "43. In this context, the Court notes that the impugned provision of the Civil Code of 2003 is sufficiently precise and does not give grounds for diverging interpretations. Furthermore, this provision reflects the constitutional guarantee of prior compensation for any deprivation of property, except in the conditions of martial law or a state of emergency (see paragraph 14 above). As it appears from the relevant domestic judicial practice, though subsequent to the events at issue, the requirement of advance payment is not a mere technical element in the procedure of taking of property established by law. It is the core condition on which a court decision depriving a person of property, without his or her consent, should be based (see paragraphs 16 and 17 above).", "44. In the present case, the Court of Appeal merely stated that the opposing party had the money to pay for the applicant's part of the flat. Having regard to the significance of the prior compensation requirement in the national legal system, the Court considers that the domestic courts' decisions lacked a legal basis because the courts deviated from the written law in an arbitrary manner without giving reasons. 45. In the light of the foregoing, the Court concludes that the requirements of the second sentence of the first paragraph of Article 1 of Protocol No.", "1 were not satisfied in relation to the contested deprivation of possessions suffered by the applicant. 46. Accordingly, there has been a violation of Article 1 of Protocol No. 1. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. The applicant claimed USD 23,000 for the value of the property he had lost and 3,700 euros (EUR) for loss of income for the period during which he had not been able to use the property, calculated on the basis of an average monthly rate for renting a dwelling of a similar size in the same area. 49.", "The Government contended that the claims were unsubstantiated. They also argued that the applicant had failed to take all reasonable steps to obtain the compensation awarded to him by the courts. 50. The Court notes that the applicant's claims for pecuniary damage stem from the unlawful deprivation of property found to be in breach of Article 1 of Protocol No. 1 (see paragraphs 45 and 47 above).", "In determining compensation for pecuniary damage in such cases the Court would normally adopt an approach based on the total elimination of the consequences of the impugned interference, taking account of the current value and potential of the lost property (see Scordino (no. 1), cited above, §§ 250-254). 51. However, the Court considers that a different approach has to be taken in this case, given its particular circumstances. The Court observes that the applicant's claim in respect of the value of the part of the flat of which he had been deprived is fully covered by the amount of compensation awarded to him by the domestic courts (see paragraph 7 above).", "While it is true that as a result of the proceedings the applicant has a claim for compensation instead of a pre-deposited amount, which may entail some negative economic consequences for the applicant, he failed to specify damage on their account and it is not for the Court to speculate in that respect. Furthermore, the applicant did not do everything feasible in the circumstances to avoid such damage or at least to limit it to the minimum, in particular by instituting enforcement proceedings in respect of the claim. As regards the applicant's claim for loss of income for the period during which he had not been able to use the property, the Court notes that he did not submit any documents in its support. On these grounds, the Court rejects the applicant's claim for just satisfaction as unsubstantiated. B.", "Costs and expenses 52. The applicant made no claim as to costs and expenses. Therefore, the Court makes no award under this head. 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. Dismisses the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]1.", "About 19,185 euros (EUR). [2]2. About EUR 18,776." ]
[ "THIRD SECTION CASE OF GRIGORAŞ v. ROMANIA (Application no. 19188/03) JUDGMENT STRASBOURG 7 October 2008 FINAL 07/01/2009 This judgment may be subject to editorial revision. In the case of Grigoraş v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President, Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Luis López Guerra, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 16 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19188/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Tiberiu Cristian Grigoraş and Ms Anca Grigoraş (“the applicants”), on 26 May 2003.", "2. The applicants were represented by Mr Bogdan-Nicolae Bulai and Ms Daniela-Anca Deteşeanu, two lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 3. On 27 February 2006 the President of the Third Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1956 and live in Bad Neuenahr. 5.", "On 28 September 1989 Apartment 14, 108 Turda Street, Bucharest, the applicants’ property, was seized by the State under Decree no. 223/1974, with payment of compensation, following their decision to leave the country. In appears from the file that the applicants received 131,538 Romanian Lei in compensation. 6. On 14 November 1996 the R.V.", "company, a State-owned company responsible for the management of property belonging to the State, sold the flat to the then tenants, under Law no. 112/1995. 7. On 29 November 1996 the Bucharest Regional Court, by a final decision, allowed an action by the applicants, annulled the seizure as being unlawful and ordered restitutio in integrum. 8.", "On 5 September 1997 the Bucharest Town Council ordered restitutio in integrum of the apartment and on 15 September 1997 informed the R.V. company of this. 9. On 14 May 2001 the Bucharest Court of Appeal, by a final decision, dismissed the action lodged by the Town Council and joined by the applicants against both the R.V. company and the former tenants of the apartment, to have the sale declared null and void.", "The court considered that the sale had complied with the provisions of Law no. 112/1995 and had been made in good faith. It also stated that the applicants would receive compensation under Law no. 10/2001. 10.", "On 25 July and 14 November 2001 the applicants claimed restitution in kind of the apartment under the Law no. 10/2001 governing immovable property wrongfully seized by the State. So far they have not received any answer. 11. On 27 February 2003 the Supreme Court of Justice dismissed an application (recurs în anulare) by the Procurator-General, acting at the instance of the applicants, to have the judgment of 14 May 2001 quashed on the grounds that it was contrary to the provisions of Article 1 of Protocol No.", "1 of the Convention and to the principle of legal certainty. The court considered that the sale had been made in good faith and observed that the principle of legal certainty had not been infringed, as the sale had preceded the final judgment which ordered restitutio in integrum and, moreover, the former tenants had not been parties in that set of proceedings, therefore the final judgment was not opposable by them. II. RELEVANT DOMESTIC LAW 12. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no.", "28342/95, §§ 31-33, ECHR 1999‑VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005‑VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicants alleged that the sale by the State of Apartment 14 to a third party entailed a 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 14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 15. The Government reiterated their arguments previously submitted in similar cases. In particular, they considered that the applicants had already received a considerable amount of money in compensation at the time of nationalisation, namely the equivalent of 8,815 United States Dollars (USD). 16. The applicants disagreed.", "They also submitted that the compensation received was not just and fair. 17. The Court reiterates that, according to its jurisprudence, the sale of another’s possessions by the State, even before the question of the ownership had been finally settled by the courts, will be deemed to be a deprivation of possessions. This deprivation, in combination with the total lack of compensation, is contrary to Article 1 of Protocol No. 1 (see Străin and Others, cited above, §§ 39, 43 and 59, and Porteanu v. Romania, no.", "4596/03, § 35, 16 February 2006). 18. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The sale by the State of the applicants’ possession still prevents them from enjoying their right of property acknowledged by a final decision. The Court considers that such a situation amounts to a de facto deprivation of possession and notes that it has continued for more than twelve years, in the absence of compensation reflecting the commercial value of their possession (see, mutatis mutandis, Konnerth v. Romania, no.", "21118/02, § 76 in fine, 12 October 2006). In that regard, the Court notes that the applicants received the equivalent of USD 8,815 at the time of nationalisation. 19. The Court also reiterates that at the material time there was no effective means in Romanian law capable of providing the applicants with compensation for this deprivation (see Străin and Others, cited above, §§ 23, 26-27, 55-56; Porteanu v. Romania, cited above, §§ 23-24 and 34-35). Moreover, it observes that to date the Government have not demonstrated that the system of compensation set up in July 2005 by Law no.", "247/2005 would allow the beneficiaries of this law to recover damage reflecting the commercial value of the possessions of which they had been deprived, in accordance with a foreseeable procedure and timetable. 20. Having regard to its case-law on the subject, the Court considers that in the instant case the deprivation of the applicants’ possession, together with the lack of compensation reflecting the commercial value of their possession, imposed on the applicants a disproportionate and excessive burden in breach of their right to the peaceful enjoyment of their possessions, as guaranteed by 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 21. The applicants claimed that the non-execution of the final decision of 29 November 1996 given by the Bucharest Regional Court had deprived them of the right to a fair trial. They relied on Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 22.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 23.", "Having regard to the findings in the paragraphs above (17-20), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 (see Pais v. Romania, no. 4738/04, § 39, 21 December 2006, and, mutatis mutandis, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23; Laino v. Italy [GC], no. 33158/96, § 25, ECHR 1999‑I, and Canea Catholic Church v. Greece, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 50). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicants sought restitution of Apartment 14, as the most appropriate manner for the State to provide redress. Should restitution not be granted, they claimed a sum equivalent to the current value of their property which, according to the expert report they submitted to the Court, amounted to 62,500 euros (EUR).", "They also claimed EUR 7,000 in respect of non-pecuniary damage. 26. The Government considered, in accordance with their own expert report, that the market value of Apartment 14 was EUR 35,896. Further, they considered that the finding of a violation could constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicants may have suffered. In any event, they considered that the amount claimed in this respect was too high.", "27. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation under the Convention to put an end to the breach and make reparation for its consequences. If the internal law allows only partial reparation to be made, Article 41 of the Convention gives the Court the power to award compensation to the party injured by the act or omission that has led to the finding of a violation of the Convention. The Court enjoys a certain discretion in the exercise of that power, as the adjective “just” and the phrase “if necessary” attest. 28.", "Among the matters which the Court takes into account when assessing compensation are pecuniary damage, that is the loss actually suffered as a direct result of the alleged violation, and non-pecuniary damage, that is reparation for the anxiety, inconvenience and uncertainty caused by the violation, and other non-pecuniary loss (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004). 29. The Court considers, in the circumstances of the case, that the return of the property in issue (Apartment 14), as ordered by the final decision of 29 November 1996 of the Bucharest Regional Court, would put the applicants as far as possible in a situation equivalent to the one in which they would have been if there had not been a breach of Article 1 of Protocol No. 1.", "30. Failing such restitution by the respondent State, the Court holds that the respondent State is to pay the applicants, in respect of pecuniary damage, an amount which takes into account the current value of the property and the compensation that the applicants have already received (see paragraph 5 above). Having regard to the information at its disposal concerning real estate prices on the local market, to the expert reports submitted by the parties and to the amount of money that the applicants received at the time of nationalisation, the Court awards them EUR 36,000 in respect of pecuniary damage. 31. The Court considers that the serious interference with the applicants’ right to the peaceful enjoyment of their possessions could not be compensated in an adequate way by the simple finding of a violation of Article 1 of Protocol No.", "1. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards them jointly EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 32. The applicants also claimed EUR 9,438 for costs and expenses incurred before the domestic courts and before this Court, broken down as follows: EUR 3,000 for lawyers’ fees in the proceedings before the Court, EUR 3,639.15 for travel from Germany to Romania during proceedings, EUR 144 for the expert report, and the rest, detailed in a table, for sundry expenses (lawyer’s fees in internal proceedings, notary’s fees, stamp duties, translations).", "They submitted invoices for lawyers’ fees, for expert’s fees, stamp duties and travel. 33. The Government contested the applicants’ claims and considered they were excessive. 34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads. C. Default interest 35. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 3. Holds that there is no need to examine on the merits the complaint under Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to return to the applicants Apartment 14, 108 Turda Street, Bucharest, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention; (b) that, failing such restitution, the respondent State is to pay jointly to the applicants, within the same three months, the amount of EUR 36,000 (thirty-six thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (c) that, in any event, the respondent State is to pay jointly to the applicants, within the same three months, the amounts of EUR 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable; (d) that the aforementioned amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (e) 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 7 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "SECOND SECTION CASE OF TIMOTIYEVICH v. UKRAINE (Application no. 63158/00) JUDGMENT STRASBOURG 8 November 2005 FINAL 08/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Timotiyevich v. Ukraine, 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,MrV. Butkevych, MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 18 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 63158/00) against Ukraine 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 Ukrainian national, Mr Dmitriy Dmitriyevich Timotiyevich (“the applicant”), on 29 June 1998. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Zoryana Bortnovska, succeeded by Ms Valeria Lutkovska. 3.", "The applicant alleged that the proceedings in his case were unfair in so far as the final judgment given in his favour was quashed and, allegedly, no final decision has been given to date. Referring to Article 1 of Protocol No. 1 to the Convention, the applicant complains about the infringement of his property rights caused by the quashing of the final judgment awarding him compensation. He also complains that he suffered damage as a result of the continuous state of uncertainty over the fate of his property. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a partial decision of 25 March 2003, certain aspects of the application were communicated to the respondent Government for observations. This was followed on 18 May 2004 by the Court’s final decision, declaring the remainder of the application partly admissible. 7.", "On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS 9.", "The applicant was born in 1938 and lives in Krasnoyarskoye, the Donetsk region, Ukraine. He temporarily resides in the village of Kalinovka, the Vinnytsia region, Ukraine. I. THE CIRCUMSTANCES OF THE CASE 10. The circumstances of the case, as relevant to the complaints declared admissible, may be summarised as follows.", "11. On 2 September 1988 the applicant lodged complaints with the Dobropolye City Court (the “DCC”) against the Belitskaya Mining Company (“Imeni XXI syezda KPSS”) in Dobropolye (the “Belitskaya Mine”), and the Dobropolskiy communal farm (“Sovkhoz Dobropolskiy”), seeking compensation for the damage caused to his house by the work of underground mining machines. 12. Between September 1988 and May 1998, the case was examined on a number of occasions by the DCC and the Donetsk Regional Court (the “DRC”). 13.", "By a judgment of 30 May 1994, the DCC declared the defendants liable for the damage caused to the applicant’s house. It ordered them to build a new house for the applicant, equivalent to that which had been damaged, by 1 July 1995, and to pay him compensation. The DCC held that the new house had to measure 76,64 square meters and had to include three rooms for habitation, utility rooms (підсобні приміщення) and outdoor premises (надвірні приміщення) on the plot of 0,25 hectare, surrounded by a fence. It also ordered the payment to the applicant and his wife of 2,627,925 karbovantsi, each, in compensation for the damage to certain property which had been in the original house, as well as costs for expert examinations and State taxes. In particular, the DCC ruled that: “ The Belitskaya mine and Dobropolskiy communal farm, in respective shares, [are] to ensure the restitution for pecuniary damage in kind by building him a house measuring 76,64 square meters on the plot of 0,25 hectares, to be composed of two bedrooms, a living room and auxiliary rooms – a kitchen, hall, bathroom and toilet; outdoor premises: a lobby/porch, basement and garage; support premises: a summer kitchen, premises for domestic animals, birds, storage space for food, coal and wood; a fence surrounding the plot with an additional asphalt cover for the yard and green plantations around the house; to be completed before 1 July 1995.", "[Orders] the Belitskaya Mine and the Dobropolskiy communal farm to pay the applicant and his wife, each, 2,627,925 karbovantsi in compensation for the damage caused to their property...” 14. On 11 July 1994, the DRC upheld the judgment of 30 May 1994, which, that same day, became final. 15. Contested enforcement proceedings ensued after the defendants failed to comply with the judgment of 30 May 1994. Two key decisions were as follows: - first, that of the DCC on 14 November 1996, upholding the judgment in the applicant’s favour and ordering the defendants to reimburse the applicant, before 14 February 1997, UAH 70,054.70 for his expenses relating to the construction of a new house; - secondly, that of the DRC on 13 January 1997, upholding the preceding decision, which thereby became final and enforceable.", "16. On 10 September 1997 the Presidium of the DRC allowed the protest of the Acting Prosecutor of the Donetsk Region, quashed the decisions of 14 November 1996 and 13 January 1997, and remitted the case for a fresh consideration to the DCC. 17. On 15 May 1998 the Prosecutor General lodged a new protest with the Supreme Court, seeking the initiation of supervisory review proceedings in the applicant’s case. By a Resolution of 10 June 1998, the Supreme Court quashed the judgment of 30 May 1994 given in the applicant’s favour.", "It remitted the case to the DCC for fresh consideration. In particular, it stated that, in finding that the defendants had to build the applicant a new house, the courts had not specified in what way the original building had been defective. It also held that the award of compensation did not correspond to the actual level of inflation or the current price of construction and construction expenditures. 18. On 7 June 1999 the DCC decided not to consider the applicant’s claims as he failed to appear in court on 16 November and 7 December 1998, 9 February, 16 March, 19 April, and 4 and 17 May 1999.", "19. On 1 September 1999 the Presidium of the DRC allowed the protest of its President and quashed the ruling of 7 June 1999, remitting the case for a fresh consideration to the same court. The Presidium also gave a separate ruling as to the length of the proceedings in the applicant’s case and noted the fact that the applicant had not been duly informed about the hearings and, therefore, had been unable to attend them. 20. On 25 February 2000 the parties failed to appear before the DCC.", "On the same date the DCC decided not to consider the applicant’s claims because of his absence. On 2 August 2000 the President of the DRC allowed the protest of his Deputy and quashed this ruling, the case being again remitted for a fresh consideration. 21. The case was re-examined on a number of occasions (see Timotiyevich v. Ukraine (dec.), no. 63158/00, 18 May 2004).", "By decisions of 13 April and 24 May 2001, the DCC adjourned the proceedings due to the applicant’s failure to appear before it. On 18 June 2001 the applicant again failed to appear before the DCC. As a result, the DCC did not consider the applicant’s substantive claims and the proceedings were finally terminated. The applicant did not appeal. 22.", "On 19 June 2001 the applicant requested the DCC to suspend the proceedings in his case due to the consideration of his application by the European Court of Human Rights. II. RELEVANT DOMESTIC LAW 23. The relevant provisions of the domestic law are summarised in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, § 65, 9 November 2004).", "THE LAW I. PRELIMINARY CONSIDERATIONS AS TO THE SCOPE OF THE CASE 24. The Court observes that the applicant lodged new complaints after its final decision on admissibility. They concerned the alleged failure of the domestic authorities to provide him with a properly functioning electro-cardio stimulator, poor surgery on his bladder and gallbladder, the alleged murder of his son, the confiscation of a land certificate, the failure of the State Savings Bank to allow him to recover his and his wife’s deposits, the State’s refusal to provide him with a new Avtozaz-Daewoo car and, in general, the poor state of his and his wife’s health. He also complained, relying on Article 6 § 1 of the Convention, of his and his wife’s suffering from the unlawful behaviour of the State authorities.", "25. The Court recalls that it has already fixed the scope of the case with its admissibility decision of 18 May 2004. However, the Court does not consider it necessary to disjoin these new complaints for a separate examination as they are wholly unsubstantiated. There is nothing in the case file which discloses any appearance of a breach of the Convention in this respect. These complaints must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 in fine of the Convention.", "26. The Court repeats that, in its decision of 18 May 2004, the only complaints declared admissible were those under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 regarding the fairness of the proceedings and the infringement of property rights. It notes that final judicial decisions in the instant case, conferring rights upon the applicant, were quashed in the course of supervisory review proceedings on four occasions: - on 10 September 1997 the DRC, by a Resolution, quashed decisions of 14 November 1996 and 13 January 1997 (see paragraphs 15-16 above); - on 10 June 1998 the Supreme Court quashed the judgment of 30 May 1994 awarding compensation to the applicant by way of the payment of money and the construction of a new house (see paragraphs 13 and 16 above); - on 1 September 1999 the President of the DRC quashed a ruling of 7 June 1999 by the DCC not to consider the applicant’s case (see paragraph 19 above); - on 2 August 2000 the Presidium of the DRC quashed a second ruling by the DCC of 25 February 2000 not to consider the applicant’s case (see paragraph 20 above). 27.", "The Court observes, as to the Resolution of 10 September 1997, that it was issued before the Convention entered into force in respect of Ukraine. Therefore this part of the applicant’s complaints should be rejected as being incompatible ratione temporis (Article 35 §§ 3 and 4 in fine of the Convention). As to the quashing of the rulings of 7 June 1999 and 25 February 2000, the Court finds that they were given in the applicant’s favour and concerned procedural aspects of the case, i.e. they did not concern a final determination of the applicant’s civil rights and obligations. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see, mutatis mutandis, Skubenko v. Ukraine (dec.), no.", "41152/98, 6 April 2004). 28. As to the quashing of the judgment of 30 May 1994 by the Supreme Court on 10 June 1998, upon the Prosecutor General’s protest, the Court confirms that this decision falls within its competence and forms the basis of the ensuing examination of the merits of the case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29.", "The applicant complained about a lack of fairness in the consideration of his case. In particular, he complained about the quashing of the final judgment given in his favour by the Supreme Court upon the protest lodged by the Prosecutor General. He refers to Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” 30. The Government submitted that the supervisory review of the judgment in the applicant’s favour did not contradict the principles of the rule of law and legal certainty. They maintained that the protest could not be used in an arbitrary manner as this procedure was transparent, foreseeable and used by citizens as an effective mechanism to appeal against judicial decisions.", "Moreover, the Government pointed out that the applicant pursued supervisory review proceedings on his own motion, having himself petitioned the Prosecutor General. 31. The applicant disagreed. 32. The Court notes that in the instant case, as a result of the protest lodged by the Prosecutor General, the Supreme Court, on 10 June 1998, quashed the judgment of 30 May 1994 which had already become final and binding, remitting the case for reconsideration on the merits to the first instance court.", "The Court has previously found violations of Article 6 § 1 of the Convention in similar cases against Ukraine, holding that such measures are incompatible with the principles of the rule of law and legal certainty enshrined in that provision (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 77, ECHR 2002-VII; Tregubenko v. Ukraine, no. 61333/00, §§ 44-45, 2 November 2004; Svetlana Naumenko v. Ukraine, no. 41984/98, § 92, 9 November 2004). 33.", "The Court does not find any reason in the present case to depart from that jurisprudence. It considers, therefore, that there has been a violation of Article 6 § 1 in respect of the quashing of the final and binding judgment given in the applicant’s case. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 34.", "The applicant complains that, by quashing the final judgment of 30 May 1994 which recognised his right to be compensated for the expense of building a new house, there has been an unlawful interference with his right to the peaceful enjoyment of his possessions. He refers to Article 1 of Protocol No. 1 to the Convention, which in so far as relevant 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 ...” 35.", "The Government submitted that the present application cannot be compared to the judgments in the cases of Brumărescu v. Romania ([GC], no. 28342/95, ECHR 1999-VII) or Sovtransavto Holding v. Ukraine (no. 48553/99, ECHR 2002-VII). In particular, they mentioned that the judgment in the present case was quashed and the case remitted for fresh consideration with the aim of restoring the applicant’s rights which had been infringed by an unlawful judgment. Moreover, by quashing the judgment of 30 May 1994, the Supreme Court rectified the errors of the first instance and regional courts which had created obstacles to restoring the applicant’s pecuniary rights.", "They maintained that the quashing of the judgment of 30 May 1994 did not prejudice the applicant’s rights. 36. The applicant disagreed. He maintained that the quashing of this final judgment was to his disadvantage. In particular, he stated that for a long time he has been living in premises which are unfit for habitation.", "He also mentioned that he and his wife have suffered substantially due to the prolonged uncertainty over the outcome of these proceedings. 37. The Court observes that, in the aforementioned Brumărescu case, a violation of Article 1 of Protocol No. 1 was found because a final decision, acknowledging the applicant’s ownership of a house, was quashed by the Supreme Court of Justice on the application of the Attorney General. In the present case, in a final judgment of 30 May 1994, the defendants in the domestic proceedings (a State-owned mine and a communal farm) were ordered to build a new house for the applicant after they had damaged his existing property.", "This judgment thereby established a clear, pecuniary entitlement for the applicant. However, four years later, that judgment was quashed, contrary to the applicant’s interests, on the initiative of the public prosecutor acting within his discretionary powers. 38. This left the applicant in a situation in which there was uncertainty about his accommodation for a prolonged period of time, which imposed an excessive individual burden on him (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V, § 59), taking into account his financial and social situation and his poor housing conditions.", "39. The Court considers therefore that there was a disproportionate and unjustified interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention. There has accordingly been a violation of that provision. 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. Pecuniary damage 41. The applicant complained that the pecuniary compensation due to him was related to the damage caused to his house by the work of underground mining machines. He therefore asked the Court to award him compensation for the destruction of the original house. He also asked the Court to award him compensation for a broken car, his and his wife’s savings in the State Savings Bank, the murder of his son and the theft of his land.", "The applicant did not specify the exact amount of his claim. 42. The Government submitted that the applicant’s just satisfaction claims were lodged out of time and therefore should not be taken into consideration. 43. The Court rejects the Government’s submission as, on 10 December 2004, the President of the Second Section decided to admit the applicant’s claims to the file (Rule 38 § 1 of the Rules of Court).", "44. The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to the violation and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The Contracting States are in principle free to choose the means whereby they comply with the Court’s judgment. However, if the nature of the breach allows for restitutio in integrum, the respondent State should give effect to it. If national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party appropriate satisfaction (see Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no.", "330-B, pp. 58-59, § 34). 45. The Court considers that, in the circumstances of the present case, the payment of compensation for the new house which should have been built, and compensation for the damage to property in the old house, equivalent to that ordered by the final judgment of the Dobropolskiy City Court on 30 May 1994, would restore the applicant to his previous situation had there not been breaches of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "The Court therefore awards, as pecuniary damage, the current value of the proposed new house and the land around it, as specified by the judgment of the Dobropolskiy District Court on 30 May 1994, at the approximate market value of EUR 25,000. It also considers that this sum should cover compensation paid to the applicant for damaged property (see paragraph 13 above). B. Non-pecuniary damage 46. The Court finds that the applicant may be considered to have suffered some degree of frustration and distress, given the lengthy period of uncertainty which he has endured as a result of the quashing of the final and binding judgment in his favour. It therefore awards him, on an equitable basis, EUR 2,500 for his non-pecuniary damage.", "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 aspects of the application concerning the quashing of decisions on 10 September 1997, 1 September 1999 and 2 August 2000 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 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 Ukrainian hryvnias at the rate applicable on the date of settlement: (i) EUR 25,000 (twenty five thousand euros) in respect of pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage; (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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. DolléJ.-P. CostaRegistrarPresident" ]
[ "FIFTH SECTION CASE OF SOLOMAKHIN v. UKRAINE (Application no. 24429/03) JUDGMENT STRASBOURG 15 March 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Solomakhin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 7 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24429/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Dmitriyevich Solomakhin (“the applicant”), on 22 July 2003. The applicant having died in September 2010, Mrs Vera Petrovna Solomakhina, his mother, expressed the wish to pursue the application. 2. The applicant was represented by Ms I. Gavrilenko, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.", "3. The applicant alleged, in particular, that the court proceedings in his case were excessively lengthy and that his health had suffered as a result of medical malpractice. 4. On 6 May 2008 the Court declared the application partly inadmissible and decided to communicate the above complaints under Articles 6 and 8 of the Convention to the Government. It also decided to rule on the admissibility and merits of the remaining parts of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lived in Donetsk. He died on 13 September 2010. 6.", "On 23 November 1998 the applicant sought medical assistance from the Donetsk City Hospital No. 16 (Центральна міська клінічна лікарня № 16 м. Донецька – “the Hospital”), where he was diagnosed as having an acute respiratory disease. He was prescribed out-patient treatment. 7. On his next visit to the Hospital on 27 November 1998 the applicant was tested for his reaction to a vaccination against diphtheria.", "The test showed no susceptibility to diphtheria antigens. 8. On 28 November 1998 the applicant was vaccinated against diphtheria. According to the applicant, the vaccination was contraindicated for him. 9.", "On 30 November 1998 the applicant was examined by a doctor, who indicated that the applicant’s state of health had improved and that the treatment had given positive results. He was diagnosed with tracheobronchitis, which was confirmed during his further visits to the doctor on 3, 4 and 7 December 1998. 10. From 28 December 1998 the applicant spent more than half a year at different medical institutions receiving treatment for a number of chronic diseases (for instance, pancreatitis, cholecystitis, hepatitis, colitis). 11.", "On 4 February 1999 the Chief Doctor of the Hospital reprimanded doctor Ya. and nurse Sh. for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection. He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules. 12.", "On 26 April 1999 the applicant instituted proceedings in the Budyonnovskiy District Court in Donetsk against the local department of public health (Донецький міський відділ охорони здоров’я) and the Hospital, seeking compensation for damage to his health. He alleged that the vaccination on 28 November 1998 had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases. He also complained that the vaccine had been of poor quality as it had been uncertified, had expired and had been stored in inappropriate conditions. He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination. 13.", "Between 30 May and 30 June 2000, 17 July 2000 and 29 January 2001, 2 and 30 January 2002 and 4 March 2002 and 17 February 2003 medical expert examinations were conducted into the applicant’s allegations. 14. On 2 June 2003 the court found against the applicant. With reference to the conclusions of the medical expert examiners, the court established that the applicant’s diseases had no causal link to his vaccination. It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within several days following the vaccination.", "The only disease that could be associated with the vaccination was urticaria (commonly known as hives), which the applicant had suffered from more than eight months after the vaccination and which could not therefore have had any causal link to it. The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules. Furthermore, the epidemic situation in the Donetsk region had called for his vaccination against diphtheria. The court noted that no physical force had been applied to the applicant and that, being an adult of sound mind, he could have refused to have the vaccination, as he had done before on several occasions. The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations, it had been conducted by a qualified nurse in a doctor’s office, in a doctor’s presence, with prior verification of the applicant’s reaction to such a vaccination, and it had not caused the applicant to have any negative side-effects.", "The court also noted that the applicant’s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence. The court observed that none of the applicant’s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status. The court also examined the applicant’s allegations about the alleged falsification of medical records and rejected them as unsubstantiated. 15. On 19 March 2008 and 22 August 2008 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the above judgment.", "16. On 13 September 2010 the applicant died of a heart attack. By letter of 26 September 2011 the applicant’s mother informed the Court of her wish to pursue the application. II. RELEVANT DOMESTIC LAW A.", "Health care and control of diseases Act 1994 (“the Act”) 17. The relevant section of the Act reads as follows: Section 27Preventive vaccination “Preventive vaccinations against tuberculosis, polio, diphtheria, whooping cough, tetanus and measles are compulsory in Ukraine. ... Groups of the population and categories of employees subject to preventive vaccination, including those which are compulsory, and the procedure for and scheduling of their implementation shall be specified by the Ministry of Health of Ukraine ...” B. Guidelines on the organisation and conduct of preventive vaccinations 18. These guidelines, approved by the Ministry of Public Health of Ukraine on 25 January 1996, provide for the organisation of vaccinations, set out a list of contraindications and side-effects and the procedure for informing the appropriate parties of any negative side-effects after vaccination.", "III. RELEVANT INTERNATIONAL MATERIALS 19. On 19 March 1997 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1317 (1997) on vaccination in Europe. The relevant part of this recommendation states: “... 3. The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us.", "Tens of thousands of cases have been reported since the outbreak of the epidemic in 1990, and thousands have died of a disease generally believed to have been wiped out. Other pockets of infection may attain epidemic proportions at any time: poliomyelitis, tuberculosis, tuberculous meningitis, pertussis, etc. 4. The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally. With millions of people now free to travel from one country to another, it has not been possible to halt such epidemics.", "The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect, and the austerity imposed by economic reforms has worsened the situation. ... 6. The Assembly therefore recommends that the Committee of Ministers invite member states: i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance; ii. to grant increased assistance as a matter of urgency, internationally co-ordinated through the World Health Organization (who) and Unicef in particular, to countries suffering from the diphtheria epidemic, in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims: a. to achieve a high immunisation level among the population; ... 7. The Assembly furthermore invites the Committee of Ministers: i. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example who, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost ...” THE LAW I.", "AS TO THE LOCUS STANDI OF MRS SOLOMAKHINA 20. The applicant died on 13 September 2010, while the case was pending before the Court. It has not been disputed that Mrs Slomakhina (his mother) is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 84, 26 July 2007, and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005).", "However, reference will still be made to the applicant throughout the present text. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable sted that argument and considered, in particular, that this case had beetime by [a] ... tribunal ...” 22. The Government conten particularly complex, given the necessity to have an expert examination of the applicant’s medical file and his state of health 23.", "The period to be taken into consideration began on 26 April 1999 and ended on 22 August 2008. It thus lasted nine years and almost four months for three levels of jurisdiction. 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 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; and the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "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 v. France, cited above). 27. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although the case in question was admittedly a complex one and required forensic medical examination of the applicant’s medical conditions, such complexity could not justify the length of the proceedings which exceeded nine years for three levels of jurisdiction, including almost five years before the court of appeal.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 28. Referring to Article 2 of the Convention, the applicant complained of damage to his health as a result of alleged medical malpractice.", "In particular, he submitted that the vaccination on 28 November 1998 had resulted in him suffering from a number of chronic diseases. The Court, which is master of the characterisation to be given in law to the facts of the case, decided on its own motion to examine the complaint raised by the applicant under Article 8 of the Convention, which is the relevant provision and which provides insofar as relevant 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 29. 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 30.", "The applicant insisted that he had been vaccinated during the acute stage of an illness and that the doctors had not checked all relevant contraindications to vaccination in his case. He claimed that he had been administered an expired vaccine of poor quality and that it had been done against his will. All of these failings had resulted in his serious health problems, which the doctors at fault and judges had conspired to conceal and who had therefore falsified medical records and court documents. He considered that there had been no reason for interfering with his private life, as there had been not been an outbreak of diphtheria in his home town at the relevant time and the vaccine had been strongly contraindicated for him. 31.", "The Government agreed that the compulsory vaccination had constituted an interference with the applicant’s private life. They contended, however, that such interference had been justified in the present case. They noted that under section 27 of the Law on health care and control of diseases 1994, preventive vaccination against diphtheria had been compulsory and the Ministry of Public Health had been entrusted to specify the procedure for and terms of such vaccination. The Ministry had done so in its guidelines (Order No. 14 of 25 January 1996).", "32. The Government further contended that the interference had pursued the legitimate aim of the protection of public health against diphtheria, which was a highly infectious and virulent disease. Given the complicated epidemiological situation in the country and in the region in which the applicant had resided, the interference had been necessary to protect the health of the applicant and of the public at large. The Government noted that the applicant’s fitness for vaccination and possible contraindications had been checked by the doctors prior to the vaccination. In addition, they noted that, while being compulsory, the vaccination had not been forced or violently imposed, and therefore that the applicant, being an adult of thirty‑four years of age at the time of the events, could have refused to have the vaccination, as he had done previously on many occasions.", "They finally noted that the applicant’s allegations about the quality of the vaccine and the negative side-effects of the vaccination on his health had been thoroughly examined by the doctors and the courts and had been found unsubstantiated. They considered that the findings of the domestic authorities, who had had the primary task of interpreting the law and assessing the proof adduced, should not be called into question. 2. The Court’s assessment 33. The Court reiterates that according to its case-law, the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no.", "91). The Court has emphasised that a person’s bodily integrity concerns the most intimate aspects of one’s private life, and that compulsory medical intervention, even if it is of a minor importance, constitutes an interference with this right (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003‑IX, with further references). Compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8 § 1 (see Salvetti v. Italy (dec.), no.", "42197/98, 9 July 2002, and Matter v. Slovakia, no. 31534/96, § 64, 5 July 1999). 34. The Court notes that in the instant case, as was uncontested by the parties, there has been an interference with the applicant’s private life. 35.", "The Court further notes that such interference was clearly provided by law and pursued the legitimate aim of the protection of health. It remains to be examined whether this interference was necessary in a democratic society. 36. In the Court’s opinion the interference with the applicant’s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region. Furthermore, according to the domestic court’s findings, the medical staff had checked his suitability for vaccination prior to carrying out the vaccination, which suggest that necessary precautions had been taken to ensure that the medical intervention would not be to the applicant’s detriment to the extent that would upset the balance of interests between the applicant’s personal integrity and the public interest of protection health of the population.", "37. Furthermore, the applicant himself failed to explain what had prevented him from objecting to the vaccination, when previously he had objected on several occasions. There is no evidence before the Court to prove that the vaccination in question had actually harmed the applicant’s health. 38. The Court also notes that the applicant’s allegations were thoroughly examined by the domestic courts and found unsubstantiated.", "The domestic courts found only one insignificant irregularity in the vaccination procedure, namely, making the vaccination outside the special vaccination room. This, they found, did not in any way affect the applicant’s health. They also established that none of the known side-effects of the vaccination were manifested by the applicant. They did so on the basis of several medical expert reports. The findings of the domestic courts were based on a large amount of medical data collected upon the motion of the applicant and of the courts.", "These findings appear to be grounded on a sufficient evidential basis and their conclusions are not arbitrary or manifestly unreasonable. The applicant did not submit any evidence to challenge the findings of the domestic authorities. 39. In view of the above considerations, the Court finds no violation of Article 8 of the Convention in the present case. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 54,892.53 hryvnias (UAH) (approximately 4,600 euros (EUR)) in respect of pecuniary damage and UAH 700,000 (approximately EUR 58,700) in respect of non-pecuniary damage. 42.", "The Government considered that there was no causal link between the applicant’s claim of pecuniary damage and his complaints. They also contended that the claimed non-pecuniary damage was unsubstantiated, that the amount was excessive and that it did not correlate to the awards given by the Court in comparable cases against Ukraine. 43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant’s mother EUR 2,400 in respect of non-pecuniary damage.", "B. Costs and expenses 44. The applicant also claimed UAH 3349.02 (EUR 302.59) and UAH 489.95 (EUR 44.27) for costs and expenses. 45. The Government maintained that not all the claims were relevant and invited the Court to award only the expenses that were confirmed and related to the proceedings in question.", "46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads. C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been no violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant’s mother, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant’s mother in respect of costs and expenses, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 15 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Boštjan M. Zupančič is annexed to this judgment. D.S.C.W. CONCURRING OPINION OFJUDGE BOŠTJAN M. ZUPANČIČ 1.", "I hesitated to go along with this judgment because of the question of causal link which allegedly had not been established between the procedure of administering the vaccination on the one hand and the death of the applicant on the other hand. The applicant claimed that the vaccination had been done against his will, which implies that there was no prior and informed consent. The “informed” consent implies that the patient in such circumstances must be instructed as to all the potential risks of administering any kind of medical treatment, which he must thereafter consent to in a genuinely informed way. Failing that, we cannot speak of a full consent, whereas here – in contrast to the usual medical situation – we seem to speak of a forceful administration of diphtheria vaccine without any consent on the part of the applicant and, indeed, against his so expressed will. As per his submissions, these failings had resulted in serious health problems (§ 30 of the judgment).", "2. Admittedly, the Ukrainian courts have summoned three experts to testify concerning the possible causal connection between the diphtheria vaccine injection, on the one hand, and the serious medical problems resulting in death of the applicant on the other hand. 3. Perhaps it would be useful to sketch the basic problem concerning discrepancy between scientific perception of causation on the one hand and the legal/judicial insistence concerning the finding of a “true cause” in each criminal or tort situation, in which the consequence – in this case, death – is part of the definition of the tort or the crime in question. It is notorious that in medical cases the causal link is practically impossible to “prove”.", "This impossibility, however, is occurring on the legal/judicial side – rather than on the medical/scientific side. 4. The scientists are well aware of the epistemological axiom to the effect that no consequence in the real world is “caused” by a single preliminarily necessary condition. Every consequence in the real world, in which it occurs as an event, is a product of innumerable necessary conditions which, by definition, are all indispensable if the consequence in question is to occur. For example, the authors of the Model Penal Code of the United States of America have, many decades ago, in fact done away with the theory of causation.", "They have adopted the sine qua non causation theory, which in reality is the denial of causation itself. It admits as a legally relevant “cause” any necessary (sine qua non) condition without which the result in the crime in question, for example death, would not have occurred. 5. It is patently clear, especially so in the scientific community, that there is no such thing as causation or causal link. In the legal community, however, the juries are insufficiently conscious of the fact that the decision making by judges and other protagonists proceeds by scanning the necessary conditions for the consequence in question and then – more or less intuitively, i.e.", "with insufficient consciousness – choosing the critical necessary condition as the legally satisfying “cause” for the consequence in question. The scan that is so performed, however, is not a scan of objective reality. 6. On the contrary, what judges and others look for is the blameable necessary condition, albeit objectively existing, to which the blame of the law can be attached, so that at the end of the process, be it criminal or concerning tort, a culprit is identified, condemned and punished. 7.", "In most standard tort cases as well as in criminal ones the establishment of the causal link – i.e., the finding of the blameworthy necessary condition – does not represent a problem. In medical cases (See for example Calvelli and Ciglio v. Italy [GC], no. 32967/96, 17 January 2002) the necessary condition somehow does not seem to be sufficient. The problem recurs in insanity cases, where most of the jurisdictions require the psychiatrist to testify as to the real existence of a mental illness, as the cause, and the insanity of the defendant as a consequence. If that “causal link” is not accepted by the court, then the insanity defence will fail, although the defendant in question may be genuinely mentally ill in the first place.", "8. In standard medical cases where medical negligence or faulty drugs, as allegedly in this case, are to blame, it is practically impossible to have a waterproof testimony from a medical or any other kind of expert. In the best of scenarios, the experts will testify to the effect that the consequence in question is “not incompatible” with the necessary condition (medical negligence, faulty drugs, etc.). 9. This is perhaps a paradigmatic situation that vividly illustrates the communication gap between the scientific community, on the one hand, and the legal/judicial community.", "Epistemologically, scientists as well as medical doctors are not either trained or conditioned to look for a blameworthy “cause”. While every doctor or scientist will, when establishing diagnosis, try to establish the cause of the symptoms, he is not looking for the legal consequences such as necessarily arise in the adversarial context of any trial. This is why the epistemological debate in the scientific community is objective and reasonable. The moment that very same debate is put on the stage of the adversarial theatre the objectivity and reasonableness become charged with potential consequences of the outcome of the trial. What was reasonable in the sense of “relative” before, suddenly becomes a discrete “yes” or “no” proposition, for which the expert appointed by the court must take full responsibility.", "What before was a full spectrum of experiment, suddenly becomes a “yes” or “no” proposition which commonly, moreover, may have dire consequences for the protagonists in the trial. 10. I have dealt with this kind of problem in Tătar v. Romania (no. 67021/01, 27 January 2009) and Băcilă v. Romania (no. 19234/04, 30 March 2010) and the issue is always the same.", "The modern doctrine of the principle of precaution offers an elegant solution to this legal enigma by transferring a priori the burden of proof onto the appropriate party. In Tătar and Băcilă cases, clearly this ought to have been the Romanian State. In our case, the burden of proof, if we were to be guided by the principle of precaution, ought to have been on the company which had produced the vaccine and on the doctors who have injected it in an allegedly irreproachable way. If that burden were to be placed on them they would make an extra effort to show that the vaccine had in fact been produced and administered lege artis and the case would be, without undue burdening of the experts, resolved. This would have occurred, of course, if those who carried the burden were able to show that the allegations on the part of the applicant were in fact without any scientific basis." ]
[ "SECOND SECTION CASE OF OSMAN v. TURKEY (Application no. 4415/02) JUDGMENT STRASBOURG 19 December 2006 FINAL 19/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Osman v. Turkey, 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,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 28 November 2006 , Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 4415/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr Abdülmenaf Osman (“the applicant”), on 2 November 2001. 2. The applicant was represented by Mr M. Vefa, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant alleged that he was not tried before an independent and impartial tribunal and that the length of the proceedings exceeded the reasonable time. He invoked Article 6 of the Convention. 4. On 6 October 2005 the Court (First Section) declared the application partly inadmissible and decided to communicate the complaints concerning the independence and impartiality of the Diyarbakır State Security Court and the length of the proceedings to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and he is currently detained in the Gaziantep Prison. 6. On 13 March 1993 the applicant was taken into custody by policemen from the Anti-Terrorism Branch of the Batman Security Directorate on suspicion of his membership of an illegal organisation, namely the Workers' Party of Kurdistan (“the PKK”).", "7. On 13 April 1993 the applicant was brought before the public prosecutor and the investigating judge where he repeated his police statements. The judge ordered the applicant's detention on remand. 8. On 26 April 1993 the Diyarbakır State Security Court Public Prosecutor filed an indictment against 38 accused persons, including the applicant.", "He accused the applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. He requested the court to sentence the applicant in accordance with Article 125 of the Criminal Code. 9. Two further indictments were submitted to the Diyarbakır State Security Court concerning offences which the applicant had allegedly committed in Bitlis and Tatvan. The Diyarbakır State Security Court decided to examine these accusations jointly.", "10. Between 16 June 1993 and 20 April 1999, the court held 51 hearings, during which the judges dealt with solely procedural matters. They considered the measures that should be taken to secure the presence of the accused persons at the hearings and examined their continued detention. The applicant did not attend many of these hearings in protest against the State Security Courts. 11.", "On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. Thereafter, the court held 18 more hearings. 12. On 12 March 2002 the Diyarbakır State Security Court, which was composed of three civilian judges, found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence.", "13. On 1 October 2002 the Court of Cassation upheld the decision of the Diyarbakır State Security Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 14. The applicant complained 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 Diyarbakır State Security Court which tried him.", "The applicant further complained that the length of the criminal proceedings brought against him was in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention, in so far as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.” A. Admissibility 1. Independence and impartiality of the trial court 15. The Government maintained that, by Law no. 4388 of 18 June 1999, amendments were made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention.", "16. The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998‑IV, § 68; Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998‑VII, § 39). The Court also found in Öcalan v. Turkey (no. 46221/99, ECHR 2005‑, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that remained in effect during the criminal proceedings in question, the military judge's replacement by a civilian judge in the course of those proceedings, before the verdict was delivered, failed to dissipate the applicant's reasonably held concern about that trial court's independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently allayed that concern. 17.", "In the instant case, the Court notes that before his replacement in June 1999 the military judge was present at 51 hearings. However, it is clear from the documents in the file that during these hearings the Diyarbakır State Security Court took no interlocutory decisions of importance, in particular concerning the defence rights of the applicant. In this connection, the Court observes that, after the military judge was replaced by a civilian judge, the domestic court held 18 hearings on the merits and the applicant was heard by the new court. Therefore, the Court finds that, in the particular circumstances of the case, the replacement of the military judge before the end of the proceedings disposed of the applicant's reasonably held concern about the trial court's independence and impartiality (see Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, §§ 33-36, 19 September 2006).", "18. In the light of the foregoing, the Court concludes that the applicant's complaint concerning the independence and impartiality of the Diyarbakır State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. Length of the proceedings 19. The Court notes that the applicant's complaint regarding the length of the criminal proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 20. The Government contended that the length of the proceedings in the instant case could not be considered unreasonable in view of the number of accused persons, the complexity of the case and the nature of the offence with which the applicant was charged.", "Moreover, they alleged that the applicant had contributed to the length of the proceedings by not appearing before the court on several occasions. 21. The Court notes that the period to be taken into consideration began on 13 March 1993, when the applicant was taken into police custody, and ended on 1 October 2002 with the decision of the Court of Cassation. The proceedings therefore lasted more than nine years and six months for two levels of jurisdiction. 22.", "The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant (see, amongst many others, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 23. The Court observes that the applicant did not appear before the court on a number of occasions. However, it is of the opinion that the applicant's absence from some of the hearings cannot justify the overall length of the proceedings.", "24. Recalling 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 Arvelakis v. Greece, no. 41354/98, § 26, 12 April 2001), the Court considers that the trial court should have applied stricter measures to speed up the proceedings. It therefore finds that the instant case was unnecessarily prolonged as the State Security Court failed to act with the necessary diligence. 25.", "In view of the above, the Court considers that the criminal proceedings against the applicant cannot be considered to have complied with the reasonable time requirement laid down in Article 6 § 1. 26. There has accordingly been a violation of this provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28. The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. 29. The Government contested these claims.", "30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it accepts that the applicant must have suffered some non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 4,500 for non-pecuniary damage. B.", "Costs and expenses 31. The applicant also claimed a total of EUR 3,337 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 32. The Government disputed this claim. 33.", "On the basis of the material in its possession and ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of costs and expenses. C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the criminal 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, the following amounts, to be converted into New Turkish Liras at the rate applicable at the date of the settlement and exempt from all taxes and duties: (i) EUR 4,500 (four thousand five 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 19 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. COSTA Registrar President" ]
[ "FOURTH SECTION CASE OF CHUMAK v. UKRAINE (Application no. 44529/09) JUDGMENT STRASBOURG 6 March 2018 FINAL 06/06/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chumak v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Ganna Yudkivska,Paulo Pinto de Albuquerque,Iulia Motoc,Georges Ravarani,Marko Bošnjak,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 13 February 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 44529/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Viktorovych Chumak (“the applicant”), on 30 July 2009. 2. The applicant was represented by Mr V. Ivashchenko, a lawyer practising in Vinnytsya. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lischyna.", "3. The applicant alleged, in particular, that a court decision ordering dispersal of a “picket” (пікет) he had organised and prohibiting further pickets being held by the Association of which he was the chairman had been unlawful and unfair and that no effective remedies had been available for this complaint. 4. On 29 October 2015 the applicant’s complaints under Articles 11 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Stryzhavka. 6. On 12 September 2006 the applicant submitted a written notice to the mayor of Vinnytsia informing him that the Chumatskyy Shlyakh civic youth association (“the Association”) registered in Vinnytsia, of which he was chairman, intended to hold a picket (пікет) outside the Vinnytsia Regional Authority (“the regional authority”) building. The notice read as follows: “We inform you that, starting from 14 September 2006 our organisation will hold a picket [in front] of the [regional authority] for an indefinite term in view of the unhealthy, in our view, social and economic state of affairs in the region.", "Beginning of the picket: 14 September 2005 at 14:00. Place: square in front of the [regional authority] building; Responsible person according to the decision of the Association’s management: Chumak S.V. [the applicant]. Chairman of the [Association] Chumak, Sergiy Viktorovych.” 7. According to the Government, the Association’s officially registered chairman at the material time was a certain Igor Viktorovyh Chumak.", "The applicant was neither the chairman, nor could he even be a member of the Association because according to the Association’s charter, membership was open to persons under the age of twenty-eight. At the time of the relevant events the applicant was older. 8. On 13 September 2006 the mayor’s office forwarded the applicant’s notice to the police, requesting that they maintain public order during the demonstration. 9.", "On 14 September 2006 the Association started the picket as intended. According to the applicant, several other local groups joined the action and two small camping tents (measuring 2 by 2 metres) were erected by the walls of the regional authority building on a 15-metre wide street for storing handout materials and displaying the protesters’ slogans. 10. On 15 September 2006 the executive committee of Vinnytsia City Council instituted administrative proceedings seeking “to enjoin the [Association] not to organise and carry out pickets on the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully erected ‘small architectural structures’ (малі архітектурні форми).” The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers-by, acting arrogantly towards them, obstructing the traffic and pedestrians and endangering the lives and health of local residents. Referring to Article 182 of the Code of Administrative Justice (“the CAJ”, see paragraph 20 below), which provided for the lodging of an action before the start of a picket, the plaintiff asked the court to admit its action for consideration out-of-time on the grounds that only after the picket had started had it become apparent that the protesters intended to engage in inappropriate conduct.", "The statement of claim was supplemented with applications by V.Ch. and Y.S., two passers-by, addressed to the police, in which they complained that the protesters had “acted arrogantly”, had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics. 11. On the same date the Leninskiy District Court in Vinnytsia (“the District Court”) held a hearing at which the applicant, representing the Association, denied the allegations that the picketers had engaged in any inappropriate conduct. According to him, during the hearing he had unsuccessfully made several requests for the production of evidence.", "Notably, he had requested that V.Ch., Y.S. and the police officers present at the site of the picket be summoned for questioning; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented; and that the site be inspected in order to determine whether, in fact, the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians. 12. Later on the same date, the District Court allowed the claim, having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately. The relevant part of the judgment read as follows: “... [the] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event, which fact resulted in missing the time-limit for lodging a court action as required by paragraph 1 of Article 182 of the Code of Administrative Justice of Ukraine; the court therefore resets the procedural time-limit ...", "The court, when deciding the case, takes into account that the participants in the event installed small architectural edifices on the pavement. In addition, during the event, they acted arrogantly, thus offending other citizens, obstructed the passage of pedestrians along Soborna street, and endangered road users, a fact confirmed by the complaints from Y.S. and V.Ch. In addition, the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely. Also the number of protesters is not defined ... and it may gradually increase.", "Accordingly, at any time during the picket of indeterminate length, it cannot be excluded that those taking part might repeatedly breach public order.” 13. The court also noted that the picket “may potentially encroach upon the rights and freedoms of other local residents” and held as follows: “[the court holds] to prohibit [the Association] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia, [and] from installing small architectural edifices in Vinnytsia; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [Administration’s] building ... To allow immediate enforcement of the court ruling ...” 14. At 9 p.m. on 15 September 2006 the protesters were dispersed by the police. 15. On 29 September 2006 the local registry office informed the applicant that V.Ch.", "and Y.S. were not registered as residents at the addresses indicated by them in their complaints lodged with the police. 16. On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006, which he signed as the Association’s chairman. He submitted that under Article 182 of the CAJ, a plaintiff’s action could not be examined when it had been lodged out of time.", "He further submitted that the court’s factual conclusions had been devoid of an evidentiary basis. In particular, there was no evidence whatsoever that the protesters had breached the law, apart from the complaints by V.Ch. and Y.S., who had given false home addresses and thus could not be identified. The applicant further complained that the court had rejected his request that those individuals be located and summoned, and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters. He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law (if any) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as “architectural structures” and whether there had been any obstruction of traffic or pedestrians.", "Lastly, the applicant complained that the sanction imposed by the District Court (a total and permanent ban on the Association organising peaceful assemblies in Vinnytsia) had been arbitrary and disproportionate. 17. On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant’s appeal and decided that, in view of the circumstances of the case (namely, the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration) the administrative action lodged by the executive committee could be accepted for examination. It agreed with the District Court’s findings of fact and noted, in particular, that by installing the tents, the protesters had breached section 16 of the Populated Localities Development Act and section 18 of the Automobile Roads Act. At the same time, the Court of Appeal found that the sanction imposed on the protesters had been disproportionate.", "In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage a form of assembly such as the “picketing” of administrative buildings “with the installation on the streets of small architectural structures”. Accordingly, the court found that the term “peaceful assemblies” in the operative part of the District Court’s judgment had to be substituted with the term “pickets”. The court then rejected the applicant’s remaining arguments as unsubstantiated. 18.", "On 1 April 2009 the Higher Administrative Court of Ukraine dismissed an appeal on points of law lodged by the applicant. II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine of 1996 19. Article 39 of the Constitution of Ukraine reads as follows: “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.", "Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.” B. Code of Administrative Justice of 6 July 2005 20. The relevant provisions of the Code, as worded at the material time, read as follows: Article 8. Rule of Law “1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.", "2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights. 3. The right to appeal to an administrative court for the protection of human rights and freedoms based directly on a reference to the Constitution of Ukraine shall be possible. 4.", "A court may not refuse to examine and resolve an administrative case on the grounds that the legislation applicable to the dispute is incomplete, unclear, incoherent, or lacking.” Article 11. Adversarial nature of the proceedings, discretionary powers of the parties and official establishment of all circumstances of the case “1. The consideration and resolution of cases in the administrative courts shall take place on the basis of adversarial proceedings, the evidence submitted by the parties and their ability to prove its cogency before the court. 2. The court shall consider administrative cases exclusively following the lodging of an action in accordance with the present Code and may not exceed the scope of the complaints.", "The court may exceed the scope of the complaints only in the event that this is necessary for the comprehensive protection of the rights, freedoms and interests of the parties or third persons whose protection is sought by them. 3. Each person who seeks judicial protection may dispose of his/her claim at his/her discretion, except in the circumstances determined in this Code ... 4. The court shall use the measures provided for in law which are necessary for the establishment of all the circumstances of the case, including by determining and ordering the production of evidence on its own initiative. 5.", "The court shall, on its own initiative, invite the parties to the proceedings to submit evidence or order the production of evidence which, in its view, is lacking.” Article 182. Features of the proceedings relating to the administrative claims lodged by the authorities with a view to restricting the exercise of the right to freedom of peaceful assembly “1. Immediately upon receipt of a notification concerning the organisation of meetings, rallies, processions, demonstrations, etc., the executive authorities [and] bodies of local self-government shall have the right to apply to the District Administrative Court of the respective locality with an action seeking to prohibit these events or otherwise restrict the right to freedom of peaceful assembly (concerning the place or time of their organisation, etc.). 2. An action received on the date on which the aforementioned ... events take place or thereafter shall be left without examination.", "... 5. The court shall allow the plaintiff’s claims in the interests of national security and public order, where it establishes that carrying out the meetings, rallies, processions, demonstrations or other assemblies may create an imminent risk of disturbances or crimes, or endanger the health of the population or the rights and freedoms of other people. In its ruling, the court shall indicate the manner in which the exercise of the right to peaceful assembly is to be restricted. 6. The ruling of the court in respect of cases concerning restriction of the exercise of the right to peaceful assembly shall be enforced immediately.", "...” C. Other relevant provisions of domestic law and relevant case-law 21. Section 16(5) of the Populated Localities Development Act of Ukraine (Закон України “Про благоустрій населених пунктів”), Law no. 2807-IV of 6 September 2005, proscribed the installation in public areas of “objects for external advertisement, commercial stalls, pavilions, kiosks, and so on without authorisation.” 22. Section 18 of the Automobile Roads Act of Ukraine (Закон України «Про автомобільні дороги»), Law no. 2862-IV of 8 September 2005 proscribed the “placement of any objects, constructions, erections or their parts” within the boundaries of the so-called “red lines of the street”, delimiting the width of the street.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 23. The applicant complained that the judicial authorities had imposed an arbitrary and disproportionate restriction on his right to freedom of assembly, as guaranteed in Article 11 of the Convention, which, insofar as relevant, reads: “1. Everyone has the right to freedom of peaceful assembly ... . 2.", "No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...” A. Admissibility 1. Submissions by the parties 24. The Government argued, firstly, that the present complaint was incompatible ratione personae with the provisions of the Convention, as the applicant was not a victim of the violation complained of. First of all, he was not a party to the domestic proceedings, which had been instituted against a legal entity, namely, the Chumatskiy Shlyakh Association.", "Although he acted as that entity’s representative in the course of the proceedings, he was not a party to those proceedings himself. The disputed court decisions did not impose any sanctions on the applicant personally and did not affect his civil rights. In addition, the Government insisted that the applicant was neither the chairman, nor a member of the Association affected by the court decisions complained of (see paragraph 7 above). 25. Secondly, the Government argued that the application was in any event manifestly ill-founded.", "Notably, the decisions complained of had been taken by the domestic courts at the close of the contentious proceedings in full compliance with the requirements of a fair trial as provided for under Article 6 of the Convention. The national courts had established the relevant facts thoroughly and comprehensively and had found that the picket had constituted a threat to the life and health of local residents. The restriction imposed on the protesters’ right was not disproportionate, as they had not been precluded from holding other forms of assembly that did not constitute such a threat. 26. The applicant generally disagreed.", "He insisted that there had been a breach of his freedom of peaceful assembly guaranteed under Article 11 of the Convention and referred to the arguments on the merits raised in his initial application. 2. The Court’s assessment (a) As regards the applicant’s victim status 27. The Court notes that, as observed by the Government, the applicant himself was not a party to the court proceedings leading to the measures of interference complained of in the present case. However, this matter, which could have been relevant for deciding on his victim status for the purposes of Article 6, does not deprive him of victim status in respect of a complaint lodged under Article 11 of the Convention.", "The Court has already held that organisers of assemblies may claim to be directly concerned by any relevant negative decision of the authorities (see Bączkowski and Others v. Poland, no. 1543/06, §§ 67 and 73, 3 May 2007 and Patyi and Others v. Hungary, no. 5529/05, §§ 25 and 27, 7 October 2008). The applicant in the present case was the organiser and a participant of the protest. He had also signed personally all the relevant documents submitted to the competent authorities and represented the Association during the court proceedings.", "The appeals signed by him as chairman of the Association were admitted for consideration. In the light of the foregoing, the Court considers that for the purposes of the Convention proceedings, the applicant has standing to bring the present complaint. 28. His victim status for the purposes of Article 34 of the Convention is therefore not open to doubt. 29.", "The Court therefore dismisses the Government’s objection. (b) Otherwise as to admissibility 30. The Court considers that the present 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 31. The applicant alleged that the court judgments dispersing the picket of which he was the organiser and prohibiting further pickets by the Association of which he was chairman constituted unlawful interference with his right to freedom of peaceful assembly, which was also not necessary in a democratic society. 32.", "In particular, the courts had applied a procedure provided for by Article 182 of the CAJ for preventing demonstrations which had not yet begun. Under paragraph 2 of that provision, the time-limit within which the competent authorities were allowed to lodge a court action expired on the date on which the demonstration at issue was scheduled. No provision was made for extending that time-limit in order to allow the examination of an action lodged after the demonstration had begun. 33. The applicant also argued that the judicial authorities had reached manifestly arbitrary factual conclusions in respect of the protesters’ conduct and had groundlessly rejected all his arguments and his pertinent procedural requests.", "Notably, the courts had refused to order an independent inspection of the picketing site; to summon the police officers present during the picket; or to identify and question the two passers-by who had purportedly complained to the police of the protesters’ misconduct. According to the applicant, the fact that the wrong home addresses had been given in the statements of complaint lodged by those individuals, making them unidentifiable, raised serious doubts as to the genuine nature of the relevant complaints. 34. Lastly, the applicant complained of the radical and blanket nature of the restrictions imposed by the domestic authorities on his ability to organise and take part in the pickets on behalf of the Association of which he was chairman. 35.", "The Government did not comment on the merits of the present complaint. 2. The Court’s assessment (a) Whether there has been an interference 36. The Court reiterates that the right to freedom of assembly enshrined in Article 11 of the Convention is a fundamental right in a democratic society and, like the right to freedom of expression, one of the foundations of such a society. Thus, it should not be interpreted restrictively.", "As such this right covers both private meetings and meetings in public places, whether static or in the form of a procession; in addition, it can be exercised by individual participants and by the persons organising the gathering (see in this context Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015, with further references). 37. In the present case, a peaceful manifestation organised by the applicant as a leader of the Chumatskiy Shlyakh Association was dispersed pursuant to a court order and the Association itself was enjoined to refrain from organising any further “pickets” in the city for an indefinite period of time. Those measures represent a clear case of interference with freedom of assembly guaranteed by Article 11.", "It remains to be seen whether the interference was justified under paragraph 2 of Article 11 of the Convention. (b) Justification of interference (i) General principles 38. The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims (see, among other authorities, Kudrevičius and Others, cited above, § 102). 39. The expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question.", "The law should be accessible to those concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Also, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to interfere with the rights guaranteed by the Convention (see, among other authorities, Lashmankin and Others v. Russia, nos. 57818/09 and 14 Others, §§ 410-411, 7 February 2017). 40. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took.", "This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether it answered a “pressing social need” and, in particular, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “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 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among other authorities, Kudrevičius and Others, cited above, § 143, with further references). (ii) Application to the present case 41. In the present case the manifestation organised by the applicant was dispersed based on a judicial order issued under the procedure provided for in Article 182 of the CAJ and on the grounds that the protesters had breached the requirements of the Populated Localities Development Act and the Automobile Roads Act (see paragraphs 20, 21 and 22 above). In particular, according to the court’s findings, they had unlawfully erected tents, obstructed the flow of traffic and the passage of pedestrians, and behaved inappropriately towards passers-by.", "The aforementioned Acts, which constituted the legal basis for the interference complained of, had been published and there is no dispute as to their accessibility to the general public. 42. As regards foreseeability, the Court notes the applicant’s argument that the language of Article 182 of the CAJ appeared to set out a general procedure for preventing demonstrations before they had begun. Indeed, the impugned provision stipulated that the competent authorities had the right to lodge a court action with a view to enjoining those planning a demonstration to refrain from holding it “immediately upon receipt of a notification” announcing their intention to organise the event. In addition, paragraph 2 of the Article provided that “an action received on the date when the ... event is scheduled to take place ... shall be left without examination” (see paragraph 20 above).", "In the light of the material in the Court’s possession and in the absence of any explanations from the Government, the Court has doubts that, given the above-mentioned wording, the applicant could reasonably have foreseen that the procedure provided for by Article 182 would be applied for disbanding an on-going picket. 43. At the same time, the Court notes that the procedural situation with which the domestic courts were confronted in the present case was rather difficult. The general domestic legal framework governing the organisation of public assemblies in place at the time of the events giving rise to the present application has already been subject to the Court’s scrutiny in the cases of Vyerentsov v. Ukraine (no. 20372/11, judgment of 11 April 2013, and Shmushkovych v. Ukraine (no.", "3276/10, judgment of 14 November 2013). As was seen in those cases, at the material time no law had yet been enacted by the Ukrainian Parliament regulating the procedure for holding peaceful demonstrations, although Articles 39 and 92 of the Constitution clearly required that such a procedure be established by law, that is, by an Act of the Ukrainian Parliament (see Vyerentsov, cited above, § 55, and Shmushkovych, cited above, § 40). Having analysed the regulatory acts in force at the time of the events giving rise to the aforementioned applications, the Court concluded that the law applicable to holding assemblies did not meet the foreseeability requirement (ibid.). 44. Notwithstanding the above considerations, the Court recalls that the manifestation organised by the applicant was dispersed with reference to the findings that its participants had breached the particular requirements of substantive law and encroached upon important legally protected rights and interests of others.", "While the wording of Article 182 was not specifically tailored to address disbanding of on-going manifestations, and while absence of a more appropriate procedural rule is regrettable, it cannot be said that imposition of restrictions on gatherings, whose participants breach substantive law, is as such unforeseeable. It is also important in this connection that the general rules of procedure established by the CAJ contained a series of important safeguards inherent in the requirements of a fair trial (see paragraph 20 above). These safeguards provided the judicial authorities with comprehensive tools to adjudicate on matters relevant to interference with fundamental rights in line with the rule-of-law principles even in absence of legislation specifically addressing a particular issue. 45. At the same time, it cannot be discerned either from the texts of the domestic judgments, or from the Government’s observations or other available material, that in the particular case at issue the aforementioned procedural safeguards were, in fact, put in use.", "46. As appears from the applicant’s submissions (see paragraphs 11 and 16 above), which were not contested by the Government, the plaintiff’s allegations concerning obstructive and inappropriate conduct of the picketers were taken at face value, without any effort having been taken to verify the underlying facts, for instance, by questioning witnesses or employing other appropriate procedural means, notwithstanding the applicant’s requests in this respect. 47. The District Court’s judgment of 15 September 2006 was formally subject to an appellate review. However, the Court of Appeal endorsed its factual findings and its order to disperse the picket, without giving reasons for dismissing the arguments raised in the applicant’s appeal (see paragraph 17 above).", "The only substantive change introduced as a result of the appeal proceedings was the replacement of a sweeping injunction on organising any “peaceful assemblies” in future with a supposedly more narrow prohibition on holding “pickets” (see ibid). At the same time, it is to be noted that the Court of Appeal neither explained the meaning of the term “picket” and its correlation with the term “peaceful assembly”, nor referred to any legal acts which could clarify that distinction. Likewise, no definition of the term “picket” in the domestic legal order can be discerned from any other material which has been made available by the parties. The Court is therefore bound to conclude that the actual scope of the prohibition on holding “pickets” could be open to various interpretations and lacked the necessary precision to enable the applicant to regulate his future conduct as an activist of the defendant Association. 48.", "Overall, regard being had to the shortcomings in the legislative regulatory framework, coupled with the drawbacks in the judicial decision-making process, the Court has serious doubts as to whether the interference complained about met the lawfulness requirement. Nevertheless, in the present case the Court does not find it necessary to decide whether the above considerations alone can serve as a basis for finding a violation of Article 11 of the Convention. Given that a more conspicuous problem arises with respect to the legitimate aim and the necessity of the interference, the Court will continue the examination of the case and turn to the question whether the dispersal of the picket and prohibition on future picketing was necessary in a democratic society, which, in the specific circumstances, will also take into consideration the issue of whether the interference pursued a legitimate aim (see Gafgaze Mammadov v. Azerbaijan, no. 60259/11, § 57, 15 October 2015 and Kakabadze and Others v. Georgia, no. 1484/07, § 86, 2 October 2012, with further references).", "49. As is implied in the domestic judgments, the interference in question, which was based on the findings that the picket was disruptive, offensive and potentially dangerous, pursued legitimate aims: the prevention of disorder and the protection of the rights and freedoms of others (see, in particular, Kudrevičius and Others, cited above, § 140 with further references). The Court, however, finds that the actual motives for the impugned measures of interference are open to question in light of the considerations expressed in paragraphs 51-56 below. 50. The Court reiterates that where an allegation of public danger, disorder or disturbance is involved, it must be duly substantiated, that is, supported with ascertainable facts (see, mutatis mutandis, Primov and Others v. Russia, no.", "17391/06, § 150, 12 June 2014 and Lashmankin and Others, cited above, §§ 421-424). 51. In the present case, as noted above, the judicial authorities did not explain, by reference to the particular circumstances of the relevant incidents, exactly how the protesters had been “breaching public order”; in which way they had “acted arrogantly”; and what specific actions or phrases uttered by them were “offending other citizens” (see the relevant passages from the judgment in paragraph 12 above). The conclusions that the protesters had “obstructed the passage of pedestrians” and “endangered road users” were likewise not supported by any factual references. No estimate was even made of the number of protesters or the size of the area they had allegedly blocked.", "In the meantime, the applicant’s submissions that the protesters had in fact occupied a small portion of a fifteen-metre wide street far away from the road were left without any answer. Furthermore, an allegation that the protesters might “repeatedly breach public order” in future was purely speculative. The fact that V.Ch. and Y.S lodged complaints with the police about the protesters’ alleged misconduct does not change this conclusion, as those complaints themselves did not describe any particular incident. 52.", "In the light of the above, the Court can only conclude that the interference complained of did not respond to any demonstrated risk of insecurity or disturbance and did not correspond to any “pressing social need”. 53. In addition, the Court is struck by the overarching nature of the measures adopted by the authorities vis-à-vis the protesters. While, as noted above, there is no factual evidence that the picket at issue in the present case caused any real nuisance to the general public, the Court would like to emphasise that peaceful assemblies require the public authorities to show a certain degree of tolerance, even if they cause some inconvenience for everyday life (see, among other authorities, mutatis mutandis, Bukta and Others v. Hungary, no. 25691/04, § 37, ECHR 2007‑III, and Kudrevičius and Others, §§ 155-57, cited above).", "This requirement binds the authorities to consider measures to minimise the disruption, while at the same time accommodating the organisers’ legitimate interests in assembling within sight and sound of their target audience (see, for comparison, Lashmankin and Others, cited above, § 423). 54. In the present case, instead of looking for an accommodating solution, not only were the protesters dispersed, but a blanket ban was imposed on the defendant Association’s ability to hold any other “pickets” on any street or square in the entire city of Vinnytsia for an undefined period of time. The Court fails to see any justification for such an overarching restriction. 55.", "Lastly, the Court notes that the picket at issue was intended to draw local residents’ attention to the purported shortcomings and allegedly “unhealthy” practices within the regional authority (see paragraph 6 above). In this relation, the Court underlines that public events related to political life should be given particular deference (see Primov and Others, cited above, § 135) and that those expressing opinions which are critical of important public figures should be shown greater tolerance (see, for example, Kakabadze and Others, cited above, § 89). 56. In light of the considerations expressed in paragraphs 53-55 above, the Court concludes that the interference complained of did not strike a “fair balance” between the applicant’s rights protected under Article 11 and the other competing interests at stake. (iii) Overall conclusion 57.", "In view of the aim of the picket, the drastic nature of the restrictions imposed on its participants is further magnified when assessed against the above-mentioned shortcomings in the decision-making process that led to unsubstantiated factual conclusions reached by the judicial authorities (see, mutatis mutandis, Kakabadze and Others, cited above, § 91). Overall, the situation suggests that the interference, in addition to raising serious doubts concerning lawfulness, as noted in paragraph 48 above, failed to answer a pressing social need and to strike a fair balance between the competing interests. 58. There has accordingly been a breach of Article 11 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 59. The applicant further complained that he had been deprived of an effective remedy for his complaints under Article 11 of the Convention, in violation of Article 13 of the Convention. 60. The Court notes that this complaint is directly connected with that examined under Article 11 of the Convention and must likewise be declared admissible. Having regard to the grounds on which it has found a violation of Article 11, the Court considers that there is no need to examine it separately (see also Danilenkov and Others v. Russia, no.", "67336/01, § 138, ECHR 2009 (extracts)). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62.", "The applicant claimed 1,000,000 euros (EUR) in respect of non‑pecuniary damage. 63. The Government argued that the claim was exorbitant and unsubstantiated. 64. The Court considers that the applicant has undoubtedly suffered non‑pecuniary damage as a result of the facts giving rise to the finding of violations of the Convention in the present case.", "Ruling on an equitable basis, it awards the applicant EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses 65. The applicant also claimed EUR 1,140 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. He provided no documents in substantiation of this claim, alleging that they had been destroyed during a fire in the office of Mr V. Ivaschenko, his lawyer.", "66. The Government submitted that the claim was wholly unsubstantiated. 67. 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 absence of any documents in support of the applicant’s claim, the Court is unable to determine the correct amount.", "It therefore makes no award. C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 11 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliVincent A. De GaetanoRegistrarPresident" ]
[ "FIRST SECTION CASE OF VLASOV v. RUSSIA (Application no. 78146/01) JUDGMENT STRASBOURG 12 June 2008 FINAL 12/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vlasov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "78146/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksey Yuryevich Vlasov (“the applicant”), on 4 July 2001. 2. The applicant, who had been granted legal aid, was represented before the Court by Mr V. Kuznetsov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the conditions in which he had been detained and transported had been inhuman and degrading, that the length of his detention and the criminal proceedings against him had been excessive, that unjustified restrictions had been imposed on family visits, correspondence and exchange of documents, and that he did not have an effective remedy at his disposal in respect to these complaints. 4. By a decision of 14 February 2006, the Court declared the application partly admissible. 5. The Government, but not the applicant, filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1957 and lives in Moscow. He was the director of a diamond manufacturing and export company (“the company”). A.", "Criminal proceedings against the applicant 1. Arrest and detention pending trial 7. On 9 July 1999 a criminal case (no. 144129) was opened against the applicant. He was suspected of having smuggled diamonds by using forged export contracts, an offence under Article 188 § 4 of the Criminal Code.", "8. On 18 August 1999 the applicant was arrested. On 20 August 1999 a prosecutor remanded him in custody. 9. On 16 September 1999 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s request for release on bail.", "On 7 October 1999 the Moscow City Court upheld the refusal on appeal. 10. On 14 October 1999 a deputy Prosecutor General extended the applicant’s detention until 9 January 2000. On 16 December 1999 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order because, in the court’s view, the applicant’s “character” justified the detention. On 17 January 2000 the Moscow City Court upheld that decision on appeal.", "11. On 30 December 1999 a deputy Prosecutor General extended the applicant’s detention until 18 May 2000. On 19 April 2000 the Preobrazhenskiy District Court dismissed the applicant’s appeal against the extension order, finding that the order had been “lawful and justified”, but without giving further grounds in support of this finding. 12. On 16 May 2000 a deputy Prosecutor General extended the applicant’s detention until 18 August 2000.", "On 4 August 2000 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order, finding that it had been lawful and justified. On 27 December 2000 the Moscow City Court upheld that decision on appeal. 13. On 16 August and 18 September 2000 the acting Deputy Prosecutor General extended the applicant’s detention until 18 September and 18 November 2000 respectively. On 26 September 2000 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension orders, finding that they had been justified on account of the applicant’s “character” and the absence of “gross violations” of the criminal-procedure laws.", "On 9 January 2001 the Moscow City Court upheld that decision on appeal, referring to the applicant’s “character” and the gravity of the charges against him. 14. On 17 November 2000 the Prosecutor General extended the applicant’s detention until 18 February 2001. On 31 January 2001 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension order, finding that the applicant’s “character” and the gravity of the charge rendered his detention lawful and justified. On 23 April 2001 the Moscow City Court upheld that decision on appeal.", "2. Splitting-up of criminal cases 15. On 9 December 2000 the applicant was additionally charged with offences under Articles 188 § 3 (smuggling), 191 § 2 (unlawful trade in precious stones), and 327 (forgery of official documents) of the Criminal Code. 16. On 28 December 2000 fifteen counts of smuggling, unlawful export of precious stones and forgery of documents were severed into a new criminal case, which was given the number 9307.", "17. On 18 February 2001 the investigation into the remaining charges in the framework of case no. 144129 was stayed. On 26 February 2002 the investigation resumed and has since been pending. 3.", "Trial in case no. 9307 18. On 12 January 2001 the applicant was given access to the case file. Further to the prosecution’s requests, on 16 February and 16 April 2001 the Moscow City Court extended the applicant’s detention until 18 April and 18 August 2001 respectively. On each occasion the court noted that there were no grounds to vary the preventive measure imposed on the applicant, in spite of the arguments advanced by the defence and the personal sureties offered on the applicant’s behalf by a Member of Parliament and a member of the Russian Academy of Sciences.", "It also referred to the gravity of the charges and to the applicant’s “character”. On 11 April and 23 May 2001 the Supreme Court upheld the City Court’s decisions on appeal, finding that there were “no sufficient grounds to vary the preventive measure”. 19. According to the Government, the applicant’s counsel, Mr Korolev and Mr Dudnik, were deliberately dilatory in dealing with the case-file materials. On 26 February 2001 the investigator asked the president of the Moscow bar to ensure counsel’s regular attendance.", "On 28 March and 25 April 2001 the investigator’s superior repeated that request. The Government produced four reports of 1, 8 and 18 June 2001. In these reports investigation officers described private conversations with the applicant’s representatives, who allegedly stated that they would procrastinate until the maximum period of the applicant’s detention had expired. 20. On 13 July 2001 case no.", "9307 was submitted for trial before the Golovinskiy District Court of Moscow. 21. On 6 August 2001 the District Court remitted the case for further investigation. On 3 October 2001 that decision was set aside by the Moscow City Court, and the trial resumed. 22.", "On 11 December 2001 the District Court fixed a hearing for 25 December but then adjourned it to 28 January 2002 because the applicant’s counsel had gone on holiday. 23. On 28 January 2002 the District Court refused the applicant’s petition for release. On 21 February 2002 the Moscow City Court upheld that decision on appeal. 24.", "On 15 March 2002 the District Court extended the applicant’s detention until 29 April 2002, finding that his release would hinder “a thorough, comprehensive, and objective examination of the case”. 25. On 1 April 2002 the District Court remitted case no. 9307 for further investigation. It found that the charges were formulated vaguely, that the applicant had not been questioned as a suspect, that his access to the file had been unlawfully restricted, and that the severing of certain charges had not been justified.", "These defects were to be remedied by the investigation. The court authorised the applicant’s further detention. 4. Release on bail and conviction in case no. 9307 26.", "On 12 July 2002 the Golovinskiy District Court released the applicant on bail. 27. The hearing fixed for 26 July 2002 had to be adjourned until 9 September 2002 because one lawyer was involved in concurrent proceedings and the other was on leave. 28. On 2 October 2002 the hearing was adjourned on account of the prosecutor’s illness.", "On 18 March and 13 May 2003 the hearings were postponed at the applicant’s request. 29. On 28 July 2003 the Golovinskiy District Court found the applicant guilty of smuggling and unlawfully trading in diamonds. The applicant was sentenced to five years and six months’ imprisonment, suspended for three years. On 29 November 2003 the Moscow City Court upheld that judgment on appeal.", "B. Restrictions on family visits and correspondence 1. Restrictions on family visits 30. On 24 December 1999 the investigator refused leave for a visit by the applicant’s mother and his wife. She stated that the investigator had discretion to authorise visits, but was not obliged to do so.", "31. According to the Government, on unspecified dates in 1999 the applicant was allowed to see his wife on “humanitarian grounds”. 32. On 27 October 2000 the investigator refused counsel’s request of 28 September 2000 to allow the applicant to see his wife. The investigator indicated that the applicant’s wife was aware “of certain circumstances that [were] relevant to the matters under investigation” and also had “an interest in the outcome [of the case]”.", "As “family visits [could] be used to establish contact with other members of the organised criminal group or obstruct the establishment of the truth”, the wife’s visit would be “inopportune”. 33. On 4 January 2001 the investigator refused a visit by the applicant’s seven-year-old daughter, stating that the applicant could use the visit to obstruct the investigation. 34. On 17 January, 23 February, 12 and 13 March, 12 April, 14 May, 1 June and 2 July 2001 the investigator allowed the applicant to see his mother and/or daughter.", "According to the Government, in 2001 and 2002 the applicant was granted twenty-six family visits. 2. Restrictions on the applicant’s correspondence and exchange of documents 35. On 20 December 1999 the applicant sent a complaint about the refusal to allow family visits and interference with his correspondence to the Basmanniy District Court of Moscow. On the following day the head of the correspondence department of the remand centre refused to post the complaint, citing the following reasons: “The court will not accept the complaint for examination in its present form.", "I also consider it necessary to explain that, under the Custody Act: (a) the investigator may approve no more than two visits per month but by law he is not obliged to do so (section 18 § 3); (b) pursuant to section 20 § 2, all correspondence is subject to censorship, including by the investigator who is in charge of the criminal case. The complaint has no prospects of success (жалоба бесперспективна).” 36. On 22 December 1999 the applicant complained to the Ministry of Justice and the Prosecutor General’s Office that his complaint had not been posted. On 13 January 2000 the applicant’s complaint to the Ministry of Justice was returned to him. No reply from the Prosecutor General’s Office was received.", "37. On 9 February 2000 the investigator refused to post the applicant’s letters to his wife and mother. She returned them to the director of the remand centre with the following note: “I am returning you the letters by Mr Vlasov, the defendant in criminal case no. 144129, addressed to Mrs L. Vlasova and dated 11, 24 and 28 January 2000, and to Mrs I. Vlasova, of 11 and 25 January 2000. On the basis of section 20 § 2 of the Custody Act these letters may not be sent to the addressees.” 38.", "The applicant submitted to the Court copies of handwritten letters to his mother, dated 11, 24 and 28 January 2000. 39. On 6 March 2000 the applicant issued forms of authority to his counsel, Mr Kuznetsov and Ms Vasilyeva. By a letter of 20 March 2000, the first deputy director of the Investigations Department of the Ministry of the Interior returned the forms to the director of the remand centre, advising him as follows: “I would ask you to explain to Mr Vlasov, the defendant in criminal case no. 144129, that, pursuant to section 17 of the Custody Act and paragraph 12.11 of the Internal Rules for Remand Centres (approved by order no.", "486 of 20 December 1995), detainees may enter into civil transactions on the basis of a form of authority certified by the head of the remand centre. Since the forms of authority issued by Mr Vlasov to Mr V. Kuznetsov and Ms M. Vasilyeva list actions which, under the civil legislation currently in force, are not civil transactions, there are no grounds for forwarding these forms to Mr Kuznetsov or Ms Vasilyeva.” 40. On 30 August 2000 the applicant’s counsel submitted to the investigator a series of documents concerning the customs proceedings to which the applicant’s company was a party. On 28 September 2000 the investigator refused to transmit these to the applicant and appended them to the case-file, indicating that the applicant would be able to read them only after the investigation had been completed. 41.", "According to the Government, in 2001 the applicant sent no letters to his relatives. His letters to public authorities were not subject to censorship and were posted without delay. Incoming letters were handed over to him on the day of receipt. 42. On 29 May 2001 counsel for the applicant asked for permission to pass to his client (i) a copy of a complaint to the Supreme Court, and (ii) a book “International instruments on human rights”.", "The director of the remand centre made a handwritten note on the petition: “I agree to accept a copy of the complaint”. 3. Judicial decisions on the applicant’s complaints about restrictions 43. On 28 March and 5 September 2000 the applicant complained to the Presnenskiy District Court of Moscow about the interception of the authority forms and commercial documents. By decisions of 7 April and 9 June 2001, the District Court disallowed the applicant’s complaints, finding that the law did not provide for judicial review of the investigator’s decisions concerning restrictions on family visits, correspondence or exchange of documents.", "On 3 October 2001 the Moscow City Court confirmed on appeal that the applicant’s complaints were not amenable to judicial review. 44. On 4 and 11 September 2000 the applicant complained to the Basmannyy District Court of Moscow about the restrictions on family visits and correspondence imposed by the investigator. On 10 July 2001 the Basmannyy District Court, by a non-procedural communication, informed him that these complaints could not be examined by a court. 45.", "The applicant complained to the Constitutional Court that he had not been able to obtain judicial review of restrictions on family visits, correspondence and exchange of documents. 46. By a decision of 21 December 2001 (no. 298-O), the Constitutional Court confirmed its constant case-law to the effect that all decisions by an investigator or prosecutor which affected an interested party’s constitutional rights and were not related to the merits of the criminal charge were amenable to judicial review (see paragraph 75 below). It emphasised that this approach was fully applicable to the investigator’s decision concerning restrictions on family visits, correspondence or exchange of documents.", "The Constitutional Court held that the judicial decisions refusing examination of the applicant’s complaints were to be reviewed in accordance with the established procedure. 47. On 8 July 2004 the Presnenskiy District Court of Moscow re-examined many of the complaints lodged by the applicant in course of the criminal proceedings in 2000 and 2003, including those concerning restrictions on correspondence, exchange of documents and family visits. The District Court dismissed those complaints for the following reasons. 48.", "The District Court found that the refusal to transmit customs documents from the lawyer to the applicant had been justified because the former had indicated that the documents were related to the criminal case. On that basis the documents had been included in the case file as evidence, in accordance with the Code of Criminal Procedure. The applicant had been advised that he would be able to study the documents in question when examining the case file following completion of the preliminary investigation. 49. With regard to the refusal to pass the power of attorney of 29 March 2000, the District Court held that the Internal Rules for Remand Centres (those issued both by the Ministry of the Interior and by the Ministry of Justice) prohibited detainees from authorising their representatives to carry out any actions other than civil transactions.", "As the scope of the applicant’s power of attorney had not been confined to civil transactions, the refusal had been lawful. The District Court did not refer to a specific provision of the Internal Rules for Remand Centres. 50. As to the restrictions on family visits, the District Court referred to the relevant provisions of the Custody Act and the Internal Rules for Remand Centres. It noted that the decision on whether or not to allow a family visit was to be taken by the investigator in the light of the particular circumstances of the case.", "The decisions made by the investigator in the applicant’s case had subsequently been reviewed and approved by the Investigations Committee of the Ministry of the Interior and by the Prosecutor General’s Office. Accordingly, the District Court concluded that the decisions had been lawful and justified. 51. Finally, the District Court found that five of the applicant’s letters to his relatives had been intercepted by the investigator because they either contained information on the criminal case, revealing secret information from the preliminary investigation, or expressed contempt for the law-enforcement authorities, which might foster a negative attitude among his relatives towards the law-enforcement bodies and thus obstruct the establishment of the truth in the criminal case. The District Court held that the interception of those letters had been compatible with the domestic law and with international treaties, including Article 8 of the Convention.", "52. On 27 December 2004 the Moscow City Court endorsed, in a summary fashion, the findings of the District Court. C. Conditions of the applicant’s detention and transport 1. Detention at remand centre no. IZ-99/1 53.", "From 27 August 1999 until his release on 12 July 2002 the applicant was held in special-purpose remand centre no. IZ-99/1 (formerly no. IZ-48/4, commonly known as “Matrosskaya Tishina”). 54. The applicant was held in ten different cells that measured either fourteen sq.", "m and had six sleeping places, or thirty-two sq. m and contained ten bunks. The design capacity of the cells was not exceeded. 55. The window frames were bricked in with semi-transparent glass cubes.", "In addition, there was a layer of thick bars with so-called “eyelashes”, that is, slanted plates, approximately two cm apart, welded to a metal screen. This construction gave no access to natural air or light. The Government submitted that the “eyelashes” had been removed on 25 November 2002. The applicant indicated that between February 2000 and summer 2002 private fans had been prohibited in the cells, but that ventilation was on during the day. 56.", "The lavatory pan was placed in the corner of the cell. The Government produced a photo of the pan showing that it was separated from the living area by an eighty-five-centimetre-high tiled brick partition and shower curtains above it. The applicant responded that the partition and curtains had apparently been a recent development; during the period of his detention there had been no tiles and the hanging of curtains of any kind had been prohibited. Furthermore, until 22 August 2001 the walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them. 57.", "Open-air exercise was permitted for one hour a day and a shower could be taken for twenty minutes once a week. 58. The cells were constantly lit with fluorescent lighting. The applicant claimed that insufficient lighting had impaired his eyesight, which had fallen by 2.5 dioptres. On 21 June 2001 he asked to see an ophthalmologist and repeated his request no fewer than seven times between 30 July 2001 and 20 June 2002.", "The Government explained that no consultation had been arranged because the medical unit of the remand centre had no resident ophthalmologist and because the applicant had often been absent for court hearings. The applicant responded that the hearings had not started until 28 January 2002, that is, more than seven months after he had asked for consultation. 59. Finally, the applicant submitted that he had been the only non-smoker in his cells and had suffered from passive smoking. The Government indicated that the separation of non-smokers from smokers had been materially impossible.", "60. In support of his submissions the applicant produced affidavits by his former cellmates, Mr I., Mr Ku. and Mr Ko. 2. Conditions of transport 61.", "The applicant was transported from the remand centre to the courthouse and back more than 120 times. Transport was arranged by officers of the Convoy Regiment of the Moscow Police Department (конвойный полк ГУВД г. Москвы). 62. The prison vans (Gaz-3307 and Gaz-3309) in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle.", "The cubicles were equipped with benches. On 7 February 2001, in response to the applicant’s complaints, the officer-in-command of the Convoy Regiment ordered that he be transported in a separate van. The applicant specified that a separate van had been made available to him only thirteen times. 63. The Government submitted that the prison-van heaters and interior lights had been powered by the van engine.", "The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. The Government asserted that the applicant had received breakfast and dinner at the remand prison and that he had been allowed to bring his own food to court. It follows from the certificate issued by the head of remand centre no. IZ-99/1 that dry rations had been given to detainees from 2003 onwards. 64.", "In their post-admissibility submissions the Government enclosed two reports prepared by the officer-in-command of the Convoy Regiment on 28 March and 3 April 2006. According to these reports, the design capacity of prison vans had never been exceeded in 2001-2003 and the travel time from remand centre no. 99/1 to the Golovinskiy District Court had been in the range of two to three hours, depending on traffic. 65. The applicant denied that the van had been heated or sufficiently ventilated.", "He indicated that the travel time between the remand centre and the court had been excessively long, and sometimes as long as three or four hours. During the entire journey he had been kept in the locked van without food or drink or access to a toilet. 66. The applicant produced a detailed table which listed the time he had spent before departure in the “waiting cubicle” at the remand centre, the time on the way to the courthouse and the time on the way back. The table covered the period from 25 December 2001 to 22 March 2002, in which he had been transported on twenty days.", "Of those twenty times, on six occasions the aggregate travel time on a given day had ranged from five to seven hours and on a further eleven occasions it had been longer than seven hours, with a maximum of 10.5 hours on 25 December 2001. The table also indicated that on four days the design capacity of the prison van had been exceeded by at least ten additional persons. 67. Between 20 February 2001 and 17 June 2002 the applicant sent nine complaints about the “torturous” conditions of transport to many officials, including the director of the remand centre, the Prosecutor General and the officer-in-command of the Convoy Regiment. According to the Government, the officer-in-command of the Convoy Regiment had acknowledged that there had been “some irregularities” in the transport of detainees and ordered that the applicant be transported by a separate van.", "A copy of that report was not made available to the Court. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions governing detention matters 68. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).", "At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”). 69. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. 70.", "After his or her arrest the suspect was placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction. 71. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that date a defendant’s detention was “before the court” (or “pending trial”).", "Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted, which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file. B. Provisions governing family visits and correspondence 72. The Custody Act (Federal Law on the Detention of Suspects and Defendants, no.", "103-FZ of 15 July 1995) provides as follows: Section 17. Rights of suspects and defendants “Suspects and defendants have the right: ... (5) to meet with relatives and other persons listed in section 18; (6) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests... ... (8) to maintain correspondence and to use writing utensils; ... (18) to enter into civil transactions.” Section 18. Meetings with counsel, relatives and other persons “Upon written consent of the official or authority in charge of the criminal case, a suspect or defendant may have up to two meetings per month with relatives and other persons, each visit to last for up to three hours...” Section 20. Correspondence “Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams... Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship.", "Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case. Letters that contain information which may obstruct the establishment of the truth in a criminal case or facilitate the commission of a crime, are drafted with use of cryptography or cipher, or contain State or other secrets protected by law, may not be sent to the addressee or returned to the suspect or defendant. Instead, they are remitted to the official or authority in charge of the criminal case...” 73. The Internal Rules for Remand Centres of the Ministry of the Interior (order no. 486 of 20 December 1995, in force until 12 May 2000) provided as follows: “8.1 Suspects and defendants may send and receive any number of letters or telegrams.", "8.2 Letters and telegrams are sent and received through the administration of the remand centre. Correspondence by suspects and defendants is subject to censorship. 8.9 Letters and telegrams addressed to victims or witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the official or authority in charge of the criminal case. 12.11 A suspect or defendant may draft a power of attorney authorising another person to carry out a civil transaction. The power of attorney must be drafted in an established form and certified by the head of the remand centre in accordance with Article 185 § 3 of the Civil Code.", "The administration of the remand centre must supply a blank power of attorney to a suspect or defendant, at his or her request and at his or her own expense, and, if necessary, explain the procedure for filling it out. The power of attorney is passed or sent to the person whose is named therein, through the official or authority in charge of the criminal case. 16.1 A suspect or defendant may be allowed a family visit on the basis of a written consent issued by the official or authority in charge of the criminal case. The consent is valid for one visit only.” 74. The Internal Rules for Remand Centres of the Ministry of Justice (order no.", "148 of 12 May 2000) provided as follows: “84. Letters... are received and dispatched through the administration of the remand centre. Correspondence of detainees is subject to censorship. 91. Letters and telegrams addressed to suspects and defendants who are at large, victims, witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the authority in charge of the criminal case. 92.", "All correspondence by the detainees shall be recorded in a special register in which the dates of receipt and dispatch are noted... 122. By consent of the official or authority who is in charge of the criminal case, a suspect or defendant may issue a power of attorney to his or her representative for conducting a civil transaction. The power of attorney must be certified by the head of the remand centre, in accordance with Article 185 § 3 of the Civil Code.” C. Case-law of the Constitutional Court 75. On 23 March 1999 the Constitutional Court issued Ruling no. 5-P on the constitutional compatibility of those provisions of the RSFSR Code of Criminal Procedure which restricted the possibility of lodging appeals against an investigator’s decisions to certain procedural actions.", "The Court considered that the constitutional right to judicial protection against actions or decisions impairing citizens’ rights and freedoms could not be restricted and that the interested party should therefore have the right to lodge a complaint with a court. It held that all decisions by the investigative authorities affecting constitutional rights and freedoms should be amenable to judicial review, provided that examination of their lawfulness and justification would not prejudge the merits of the criminal case. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION IN RELATION TO THE CONDITIONS OF THE APPLICANT’S DETENTION 76. The applicant complained under Article 3 of the Convention that the conditions of his detention in the Matrosskaya Tishina remand centre (no.", "99/1) had been inhuman and degrading. Relying on Article 13 of the Convention, he claimed that no domestic remedy had been available to him in order to obtain an improvement in the conditions of detention. The relevant Articles provide: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions by the parties 77. The applicant contested the Government’s description of the conditions of detention as factually untrue and maintained his account of the conditions. He claimed that he had sent many complaints about various aspects of the conditions of detention to supervising prosecutors and to the administration of the remand centre.", "He alleged that he had handed over several complaints to a supervising prosecutor who had inspected the cells. Even assuming that the domestic law provided for a judicial review of the conditions of detention, in practice the courts refused to examine such complaints, in the same way as they had refused to examine his complaints about restrictions on family visits and correspondence. 78. The Government submitted that the conditions of the applicant’s detention had been generally compatible with Article 3. The applicant had sent more than one hundred complaints to various authorities but had never asked for an improvement in his conditions of detention.", "He had not complained about the conditions of detention to either the supervising prosecutors or to the director of remand centre no. 99/1, or to the Preobrazhenskiy District Court of Moscow, which had had territorial jurisdiction over the remand centre. The Government therefore inferred that the applicant had had effective remedies at his disposal. B. The Court’s assessment 1.", "Article 3 of the Convention 79. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Although measures depriving a person of his liberty may often involve such an element, in accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 80. The applicant spent two years and almost eleven months in a Moscow remand prison.", "Although there was no allegation of overcrowding beyond the design capacity or of a shortage of sleeping places (see, by contrast, Grishin v. Russia, no. 30983/02, § 89, 15 November 2007, and Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002‑VI), the conditions in the prison were nevertheless extremely cramped. The applicant was alternately held in thirty-square-metre cells housing ten inmates and smaller fifteen-square-metre cells accommodating six detainees. It follows that the living area per inmate varied from 2.5 to 3 sq.", "m. 81. The Court reiterates that in certain cases the lack of personal space afforded to detainees in Russian remand prisons was so extreme as to justify, in its own right, a finding of a violation of Article 3 of the Convention. In those cases applicants usually disposed of less than three sq. m of personal space (see, for example, Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no.", "205/02, §§ 47-49, 29 March 2007; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. Russia, no. 62208/00, § 44, 16 June 2005). By contrast, in other cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court noted other aspects of physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the possibility of using the toilet in private, availability of ventilation, access to natural light or air, adequacy of heating arrangements, and compliance with basic sanitary requirements.", "Thus, even in cases where a larger prison cell was at issue – measuring in the range of three to four sq. m per inmate – the Court found a violation of Article 3 since the space factor was coupled with the established lack of ventilation and lighting (see, for example, Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Trepashkin v. Russia, no. 36898/03, § 94, 19 July 2007, and Peers v. Greece, no. 28524/95, §§ 70-72, ECHR 2001‑III).", "82. The cells in which the applicant was held had no window in the proper sense of this word. Instead, a part of one wall where – according to the original design – a window should have been, was bricked in with semi-transparent glass cubes. This arrangement cut off any fresh air and also significantly reduced the amount of daylight that could penetrate into the cell. Moreover, densely spaced metal shutters fixed to the external wall barred access to daylight to a still greater extent.", "The Government confirmed that this contraption had been removed only in November 2002, that is, several months after the applicant’s release from the remand centre. 83. The possibility for outdoor exercise was limited to one hour a day. Moreover, on days of court hearings, the applicant forfeited the opportunity to go outdoors. It appears that cells were ventilated but inmates were formally prohibited from owning or operating portable fans.", "It follows that for almost three years the applicant had to spend a considerable part of each day practically confined to his bed in a cell with poor ventilation and no window (compare Peers, cited above, § 75). 84. Having regard to the cumulative effect of those factors, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in poorly lit and ventilated cells with many other inmates for almost three years must have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. It follows that the conditions of his detention amounted to inhuman and degrading treatment. 85.", "There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Matrosskaya Tishina remand centre (no. 99/1). 2. Article 13 of the Convention 86. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of 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 (see, among many other authorities, the judgment in Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). 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. 87.", "Turning to the facts of the present case, the Court notes that the Government put special emphasis on the fact that the applicant had not asked any domestic official for an improvement in the conditions of his detention. The applicant denied this, and insisted that he had handed over several complaints to the supervising prosecutor. The Court does not need to resolve this controversy. It recalls that it has already found a violation of Article 13 on account of the absence of an effective remedy in respect of inhuman and degrading conditions of detention, concluding (see Benediktov v. Russia, no. 106/02, § 29, 10 May 2007): “[T]he Government did not demonstrate what redress could have been afforded to the applicant by a prosecutor, a court or other State agencies, taking into account that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not only concern the applicant’s personal situation (compare Moiseyev v. Russia (dec.), no.", "62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The Government have failed to submit evidence as to the existence of any domestic remedy by which the applicant could have complained about the general conditions of his detention, in particular with regard to the structural problem of overcrowding in Russian detention facilities, or that the remedies available to him were effective, that is to say that they could have prevented violations from occurring or continuing, or that they could have afforded the applicant appropriate redress (see, to the same effect, Melnik v. Ukraine, no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine, no.", "72277/01, § 72, 12 October 2006; and Ostrovar v. Moldova, no. 35207/03, § 112, 13 September 2005).” 88. These findings apply a fortiori to the present case, in which the Government did not point to any domestic remedy by which the applicant could have obtained redress for the inhuman and degrading conditions of his detention or put forward any argument as to its efficiency. 89. There has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant to complain about the general conditions of his detention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE CONDITIONS OF THE APPLICANT’S TRANSPORT A. Submissions by the parties 90. The applicant complained under Article 3 of the Convention that the conditions of transport between the remand centre and the courthouse had been inhuman and degrading. The vans had been cramped, unheated and inappropriate for the transport of detainees. He had been denied food, drink and access to a toilet for up to eight consecutive hours.", "In his view, such treatment amounted to torture. 91. The Government submitted that prison vans had been heated and ventilated. Following his complaint, the applicant had been transported in a separate van. He had been given food at the remand centre and could take his own food with him.", "B. The Court’s assessment 92. The Court points out that it has found a violation of Article 3 in a case where an applicant was transported together with one other detainee in a single-occupancy cubicle which measured one square metre. Although the travel time did not exceed one hour, the Court considered such transport arrangements impermissible, irrespective of the duration. It also noted that the applicant in question had had to endure these cramped conditions twice a day on the two hundred days on which court hearings were held (see Khudoyorov v. Russia, no.", "6847/02, §§ 118-120, ECHR 2005‑... (extracts)). 93. On the facts, the Court observes that, save for thirteen times when the applicant was transported in a special van, he was brought to the court hearings in standard-issue prison vans on more than one hundred days. The passenger cabins of those vans were designed for the transportation of twenty-five detainees on a floor space measuring less than nine square metres, which left an area of approximately fifty by fifty centimetres for each detainee. The height of the cabin (1.6 m) was not sufficient for a man of normal stature to enter or stand up without hunching, which required the detainees to remain in a seated position at all times while inside the van.", "In addition to the already cramped conditions, it appears from the table compiled by the applicant that the van was occasionally occupied by a total number of detainees exceeding the design capacity (see paragraph 66 above). In their post-admissibility submission the Government relied on a report prepared in 2006 which purported to certify that the design capacity of prison vans had not been exceeded in 2001 or 2002 (see paragraph 64 above). This report is of little evidential value for the Court because it does not refer to any sources of information, such as registers of detainees or other records, on the basis of which it was compiled and by which that assertion could be verified. Moreover, other domestic documents which are less remote in time from the period under consideration than the report drafted in 2006 convince the Court otherwise. Thus, it appears that overcrowding of prison vans transporting prisoners in Moscow in 2002 was one of the problems reported by the authority in charge of remand centres as a result of an inquiry carried out in 2003 (see the letter of 26 November 2003 from the head of the Moscow Directorate for the Execution of Punishments, cited in Starokadomskiy v. Russia (dec.), no.", "42239/02, 12 January 2006). 94. Furthermore, the Court is not satisfied that prison vans, as described by the parties, were sufficiently lit, ventilated and heated. The Government indicated that the heating and lighting systems were only operational when the engine was running. Given that there were no windows or other openings giving access to natural light, the detainees remained in darkness – and, occasionally, in the cold – once the engine was stopped.", "Natural ventilation through the emergency hatches was obviously inadequate on hot days, given the cramped conditions inside the van. 95. The Court observes that the applicant remained in these conditions for extended periods of time on each journey. The Government acknowledged that the travel time each way had been as long as two or three hours. According to the table the applicant produced, the aggregate travel time on any given day had been in the range of five to eight hours.", "Whereas it is impossible to establish with absolute certainty the duration of a journey on every occasion, what is important for the Court’s assessment is that the time spent by the applicant in the van was far from negligible and lasted on average six hours per day. 96. It further appears that the applicant did not receive sufficient and wholesome food on the days when he was transported to the court. It follows from the Government’s own submissions that distribution of dry rations had only begun in 2003, that is, after the applicant’s release (see paragraph 63 above). Permission to take one’s own food cannot substitute for appropriate catering arrangements, because it is primarily the State that is responsible for the well-being of persons deprived of their liberty.", "Besides, the Court is not convinced by the Government’s assertion that the applicant could eat breakfast and dinner at the remand centre on such days. It follows from the table compiled by the applicant that he had been often taken to the “waiting cubicle” before breakfast time and that he had returned to the remand centre too late for dinner. The belated return to remand centres is confirmed in the above-mentioned letter of 26 November 2003. 97. The Court reiterates that the assessment of the minimum level of severity which a given form of treatment must attain if it is to fall within the scope of Article 3 depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no.", "25, p. 65, § 162, and Kudła, cited above, § 91). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92). 98. In the present case the applicant was transported more than one hundred times in standard-issue prison vans which were sometimes filled beyond their design capacity.", "Given that he had to stay inside that confined space for several hours, these cramped conditions must have caused him intense physical suffering. His suffering must have been further aggravated by the absence of adequate ventilation and lighting, and unreliable heating. The Court also notes with concern the inappropriate catering arrangements. Having regard to the cumulative effect which these conditions of transport must have had on the applicant, the Court finds that the conditions of transport from the remand centre to the courthouse and back amounted to “inhuman” treatment within the meaning of Article 3 of the Convention. It is also relevant to the Court’s assessment that the applicant was subjected to such treatment during his trial or at the hearings with regard to applications for an extension of his detention, that is, when he most needed his powers of concentration and mental alertness (compare Khudoyorov, cited above, § 120).", "99. There has therefore been a violation of Article 3 of the Convention on account of the conditions in which the applicant was transported. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 100. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and not founded on sufficient grounds.", "Article 5 § 3 provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Submissions by the parties 101. The applicant submitted that the judicial review of his petitions for release had been limited to formal aspects. The domestic courts had not examined any concrete facts arguing for or against the necessity of depriving him of his liberty. The decisions of the Preobrazhenskiy District Court and Moscow City Court had not established any specific requirements of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty.", "102. The Government submitted that the placement of the applicant in custody had been lawful and justified, that his detention had been extended in strict compliance with the domestic law and that he had been able to obtain a judicial review of all detention orders. They pointed out that the applicant had committed the crime in conspiracy with other individuals who had not been identified by the investigative authorities by the time the cases against the applicant were severed. In their submission, that fact had buttressed the domestic courts’ findings that the applicant – if released – would be able to abscond, influence witnesses or obstruct justice. B.", "The Court’s assessment 103. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30, and Kudła, cited above, § 110).", "104. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see, for instance, Castravet v. Moldova, no. 23393/05, § 30, 13 March 2007; McKay v. the United Kingdom [GC], no.", "543/03, § 41, ECHR 2006‑...; Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, § 4). 105. The applicant was held in custody from 18 August 1999 to 12 July 2002 when he was released on bail.", "Such a length of pre-trial detention – over two years and ten months – is a matter of concern for the Court. It observes that at no point in the proceedings did the domestic authorities consider whether the length of his detention had already lasted beyond a “reasonable time”. The fact that the maximum time-limits permitted by the domestic law were not exceeded may not be a decisive element in the Court’s assessment. As the Court has previously found in other Russian cases, the calculation of the domestic time-limits depended solely on the gravity of the charges, which was decided upon by the prosecution and was not subject to judicial review (see Shcheglyuk v. Russia, no. 7649/02, § 43, 14 December 2006, and Khudoyorov, cited above, § 180).", "106. The Court observes that Russian criminal procedure law, as it was worded before the legislative amendments of 14 March 2001, allowed the suspect to be held in detention on the sole ground of the dangerous nature of the crime he was charged with (see paragraph 69 above). Acting in accordance with these provisions, the domestic courts extended the applicant’s detention and rejected his petitions for release, relying mainly on the gravity of the charges against him (see, in particular, the decisions of 31 January, 16 February and 16 April 2001). They also occasionally mentioned other grounds, such as the applicant’s “character” (see the decisions of 16 December 1999 and 26 September 2000) or the risk of interference with justice (see the decision of 15 March 2002). The decisions did not refer to any factual basis for these findings.", "107. According to the Court’s constant case-law, although the severity of the sentence faced by the applicant is a relevant element in the assessment of the risk of absconding, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; and Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51).", "This is particularly relevant in the Russian legal system, where the characterisation in law of the facts – and thus the sentence faced by the applicant – is determined by the prosecution without judicial review of whether the evidence that has so far been obtained supports a reasonable suspicion that the applicant has committed the alleged offence (see Khudoyorov, loc. cit.). 108. As regards the grounds for detention other than the gravity of the charges, the Court observes that the domestic courts did not provide details of what they understood by the applicant’s “character” or why it was necessary for him to remain in custody. Nor did they mention any specific facts supporting their finding that there existed a risk of interference with justice.", "On the other hand, it is a matter of serious concern for the Court that the courts gave no heed to the applicant’s arguments that he had a permanent place of residence in Moscow and that a Member of Parliament and a prominent scientist had offered personal guarantees of his appearance, or other relevant facts which mitigated the risk of his absconding. The domestic courts insisted that it was incumbent on the applicant to prove that there existed sufficient grounds for him to be released (see the Supreme Court’s decisions of 11 April and 23 May 2001). 109. The Court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, warrants a departure from the rule of respect for individual liberty. Any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Rokhlina v. Russia, no.", "54071/00, § 67, 7 April 2005). Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is permissible only in exhaustively enumerated and strictly defined cases (see Ilijkov, cited above, §§ 84-85, with further references). 110. The Court finds that by failing to address concrete relevant facts and by relying mainly on the gravity of the charges, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. The authorities thus failed to justify the applicant’s continued detention pending trial (see Rokhlina, cited above, § 69).", "111. There has therefore been a violation of Article 5 § 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF AN EXCESSIVE LENGTH OF CRIMINAL PROCEEDINGS 112. The applicant complained under Article 6 § 1 about the excessive length of the criminal proceedings against him.", "The relevant part of Article 6 § 1 provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Submissions by the parties 113. The applicant contended that the domestic authorities had not shown due diligence in the conduct of the proceedings. On account of the poor quality of the investigation, the District Court had been unable to begin trial and had returned the case for further investigation on two occasions, namely on 6 August 2001 and 1 April 2002. The applicant had been the only defendant and the case had not been particularly complex. In case no.", "144129, no investigative steps had been taken since 18 February 2001, when the investigator had stayed the proceedings. Even assuming that some delays had been attributable to his counsel, the Government did not furnish a convincing explanation for the other delays. 114. The Government considered that the length of proceedings in both criminal cases (no. 144129 and no.", "9307) was compatible with the “reasonable-time” requirement. They laid particular emphasis on the fact that from 5 January to 23 July 2001 delays had been due to the conduct of the applicant’s counsel, who had deliberately lingered over the case materials. They also indicated that on 6 August 2001 and 1 April 2002 the District Court had remitted the case for additional investigation following a request by counsel. In any event, those decisions had been subsequently quashed by the City Court. The Government maintained that case no.", "9307 had been a complex and voluminous one, contained in fifty-five binders, and counsel for the applicant had greatly contributed to the delays in its examination. B. The Court’s assessment 115. The Court reiterates that the reasonableness of the length of the 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 (see, among many other authorities, Nakhmanovich v. Russia, no. 55669/00, § 95, 2 March 2006).", "116. The Court takes the date of the applicant’s arrest on 18 August 1999 as the starting point of the criminal proceedings. The case against him was subsequently split into two. In case no. 9307 the final judgment was given on 29 November 2003, that is, four years and three months later.", "According to the most recent information supplied by the parties, the investigation in case no. 144129 was resumed on 26 February 2002 and has been pending since. 117. As regards case no. 9307, the Court notes that it involved a number of counts of smuggling and for that reason presented a certain complexity.", "However, the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002‑VI). The Court is not convinced by the Government’s claim that the delays were primarily caused by the applicant’s lawyers. It notes that the applicant studied the case-file from 12 January to 13 July 2001, that is for six months, which does not appear excessive given the volume of the case-file.", "On the other hand, the proceedings were delayed owing to the conduct of the domestic authorities. After the case had been submitted for trial in July 2001, the trial would not be able to begin for almost one year because of the domestic courts’ disagreement on the existence of defects in the investigation documents and the need for further investigative actions. Having regard to the above circumstances, the Court considers that the length of the proceedings in case no. 9307 exceeded a “reasonable time” (compare Korshunov v. Russia, no. 38971/06, § 73, 25 October 2007).", "118. Furthermore, the Court notes that the global length of proceedings in case no. 144129 has already exceeded eight years to date. The Government did not furnish any explanation for such an inordinate duration. The Court finds that in that case the “reasonable time” requirement has also been breached.", "119. There has therefore been a violation of Article 6 § 1 on account of an excessive length of proceedings in both criminal cases against the applicant. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF RESTRICTIONS ON FAMILY VISITS 120. The applicant complained under Article 8 of the Convention about excessive restrictions on family visits during his pre-trial detention. Article 8 provides: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions by the parties 121. The applicant submitted that an absolute ban on family visits during seventeen months of pre-trial detention had been in breach of the domestic law which provided for the detainee’s right to two family visits a month (section 18 of the Custody Act). He had had access to all the relevant materials long before the beginning of the investigation in 1999 and he had been granted access to the case-file on 15 January 2001; thus, he had not been able to communicate any secret information to his wife in the intervening period.", "He had been tried and convicted alone, which excluded the possibility of collusion with “other unidentified persons”, to which the Government alluded. 122. The Government submitted that, by virtue of sections 17 and 18 of the Custody Act, the investigator had the power, rather than an obligation, to authorise up to two family visits per month, provided that such visits would not be contrary to the interests of the investigation. In refusing visits by the applicant’s relatives, the investigator had been guided by the necessity to prevent disclosure of the secret of the investigation. It had been taken into account that the applicant would have been able to pass information, through his relatives, to his unidentified accomplices at liberty and that the applicant’s wife had been involved in his business activities.", "The Government claimed that in 1999 the applicant had been permitted – on “humanitarian grounds” – to talk to his wife in the presence of the investigator and escort policemen. However, he had used these meetings to communicate further information about the case. In 2001 and 2002 the applicant had been granted twenty-six family visits. The Government emphasised that the applicant’s daughter had used only one of the three authorisations that had been issued; she had refused to return to the remand centre after visiting her father once. B.", "The Court’s assessment 123. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a detainee’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family. Such restrictions as limitations imposed on the number of family visits, supervision over those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision. Nevertheless, any restriction of that kind must be applied “in accordance with the law”, must pursue one or more legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society” (see, among other authorities, Estrikh v. Latvia, no.", "73819/01, § 166, 18 January 2007; Kučera v. Slovakia, no. 48666/99, § 127, ECHR 2007‑... (extracts); and Klamecki v. Poland (no. 2), no. 31583/96, § 144, 3 April 2003). 124.", "The Court observes that from the moment of the applicant’s arrest in August 1999 and until mid-January 2001 all requests for family visits were refused by the investigator. The Government’s claim that in 1999 he had been allowed to meet his wife in the presence of police officers was not supported by any evidence. The Court finds that the seventeen-month-long ban on family visits amounted to an interference with the applicant’s right to respect for his family life. 125. The Court must first examine whether the interference was “in accordance with the law”.", "The interference was based on section 18 of the Custody Act and the Internal Rules for Remand Centres which provided for investigator’s discretion to authorise up to two family visits per month (see paragraphs 72 and 73 above). The Court is therefore satisfied that the refusal of family visits had a basis in domestic law. It reiterates, however, that the expression “in accordance with the law” does not merely require that the impugned measure should have a basis in domestic law but also refers to the quality of the law in question. The law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures. In addition, domestic law must afford a measure of legal protection against arbitrary interference by public authorities with the rights guaranteed by the Convention.", "In matters affecting fundamental rights it would be contrary to the rule of law for legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, in order to give the individual adequate protection against arbitrary interference (see, for instance, Lupsa v. Romania, no. 10337/04, §§ 32 and 34, ECHR 2006-...., and Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002). 126.", "The Court notes that both the Custody Act and the Internal Rules for Remand Centres were accessible to detainees. However, they fell short of the requirement of foreseeability because they conferred unfettered discretion on the investigator in this matter but did not define the circumstances in which a family visit could be refused. The impugned provisions went no further than mentioning the possibility of refusing family visits, without saying anything about the length of the measure or the reasons that may warrant its application. No mention was made of the possibility of challenging the refusal to issue an authorisation or whether a court was competent to rule on such a challenge (see also the Court’s findings below under Article 13 of the Convention). It follows that the provisions of Russian law governing family visits did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that the applicant did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (compare Ostrovar v. Moldova, no.", "35207/03, § 100, 13 September 2005, and Calogero Diana v. Italy, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V, §§ 32-33). In view of the above, the Court considers that the interference at issue cannot be regarded as having been “prescribed by law”. In the light of this finding, it is not necessary to assess whether the other conditions set out in paragraph 2 of Article 8 have been complied with. 127. There has therefore been a violation of Article 8 on account of the restriction on the applicant’s right to family visits.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF RESTRICTIONS ON CORRESPONDENCE AND EXCHANGE OF DOCUMENTS A. Submissions by the parties 128. The applicant complained under Article 8 of the Convention, cited above, about restrictions on his correspondence and exchange of documents with his counsel. Relying on copies of three of the intercepted letters addressed to his mother, he maintained that they had not contained any subversive information or insults, contrary to the Government’s assertion. Had such information been present, under domestic law the letters would not have been returned to him.", "Censorship of his correspondence with the courts had been proven by the refusal of the director of the remand centre to post his complaint on the ground that it would have no prospect of success. Restrictions on the exchange of documents, including commercial documents and forms of authority, had had no basis in the domestic law. 129. The Government submitted that the domestic law (sections 17 and 20 of the Custody Act, and paragraph 84 of the Internal Rules for Remand Centres) provided for censorship of correspondence between the detainee and his family. Only five of the applicant’s letters had not been posted because they had contained either information about the criminal case that could obstruct the establishment of the truth, or insulting statements about law-enforcement authorities.", "Correspondence with the prosecutor’s offices, judicial bodies and other official authorities had not been subject to censorship. Such letters had been posted without delay. B. The Court’s assessment 130. The Court observes that the applicant was prohibited from posting (a) a complaint to the Basmanny District Court; (b) five letters to his mother and wife; (c) two forms of authority to his lawyer; and from receiving (d) the documents relating to the customs proceedings, and (e) a law book.", "In the Court’s view, these restrictions amounted to an interference with the exercise of the applicant’s right to respect for his correspondence. 131. 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, judgment of 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34, and Niedbała v. Poland, no.", "27915/95, § 78, 4 July 2000). 132. The Court will examine in turn whether each instance of the interference in issue was in accordance with paragraph 2 of Article 8. 1. Refusal to post a complaint to a court 133.", "On 21 December 1999 the head of the correspondence unit of the remand centre refused to post the applicant’s complaint to a court on the ground that it had “no prospects of success” (see paragraph 35 above). It does not appear that his power to assess the prospects of success of a complaint addressed to a court derived from any provision of the domestic law. The Government did not indicate any legal basis for the interference. 134. Accordingly, the Court finds that the interception of the applicant’s complaint to the Basmanny District Court did not have a basis in law.", "It also reiterates in this connection that correspondence may not be stopped for raising complaints about prison matters or delayed until such complaints have first been examined by the prison administration (see Puzinas v. Lithuania (no. 2), no. 63767/00, § 33, 9 January 2007). In the light of the above, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. 2.", "Refusal to post letters to the applicant’s wife and mother 135. In February 2000 the investigator refused to post five of the applicant’s letters to his wife and mother, written in January 2000. In doing so, the investigator merely referred to section 20 § 2 of the Custody Act, without giving further details (see paragraph 37 above). When examining the applicant’s complaint about that decision, in 2004 the domestic courts determined that the letters had contained either confidential information on the pending criminal proceedings or expressed contempt for the law-enforcement authorities. The courts did not refer to any specific phrases or statements in the letters.", "136. The Court is satisfied that the interference was “prescribed by law”. Section 20 of the Custody Act, read together with paragraph 8.9 of the Internal Rules for Remand Prisons (in force at the material time), provided for censorship of detainees’ correspondence with their families and permitted interception of letters containing information on a criminal case or insulting language (see paragraph 73 above). 137. The Court also accepts that the interference pursued legitimate aims, namely “the prevention of disorder or crime” and “the protection of morals”.", "138. Nevertheless, the Court is unable to find that the interference was “necessary in a democratic society”, notably because there was no supporting evidence to that effect. At no point in the domestic or Strasbourg proceedings did the Russian authorities identify any fragments or elements in the applicant’s letters that had contained information on the criminal case or offensive language. If such statements were indeed present in the letters, it was incumbent on the domestic authorities to include at least a reference to them in the grounds for refusal. The Court, for its part, does not discern any such information in the three letters produced by the applicant.", "Furthermore, on a more general level, the Court reiterates that it has already determined that a prohibition on private correspondence “calculated to hold the authorities up to contempt” or employing “improper language against prison authorities” was not “necessary in a democratic society” (see Ekinci and Akalın v. Turkey, no. 77097/01, § 47, 30 January 2007, and Silver and Others, cited above, §§ 91 (c) and 99 (c)). 139. In the light of the above, the Court finds that the interception of the applicant’s letters to his family was not “necessary in a democratic society”. 3.", "Interception of the forms of authority 140. In March 2000 the applicant issued documents authorising his counsel to carry out certain actions on his behalf. These documents were stopped by the investigators on the ground that their scope extended beyond the authority to carry out civil transactions (see paragraph 39 above). In refusing to transmit these documents to the applicant’s lawyers, the investigators referred to section 17 of the Custody Act and paragraph 12.11 of the Internal Rules for Remand Centres. The domestic courts which examined the applicant’s complaint also mentioned these rules, without specifying the relevant parts.", "141. The Court is unable to read the prohibition on delegation of authority extending beyond civil transactions into the text of either section 17 of the Custody Act or paragraph 12.11 of the Internal Rules. The interpretation given by the Ministry of the Interior and later endorsed by the District Court and the Government in the Strasbourg proceedings is obviously at variance with the ordinary meaning of these provisions. Whereas section 17 § 18 of the Custody Act explicitly provided for a prisoner’s right to enter into civil transactions, paragraph 12.11 of the Internal Rules contained a more detailed regulation of the procedure for issuing a form of authority. In addition, the latter provision required the prison administration to supply a blank form and explain the procedure for filling it in.", "No element in these provisions can be reasonably interpreted as prohibiting the prisoner from authorising his representative to perform any actions on his behalf other than civil transactions. 142. It follows that the prohibition on the passing of the authority forms was arbitrary and not “prescribed by law”. The Court also reiterates that correspondence with lawyers, whatever its purpose, is privileged under Article 8 and that the reading of a prisoner’s mail to and from a lawyer, still less its interception, is only permissible in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused, in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature (see Campbell, cited above, § 48). In the light of the above, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with.", "4. Appending of customs documents to the case file 143. In August 2000, counsel for the applicant attempted to send certain customs documents to him. The investigator refused to pass those to the applicant and appended them to the criminal case file (see paragraph 40 above). The domestic courts held that the documents had been treated as exhibits because counsel had mentioned that they had been relevant to the criminal case.", "144. The Court observes that, as a result of the decision by the investigator to join the customs documents to the case file, the applicant could only have access to them after a delay of several months, in January 2001, when he was allowed to study the case-file. The Court, however, is prevented from analysing the reasons for which the investigator decided that the documents at issue had evidential value, because no text of his decision is available in the case-file. In fact, it does not appear that an appropriate procedural decision was ever issued; no copy is available in the case file and the domestic courts ruled on the applicant’s complaint without mentioning the date of that decision. 145.", "In these circumstances, the Court cannot find that the interception of the customs documents was “prescribed by law”. This finding makes it unnecessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with. 5. Refusal of a law book 146. In May 2001, the director of the remand centre allowed counsel to pass to the applicant a copy of a judicial complaint but not a law book (see paragraph 42 above).", "147. The Court notes that the decision to refuse the law book did not refer to any legal provision, whereas section 17 § 6 of the Custody Act explicitly provided for a prisoner’s right to have material for the defence of his rights and lawful interests. It follows that the prohibition on the passing of the law book was arbitrary and not “prescribed by law”. Accordingly, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. C. Conclusion 148.", "In sum, the Court has found above that the impugned measures affecting the applicant’s correspondence and exchange of documents were not “prescribed by law” or “necessary in a democratic society”. There has therefore been a violation of Article 8 of the Convention on account of those restrictions. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 8 A. Submissions by the parties 149. The applicant complained under Article 13 of the Convention, read in conjunction with Article 8, that the domestic courts had refused to examine his complaints concerning restrictions on family visits and correspondence.", "He pointed out that on 21 December 2001 the Constitutional Court had confirmed its established case-law that all decisions by an investigator should be amendable to judicial review. The crux of the problem had not been the theoretical availability of remedies in the domestic law but rather the arbitrary application of the law by lower courts. As a consequence, he had been denied an effective domestic remedy in respect of his complaint concerning restrictions on correspondence and family visits. 150. The Government acknowledged that on 10 July 2001 the applicant’s complaint had been disallowed as not amenable to judicial review.", "After the Constitutional Court determined, on 21 December 2001, that these matters must be subject to judicial review, the applicant’s complaints had been re-examined by the Presnenskiy District Court and the Moscow City Court in 2004. B. The Court’s assessment 151. The Court observes that the possibility of contesting the investigator’s decisions affecting a detainee’s constitutional rights has existed at least since March 1999, when the Constitutional Court declared incompatible with the Constitution the criminal-law provisions which restricted the scope of judicial review (see paragraph 75 above). That jurisprudence notwithstanding, in 2001, first the Presnenskiy District Court by an inadmissibility decision and subsequently the Basmanny District Court by a non-procedural letter refused to examine the applicant’s complaints concerning restrictions on his right to respect for his family life and correspondence.", "The Presnenskiy District Court’s decisions were upheld on appeal by the Moscow City Court. 152. After the Constitutional Court – on an application by the applicant – explicitly stated that his complaints should be amenable to judicial review, the domestic authorities remained passive for almost three years and took no steps to re-examine the applicant’s complaints. In fact, such a review was only carried out two years after the applicant’s release in July 2002 and more than six months after his conviction had become final in November 2003. The Government did not furnish any explanation for that inordinate delay.", "153. The Court reiterates that, to satisfy the requirements of Article 13, a remedy must be effective and accessible both in theory and in practice. In the present case the applicant’s access to judicial review was initially barred by the Moscow courts’ reluctance to comply with the case-law of the Constitutional Court. Although his complaints were ultimately examined, this occurred only four years later, when the applicant was already at liberty and the decisions he complained about no longer affected his rights. In the light of the above, the Court finds that the applicant did not have an effective remedy for his complaints about restrictions on family visits and correspondence.", "154. There has therefore been a violation of Article 13 of the Convention, taken in conjunction with Article 8. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 155. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 156.", "The applicant claimed 5,325,000 Russian roubles (RUB) for loss of salary, RUB 154,000 which had allegedly been spent on food and hygiene articles during the detention period, and 14,271 US dollars and RUB 17,636, representing the value of his seized property and bank accounts. 157. The Government emphasised that the alleged loss of earnings had been a consequence of the decision to ascertain the applicant’s criminal liability, which fell outside the scope of the Court’s review in the present case. Likewise, the complaints about the seizure of property or bank accounts had not been raised in these proceedings. 158.", "The Court observes that the decision to prefer criminal charges against the applicant was not the subject of its review in the present case. There was no causal link between the violations found and the alleged loss of earnings. Likewise, the expenses relating to the purchase of food and hygiene articles cannot be said to have been occasioned by the conditions of detention which led the Court to find a violation of Article 3. Finally, the complaint concerning the alleged violation of the applicant’s property rights was not raised in the proceedings before the Court. In the light of the above, the Court rejects the applicant’s claim for pecuniary damage.", "B. Non-pecuniary damage 159. The applicant claimed in total RUB 22,339,000 in respect of non-pecuniary damage caused by his lengthy detention, isolation from his family and deterioration in his health. 160. The Government considered that the claim was excessive in the light of the Court’s case-law. 161.", "The Court notes that it has found a combination of serious violations in the present case. The applicant spent almost three years in custody, in inhuman and degrading conditions, and was frequently transported to and from the courthouse in conditions which were likewise inhuman and degrading. His detention was not based on sufficient grounds and also excessively long. He was denied the right to see his family for a lengthy period and severe restrictions were imposed on his correspondence. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 35,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on it. C. Costs and expenses 162. The applicant claimed RUB 8,638 in postal expenses and RUB 60,000 in legal fees which he had paid in 1999. 163. The Government pointed out that the claim for legal fees was not supported with any document describing their nature, and that postal receipts did not clearly show that postal expenses had been necessary for preventing or redressing violations of the applicant’s rights.", "164. The Court notes, firstly, that the applicant was granted EUR 701 in legal aid for his representation by Mr Kuznetsov. Having regard to the material in its possession, the Court finds that the applicant did not justify having incurred any expenses exceeding that amount. Accordingly, it makes no award in respect of costs and expenses. D. 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. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Matrosskaya Tishina remand centre; 2. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy for the applicant to complain about the conditions of his detention; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions in which the applicant was transported to and from court; 4.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds that there has been a violation of Article 6 § 1 of the Convention on account of an excessive length of proceedings in both criminal cases against the applicant; 6. Holds that there has been a violation of Article 8 of the Convention on account of unjustified restrictions on family visits; 7. Holds that there has been a violation of Article 8 of the Convention on account of unjustified restrictions on correspondence and exchange of documents; 8. Holds that there has been a violation of Article 13 of the Convention on account on the lack of an effective remedy for the applicant’s complaints about restrictions on family visits and correspondence; 9.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 35,000 (thirty-five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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; 10. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF GORDIYENKO v. UKRAINE (Application no. 27620/09) JUDGMENT STRASBOURG 16 October 2014 FINAL 16/01/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gordiyenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 27620/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vyacheslav Aleksandrovich Gordiyenko (“the applicant”), on 8 May 2009. 2. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy. 3.", "The applicant alleged that on several occasions he had been subjected to ill-treatment and that there had been no effective investigation of those events. 4. On 8 October 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1957 and lives in Kherson. 6. In 1980 the applicant sustained a craniocerebral injury and underwent surgery for a brain hematoma. 7. In 1993 the applicant sustained another craniocerebral injury, following which he started to suffer from epileptic attacks.", "According to the applicant, since that time the attacks usually occur twice a week. 8. The applicant was designated as Category 2 (medium-level) disabled on account of his poor health. A. Incident of 24 March 2006 9.", "At about 9.30 a.m. on 24 March 2006 the applicant was standing at a trolleybus station when T. allegedly clipped him slightly while attempting to park his car. A conflict arose between them, with T. punching the applicant in the face and then throwing some further punches at him. 10. On the same day the applicant complained to the Suvorivskyy District Police Department of Kherson (“the Police Department”) about T. The police registered the complaint and directed the applicant to a forensic medical expert for assessment. 11.", "On 27 March 2006 the forensic medical expert issued a report noting that the applicant had sustained a bruise measuring 3 cm by 1.5 cm on the right side of his lower jaw. The report specified that the injury was minor, could have been caused on 24 March 2006, and had been inflicted by a blunt object. 12. On 15 May 2006 the Police Department refused to open a criminal investigation against T., noting that the applicant’s injury was minor and that he could institute private prosecution proceedings against T. 13. On 19 May 2006 the Suvorivskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) quashed that decision and instituted criminal proceedings against T. under Article 296 § 1 of the Criminal Code (“disorderly conduct”).", "The case was referred to the Police Department for pre-trial investigation. 14. On 9 June 2006 a forensic medical expert issued a report stating that the applicant had suffered bruising on his face, which had been caused by a blunt object. The expert considered that the injury was minor and that it could have been inflicted on 24 May 2006 as described by the applicant. 15.", "On 22 July 2006 another forensic medical expert report was issued. It stated that there had been no exacerbation of the applicant’s chronic illnesses after the incident of 24 March 2006. 16. Following his complaints that his epileptic attacks had increased, the applicant underwent neurological treatment in the local hospital between 24 July and 3 August 2006. During that period the applicant had one epileptic attack.", "Between 25 January and 3 February 2007 the applicant underwent another course of neurological treatment. During that time he had two epileptic attacks. Between 19 and 31 December 2007 the applicant was admitted to hospital again for neurological treatment and in that period he had no epileptic attacks. 17. On 24 July and 19 August 2006, 22 January and 11 April 2007 the Police Department closed the criminal investigation for lack of evidence that T. had committed the crime provided for under Article 296 § 1 of the Criminal Code.", "All those decisions were quashed by the supervising prosecutors as unfounded and further criminal investigations were ordered. 18. On 9 July 2007 the Police Department closed the investigation once again for essentially the same reasons. 19. On 14 November 2007 the Kherson Regional Prosecutor’s Office quashed that decision and ordered a further investigation.", "On the same date it opened a criminal investigation under Article 125 § 1 of the Criminal Code for infliction of minor bodily injuries to the applicant. 20. On 6 December 2007 the Police Department terminated the investigation under Article 296 § 1 of the Criminal Code, noting that T.’s actions had not amounted to the crime of disorderly conduct. 21. On 17 March 2008 the investigation in respect of the crime provided for under Article 125 § 1 of the Criminal Code was completed and the case was referred to the Suvorivskyy District Court of Kherson (“the District Court”) for trial.", "22. On 3 April 2008 the District Court terminated the proceedings against T. as time-barred. The applicant appealed, claiming in particular that T. should have been charged with a more serious crime. 23. On 27 May 2008 the Kherson Region Court of Appeal upheld the decision of 3 April 2008.", "The applicant appealed to the Supreme Court. 24. On 1 December 2008 the Supreme Court dismissed the applicant’s appeal as unfounded. 25. On 12 February 2009 the applicant instituted civil proceedings against T., seeking damages in connection with the incident of 24 March 2006.", "26. The District Court ordered a forensic medical examination in the case. 27. On 14 September 2009 the forensic medical expert concluded that the facial bruise identified on the applicant on 24 March 2006 had not caused any deterioration in his health and that the applicant’s brain had not been affected by that injury. 28.", "On 16 October 2009 the District Court awarded the applicant 2,000 Ukrainian hryvnias in respect of non-pecuniary damage on account of T.’s unlawful behaviour on 24 March 2006. The decision became final but has not been fully enforced. B. Incident of 18 April 2008 29. At about 11.30 a.m. on 18 April 2008 the applicant was walking in a street near his home.", "Allegedly, he was attacked suddenly by a man wielding a knife; the applicant tried to defend himself but received a hard blow to the head and his head was cut, probably with the knife. 30. On the same day the applicant complained to the Police Department. When questioned by a police officer, the applicant replied that the assailant had hit him in the head with an object. 31.", "Again on the same day the applicant was medically examined and diagnosed with concussion and soft-tissue bruising of the head. He was admitted to hospital and received inpatient treatment between 18 and 29 April 2008. 32. On 25 April 2008 the Police Department refused to institute criminal proceedings because, despite the measures taken by the police, the assailant could not be identified. Furthermore, the gravity of the applicant’s injuries could not be established as no report had been issued following his medical examination.", "33. On 8 May 2008 the applicant lodged another complaint with the Police Department, claiming that the assailant had been wielding a small knife. 34. On 28 August 2008 the Kherson Regional Prosecutor’s Office quashed the decision of 25 April 2008 and ordered further pre-investigating enquiries. The supervising prosecutor specified that it was necessary to question the applicant in more detail, to carry out his medical examination, and to identify and question possible witnesses of the incident and the doctors who had treated him.", "35. On 13 September 2008 the applicant was questioned by the police again. He stated that the assailant had been wielding a metallic object. On the same day the Police Department decided not to institute criminal proceedings because, despite the measures undertaken, there was no information leading to identification of the assailant; furthermore, the gravity of the applicant’s injuries could not be established, as no report had been issued following his medical examination. 36.", "On 29 September 2008 a forensic medical expert completed the examination of the applicant and concluded that the concussion and the bruise on his head had been caused by blunt objects; those injuries were minor and might have been sustained on 18 April 2008. 37. On 8 October 2008 the District Prosecutor’s Office quashed the decision of 13 September 2008 and ordered further enquiries to be carried out by the Police Department. 38. On 10 October 2008 the Police Department refused to institute criminal proceedings, noting that the assailant had not been identified and that the applicant’s injuries were minor.", "39. On 13 October 2008 the District Prosecutor’s Office quashed that decision and ordered that the applicant’s doctor and the forensic medical expert be further questioned, and that information on the applicant’s mental state be obtained. 40. On 21 October 2008 the Police Department, having taken further measures, again refused to institute criminal proceedings on the grounds that the assailant had not been identified and the applicant had sustained only minor injuries. The decision also referred to the doctor’s statement that the bruise on the applicant’s head measured 6 cm by 7 cm.", "41. On 13 November 2008 the Kherson Regional Prosecutor’s Office quashed that decision, considering that it had not been properly reasoned and substantiated. 42. Following that decision, the police identified individuals who had been selling sunglasses and citrus fruits near the scene of the incident on 18 April 2008. When questioned, the stall-holders stated that they had not noticed any incidents near their place of work on that day.", "43. On 1 December 2008 the Police Department, relying on the collected material, decided not to institute criminal proceedings, once again stating that, despite the measures undertaken, the assailant could not be identified and the injuries were minor. C. Incident of 20 September 2010 1. The applicant’s account of the incident 44. In the morning of 20 September 2010 the applicant entered the premises of the District Court to get a copy of a court decision in his case.", "When it was his turn in the queue, the applicant produced his pension certificate and demanded a copy of the decision. The officer of the court’s registry refused to give him the document and started to argue with the applicant in the presence of the other visitors. As the argument continued, the officer asked two court security guards for help. The security guards approached the applicant and demanded that he leave the court premises. The applicant refused.", "The security guards then twisted his hands behind his back, handcuffed him and dragged him out of the hall, punching him in the head and kicking him in the legs. The applicant lost consciousness. When he came to, police officers were also present. People observing the incident called an ambulance. About twenty minutes later, the ambulance arrived and the handcuffs were removed.", "One of the visitors, Ms G., approached the applicant and gave him her contact details in case he needed her witness statement. 45. Outside the court, the applicant was placed in the ambulance. The doctors and the police officers discussed for a while whether the applicant should go to hospital or to the police station. When the applicant attempted to interfere in the discussion the police officers pushed him to the ground, and stepped on his arms in order to prevent him from getting up.", "Eventually, the applicant was taken to hospital. 2. The Government’s account of the incident 46. In the morning of 20 September 2010 the applicant entered the premises of the District Court to get a copy of a court decision in his case. A conflict between him and the officer of the court’s registry arose, since the applicant refused to show his ID document at the desk.", "The applicant behaved inappropriately, uttering obscenities and ignoring the officer’s remarks. The officer therefore asked two court security guards (belonging to the special police department ensuring legal order on the court premises) for help. They approached the applicant, introduced themselves and asked him not to breach public order. The applicant continued to utter obscenities, however. In a while two police officers arrived.", "They introduced themselves, demanded that the applicant stop his unlawful behaviour and warned him about the possible use of force and special means of restraint. The applicant disregarded the police officers’ lawful demands and was therefore handcuffed. When he was forcefully dragged towards the exit of the court premises, the applicant lost consciousness and fell on the floor. The handcuffs were then removed and he was provided with first aid; an ambulance was called. 47.", "When the ambulance arrived, the applicant was taken outside the court premises and provided with further first aid. No force was used against the applicant at that time. However, each time the police officers approached the applicant, he fell down on the ground and hit his body against the ambulance in an attempt to injure himself. The applicant was therefore given a sedative injection and taken by ambulance to hospital. 3.", "Further developments 48. On the same day the applicant was admitted to hospital for inpatient medical treatment. He was released from hospital on 28 September 2009. 49. On 20 October 2010 a forensic medical expert issued a report stating that the applicant had sustained a bruise measuring 9.8 cm by 3.8 cm on his right arm; a bruise measuring 5.8 cm by 3.9 cm on his left forearm; and a bruise measuring 6.2 cm by 4.3 cm on his right forearm.", "There was a swelling measuring 2.4 cm in diameter in the parietal and occipital regions of the head, and the applicant had suffered from concussion and cerebral haemorrhage. The expert opined that those injuries had been caused by blunt objects; as to the date, they had probably been inflicted on 20 September 2010. The injuries were classified as minor. 50. On 11 October 2010 the police drew up a report stating that on 20 September 2010 the applicant had breached public order on the court premises, which amounted to an administrative offence.", "51. On 25 October 2010 the applicant complained to the District Prosecutor’s Office of ill-treatment by the court security guards and police officers. 52. On 14 November 2010 the Kherson Regional Police completed their internal inquiry and found that the applicant had sustained injuries in the course of the incident; however, as the evidence collected was contradictory any further decisions concerning the incident would have to be taken by the District Prosecutor’s Office. The internal inquiry report stressed that the statements of the applicant and Ms G. contradicted those of the officers of the court’s registry, the court security guards and the police officers.", "53. On 12 January 2011 the District Court closed as time-barred the administrative case against the applicant for the alleged violation of public order on the court premises. 54. On 7 April 2011 a forensic medical expert reported that the injuries identified on the applicant could have been sustained in the manner described by the applicant in his account of the incident. 55.", "On 14 November 2011 the investigator questioned the forensic medical expert who noted that the concussion and the injuries to the applicant’s head could also have been sustained when the applicant, allegedly, hit his head against the ambulance. 56. In the meantime, on 6 December 2010, 11 April, 3 October and 14 November 2011 the District Prosecutor’s Office, basing its decisions on the pre-investigating enquiries conducted in the relevant periods, refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment for lack of corpus delicti in the behaviour of the court security guards and the police officers. The District Prosecutor’s Office concluded that during the incident the applicant had failed to obey the lawful orders of the police officers and that he had been lawfully handcuffed; as to the injuries, the applicant could have sustained them when he fell on the floor on the court premises and later when he was hitting his head against the ambulance. 57.", "The above decisions were reversed by the supervising prosecutors as unsubstantiated and further pre-investigating enquiries were ordered. In particular, on 28 November 2011 the General Prosecutor’s Office reversed the decision of 14 November 2011, noting that neither the applicant’s version of the incident nor the police officers’ version had been thoroughly scrutinised. The General Prosecutor’s Office emphasised that the events on the premises of the court had been observed by a number of visitors. However, despite their importance, the investigator had failed to take sufficient steps to identify possible witnesses. Furthermore, even the identified witness, Ms G., had not been questioned by the prosecutor’s office investigator.", "As to the events that occurred outside the court, the version that the applicant had intentionally hit his head against the ambulance had not been properly substantiated. 58. On 13 December 2011 the Kherson Regional Prosecutor’s Office telephoned Ms G. to invite her for questioning. Ms G. declined, stating that she did not wish to communicate with the officer of the Kherson Regional Prosecutor’s Office concerned; she then said that she was outside Kherson and would be back on 17 December 2011. 59.", "On the same day, 13 December 2011, the Kherson Regional Prosecutor’s Office refused to institute criminal proceedings in connection with the applicant’s alleged ill-treatment for lack of corpus delicti. The decision was based on the medical evidence, and on the statements of the court registry officers, the court security guards, the police officers, the ambulance driver, the ambulance doctor and his medical assistant, as well as the forensic medical expert. As regards Ms G., she could not be questioned as she had been unavailable. According to that decision, the applicant had behaved inappropriately on the premises of the court. He had breached public order and failed to obey the lawful orders of police officers.", "The court security guards had therefore handcuffed him and tried to escort him out of the court. When the applicant had lost consciousness (or pretended to have lost consciousness) and had fallen on the floor, the handcuffs had been removed and he had been provided with first aid. The decision further referred to the statements of the ambulance team and one of the police officers, specifying that outside the court premises the applicant had been in an agitated state, falling on the ground and hitting his head against the ambulance. The decision also referred to the forensic medical expert’s report describing the applicant’s injuries; it cited the expert’s opinion that the applicant’s head injuries could have been caused when he had allegedly been hitting his head against the ambulance. 60.", "On 19 December 2011 an officer of the Kherson Regional Prosecutor’s Office questioned Ms G. The latter stated that during the conflict the officer of the court registry had behaved defiantly, while the applicant had remained calm; the security guards had handcuffed the applicant and dragged him towards the exit kicking him in the legs and, when the applicant had fallen on the floor they had continued to kick him in other parts of the body. Ms G. had continued to observe the scene outside the court premises and noted that the police officers had been kicking the applicant while he had been lying on the ground. She emphasised that she had not noticed the applicant hitting his head against the ambulance or a police car. 61. On 4 January 2012 the Kherson Region Prosecutor’s Office considered another complaint from the applicant and confirmed that its earlier decision of 13 December 2011 concerning the incident had been lawful and substantiated.", "It specified that Ms G.’s statements were not supported by the materials of the enquiries. II. RELEVANT DOMESTIC LAW A. Criminal Code of Ukraine of 5 April 2001 62. Article 125 of the Code provides: “1.", "The intentional infliction of a minor bodily injury shall be punished ... 2. The intentional infliction of a minor bodily injury leading to a short-term health disorder ... shall be punished ...” 63. Article 296 § 1 of the Code provides as follows: “1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punished ...” B. Code of Criminal Procedure of 28 December 1960 (in force at the material time) 64.", "The relevant provisions of the Code of Criminal Procedure can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010). C. The Police Act of 20 December 1990 65. Section 13 of the Act provides, inter alia, that police officers are entitled to apply measures of physical coercion in order to terminate offences and to overcome resistance to lawful police orders if such resistance is accompanied by force directed against police officers or other individuals, provided that other means have been tried but have not ensured the fulfilment by the police of their duties. 66.", "Section 14 of the Act provides, inter alia, that police officers are entitled to apply handcuffs in order to protect themselves and others from attacks and other actions which endanger life or health; in order to arrest offenders if they resist police officers or if there are reasons to consider that they may escape or cause damage to others or themselves; and in order to break resistance to police officers. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 67. The applicant complained, under Article 3, 6 and 13 of the Convention, that the State had failed to ensure an effective criminal prosecution of T. for the latter’s violent conduct towards him on 24 March 2006. He further complained that there had been no effective investigation of the incident of 18 April 2008.", "Lastly, he complained that on 20 September 2010 he had been ill-treated by court security guards and police officers, resulting in serious physical injuries, and that there had been no effective investigation of that incident. 68. The Court finds that the complaints fall to be examined solely under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Incident of 24 March 2006 69. The applicant insisted that he had been subjected to serious ill-treatment by T. and that his health had deteriorated after that incident.", "He also insisted that the State authorities had failed to carry out an effective investigation of the incident and punish T. for his behaviour. 70. The Government contested those arguments and submitted that the domestic authorities had complied with their procedural obligations under Article 3 of the Convention. 71. In accordance with the Court’s case-law, Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals (see Denis Vasilyev v. Russia, no.", "32704/04, § 99, 17 December 2009; Biser Kostov v. Bulgaria, no. 32662/06, § 77, 10 January 2012; and Skorokhodov v. Ukraine, no. 56697/09, § 32, 14 November 2013). 72. However, the 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 mental effects and, in some cases, the sex, age and state of health of the victim (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV). 73. As a result of the conflict with T. on 24 March 2006, the applicant sustained a bruise measuring 3 cm by 1.5 cm on the right side of his lower jaw. The Court considers that that injury as such is not serious enough for the purposes of Article 3.", "It notes that the infliction of even more serious physical injuries has not been considered as ill-treatment falling under Article 3 (see Tonchev v. Bulgaria, no. 18527/02, §§ 39 and 42, 19 November 2009; Kulakov v. Ukraine (dec.) no. 12944/02, 16 November 2010; and Ilieva and Georgieva v. Bulgaria (dec.), no. 9548/07, 17 April 2012). 74.", "The Court further notes that the applicant has a long medical history of neurological illnesses and in his case a punch in the face might have caused serious complications. However, according to the results of the expert examinations, the injury in question did not exacerbate the applicant’s chronic illnesses (see paragraphs 15 and 27 above). The applicant’s subsequent admissions to hospital do not suggest the contrary (see paragraph 16 above). The Court does not find any reason to question these medical findings. At the same time, the applicant’s submissions do not point to any other specific factors that might lead the Court to believe that T.’s actions caused the applicant serious suffering.", "75. The Court therefore finds that the applicant’s treatment on 24 March 2006 by a private individual did not attain the minimum level of severity to fall under Article 3 of the Convention. Accordingly, it did not trigger the State’s procedural obligations under that Convention provision. 76. In the light of the above considerations, the Court finds that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Incident of 18 April 2008 77. The applicant insisted that there had been no effective investigation of the incident of 18 April 2008 during which he had been assaulted by an unknown individual. 78. The Government contended that the authorities had taken all possible steps in order to discharge their procedural obligation under the Convention.", "79. The Court notes that in his description of the alleged assault on 18 April 2008, the applicant was not always precise as to the object wielded by the assailant during the attack. His allegation that he was injured by a knife is not supported by medical report suggesting that the concussion and the bruise were caused by blunt objects (see paragraph 36 above). Nevertheless, having regard to the applicant’s poor state of health and his injuries diagnosed after the incident (concussion and a head bruise measuring 6 cm by 7 cm), the Court may assume that the applicant made an arguable allegation of ill-treatment and that the State was therefore obliged, under Article 3 of the Convention, to carry out an effective investigation of the incident. 80.", "However, the obligation to investigate is not an obligation of result, but of means; not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial, thorough and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 44, 14 November 2013, with further references). 81.", "The applicant’s complaint, however, appears to be confined to his discontent with the outcome of the investigations, without any particular deficiencies having been indicated. 82. The Court observes that the domestic pre-investigating enquiries were entrusted to the local police and were subject to supervision and control by the superior prosecutors; the applicant could also have requested judicial review of the decisions. There is nothing to suggest that the domestic proceedings lacked the requisite independence and impartiality. 83.", "In the course of the domestic proceedings the deficiencies of the police enquiries were quickly identified by the supervising authorities and necessary instructions were given to ensure that the examination of the incident was thorough. In the end, the police interviewed the relevant persons, assembled the evidence, including the medical reports, and took other steps in order to shed light on the circumstances of the alleged incident. At the same time, no serious protraction on the part of the authorities can be discerned. In these circumstances, the fact that the incident was investigated by way of repeated pre-investigating enquiries, and not in the course of a full-scale criminal investigation, is not sufficient by itself to suggest that the allegations of ill-treatment were examined in contravention of Article 3 (see Suprun v. Ukraine (dec.), no. 7529/07, 27 April 2010 and, by contrast, Sergey Savenko v. Ukraine, no.", "59731/09, §§ 28-31, 24 October 2013). 84. Accordingly, this complaint should be rejected as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. C. Incident of 20 September 2010 1. Admissibility 85.", "The Government submitted that the applicant had sustained bodily injuries on 20 September 2010 as a result of his own behaviour. In that regard the Government relied on their version of the events and insisted that that version was well substantiated by the evidence collected. They maintained that the use of handcuffs and the recourse to force had been lawful and necessary in the circumstances. In their opinion the complaint was manifestly ill-founded. 86.", "The applicant insisted that his complaint was admissible. 87. 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.", "2. Merits (a) The parties’ submissions 88. As regards the procedural aspect of Article 3 of the Convention, the Government submitted that the applicant’s allegations of ill-treatment had been investigated effectively. The authorities had taken all necessary steps in order to collect the evidence and to establish the circumstances in which the applicant had sustained his injuries. Therefore the requirements under Article 3 of the Convention had been complied with.", "89. As to the substantive aspect of Article 3, the Government did not provide any specific arguments, adhering to their earlier position that the complaint was manifestly ill-founded. 90. The applicant claimed that the investigation into his allegations of ill-treatment had not been compatible with the procedural aspect of Article 3 of the Convention. In his opinion the investigating authorities had failed to examine the case thoroughly.", "91. The applicant further insisted on his version of the incident and argued that the domestic authorities had wrongly established the facts relating to the incident in question. He therefore asserted that his treatment had been contrary to Article 3 of the Convention. (b) The Court’s assessment (i) The procedural aspect of Article 3 92. Article 3 of the Convention requires that an investigation into arguable allegations of ill-treatment must be thorough.", "This 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 in order to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to obtain evidence concerning the incident, including eyewitness testimony and forensic evidence (see Kaverzin v. Ukraine, no. 23893/03, § 108, 15 May 2012, with further references). 93. The Court finds that the applicant’s injuries were serious enough (see paragraph 49 above) and that his complaint of ill-treatment was arguable for the purpose of Article 3 requiring therefore that the domestic authorities carry out an effective investigation.", "94. The Court notes that the case was investigated by way of pre-investigation enquiries, which ended with five decisions refusing to institute criminal proceedings. The first four decisions were reversed by the supervising prosecutor as unsubstantiated and further enquiries were ordered. In particular, when reversing the fourth decision terminating the pre-investigation enquiries, the General Prosecutor’s Office found that the facts had not been convincingly established and that the evidence had been insufficient; it then specified that the investigator had failed to take the requisite steps to identify possible witnesses of the incident and had not even questioned the identified witness, Ms G. (see paragraph 57 above). The Court notes that during the next set of enquiries, which resulted in the decision of 13 December 2011, Ms G. was not questioned either (see paragraphs 58 and 59 above).", "It is true that she was questioned later and her statements, which supported the applicant’s allegations, were dismissed as being inconsistent. However, it does not appear that special diligence was shown in examining the applicant’s version of the incident. 95. In that connection, the Court also considers that the authorities should have taken additional steps in order to clarify the medical opinions concerning the cause of the applicant’s injuries in so far as the medical expert suggested, at first, that the injuries might have been sustained in the way described by the applicant. Subsequently, he opined that certain injuries, in particular the applicant’s head injuries, might also have been sustained in the manner as described by the officers.", "In the latter case, however, he did not give any further view as to the origins of the remaining injuries, notably those on the applicant’s arms (see paragraphs 54 and 55 above). Nevertheless, the authorities relied on that partial opinion in their decision to discontinue the enquiries. 96. Having regard to these facts and considerations, the Court finds that the domestic authorities relied on hasty conclusions in their decisions and did not make an adequate attempt to scrutinise the circumstances of the incident. It considers that the State has failed to take the necessary steps aimed at an effective investigation of the allegation of ill-treatment.", "97. There has therefore been a procedural violation of Article 3 of the Convention. (ii) The substantive aspect of Article 3 (α) Relevant principles 98. In accordance with the Court’s case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Rehbock v. Slovenia, no.", "29462/95, §§ 68-78, ECHR 2000‑XII; Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007; and Spinov v. Ukraine, no. 34331/03, § 51, 27 November 2008). 99. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”.", "However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Yerokhina v. Ukraine, no. 12167/04, § 52, 15 November 2012, with further references). 100. As to the burden of proof, in cases of alleged ill-treatment during arrest, it is incumbent on the State to provide a plausible explanation of how the injuries were caused and to show that the use of force was not excessive, failing which a clear issue arises under Article 3 of the Convention (see Rehbock, cited above; Zelilof v. Greece, no. 17060/03, § 47, 24 May 2007; Lewandowski and Lewandowska v. Poland, no.", "15562/02, § 58, 13 January 2009; Staszewska v. Poland, no. 10049/04, § 52, 3 November 2009; and Mikiashvili v. Georgia, no. 18996/06, § 69, 9 October 2012). 101. In determining whether there was a plausible explanation for the use of force and resulting injuries, attention should be paid to the adequacy of the domestic investigations carried out in respect of the allegations of ill-treatment (see Karbowniczek v. Poland, no.", "22339/08, § 58, 27 September 2011). (β) Application of the above principles - As to the standard and burden of proof 102. It is common ground that the applicant sustained injuries during the incident involving court security guards and police officers. Those facts are substantiated by the evidence available in the file. In these circumstances the burden rests on the Government to provide a plausible explanation for the use of force during the incident and the origin of the injuries.", "- Explanation for the use of force and the injuries 103. According to the decision of 13 December 2011 of the Kherson Regional Prosecutor’s Office, after the applicant refused to comply with the demands of the police officers, they applied force against him; when the court security guards handcuffed the applicant and tried to escort him out of the court premises, the applicant fell on the floor; subsequently, outside the court premises, the applicant fell on the ground and hit his head against the ambulance. 104. Against that factual background, the head injuries sustained by the applicant were deemed to be explained by reference to the medical expert’s opinion that those injuries could have been sustained when the applicant was hitting his head against the ambulance. As to the other injuries, namely the bruises on both arms, even though the forensic medical expert acknowledged that they could have been sustained in the way described by the applicant, no specific explanation was provided by the authorities.", "- Is the available explanation plausible? 105. With regard to the applicant’s injuries for which the domestic authorities provided a specific explanation, namely the head injuries, the Court, referring to its findings above under the procedural aspect of Article 3, notes that the applicant’s account of the origin of those injuries was not properly investigated. It is notable that the forensic medical expert did not exclude either version of sustaining head injuries; nevertheless, preference was given to the police officers’ account, without any serious attempt to assess the applicant’s version. Therefore, the Court considers that the official explanation for the origin of the applicant’s head injuries is not convincing.", "106. More generally, the Court is not convinced that it was indispensable to use the force against the applicant, including his handcuffing. It notes that the conflict between the applicant and the officers arose in a rather spontaneous situation, when compared with planned arrest operations. This situation, however, did not appear to be a pressing one and was quite manageable given the nature of the alleged violation committed by the applicant, the lack of indications of dangerous conduct on his part, his apparently weak physical condition, as well as the fact that he was facing four officers in total. There is nothing to indicate that it was crucial to handcuff him on the court premises and to do it in front of other visitors.", "- Conclusion 107. In view of the above considerations, the Court concludes that the use of force against the applicant has not been shown to have been indispensable. The authorities failed to provide a specific explanation for the considerable part of the applicant’s injuries, and the available explanation for the head injuries is not satisfactory. For these reasons the Court holds that the State must be held responsible for the alleged ill-treatment, which should be classified as inhuman and degrading. 108.", "It follows that there has been a substantive violation of Article 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 109. The applicant complained of other violations of his rights under the Convention. 110.", "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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 112. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 113. The Government maintained that the claim was unsubstantiated. 114.", "The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of violations. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 115. The applicant did not submit any claims under this head.", "The Court therefore makes no award. C. Default interest 116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT , UNANIMOUSLY, 1. Declares the complaints under Article 3 of the Convention concerning the events of 20 September 2010 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a procedural violation of Article 3 of the Convention as regards the investigation of the events of 20 September 2010; 3. Holds that there has been a substantive violation of Article 3 of the Convention as regards the events of 20 September 2010; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekMark VilligerRegistrarPresident" ]
[ "FOURTH SECTION CASE OF MGN LIMITED v. THE UNITED KINGDOM (Application no. 39401/04) JUDGMENT (merits) STRASBOURG 18 January 2011 FINAL 18/04/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of MGN Limited v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ljiljana Mijović, President,Nicolas Bratza, David Thór Björgvinsson,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, Vincent A. de Gaetano, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39401/04) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British company, MGN Limited (“the applicant”), on 18 October 2004. 2. The applicant was represented by Mr K. Bays of Davenport Lyons, a lawyer practising in London, assisted by Mr D. Pannick QC, Mr K. Starmer QC and Mr A. Hudson, Counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton. 3.", "The applicant alleged two violations of its right to freedom of expression guaranteed by Article 10 of the Convention. In particular, it complained about a finding of breach of confidence against it and, further, about being required to pay the claimants' costs including success fees. 4. The Government filed written observations (Rule 59 § 1) on the merits and on the third parties' comments (Rule 44 § 6 and see immediately hereafter) and the applicant responded thereto making also its claims for just satisfaction, to which submissions the Government further responded. Combined third-party comments were received from the Open Society Justice Initiative, the Media Legal Defence Initiative, Index on Censorship, the English PEN, Global Witness and Human Rights Watch, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).", "The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS ITHE CIRCUMSTANCES OF THE CASE 5. The applicant is the publisher of a national daily newspaper in the United Kingdom known as The Daily Mirror (formerly known as the Mirror). It is represented before the Court by Mr K. Bays of Davenport Lyons, a solicitor practising in London. A.", "The relevant publications 6. On 1 February 2001 the “Mirror” newspaper carried on the front page an article headed “Naomi: I am a drug addict”, placed between two colour photographs of Ms Naomi Campbell, a well-known model. The first photograph, slightly indistinct, showed her dressed in a baseball cap and had a caption: “Therapy: Naomi outside meeting”. The second showed her glamorously partially covered by a string of beads. 7.", "The article read as follows: “Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs. The 30-year old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts. Despite her £14million fortune Naomi is treated as just another addict trying to put her life back together.", "A source close to her said last night: 'She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.'", "Her spokeswoman at Elite Models declined to comment.” 8. The story continued inside the newspaper with a longer article across two pages. This article was headed “Naomi's finally trying to beat the demons that have been haunting her” and the opening paragraphs read: “She's just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell's. In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug. This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning.", "The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle. Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ... To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.” 9. The article made mention of Ms Campbell's efforts to rehabilitate herself and that one of her friends had said that she was still fragile but “getting healthy”.", "The article gave a general description of Narcotics Anonymous (“NA”) therapy and referred to some of Ms Campbell's recently publicised activities including an occasion when she had been rushed to hospital and had her stomach pumped: while she had claimed it was an allergic reaction to antibiotics and that she had never had a drug problem, the article noted that “those closest to her knew the truth”. 10. In the middle of the double page spread, between several innocuous pictures of Ms Campbell, was a dominating picture with a caption “Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week”. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been masked on the photograph.", "Standing on the pavement was a board advertising a certain café. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. 11. On 1 February 2001 Ms Campbell's solicitor wrote to the applicant stating that the article was a breach of confidentiality and an invasion of privacy and requesting an undertaking that it would not publish further confidential and/or private information.", "12. The newspaper responded with further articles. On 5 February 2001 the newspaper published an article headed, in large letters, “Pathetic”. Below was a photograph of Ms Campbell over the caption “Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs”. This photograph was similar to the street scene picture published on 1 February.", "The text of the article was headed “After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy”. The article mentioned that “the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”. Elsewhere in the same edition, an editorial, with the heading “No hiding Naomi”, concluded with the words: “If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it”. On 7 February 2001, the Mirror published, under the heading “Fame on you, Ms Campbell”, a further article mocking Ms Campbell's threatened proceedings, referring to the years during which she thrust “her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats”, stating that Ms Campbell was not an artist and that she was “about as effective as a chocolate soldier”, implying that her prior campaign against racism in the fashion industry was self-serving publicity and that “the problem is that Naomi doesn't actually “stand” for anything.", "She can't sing, can't act, can't dance, and can't write.” B. The substantive proceedings 1.High Court ([2002] EWHC 499 (QB)) 13. Ms Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. A claim for aggravated damages was made mainly as regards the article of 7 February 2001. On 27 March 2002 the High Court (Morland J.)", "upheld Ms Campbell's claim, following a hearing of 5 days. 14. He described Ms Campbell as an “internationally renowned fashion model and celebrity”. The first issue was whether there had been a breach of confidence and, in that respect, Ms Campbell was required to prove three elements. The first was that the details divulged by the article about her attendance at NA meetings had the necessary quality of confidence about them.", "Information to the effect that her treatment was regular attendance at NA meetings was clearly confidential: the details were obtained surreptitiously, assisted by covert photography when she was engaged (deliberately “low key and drably dressed”) in the private activity of therapy to advance her recovery from drug addiction. Giving details of her therapy, including her regular attendance at NA, was easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities. There existed a private interest worthy of protection. Secondly, it was found that those details were imparted in circumstances importing an obligation of confidence given the sources of the information (either a fellow sufferer of drug addiction or one of her staff). Thirdly, and having heard evidence on the subject, she had demonstrated that the publication was to her detriment and, notably, the publication of her treatment with NA specifically had caused her significant distress and was likely adversely to affect her attendance/participation in therapy meetings.", "15. The High Court considered these findings to be in conformity with the judgment of the Court of Appeal in Douglas v Hello! Ltd ([2001] QB 967 §164-168) which had held that there was no watertight division between the concepts of privacy and confidentiality and that the approach to the tort had to be informed by the jurisprudence of Article 8 of the Convention. Citing Dudgeon v. the United Kingdom (22 October 1981, Series A no. 45) it noted that Convention jurisprudence acknowledged different degrees of privacy: the more intimate the aspect of private life which was being interfered with, the more serious the justification required.", "16. The High Court adopted the approach of Lord Woolf CJ in A v B plc ([2003] QB 195, see paragraph 88 below) as regards, inter alia, the qualification of the right to freedom of expression by the right to respect for private life guaranteed by Article 8 of the Convention. 17. The High Court considered at some length the extent to which Ms Campbell had exposed herself and her private life to the media and, in light of this, how to reconcile the demands of Articles 8 and 10. The High Court considered that the applicant had been fully entitled to publish in the public interest the facts of her drug addiction and treatment as Ms Campbell had previously misled the public by denying drug use.", "“She might have been thought of and indeed she herself seemed to be a self-appointed role model to young black women”. However, the High Court had to protect a celebrity from publication of information about her private life which had “the mark and badge of confidentiality” and which she had chosen not to put in the public domain unless, despite that breach of confidentiality and the private nature of the information, publication was justifiable. The balance of Article 8 and 10 rights involved in the present case clearly called for a remedy for Ms Campbell as regards the publication of the private material. 18. The High Court heard evidence from, inter alia, Ms Campbell as to the impact on her of the publication.", "It concluded: “Although I am satisfied that Miss Naomi Campbell has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with Narcotics Anonymous, apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she cannot complain. In determining the extent of distress and injury to feelings for which she is entitled to compensation, I must consider her evidence with caution. She has shown herself to be over the years lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself. I am satisfied that she lied on oath [about certain facts]. Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the two articles of the 1st and 5th February 2002 complained of.", "I assess damages or compensation in the sum of £2500.” 19. As to her claim for aggravated damages (mainly the article of 7 February 2001), the High Court found that a newspaper faced with litigation was entitled to argue that a claim against it should never have been made and that any complaint should have been made to the Press Complaints Commission. Such assertions could even be written in strong and colourful language and it was not for the courts to censor bad taste. However, since the article also “trashed her as a person” in a highly offensive and hurtful manner, this entitled her to aggravated damages in the sum of GBP 1000. 2.Court of Appeal ([2002] EWCA Civ 1373 20.", "On 14 October 2002 the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ) unanimously allowed the newspaper's appeal. The hearing had lasted two and a half days. 21. The Court of Appeal noted that Ms Campbell was an “internationally famous fashion model” who had courted, rather than shunned, publicity in part to promote other ventures in which she was involved. In interviews with the media she had volunteered information about some aspects of her private life and behaviour including limited details about her relationships.", "She had gone out of her way to aver that, in contrast to many models, she did not take drugs, stimulants or tranquillisers, but this was untrue. 22. As to the impact of the Human Rights Act 1998 (“HRA”) on the law of confidentiality, the court observed that it had to balance the rights guaranteed by Articles 8 and 10 of the Convention, noting that freedom of the media was a bastion of any democratic society. 23. As to whether the information disclosed was confidential, the Court of Appeal did not consider that the information that Ms Campbell was receiving therapy from NA was to be equated with disclosure of clinical details of medical treatment.", "Since it was legitimate to publish the fact that she was a drug addict receiving treatment, it was not particularly significant to add that the treatment consisted of NA meetings which disclosure would not be offensive to a reasonable reader of ordinary sensibilities. While a reader might have found it offensive that obviously covert photographs had been taken of her, that, of itself, had not been relied upon as a ground of complaint. In addition, it was not easy to separate the distress Ms Campbell must have felt at being identified as a drug addict in treatment accompanied by covert photographs from any additional distress resulting from disclosure of her attendance at NA meetings. In short, it was not obvious that the peripheral disclosure of Ms Campbell's attendance at NA meetings was of sufficient significance as to justify the intervention of the court. 24.", "Relying on Fressoz and Roire v. France ([GC], no. 29183/95, § 54, ECHR 1999‑I), the Court of Appeal considered that the photographs were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Ms Campbell had been deceiving the public when she said that she did not take drugs and, provided that publication of particular confidential information was justifiable in the public interest, the journalist had to be given reasonable latitude as to the manner in which that information was conveyed to the public or his Article 10 right to freedom of expression would be unnecessarily inhibited. The publication of the photographs added little to Ms Campbell's case: they illustrated and drew attention to the information that she was receiving therapy from NA. 3.House of Lords ([2004] UKHL 22) 25. Following a hearing of 2 days, on 6 May 2004 the House of Lords allowed Ms Campbell's appeal (Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell formed the majority, Lords Nicholls of Birkenhead and Hoffman dissenting) and restored the orders made by the High Court.", "They delivered separate and extensive judgments. (a) Lord Hope of Craighead 26. Lord Hope began by noting the powerful international reputation of Ms Campbell in the business of fashion modelling, which business was conducted under the constant gaze of the media. He also noted her “status as a celebrity”. He considered that the issues were essentially questions of “fact and degree” which did not raise any “new issues of principle”.", "In the present case, where the publication concerned a drug addict requiring treatment and, given the fact that disclosure of details concerning that treatment together with publication of a covertly taken photograph could endanger that treatment, the disclosure was of private information. 27. The case gave rise to a competition between the rights of free speech and privacy which were of equal value in a democratic society. In balancing these rights, Lord Hope noted that the right to privacy, which lay at the heart of an action for breach of confidence, had to be balanced against the right of the media to impart information to the public and that the latter right had, in turn, to be balanced against the respect that must be given to private life. There was nothing new about this in domestic law.", "28. He examined in detail the latitude to be accorded to journalists in deciding whether or not to publish information to ensure credibility. He noted the principles set out in this respect in this Court's case law (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 and Fressoz and Roire v. France [GC], no.", "29183/95, § 54, ECHR 1999‑I). 29. Having examined the balancing exercise in the Jersild and Fressoz cases, Lord Hope reiterated there was no doubt that the choices made about the presentation of material that was legitimate to convey to the public was pre-eminently an editorial matter with which the court would not interfere. However, choices to publish private material raised issues that were not simply about presentation and editing. Accordingly, the public interest in disclosure had to be balanced against the right of the individual to respect for their private life: those decisions were open to review by the court.", "The tests to be applied were familiar and were set down in Convention jurisprudence. The rights guaranteed by Articles 8 and 10 had to be balanced against each other, any restriction of those rights had to be subjected to very close scrutiny and neither Article 8 nor Article 10 had any pre-eminence over each other (as confirmed by Resolution 1165 of the Parliamentary Assembly of the Council of Europe (“PACE”), 1998). 30. As to the Article 10 rights involved, the essential question was whether the means chosen to limit Article 10 rights were “rational, fair and not arbitrary and impair the right as minimally as is reasonably possible”. In this respect, the relevant factors were, on the one hand, the duty on the press to impart information and ideas of public interest which the public has a right to receive (Jersild v. Denmark, cited above) and the need to leave it to journalists to decide what material had to be reproduced to ensure credibility (Fressoz and Roire v. France cited above) and, on the other hand, the degree of privacy to which Ms Campbell was entitled as regards the details of her therapy under the law of confidence.", "However, the right of the public to receive information about the details of her treatment was of a much lower order than its undoubted right to know that she was misleading the public when she said that she did not take drugs since the former concerned an intimate aspect of her private life (Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45). While he acknowledged the great importance of political expression and, indeed, of freedom of expression (constituting one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual, Tammer v. Estonia, no. 41205/98, § 59, ECHR 2001‑I), he considered that no political or democratic values were at stake and no pressing social had been identified (a contrario, Goodwin v. the United Kingdom, 27 March 1996, § 40, Reports 1996 II). 31.", "As to the competing Article 8 rights, the potential for harm by the disclosure was an important factor in the assessment of the extent of the restriction that was needed to protect Ms Campbell's right to privacy. From the point of Article 8, publication of details of her treatment (that she was attending NA, for how long, how frequently and at what times of day, the nature of her therapy, the extent of her commitment to the process and the publication of covertly taken photographs) had the potential to cause harm to her and Lord Hope attached a good deal of weight to this factor. The fact that she was a “celebrity” was not enough to deprive her of her right to privacy. A margin of appreciation had be accorded to a journalist but viewing details of treatment for drug addiction merely “as background was to undervalue the importance that was to be attached to the need, if Ms Campbell was to be protected, to keep these details private”. It was hard to see any compelling need for the public to know the name of the organisation that she was attending for therapy or the details of that therapy.", "The decision to publish these details suggested that greater weight was given to the wish to publish a story that would attract interest rather than any wish to maintain its credibility. 32. Lord Hope then considered the covert photographs. It was true that, had he to consider the text of the articles only, he would have been “inclined to regard the balance between these rights as about even”, such was the effect of the margin of appreciation that had to be, in a doubtful case, given to a journalist. However, the text could not be separated from the photographs as the captions clearly linked what might otherwise have been anonymous and uninformative pictures to the main text.", "In addition, the reasonable person of ordinary sensibilities would regard publication of the covertly taken photographs, linked in that way to the text, as adding greatly to the overall intrusion into Ms Campbell's private life. While photographs taken in a public place had to be considered, in normal circumstances, one of the “ordinary incidents of living in a free community”, the real issue was whether publicising the photographs was offensive in the present circumstances. He reviewed the case-law of the Court (including P.G. and J.H. v. the United Kingdom, no.", "44787/98, § 57, ECHR 2001 IX and Peck v United Kingdom, no. 44647/98, § 62, ECHR 2003 I) and applied the reasoning in the Peck case. Ms Campbell could not have complained if the photographs had been taken to show a scene in a street by a passer-by and later published simply as street scenes. However, the photographs invaded Ms Campbell's privacy because they were taken deliberately, in secret, with a view to their publication in conjunction with the article and they focussed on the doorway of the building of her NA meeting and they revealed clearly her face. The argument that the publication of the photograph added credibility to the story had little weight, since the reader only had the editor's word as to the truth of Ms Campbell's attendance at a NA meeting.", "He continued: “124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case.” 33. Lord Hope therefore concluded that, despite the weight that had to be given to the right to freedom of expression that the press needs if it is to play its role effectively, there was an infringement of Ms Campbell's privacy which could not be justified.", "(b) Baroness Hale of Richmond 34. Baroness Hale observed that the examination of an action for breach of confidence began from the “reasonable expectation of privacy” test inquiring whether the person publishing the information knew or ought to have known that there was a reasonable expectation that the relevant information would be kept confidential. This was a threshold test which brought the balancing exercise between the rights guaranteed by Articles 8 and 10 of the Convention into play. Relying also on the PACE Resolution 1165 (1998), she noted that neither right took precedence over the other. The application of the proportionality test, included in the structure of Articles 8 and 10, was much less straightforward when two Convention rights were in play and, in this respect, she relied on the above-cited cases of Jersild v Denmark, Fressoz and Roire v France and Tammer v Estonia.", "35. In striking the balance in this case, she noted: “143. ... Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other.", "Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all.", "It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression.” 36. However, Baroness Hale considered it not to be a trivial case and defined the particularly private nature of the information the publication of which Ms Campbell contested. It concerned the important issue of drug abuse and, consequently, her physical and mental health. She underlined the importance of, as well as the sensitivities and difficulties surrounding, treatment for addiction and, notably, of the vital therapy to address an underlying dependence on drugs.", "Moreover, the Court's jurisprudence had always accepted that information about a person's health and treatment for ill-health was both private and confidential (Z v. Finland, 25 February 1997, § 95, Reports 1997‑I). While the disclosed information may not have been in the same category as clinical medical records, it amounted to the same information which would be recorded by a doctor in such records namely, the presenting problem of addiction to illegal drugs, the diagnosis and the prescription of therapy. Baroness Hale therefore began her analysis from the fact - which was common ground - that all information about Ms Campbell's addiction and attendance at NA disclosed in the article was both private and confidential because it related to an important aspect of her physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. 37.", "As to the nature of the freedom of expression being asserted on the other side, Baroness Hale recalled the main forms of expression which she recorded in descending order of importance: political speech (which included revealing information about public figures, especially those in elective office, which would otherwise be private but was relevant to their participation in public life), intellectual and educational expression as well as artistic expression. However, Baroness Hale found it difficult to see the contribution made by “pouring over the intimate details of a fashion model's private life”. It was true that the editor had chosen to run a sympathetic piece, listing Ms Campbell's faults and follies and setting them in the context of her addiction and her even more important efforts to overcome addiction and such publications might well have a beneficial educational effect. However, such pieces were normally run with the co-operation of those involved and Ms Campbell had refused to be involved with the story. The editor, nevertheless, considered that he was entitled to reveal this private information without her consent because Ms Campbell had presented herself to the public as someone who was not involved in drugs.", "Baroness Hale questioned why, if a role model presented a stance on drugs beneficial to society, it was so necessary to reveal that she had “feet of clay”. However, she accepted that the possession and use of illegal drugs was a criminal offence and was a matter of serious public concern so that the press had to be free to expose the truth and put the record straight. 38. However, while Ms Campbell's previous public denial of drug use might have justified publication of the fact of her drug use and of her treatment for drug addiction, it was not necessary to publish any further information, especially if it might jeopardise her continued treatment. That further information amounted to the disclosure of details of her treatment with NA and Baroness Hale considered that the articles thereby “contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of [NA] as a safe haven for her”.", "39. Moreover, publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, the photographs were not objectionable. If the case concerned a photograph of Ms Campbell going about her business in a public street, there could have been no complaint. However, the accompanying text made it plain that these photographs were different in that they showed Ms Campbell outside a NA meeting in the company of some persons undoubtedly part of the NA group and they showed the place where the meeting took place, which would have been entirely recognisable to anyone who knew the locality.", "Photographs by their very nature added to the impact of the words in the articles as well as to the information disclosed. The photographs also added to the potential harm “by making her think that she was being followed or betrayed, and deterring her from going back to the same place again”. 40. Moreover, there was no need for the photographs to be included in the articles for the editor to achieve his objective. The editor had accepted that, even without the photographs, it would have been a front page story.", "He had his basic information and he had his quotes. He could have used other photographs of Ms Campbell to illustrate the articles. While the photographs would have been useful in proving the truth of the story had this been challenged, there was no need to publish them for this purpose as the credibility of the story with the public would stand or fall with the credibility of stories of the Daily Mirror generally. Baroness Hale added, in this context, that whether the articles were sympathetic or not was not relevant since the way an editor “chose to present the information he was entitled to reveal was entirely a matter for him”. 41.", "Finally, it was true that the weight to attach to these various considerations was “a matter of fact and degree”. Not every statement about a person's health would carry the badge of confidentiality: that a public figure had a cold would not cause any harm and private health information could be relevant to the capacity of a public figure to do the job. However, in the present case the health information was not harmless and, indeed, as the trial judge had found, there was a risk that publication would do harm: “... People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. That is why organisations like [NA] were set up and why they can do so much good. Blundering in when matters are acknowledged to be at a 'fragile' stage may do great harm.", "158. The trial judge was well placed to assess these matters. ... he was best placed to judge whether the additional information and the photographs had added significantly both to the distress and the potential harm. He accepted her evidence that it had done so. He could also tell how serious an interference with press freedom it would have been to publish the essential parts of the story without the additional material and how difficult a decision this would have been for an editor who had been told that it was a medical matter and that it would be morally wrong to publish it.” (c) Lord Carswell 42.", "Lord Carswell agreed with Lord Hope and Baroness Hale. It was not in dispute that the information was of a private nature and imparted in confidence to the applicant and that the applicant was justified in publishing the facts of Ms Campbell's drug addiction and that she was receiving treatment given her prior public lies about her drug use. He also agreed with Lord Hope as to the balancing of Articles 8 and 10 rights and, further, that in order to justify limiting the Article 10 right to freedom of expression, the restrictions imposed had to be rational, fair and not arbitrary, and they must impair the right no more than necessary. 43. Having examined the weight to be attributed to different relevant factors, he concluded that the publication of the details of Ms Campbell's attendance at therapy by NA, highlighted by the photographs printed which revealed where the treatment had taken place, constituted a considerable intrusion into her private affairs which was capable of causing and, on her evidence, did in fact cause her, substantial distress.", "In her evidence, she said that she had not gone back to the particular NA centre and that she had only attended a few other NA meetings in the UK. It was thus clear, that the publication created a risk of causing a significant setback to her recovery. 44. He did not minimise the “the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction”, which factors were “part of the legitimate function of a free press” and had to be given proper weight. However, the balance came down in favour of Ms Campbell.", "(d) Lord Nicholls of Birkenhead 45. Lord Nicholls began by noting that Ms Campbell was “a celebrated fashion model”, that she was a “household name, nationally and internationally” and that her face was “instantly recognisable”. He noted that the development of the common law (tort of breach of confidence) had been in harmony with Articles 8 and 10 of the Convention so that the time had come to recognise that the values enshrined in Articles 8 and 10 were now part of the cause of action for breach of confidence (Lord Woolf CJ, A v B plc [2003] QB 195, 202, § 4). 46. He found that the reference to treatment at NA meetings was not private information as it did no more than spell out and apply to Ms Campbell common knowledge of how NA meetings were conducted.", "47. However, even if Ms Campbell's attendance at meetings was considered private, her appeal was still ill-founded since: “On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose.", "It is at this point I respectfully consider [that the High Court] fell into error. Having held that the details of Miss Campbell's attendance at [NA] had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.” 48.", "He observed that Ms Campbell's repeated public assertions denying her drug addiction rendered legitimate the publication of the facts that she was a drug addict and in treatment had been legitimate. The additional impugned element that she was attending NA meetings as a form of therapy was of such an unremarkable and consequential nature that its disclosure had also been legitimate. The same applied to information concerning how long Ms Campbell was receiving such treatment given that the frequency and nature of NA meetings was common knowledge. Hence, the intrusion into Ms Campbell's private life was comparatively minor. 49.", "Lastly, and as to the photographs, Lord Nicholls observed that she did not complain about the taking of the photographs nor assert that the taking of the photographs was itself an invasion of privacy, rather that the information conveyed by the photographs was private. However, the particular photographs added nothing of an essentially private nature: they conveyed no private information beyond that discussed in the article and there was nothing undignified about her appearance in them. (e) Lord Hoffmann 50. Lord Hoffmann began his judgment by describing Ms Campbell as “a public figure” and, further, a famous fashion model who had lived by publicity. He noted that the judges of the House of Lords were “divided as to the outcome of this appeal” but the difference of opinion related to “a very narrow point” concerning the unusual facts of the case.", "While it was accepted that the publication of the facts of her addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use, the division of opinion concerned “whether in doing so the newspaper went too far in publishing associated facts about her private life”. He continued: “But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous. The principles are expressed in varying language but speaking for myself I can see no significant differences.” 51. There being no automatic priority between Articles 8 and 10, the question to be addressed was the extent to which it was necessary to qualify one right in order to protect the underlying value protected by the other and the extent of the qualification should be proportionate to the need. The only point of principle arising was, where the essential part of the publication was justified, should the newspaper be held liable whenever the judge considered that it was not necessary to have published some of the personal information or should the newspaper be allowed some margin of choice in the way it chose to present the story (referring to Fressoz and Roire v. France [GC], no.", "29183/95, ECHR 1999‑I). 52. In this respect, Lord Hoffman considered that it would be: “inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure.", "And if any margin is to be allowed, it seems to me strange to hold the Mirror liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified.” 53. Given the relatively anodyne nature of the additional details, the Mirror was entitled to a degree of latitude in respect of the way it chose to present its legitimate story. 54. As to the publication of photographs in particular, Lord Hoffman observed that the fact that the pictures were taken without Ms Campbell's consent did not amount to a wrongful invasion of privacy. Moreover, the pictures did not reveal a situation of humiliation or severe embarrassment (as in Peck v. the United Kingdom, no.", "44647/98, ECHR 2003‑I) and had not been taken by intrusion into a private place. There was nothing demeaning or embarrassing about the photographs. They added nothing to what was said in the text and carried the message that the Mirror's story was true. Accordingly, the decision to publish the pictures was within the margin of editorial judgment to which the Mirror was entitled. Although the trial judge found that the publication was likely to affect her therapy, this had neither been pleaded before nor fully explored by the trial judge.", "55. The appeal was allowed, the High Court award was restored. Ms Campbell's costs (of the appeals to the Court of Appeal and to the House of Lords) were awarded against the applicant, the amount to “be certified by the Clerk of Parliaments, if not agreed between the parties ...”. C. The proceedings concerning legal costs 56. Ms Campbell's solicitors served three bills of costs on the applicant in the total sum of GBP 1,086, 295.47: GBP 377,070.07 for the High Court; GBP 114,755.40 for the Court of Appeal; and GBP 594,470.00 for the House of Lords.", "The latter figure comprised “base costs” of GBP 288,468, success fees of GBP 279,981.35 as well as GBP 26,020.65 disbursements. In the High Court and Court of Appeal, Ms Campbell's solicitors and counsel had acted under an ordinary retainer. But the appeal to the House of Lords was conducted pursuant to a Conditional Fee Agreement (“CFA”) which provided that, if the appeal succeeded, solicitors and counsel should be entitled to base costs as well as success fees amounting to 95% and 100% of their base costs, respectively. 1. Campbell v. MGN Limited [2005] UKHL 61 57.", "On 21 February 2005 the applicant appealed to the House of Lords seeking a ruling that it should not be liable to pay the success fees as, in the circumstances, such a liability was so disproportionate as to infringe their right to freedom of expression under Article 10 of the Convention. The applicant did not seek thereby a declaration of incompatibility but argued that domestic law regulating the recoverability of success fees should be read so as to safeguard its rights under Article 10. On 26 May 2005 this appeal was heard by the House of Lords. 58. On 2 August 2005 Ms Campbell's solicitors accepted the applicant's offers to pay GBP 290,000 (High Court costs) and GBP 95,000 (Court of Appeal costs), both amounts being exclusive of interest.", "59. On 20 October 2005 the appeal was unanimously dismissed. The House of Lords found that the existing CFA regime with recoverable success fees was compatible with the Convention, but they expressed some reservations about the impact of disproportionate costs. (a) Lord Hoffman 60. Lord Hoffmann observed that the deliberate policy of the Access to Justice Act 1999 (“the 1999 Act”) was to impose the cost of all CFA litigation upon unsuccessful defendants as a class.", "Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases, which might not be successful, but which would provide access to justice for people who could not otherwise have afforded to sue. Therefore, the policy shifted the burden of funding from the State to unsuccessful defendants, which was a rational social and economic policy. 61. While he was concerned about the indirect effect of the threat of a heavy costs liability on the newspapers' decisions to publish information which ought to be published but which carried a risk of legal action, he considered that a newspaper's right could be restricted to protect the right of litigants under Article 6 to access to a court. 62.", "The applicant maintained that recoverable success fees were disproportionate on the basis of two flawed arguments. The first was that the success fee was necessarily disproportionate as it was more than (and up to twice as much as) the amount which, under the ordinary assessment rules, would be considered reasonable and proportionate. This was a flawed point as it confused two different concepts of proportionality. The CPR on costs were concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties, complexity of the issues and so forth. However, Article 10 was concerned with whether a rule, which required unsuccessful defendants, not only to pay the reasonable and proportionate costs of their adversary in the litigation, but also to contribute to the funding of other litigation through the payment of success fees, was a proportionate measure, having regard to the effect on Article 10 rights.", "The applicant did not “really deny that in principle it is open to the legislature to choose to fund access to justice in this way.” 63. The second argument of the applicant was to the effect that it was unnecessary to give Ms Campbell access to a court because she could have afforded to fund her own costs. However, it was desirable to have a general rule to enable the scheme to work in a practical and effective way and that concentration on the individual case and the particularities of Ms Campbell's circumstances would undermine that scheme. It was for this reason that the Court in James and Others v the United Kingdom (21 February 1986, Series A no. 98) considered that Parliament was entitled to pursue a social policy of allowing long leaseholders of low-rated houses to acquire their freeholds at concessionary rates, notwithstanding that the scheme also applied to some rich tenants who needed no such assistance.", "The success fee should not be disallowed simply on the ground that the applicant's liability would be inconsistent with its rights under Article 10. Thus, notwithstanding the need to examine the balance on the facts of the individual case, Lord Hoffman considered that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs were open to everyone. Success fees, as such, could not be disallowed simply on the ground that the present applicant's liability would be inconsistent with its rights under Article 10: the scheme was a choice open to the legislature and there was no need for any exclusion of cases such as the present one from the scope of CFAs or to disallow success fees because the existing scheme was compatible. 64. However, Lord Hoffman did not wish to leave the case without commenting on other problems which defamation litigation under CFAs was currently causing and which had given rise to concern that freedom of expression might be seriously inhibited.", "The judgment of Eady J in Turcu v News Group Newspapers Ltd ([2005] EWHC 799) highlighted the significant temptation for media defendants to settle cases early for purely commercial reasons, and without regard to the true merits of any pleaded defence. This 'chilling effect' or 'ransom factor' inherent in the CFA system was a situation which could not have arisen in the past and was very much a modern development. 65. Lord Hoffman considered that the “blackmailing effect” of such litigation arose from two factors: (a) the use of CFAs by impecunious claimants who did not take out insurance to protect themselves from having to pay the winning party's costs if they lost; and (b) the conduct of the case by the claimant's solicitors in a way which not only ran up substantial costs but required the defendants to do so as well. Referring to a recent case where this was particularly evident (King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282), he continued: “Faced with a free-spending claimant's solicitor and being at risk not only as to liability but also as to twice the claimant's costs, the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant's own costs were equally high” 66.", "Lord Hoffman endorsed the solution offered by the Court of Appeal in the King case (a “cost-capping” order at an early stage of the action). However, that was only a palliative as it did not deal with the problem of a newspaper risking substantial and irrecoverable costs. Smaller publishers might not be able to afford to take a stand and neither capping costs at an early stage nor assessing them later dealt with the threat of having to pay the claimant's costs at a level which was, by definition, up to twice the amount which would be reasonable and proportionate. While the DCA Consultation Paper (paragraph 101 below) discussed the problem, no legislative intervention had been proposed. 67.", "Lord Hoffman distinguished between personal injury litigation and defamation proceedings. Personal injury litigation comprised a large number of small claims and the liability insurers were able to pass these costs on to their road user customers with their own solvency not being threatened and the liability insurers had considerable negotiating strength to dispute assessments of costs and to hold up the cash flow of the claimants' solicitors so that both sides therefore had good reasons for seeking a compromise. On the other hand, in defamation cases the reasons for seeking a compromise were much weaker: there was a small number of claims and payment of relatively large sums of costs; some publishers might be strong enough to absorb or insure against this but it had a serious effect upon their financial position; and publishers did not have the same negotiating strength as the liability insurers because there were few assessments to be contested and disputing them involved considerable additional costs. 68. While the objective of enabling people of modest means to protect their reputations and privacy from powerful publishers was a good one, Lord Hoffman considered that it might be that a legislative solution would be needed for the scheme to comply with Article 10 of the Convention.", "(b) Lord Hope of Craighead 69. Lord Hope agreed with Lord Hoffmann. 70. He underlined the protection to the losing party contained in the CPR and the Costs Practice Directions. Reasonableness and proportionality tests were applied separately to base costs and to the percentage uplift for success fees.", "However, the most relevant question for a court in assessing the reasonableness of the percentage uplift was “the risk that the client might or might not be successful” (paragraph 11.8(l)(a) of the Costs Practice Directions) and that “in evenly balanced cases a success fee of 100 per cent might well be thought not to be unreasonable”. 71. There remained the question of proportionality. Other than providing that the proportionality of base costs and success fees were to be separately assessed, the Costs Practice Directions did not identify any factors that might be relevant. However, it would be wrong to conclude that this was an empty exercise as it was the “ultimate controlling factor” to ensure access to the court by a claimant to argue that her right to privacy under Article 8 was properly balanced against the losing party's rights to freedom of speech under Article 10.", "While the losing party would pay the success fee, any reduction in the percentage increase would have to borne by the successful party under the CFA: the interests of both sides had to be weighed up in deciding whether the amount was proportionate. (c) Lord Carswell 72. Lord Carswell agreed with the opinions of Lord Hoffmann and Lord Hope. While “there are many who regard the imbalance in the system adopted in England and Wales as most unjust”, the regimen of CFAs and recoverable success fees was “legislative policy which the courts must accept”. As to whether recoverable success fees, which undoubtedly constituted a “chill factor”, were compatible with Article 10 and a proportionate way of dealing with the issue of the funding of such litigation, it was not really in dispute that the legislature could in principle adopt this method of funding access to justice.", "73. The present case turned on whether it was still proportionate when the claimant was wealthy and not in need of the support of a CFA. While it was rough justice, the requirement on solicitors to means test clients before concluding a CFA was unworkable. With some regret, the conclusion was clear. While Lord Carswell was “far from convinced about the wisdom or justice of the CFA system” as it was then constituted, “it had to be accepted as legislative policy”.", "It had not been shown to be incompatible with the Convention and the objections advanced by the applicant could not be sustained. (d) Lord Nicholls of Birkenhead and Baroness Hale of Richmond 74. Lord Nicholls agreed with the preceding opinions. Baroness Hale also agreed with Lord Hoffman. It was, for her, a separate question whether a legislative solution might be needed to comply with Article 10: this was a complex issue involving a delicate balance between competing rights upon which she preferred to express no opinion.", "75. From the date of rejection of this second appeal, the applicant was liable to pay 8% interest on the costs payable. 76. On 28 November 2005 an order for the costs of the second appeal to the House of Lords was made against the applicant. Ms Campbell therefore served an additional bill of costs of GBP 255,535.60.", "The bill included a success fee of 95% (GBP 85,095.78) in respect of the solicitors' base costs, her counsel having not entered into a CFA for this appeal. 2. Review by the Judicial Taxing Officers of the costs of the second appeal to the House of Lords 77. The applicant then sought to challenge the proportionality of the costs and success fees claimed in respect of both appeals to the House of Lords. An assessment hearing was fixed for 8 March 2006 before the Judicial Taxing Officers of the House of Lords. 78.", "On 3 March 2006 the applicant agreed with Ms Campbell's solicitors to pay the sum of GBP 350,000 in respect of the costs claimed in relation to the first appeal, excluding interest and including the success fee applicable to the first appeal. The applicant considered it was unlikely to do better before the Taxing Officers, it wished to avoid accruing interest (8% per day) and further litigation on costs would lead to further costs and success fees. 79. The hearing on 8 March 2006 (before two Judicial Taxing Officers) therefore concerned the costs of the second appeal only, the Taxing Officers noting that the applicant had settled the costs of the first appeal, it “no doubt recognising the inevitability of the position”. A number of preliminary issues were decided by the Taxing Officers including the validity of the CFA, the applicable success fee rate and the proportionality of the base costs billed by Ms Campbell's representatives (and on which that success fee would be calculated).", "80. By judgment dated 8 March 2006 the Judicial Taxing Officers found that, in these hard fought proceedings ultimately decided by a split decision of the House of Lords, there was “no doubt” that the success fees (95% and 100%) claimed in respect of the first appeal to the House of Lords were appropriate having regard to the first and second instance proceedings. Since the second appeal to the House of Lords was part and parcel of the first and was clearly contemplated by the parties when they entered into the CFA, the second appeal was covered by the CFA and thus the same success fee. The effect of this was, of course, that the applicant faced a greatly increased bill of costs: however, the applicant lost this issue in the second appeal to the House of Lords. A success fee of 95% for the second appeal to the House of Lords was therefore approved.", "Relying on Rules 44.4 and 44.5 of the CPR as well as paragraph 15.1 of the Costs Practice Directions as well as a necessity test, the Taxing Officers reduced the hourly rates chargeable by Ms Campbell's solicitors and counsel, thereby reducing the base costs and, consequently, the success fee payable by the applicant. 81. On 5 May 2006 the applicant appealed to the House of Lords arguing that the Taxing Officers judgment was incorrect in so far as those Officers considered that the success fee for the second appeal could not be varied. On 28 June 2006 the House of Lords refused leave to appeal. 82.", "On 5 July 2007 the applicant agreed to pay GBP 150,000 (inclusive of interest and assessment procedure costs) in settlement of Ms Campbell's costs of the second appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Breach of confidence/misuse of private information 1.The Human Rights Act 1998 (“the HRA”) 83. Section 2(1) of the HRA provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.", "84. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court (section 6(3)(a) of the HRA). 85. Section 12(4) provides that a court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to journalistic material, to (a) the extent to which the material has, or is about to, become available to the public, or it is, or would be, in the public interest for the material to be published as well as to (b) any relevant privacy code.", "2.The Press Complaints Commission Code of Practice (“The PCC Code”) 86. The PCC Code provided, at the relevant time, as follows: “3. Privacy i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.", "Note - Private places are public or private property where there is a reasonable expectation of privacy ... 1. The public interest includes: i) Detecting or exposing crime or a serious misdemeanour. ii) Protecting public health and safety. iii) Preventing the public from being misled by some statement or action of an individual or organisation. .", ". .” 3.Breach of Confidence and Article 8 of the Convention 87. Originally the tort of breach of confidence was characterised by reference to an obligation of confidence which arose whenever a person received information he knew or ought to have known was fairly and reasonably confidential. More recently, the tort developed through the case-law so as to extend to situations where information, properly to be regarded as private information, has been misused. In principle, such a claim arises where private information has been wrongfully published and it is now well-recognised that this form of the tort of breach of confidence encapsulates the values enshrined in both Articles 8 and 10 of the Convention.", "The guiding principle as to what comprises an individual's private information is whether the individual had a reasonable expectation of privacy as regards the information in issue. 88. Lord Woolf CJ held as follows, as regards the balancing of the interests protected by Articles 8 and 10, in his oft-cited judgment in the Court of Appeal in the case of A v B plc ([2003] QB 195): “4......under section 6 of the 1998 [Human Rights] Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.", "5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. ... 6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy.", "It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect.", "Each article is qualified expressly in a way which allows the interests under the other article to be taken into account. ... 11(iv) ... Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. ... (x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified.", "... (xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure.", "The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention.", "If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.", "The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 1165 of 1998. (xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.” B.Costs, conditional fee arrangements (“CFA”) and success fees 1. General 89.", "A successful party to litigation may only recover costs if and to the extent that a Court so orders and such questions are to be determined in accordance with the Civil Procedure Rules 1988 (“CPR”). The CPR referred to below are applicable to proceedings before the House of Lords. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (Rule 44.3(2) of the CPR). 90. Prior to 1995, the only means of funding litigation (apart from legal aid) was to agree an ordinary retainer with a lawyer.", "CFAs were introduced for a limited range of litigation by section 58 of the Courts and Legal Services Act 1990 (“the 1990 Act”). A CFA is an agreement between a client and a legal representative which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances (for example, if successful). Further secondary legislation was necessary to allow CFAs to be adopted. The Conditional Fee Agreements Order 1995 not only brought into force CFAs but it extended the range of proceedings for which CFAs could be concluded, that range being further extended to cover all litigation apart from criminal and family proceedings by the Conditional Fee Agreements Order 1998. This position was relatively unchanged by the Access to Justice Act (“the 1999 Act”).", "91. A CFA, even as initially introduced, could make provision for the payment of a percentage uplift in fees (“success fees”). A success fee provided that the amount of any fees to which it applied (base costs) could be increased by a percentage in specified circumstances (for example, if successful). Section 58(4) of the 1990 Act provides that a success fee must, inter alia, state the percentage by which the amount of the fees is to be increased and the Conditional Fee Agreements Order 2000 specified the maximum percentage uplift to be 100%. 92.", "The 1999 Act then inserted section 58A into the 1990 Act. This provided that an order for costs made by a court could include the success fees payable under a CFA, so that the base costs, as well as the success fees, could be recovered against an unsuccessful party. The 1999 Act also made ATE (after the event) Insurance premiums recoverable against a losing party. 93. The CPR regulate the making of costs orders and the assessment of such costs including success fees (Rule 43.2(1)(a) of the CPR).", "Rule 44.3(1)-(9) sets out the general rules which govern the court's discretion to make an order for costs against a party. Rule 44.3A of the CPR provides that, at the conclusion of the proceedings to which the CFA relates, the court may make a summary assessment or order a detailed assessment of all or part of the costs (including success fees). Rule 44.4(2) provides that, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have, as to whether costs were reasonably incurred or reasonable and proportionate in amount, in favour of the paying party. Rule 44.5 provides that the court must have regard to all circumstances in deciding whether costs, assessed on a standard basis, were proportionately and reasonably incurred or were proportionate and reasonable in amount. Such circumstances must include the conduct of all the parties, the amount or value of any money or property involved; the importance of the matter to all the parties; the particular complexity of the matter or the difficulty or novelty of the questions raised; the skill, effort, specialised knowledge and responsibility involved; the time spent on the case; and the place where and the circumstances in which work or any part of it was done.", "94. Costs Practice Directions supplement the CPR. Paragraph 11.5 of the Direction provides that in deciding, on a standard basis of assessment, whether the costs are reasonable and proportionate, the court will consider the amount of any additional liability (including success fees) separately from the base costs. Paragraph 11.8 requires the Court to take into account, when deciding whether the percentage uplift by which the success fee is calculated is reasonable, all relevant factors and it provides examples of such factors: the circumstances in which the costs would be payable might or might not occur (including whether the case would win); the legal representative's liability for any disbursements; and any other methods of financing the costs available to the receiving party. Paragraph 11.9 provides as follows: “A percentage increase will not be reduced simply on the ground that, when added to the base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.” 95.", "A party to litigation who instructs lawyers pursuant to a CFA may, but is under no obligation to, take out ATE Insurance. 2. Relevant domestic case law on CFAs and success fees (a) Designers Guild Ltd v. Russell Williams (Textiles) Ltd. (2003] 2 Costs LR 204. 96. Paragraph 27 of the Practice Directions Applicable to Judicial Taxations in the House of Lords (adopted in March 2007) provides that notification is to be given to the opposing parties and to the Judicial Office as soon as practicable after a CFA has been entered into, and that the Taxing Officers decide questions of percentage uplift in accordance with the principles set out in the above-cited case of Designers' Guild Limited.", "97. This case was the first assessment of costs for an appeal to the House of Lords involving CFAs. The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords. On 31 March 2003 the Taxing Officers held: “14. With regard to the solicitors' claim a success fee of 100% is sought.", "[Counsel for the Appellant] produced to us the opinion of Leading Counsel prior to the CFA being entered into which put the chances of success at no more than evens. That opinion was given against a background in which the appellant company had been successful at first instance and lost in the Court of Appeal. It is quite clear that the issues were finely balanced. It is generally accepted that if the chances of success are no better than 50% the success fee should be 100%. The thinking behind this is that if a solicitor were to take two identical cases with a 60% chance of success in each it is likely that one would be lost and the other won.", "Accordingly the success fee (of 100%) in the winning case would enable the solicitor to bear the loss of running the other case and losing. 15. There is an argument for saying that in any case which reached trial a success fee of 100% is easily justified because both sides presumably believed that they had an arguable and winnable case. In this case we have no doubt at all that the matter was finely balanced and that the appropriate success fee is therefore 100%”. (b) Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) 98.", "Eady J noted as follows: “6. The claimant ... seeks a large award of damages, including aggravated and exemplary damages, against the proprietors of The News of the World .... He is able to pursue his claim purely because [his legal representative] has been prepared to act on his behalf on the basis of a [CFA]. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [the legal representative] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant's solicitors including a substantial mark-up in respect of a success fee.", "The defendant's position is thus wholly unenviable. 7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in [King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282]. This is a situation which could not have arisen in the past and is very much a modern development.” (c) King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282 99.", "This claimant was without financial means and had no ATE insurance. Brooke LJ noted the significant pre-action costs incurred by the claimant's solicitors which required, in turn, costs to be incurred by the defendant who also risked paying double the claimants' already significant costs. He continued: “What is in issue in this case, however, is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability, and will almost certainly have to bear his own costs (estimated in this case to be about £400,000) if he wins. The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression ... and to lead to the danger of self-imposed restraints on publication which he so much feared .... It is not for this court to thwart the wish of Parliament that litigants should be able to bring actions to vindicate their reputations under a CFA, and that they should not be obliged to obtain ATE cover before they do so.", "... On the other hand, we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher's Article 10 Convention rights .... In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. It cannot be just to submit defendants in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win. If this means, ..., that it will not be open to a CFA-assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees, then his/her fate will be no different from that of a conventional legally aided litigant in modern times. It is rare these days for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay, and defamation litigation does not open the door to awards on that scale today.", "Similarly, if the introduction of this novel cost-capping regime means that a claimant's lawyers may be reluctant to accept instructions on a CFA basis unless they assess the chances of success as significantly greater than evens (so that the size of the success fee will be to that extent reduced), this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue.” 3. Public consultation process on CFAs and success fees including the “Review of Civil Litigation Costs: Final Report”, of Jackson LJ, January 2010 (“the Jackson Review”) (a) Consultation prior to the Jackson Review 100. In 2003 a Consultation Paper entitled “Simplifying CFAs” was completed by the Department of Constitutional Affairs (“DCA”, whose powers were transferred to the Ministry of Justice in May 2007). The use of CFAs in defamation proceedings emerged as a controversial issue during this consultation. Several national and regional media organisations took the opportunity to raise a number of concerns about the impact of the use of CFAs in defamation proceedings.", "Media organisations claimed that CFAs inhibited the right to freedom of expression and encouraged unmeritorious claims. Claimants' lawyers felt that the use of CFAs in defamation proceedings had greatly widened access to justice and placed claimants on an equal footing with their opponents. 101. In the 2004 Consultation Paper “Making Simple CFAs a reality” of the DCA, media organisations reiterated the view that CFAs needed to be controlled in defamation proceedings. They stressed that funding these cases by CFAs (particularly where the claimant had significant personal wealth) impinged on the media's right to freedom of expression because the success fee could effectively double a claimant lawyer's cost.", "This resulted in the “ransom” or “chilling effect” that forced the media to settle claims they might otherwise fight due to excessive costs. The media also expressed concerns there was no true ATE insurance market (because the very small number of cases did not ensure a competitive market), and about the failure of the costs judges to effectively control CFA costs in defamation proceedings. While the focus of the Consultation Paper had been defamation proceedings, the same problems applied in other publication cases. The 2004 Paper also noted that claimants' lawyers, on the other hand, believed that CFAs provided access to justice for all in an area of law where many would otherwise not be able to afford to seek redress. They also made the point that CFAs played an important role in discouraging irresponsible journalism.", "The sharp decline in the number of claims issued in this area, after the introduction of CFAs in defamation proceedings, indicated that lawyers were being more cautious when advising clients who were considering litigation. They believed that CFAs should not be banned or restricted in this area of law, but that success fees should be staged – 100% for cases going to trial and less for cases that settled early. The DCA concluded that legislation to restrict the use of success fees in this area (publication proceedings) was not planned. The DCA supported the initiative launched by the Civil Justice Council (“CJC”) to mediate a general agreement on success fees in this area of law and considered that the existing powers of the courts were sufficient to control costs. 102.", "The above-cited judgment in King and the 2004 consultation prompted media organisations and claimants' lawyer groups to try to reach an agreement on the way forward. Following the CFA round table hosted by the DCA in July 2004, both sides approached the CJC to mediate. 103. In April 2005 a previous Lord Chancellor spoke about CFAs and costs at a media society event. He called for proper control and proportionality in the costs-risks attached to publication litigation and urged claimant and media lawyers to try to find a solution through discussion.", "104. In March 2006 the House of Commons Constitutional Affairs Select Committee considered the role of CFAs in defamation and privacy proceedings as part of its inquiry on the “Compensation Culture”. It felt that courts could address disproportionate costs through appropriate cost control measures such as cost-capping and that it might be appropriate for lawyers to re-assess risk (and therefore the amount of uplift) as the case progressed (staged success fees). No concrete action was taken. 105.", "From 2006 to 2007 the CJC hosted a number of forums including representatives from the media, legal profession and insurance. This mediation, having been suspended pending the second appeal in the present case to the House of Lords, concluded with the production of a model agreement (“the Theobalds Park Plus Agreement”) which set out a range of solutions including a range of staged success fees. 106. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus model agreement was workable and could help ensure that costs of litigation were proportionate and reasonable. The Ministry of Justice decided to consult on the issue.", "Through its Consultation Paper of August 2007 entitled “Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance”, the Ministry of Justice sought views on the implementation of the CJC's recommendations in publication proceedings and, notably, on a range of fixed staged recoverable success fees and on the recoverability of ATE insurance premiums. A slightly revised scheme was published with responses to the consultation in July 2008. Some responses to the consultation supported in principle the introduction of fixed recoverable staged success fees and ATE insurance premiums; however, there was no consensus on the details of the scheme. The media in particular did not support the scheme and strongly opposed its implementation and called for additional measures to address disproportionate and unreasonable costs in CFA cases. The scheme was not implemented.", "107. On 24 February 2009 the Ministry of Justice published further a Consultation Paper on “Controlling costs in defamation proceedings”. The high levels of legal costs in defamation and some other publication related proceedings had been the subject of criticism and debate in the courts and Parliament. “Excessive costs may force defendants to settle unmeritorious claims, which in turn threatens a more risk averse approach to reporting and some argue is a risk to freedom of expression”. While the Government had previously consulted on proposals for a scheme of staged recoverable success fees and after the event insurance (ATE) premiums in publication proceedings to reduce unreasonable and disproportionate costs, a number of media organisations suggested additional measures that they considered necessary if costs in this area were to be maintained at reasonable levels.", "The Consultation Paper therefore sought views on measures to better control costs notably through limiting recoverable hourly rates; costs-capping; and requiring the proportionality of total costs to be considered on costs assessments conducted by the court. 108. As regards the question (no 6) of whether the courts should apply the proportionality test to total costs not just base costs, the Consultation Paper noted that the Government considered that “a requirement to consider the proportionality of total costs would be a helpful tool in controlling costs in defamation proceedings”. They would request the CPR Committee to consider amendments to the CPR and to the related practice direction. 109.", "As to the scope of the proposals, the Consultation Paper assumed that as a minimum the provisions would be introduced for defamation disputes (libel and slander) because it was principally in these cases that the key problems were seen to arise. However, the Paper added that there were other causes of action (such as breach of privacy) where “it may be considered they should also apply”. 110. The Consultation Paper with the responses and proposals received was published on 24 September 2009. The CPR Committee, requested to consider a number of measures to control costs in publication proceedings, proposed draft rules concerning, inter alia, additional information and control of ATE insurance.", "The Civil Procedure (Amendment) Rules 2009 came into force on 1 October 2009. The Government preferred to leave other matters open pending the Jackson Review. (b)The Jackson Review, January 2010 111. In late 2008 Jackson LJ was appointed to conduct a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost. 112.", "In January 2010 the Jackson Review was published, running to almost 600 pages plus appendices. In relation to CFAs, it noted that England and Wales differed from all other jurisdictions in having success fees payable not by the lawyer's own client but by the losing party. The benefits of CFAs had been achieved at massive cost especially in cases which were fully contested. That cost was borne by tax payers, insurance premium payers and by those defendants who had the misfortune of being neither insured nor a large, well-resourced organisation. 113.", "While Jackson LJ concluded that CFAs were not objectionable in themselves, he considered that there were four flaws in allowing success fees to be recovered from the losing party: “4.7 The recoverability regime does not possess either of the two crucial features of the legal aid regime which it replaces. In my view these omissions are two of its flaws. The third flaw is that the burden placed upon opposing parties is simply too great. The fourth flaw is that it presents an opportunity for some lawyers to make excessive profits. The consequence of these four flaws is to generate disproportionate costs.", "(a) First flaw 4.8 Any person, whether rich or poor and whether human or corporate, is entitled to enter into a CFA and take out ATE insurance. All that such a person needs to do is to find willing solicitors and willing insurers. This gives rise to anomalies and unintended consequences on a grand scale. I will give three examples in the next three paragraphs. 4.9 The tree root claims.", "It is, in my view, absurd that insurance companies can bring claims against local authorities using CFAs ... thereby doubling the costs burden upon council tax payers. The insurance companies can well afford to fund such litigation themselves and should do so. 4.10 Commercial claims. It is also, in my view, absurd that one party to commercial litigation can become a “super-claimant”... and thereby transfer most of the costs burden to the other party. Two arguments have been pressed upon me by defenders of recoverability in such cases: first, that recoverability enables [small and medium enterprises (“SMEs”)] to take on larger companies; secondly that the opposing party can avoid the crushing costs burden by settling early.", "As to the first argument, the recoverability provisions are of universal application. They are just as likely to be used by a large company against an SME as vice versa. As to the second argument ... some business disputes are evenly balanced. It is perfectly reasonable for the companies on both sides to decide to fight. It is quite wrong for one or other party to be pressurised into settling by a gross imbalance in the costs liabilities of the parties.", "If party A has a CFA... and party B does not, party A may be litigating at virtually no costs risk, whereas party B may face liability for quadruple costs if it loses. 4.11 Consumer dispute. County court litigation sometimes involves disputes between suppliers of goods and customers or consumers. Where such litigation is above the level of the small claims track, it is not unknown for the supplier to have a CFA and for the individual on the other side not to have a CFA. It all depends upon the terms which each party manages to agree with its own solicitors.", "In some cases the recoverability regime will give the consumer a “free ride” against the supplier. In other cases it will have precisely the opposite effect. It is perfectly possible for the recoverability regime to give the supplier a free ride and to expose the consumer to a massively increased costs liability. 4.12 The first flaw in the recoverability regime is that it is unfocused. There is no eligibility test for entering into a CFA, provided that a willing solicitor can be found.", "(b) Second flaw 4.13 The second flaw is that the party with a CFA generally has no interest in the level of costs being incurred in his or her name. Whether the case is won or lost, the client will usually pay nothing. If the case is lost, the solicitors waive their costs and pay the disbursements, in so far as not covered by ATE insurance. If the case is won, the lawyers will recover whatever they can from the other side either (a) by detailed or summary assessment or (b) by negotiation based upon the likely outcome of such an assessment. 4.14 This circumstance means that the client exerts no control (or, in the case of a no win, low fee agreement, little control) over costs when they are being incurred.", "The entire burden falls upon the judge who assesses costs retrospectively at the end of the case, when it is too late to “control” what is spent. (c) Third flaw 4.15 The third flaw in the recoverability regime is that the costs burden placed upon opposing parties is excessive and sometimes amounts to a denial of justice. If one takes any large block of cases conducted on CFAs, the opposing parties will end up paying more than the total costs of both parties in every case, regardless of the outcome of any particular case. 4.16 If the opposing party contests a case to trial (possibly quite reasonably) and then loses, its costs liability becomes grossly disproportionate. Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage, despite having good prospects of a successful defence.", "This effect is sometimes described as “blackmail”, even though the claimant is using the recoverability rules in a perfectly lawful way. (d) Fourth flaw 4.17 If claimant solicitors and counsel are successful in only picking “winners”, they will substantially enlarge their earnings... As the Senior Costs Judge explained... it is not possible for costs judges effectively to control success fees retrospectively. 4.18 Of course, not all lawyers are good at picking winners and some suffer losses on that account. Nevertheless, one repeated criticism of the recoverability regime which I have heard throughout the Costs Review, is that some claimant lawyers “cherry pick”. In other words they generally conduct winning cases on CFAs, they reject or drop at an early stage less promising cases and thus generate extremely healthy profits.", "Obviously the financial records of individual solicitors firms and barristers are confidential. Moreover, even if one such set of accounts were made public, that would tell us nothing about all the others. Nevertheless, the one point that can be made about the CFA regime is that it presents the opportunity to cherry pick. If lawyers succumb to that temptation, they will greatly increase their own earnings and they will do so in a manner which is entirely lawful. 4.19 Having worked in the legal profession for 37 years, I have a high regard for my fellow lawyers, both solicitors and counsel.", "The fact remains, however, that lawyers are human. As Professor Adrian Zuckerman has forcefully pointed out both during the Woolf Inquiry and during the present Costs Review, work tends to follow the most remunerative path. In my view, it is a flaw of the recoverability regime that it presents an opportunity to lawyers substantially to increase their earnings by cherry picking. This is a feature which tends to demean the profession in the eyes of the public.” 114. Specifically in relation to defamation and related claims, Jackson LJ considered that the present system was “the most bizarre and expensive system that it is possible to devise” for the following three reasons: “(i) Defendants pay a heavy price in order to ensure (a) that claimants within the CFA regime are protected against adverse costs liability and (b) that defendants can still recover costs if they win.", "(ii) Despite paying out large ATE insurance premiums in cases which they lose, the defendants' costs recovery in cases which they win may be only partial. This is because the defendants' costs recovery will be subject to the policy limits agreed by claimants in those cases. (iii) The present regime of recoverable ATE insurance premiums is indiscriminating. A wealthy celebrity suing a hard pressed regional newspaper publisher is fully entitled to take out ATE insurance, effectively at the expense of the defendant. The present regime provides protection against adverse costs, but it is in no way targeted upon those claimants who need such protection.” 115.", "As to defamation and related proceedings, Jackson LJ noted that a principal concern that had been expressed in relation to the costs of defamation proceedings and privacy cases was the widespread use of CFAs with ATE insurance, which could impose a disproportionate costs burden on defendants. He had recommended, for all civil litigation, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position): those arrangements had not suffered from the above flaws but opened up access to justice for many individuals who formerly had no such access. If that recommendation were to be adopted, Jackson LJ considered that it should go a substantial distance to ensuring that unsuccessful defendants in such proceedings were not faced with a disproportionate costs liability. However, such a measure could also reduce access to justice for claimants of slender means. To overcome this latter potential problem, he recommended complementary measures for defamation and related proceedings including increasing the general level of damages in defamation and breach of privacy proceedings by 10% and introducing a regime of qualified one way costs shifting, under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings.", "(c) Consultation subsequent to the “Jackson Review” (i) Report of the House of Commons Culture, Media and Sport Committee entitled “Press standards, privacy and libel”, 24 February 2010 116. In its introduction, the Report noted: “Throughout our inquiry we have been mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the 'chilling effect' this may have on press freedom. The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including media defendants, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost.", "All the evidence which we have received points to the fact that the vast majority of cases brought under a Conditional Fee Agreement (CFA) are won. We therefore see no justification for lawyers to continue to demand 100% success fees which are chargeable to the losing party. We recommend that the recovery of success fees from the losing party should be limited to no more than 10%, leaving the balance to be agreed between solicitor and client. We further recommend that the Government should make After the Event Insurance premiums irrecoverable.” 117. As regards, in particular, costs in defamation litigation, it commented: “263.", "We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court. It does not appear to us that this machinery effectively protects a defendant, who genuinely attempts to settle a claim at an early stage, against a determined and deep-pocketed litigant. This is another issue which needs to be addressed by the Ministry of Justice. ... 292. Although some have suggested that CFAs should be means-tested, in practice, given the high costs involved, this would be likely to result in access to justice being limited to the extremely poor and the super rich.", "The complexities involved also do not lend themselves to a simple or proportionate solution. We therefore do not support the introduction of means-testing CFAs. ... 294. In the matter of success fees, the argument is made that they need to be high to compensate for the risks run by lawyers .... This view is not, however, supported by the data available on the outcomes of cases of this kind.", "This data suggests that CFA-funded parties win the vast majority of their cases. ... 295. This high success rate is no doubt in part the fruit of careful selection. Indeed common sense and the economic incentives would point to the inevitability of cherry-picking. ... 307.", "All the evidence we have heard leads us to conclude that costs in CFA cases are too high. We also believe that CFA cases are rarely lost, thereby undermining the reasons for the introduction of the present scheme. However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved. We do not agree with the Ministry of Justice that the maximum level of success fees should be capped at 10%, nor do we believe that success fees should become wholly irrecoverable from the losing party. However we would support the recoverability of such fees from the losing party being limited to 10% of costs leaving the balance to be agreed between solicitor and client.", "This would address the key issue and seems to us to provide a reasonable balance, protecting access to justice, adequately compensating solicitors for the risks taken, giving claimants and their lawyers, in particular, a strong incentive to control costs and ensuring that costs to a losing party are proportionate. ... 309. ... Just as the press must be accountable for what it writes, lawyers must be accountable for the way in which cases are run, and that includes costs. The current costs system, especially the operation of CFAs, offers little incentive for either lawyers or their clients to control costs, rather the contrary. It also leads to claims being settled where they lack merit.", "We hope that the combined effect of our recommendations, the Ministry of Justice consultations and the conclusions of Lord Justice Jackson, will provide the impetus for a fairer and more balanced approach to costs in publication proceedings.” (ii) “Controlling Costs in Defamation Proceedings – Reducing Conditional Fee Agreement Success Fees” (“The 2010 Consultation Paper”): CP1/2010 118. In January 2010 the Ministry of Justice launched a further public consultation with the above-noted Paper. It considered only the option of reducing the maximum uplift in defamation cases to 10% pending consideration of the other recommendations of the Jackson Review (the reference here to defamation including other publication cases). The executive summary of the Consultation Paper reads as follows: “The Government has for some time been concerned about the impact of high legal costs in defamation proceedings, particularly the impact of 100% success fees, which can double the costs to unsuccessful defendants in cases funded under conditional fee agreements (CFAs). CFAs have increased access to justice for claimants in making it more possible to bring cases.", "However, the experience over the past decade suggests that - in defamation proceedings in particular - the balance has swung too far in favour of the interests of claimants, and against the interests of defendants. The current arrangements appear to permit lawyers acting under a CFA to charge a success fee that is out of proportion to the risks involved. Aside from the cost burden this places on the opposing side, this could encourage weaker and more speculative claims to be pursued. The Government does not believe that the present maximum success fee in defamation proceedings is justifiable in the public interest. This is particularly the case because the evidence shows that many more defamation claims win than would substantiate such a generous success fee.", "This view is supported by Sir Rupert Jackson's report ... This consultation paper seeks views on a proposal to reduce the maximum success fee which lawyers can currently charge from 100% to 10% of the base costs. This is an interim measure for dealing with disproportionate costs while the Government considers Sir Rupert's wider proposals which seek to radically change the existing arrangements for all cases where CFAs are used. The proposal in this consultation paper would help reduce the costs for media defendants further and limit the potential harmful effect very high legal costs appear to have on the publication decisions of the media and others. This proposed change is intended to complement changes already introduced on 1 October 2009 in respect of defamation proceedings which were designed to control the costs of individual cases.” 119.", "The Ministry of Justice Consultation Paper of 3 March 2010 included the responses and its conclusions. It concluded as follows: “2. The Government has had particular concerns about the high costs in defamation cases. Defamation is a discrete area where we have already taken a number of steps to help control costs. Defamation proceedings are now part of a mandatory costs budgeting pilot, with Judges scrutinising costs as cases progress.", "3. Lord Justice Jackson in his report ... recommends the abolition of recoverability of success fees and after the event (ATE) insurance premiums across civil litigation. Sir Rupert's report is substantial with recommendations that are far reaching with potentially widespread impact on many areas. However, it sets out a clear case for CFA reform. Even those respondents who did not support our proposal of reducing defamation success fees to 10% agree that the status quo cannot be permitted to continue.", "The main flaw identified by Sir Rupert of the current regime is the costs burden placed upon the opposing side. He also points out that the CFA regime was working satisfactorily before recoverability of success fees and ATE was introduced – an assertion that is made by a large number of respondents to the consultation. 4. Previous attempts to control the success fees have proved unfruitful. For example during 2007 the Department published a consultation paper, Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance, on a scheme of fixed recoverable staged success fees and ATE insurance premiums.", "However, there was no consensus on the details of the scheme and it could not be implemented. No new evidence was provided to Sir Rupert against his recommendation on abolishing recoverability of success fees and ATE. 5. We carefully considered all the responses. More than half (53%) of those who responded agreed with our proposal to reduce the defamation success fees to 10%.", "The Government also considered the report from the Culture Media and Sport Committee on press freedom libel and privacy published on 25 February 2010. Although the Committee did not agree with our proposal it recommends that the recoverability of success fees should be capped to 10%. 6. The Government is actively assessing the implications of Sir Rupert's proposals and will also consider the Committee's report and recommendations including those on costs. However, in the meantime we are minded to implement the proposal to reduce the maximum success fee in defamation cases to 10% immediately as an interim measure.", "7. We have therefore today laid the Conditional Fee Agreements (Amendment) Order before Parliament with a view to having the maximum success fee of Controlling Costs in Defamation Proceedings Summary of responses 10% in defamation cases in force as soon as possible subject to Parliamentary approval. 8. In light of the comments received, the Order has been amended to make clear that the new requirements will only apply to CFAs entered into after the date on which the Order comes into force. Defamation proceedings for the purpose of the Order means publication proceedings (within the meaning of rule 44.12B of the [CPR]) which includes defamation, malicious falsehood or breach of confidence involving publication to the public at large.” 120.", "The Conditional Fee Agreements (Amendment) Order was therefore laid before Parliament. However, that proposal was not maintained during the run-up to the general election in May 2010. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING BREACH OF CONFIDENCE 121. The applicant complained under Article 10 of the Convention about the finding of breach of confidence against it as regards its publication of the relevant articles.", "Article 10 reads, insofar as relevant, 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, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence,...” A. Admissibility of the complaint 122. The Court finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground.", "It must therefore be declared admissible. B. The applicant's observations on the merits 123. The applicant noted that Ms Campbell accepted that she could not complain about the publication of the facts of her drug addiction and treatment because she had chosen to put into the public domain an assertion that she did not take drugs. Every domestic judge therefore considered that it was therefore in the public interest to publish those matters.", "124. The core question in the domestic courts was whether the publication of three items of additional information (“the additional material”) was justified or not. The addition material impugned by the majority of the House of Lords comprised the fact that Ms Campbell was attending NA meetings, information about those NA meetings and two photographs of her outside her NA meetings. 125. The applicant preferred and relied extensively upon the dissenting judgments of Lord Nicholls and Lord Hoffman.", "126. It mainly argued that the majority of the House of Lords failed to accord sufficient weight to the editor's assessment made in good faith as to how much detail to publish in order to ensure the credibility of the story, particularly in light of Ms Campbell's previous false denials of addiction and treatment, even if those details related to a medical condition. The difference between the majority and minority in the House of Lords was not a narrow point, as the Government suggested, but rather a fundamental dispute as to the circumstances warranting an interference with editorial judgment. 127. If there was no objection to publishing the fact of her addiction and treatment, there could be no objection to the publication of the details of that treatment since treatment by attendance at NA meetings was well known treatment, widely used and much respected.", "The treatment details and photographs were anodyne once it was accepted that it was permissible to publish the fact of her addiction and the fact that she was receiving treatment for it. These details therefore constituted a limited intrusion into her private life which could not take priority over the newspapers entitlement to assess in good faith which details to publish to support the credibility of the matters it was reporting in the public interest. Equally, the photographs were taken to illustrate articles on a matter of agreed legitimate public interest and, in any event, contained no private information beyond that already legitimately contained in the article. Moreover, given that Ms Campbell lived by publicity, she could not insist upon too great a nicety of judgment as to the circumstantial detail with which the story was presented. 128.", "Finally, it was impossible to see that Ms Campbell suffered any significant additional distress because of the publication of the additional material concerning her treatment. As Lord Hoffman pointed out, the impact of the publication on her continuing therapy was not pleaded domestically. 129. It was for the Court to decide if the domestic courts made errors of principle and the applicant considered that they made the above-described errors. The applicant was not suggesting that a public figure who put aspects of her private life into the public domain forfeited the protection of Article 8: rather it maintained that its publication rights and rights of editorial discretion derived from Article 10 were weightier than the private life rights of the applicant on the facts of the present case.", "C.Observations of the Government 130. The Government submitted that the law of England and Wales was Convention compliant as was the application of that law to the present facts. 131. A claim for breach of confidence would only succeed if the court concluded that the publication of the private information was wrongful. The notion of wrongful publication was interpreted as importing the values contained in Articles 8 and 10 of the Convention.", "In practice, a court was required to weigh the public interest in maintaining the confidentiality of the information in question against the countervailing public interest in publication. The context for this exercise was provided by Articles 8 and 10 of the Convention, as explained by Lord Hope (paragraph 27 above). 132. On matters of fine assessment of conflicting Convention rights and the application of settled principles to the facts of a particular case, Contracting States were entitled to a certain margin of appreciation. 133.", "The domestic assessments demonstrated that the balance of the Articles 8 and 10 rights in the present case was correct and indeed a narrow point. The House of Lords relied on the correct Convention principles as to how to balance Articles 8 and 10 rights: indeed, there was no difference of principle between the majority and minority of the House of Lords. The narrow point at issue between them and, consequently, in the present case was the application of those principles to the facts of the case. The majority considered, for relevant and sufficient reasons given, that details of Ms Campbell's treatment went beyond justified publication. The Government underlined that there was a clear qualitative distinction to be made between the facts that Ms Campbell was a drug addict and in treatment and the publication of details of the treatment she was receiving.", "The non-medical therapy clearly constituted treatment close to the core of Article 8 of the Convention: the treatment was continuing, publication of those details risked affecting her willingness or ability to continue and the publication of these additional details had no public interest. Moreover, the same reasoning applied as regards the decision by the majority of the House of Lords as regards the photographs: the decision on photographs flowed from their decision that information about the treatment details of Ms Campbell was private and that there was no public interest in its publication. 134. Accordingly, since the correct principles were identified and relevant and sufficient reasons given for their application, the House of Lords' conclusion fell within its permitted margin. The applicant simply requested this Court to ignore this margin of appreciation and to exercise a further appeal jurisdiction and to prefer the minority factual analysis over that of the majority.", "135. As to the applicant's suggestion that the House of Lords accorded insufficient respect to a journalist's right to decide how much to publish to ensure credibility, the majority of the House of Lords clearly recognised the need to afford the applicant a proper margin in that respect. Having regard also to the “duties and responsibilities” of journalists, the margin to be accorded was not an unlimited one, was not out-with the supervision of the national court and was appropriate on the facts. D. The Court's assessment 136. The Court must determine whether the finding by the majority of the House of Lords of breach of confidence against the applicant constituted an interference with its right to freedom of expression.", "Any such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10 and, in that respect, the Court must determine whether an interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve that aim or aims. 1. Was there an interference prescribed by law for a legitimate aim? 137. The Court considers, and it was not disputed by the Government, that the finding of a breach of confidence against the applicant amounted to an interference with its right to freedom of expression.", "138. In addition, the applicant did not contest the lawfulness of the interference, which derived from the common law tort of breach of confidentiality, nor that its aim, protecting the rights of others, was legitimate. The Court accepts that the interference was prescribed by law (paragraphs 83-88 above) and pursued the legitimate aim of protecting “the ... rights of others” namely, Ms Campbell's right to respect for her private life. 2. Was the interference “necessary in a democratic society”?", "139. The fundamental principles relating to this question are well established in the case-law and have been summarised by the Grand Chamber as follows (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑XI): “45. 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. 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.", "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 the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. 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 ... .” 140. A number of additional factors are particularly relevant to the Court's supervisory role in the present case. 141.", "In the first place, regard must be had to the pre-eminent role of the press in a State governed by the rule of law (for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996‑II). Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted (Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of the reputation of ... others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism (Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004‑XI with further references contained therein).", "Nevertheless it is incumbent on it to impart information and ideas on matters of public interest (De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997‑I). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239 Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, § 62, ECHR 1999‑III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010). 142. In addition, when verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case, freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8, the Court must balance the public interest in the publication of a photograph and the need to protect private life (Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007‑VII.", "The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention (Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999‑III). 143. Finally, the Court considers that the publication of the photographs and articles, the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure's private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no.", "54224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain (dec.), no. 14929/02, 13 May 2003; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; as cited in Von Hannover v. Germany, no. 59320/00, § 65-66, ECHR 2004‑VI).", "Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution (Von Hannover v. Germany, cited above, at § 59. See also Hachette Filipacchi Associés v. France, cited above, § 42). 144. The Court has therefore examined whether the finding of a breach of confidence by the majority of the House of Lords disclosed relevant and sufficient reasons through an examination of whether the standards applied to the assessed facts were in conformity with the principles embodied in Article 10 of the Convention (Lindon, Otchakovsky-Laurens and July v. France, cited above).", "145. The Court has set out the domestic judgments in some detail and, notably, those of the majority of the House of Lords impugned by the applicant (paragraphs 25-54 above). It observes that the majority members of the House of Lords recorded the core Convention principles and case-law relevant to the case. In particular, they underlined in some detail the particular role of the press in a democratic society and, more especially, the importance of publishing matters of public interest. In addition, and contrary to the applicant's submission, each member of the majority specifically underlined the protection to be accorded to journalists as regards the techniques of reporting they adopt and as regards decisions taken about the content of published material to ensure credibility, as well as journalists' duties and responsibilities to act in good faith and on an accurate factual basis to provide “reliable and precise” information in accordance with the ethics of journalism (citing, in particular, Jersild v. Denmark, cited above, § 31 and Fressoz and Roire v. France [GC], no.", "29183/95, § 54, ECHR 1999‑I, see paragraphs 28-29, 35, 40 and 47 above). Moreover, the majority recorded the need to balance the protection accorded under Articles 8 and 10 so that any infringement of the applicant's Article 10 rights with the aim of protecting Ms Campbell's privacy rights had to be no more than was necessary, neither Article having a pre-eminence over the other (citing, inter alia, Resolution 1165/98 entitled “Right to Privacy” of the Parliamentary Assembly of the Council of Europe and A v B plc [2003] QB 195). Finally, the majority explained the particularly private nature of information concerning a person's treatment for drug addiction and the potential detriment resulting from its disclosure. 146. The Court further observes that all members of the House of Lords, both minority and majority, were in agreement as to these relevant principles.", "Lord Hope noted that the case did not raise any new issues of principle but was rather concerned with questions of “fact and degree” and Lord Hoffman emphasised that all members of the House of Lords were unanimous as to the applicable principles but were divided in their application to the narrow point related to the facts of the case (paragraphs 26 and 50 above). 147. Indeed, there was agreement at all three instances (and among all members of the House of Lords) as to the application of those principles to the main part of the published articles. They considered Ms Campbell to be an internationally known model and celebrity. Given her prior public denials of drug use, the core facts of her drug addiction and the fact that she was in treatment were legitimately a matter of public interest and capable of being published.", "Ms Campbell accepted this before the domestic courts, as did the parties before this Court. In making this undisputed qualitative distinction between, on the one hand, private information which Ms Campbell had already made public and which was therefore legitimately the subject of a public debate and, on the other, the additional information which she had not made public, the Court considers that all three domestic courts which examined the case reflected the same distinction underlined by this Court in the above-cited Von Hannover case decided some days after the present judgment of the House of Lords. 148. Accordingly, the difference of opinion between the judges in the national courts on which the present complaint turns, concerned only the application of relevant Convention principles to the question whether an interference with the editorial decision to publish the additional material (the fact that she was attending NA, details about the nature of her NA treatment and covertly taken photographs outside her NA meetings) was justified under Article 10. 149.", "The High Court examined this issue over 5 days and, in a detailed and lengthy judgment, found the publication of the additional material unjustified. The Court of Appeal, following a hearing of 2 days and by another detailed judgment, allowed the applicant's appeal finding the publication of the additional material to be justified. Having heard the appeal over 2 days and, each of the five members giving detailed judgments, the House of Lords found by a majority (3 to 2) that the publication of the additional material exceeded the latitude accorded to editorial assessment and was not justified. 150. Against this background, the Court considers that, having regard to the margin of appreciation accorded to decisions of national courts in this context, the Court would require strong reasons to substitute its view for that of the final decision of the House of Lords or, indeed, to prefer the decision of the minority to that of the majority of that court, as the applicant urged the Court to do.", "151. Indeed, the Court considers convincing the reasons for the decision of the majority of the House of Lords. The majority underlined, inter alia, the intimate and private nature of the additional information about Ms Campbell's physical and mental health and treatment and concluded that the publication of the additional material about that treatment had been harmful to Ms Campbell's continued treatment with NA in the United Kingdom and risked causing a significant setback to her recovery as well as being considerably distressing for her. The photographs had been taken covertly with a long range lens outside her place of treatment for drug addiction and would have been clearly distressing for a person of ordinary sensitivity in her position and faced with the same publicity; the photographs had been taken deliberately with a view to inclusion in the article and were accompanied with captions which made it clear she was coming from her NA meeting thereby connecting those photographs to the private information in the articles; and those photographs allowed the location of her NA meetings to be identified. On the other hand, the publication of the additional material was found not necessary to ensure the credibility of the story, the applicant itself accepting that it had sufficient information without the additional material to publish the articles on the front page of its newspaper.", "Nor was it considered that there was any compelling need for the public to have this additional material, the public interest being already satisfied by the publication of the core facts of her addiction and treatment. 152. The applicant maintained that it was impossible to find that Ms Campbell suffered significant additional distress because of the publication of the additional material. However, that was precisely what the majority of the House of Lords considered to be established: whether or not the publication of that additional material prejudiced her continued treatment with NA (and see Lord Hoffman at paragraph 54 above), the majority of the House of Lords found that it had caused her some distress, Baroness Hale specifically relying on the evidence taken and findings of fact in this respect of the first instance court (paragraph 41 above). The relatively low award of damages of the first instance court (restored by the majority of the House of Lords) reflected the former court's assessment of the level of prejudice suffered.", "153. Finally, it was pointed out by the applicant that the Court of Appeal found that the photographs had not been, of themselves, relied upon by Ms Campbell as a ground of complaint. However, Lord Nicholls (paragraph 49 above) clarified that the applicant complained that the information conveyed in the photographs was private and, further, the majority members of the House of Lords (paragraphs 32, 39 and 43 above) found that the captions and context in which the photographs were presented, which made it clear that Ms Campbell was coming from her NA meeting at an identifiable place, inextricably linked the photographs to the impugned private additional material. Accordingly, as the Government expressed it, the decision of the House of Lords on the photographs flowed from their decision that the additional material about Ms Campbell's treatment details was private and without public interest. 154.", "It is indeed true that the minority of the House of Lords found that the additional material was anodyne and inconsequential, noting that it was unremarkable to add the details of Ms Campbell's treatment with NA and, further, that the photographs, of themselves, added little and were not demeaning or embarrassing, so that the publication of all of this additional material fell within the latitude to be accorded to journalists. The applicant urged the Court to prefer the opinion of the minority. 155. However, the relevancy and sufficiency of the reasons of the majority as regards the limits on the latitude given to the editor's decision to publish the additional material is such that the Court does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords or to prefer the decision of the minority over that of the majority of the House of Lords, as the applicant urged the Court to do. 156.", "In such circumstances, the Court considers that the finding by the House of Lords that the applicant had acted in breach of confidence did not violate Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES 157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA.", "A. Admissibility of the complaint 158. The Government relied on the fact that the applicant did not challenge the level of the base costs of the first appeal to the House of Lords and that it had, in the end, settled all of Ms Campbell's costs' claims against it. The only ground of inadmissibility invoked by the Government in these respects was that the case was manifestly ill-founded. The Court considers it appropriate to examine these submissions on the merits of the complaint. 159.", "The Court therefore finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground. It must therefore be declared admissible. B.The applicant's observations 160. The applicant did not contest the base costs before the first instance court, the Court of Appeal or the House of Lords. It did not contest the use of CFAs in publication cases or in the present case.", "161. The applicant's core complaint concerned, rather, the recoverability of success fees included in CFAs. In particular, it complained that the total costs order against it was excessive because it included success fees in both appeals to the House of Lords which amounted to double the amount of the base costs of those appeals in a situation where domestic courts were expressly precluded by the Costs Practice Directions (paragraph 11.9) from controlling and reducing the total costs payable. 162. The requirement to pay the success fees of Ms Campbell's lawyers was an interference with the applicant's freedom of expression.", "While it was prescribed by law, it did not pursue a legitimate aim and was not necessary in a democratic society. 163. In the first place, the costs were excessive, amounting to disproportionate and punitive awards against media organisations. They were excessive by definition, being a multiple of already high base costs. Base costs in defamation and privacy cases were noticeably higher (GBP 400-500 per hour) when compared to other equally complex civil and criminal cases before the House of Lords (GBP 140 per hour in a serious rape case).", "In addition, a success fee was applied which could double those already high base costs. In the present case, uplifts of 95% and 100% were accepted as appropriate and a 100% success fee in a CFA was regularly charged. Moreover, a second success fee of 95% was charged as regards the second appeal to the House of Lords challenging the first success fee, which left the applicant in an impossible position. It was, moreover, perverse that the greater the prospects of success of a defence (for example, if it was assessed at 50/50), the higher the success fee. In addition, the total costs, including success fees, were also excessive in that they bore no relationship of proportionality to the damages recovered by Ms Campbell (GBP 3,500), it being inconceivable that even wealthy claimants would pay that sum in costs for the small damages obtained.", "Moreover, they were excessive because the CFAs and success fee system meant that there was no incentive for a claimant's legal representatives to keep costs low. 164. Secondly, the principle was no different from the requirement of proportionality between damages for defamation and the injury suffered which was set out in Tolstoy Miloslavsky v. the United Kingdom (13 July 1995, Series A no. 316‑B, § 49). The costs award to which it was subjected was excessive and, even though domestic law required base costs and the percentage success fee rate to be reasonable, the control of the level of costs awards was deficient, a matter recognised by the domestic consultation process.", "165. Thirdly, this excessive burden constituted a chilling effect on the applicant as a media organisation. The financial impact of CFAs inevitably inhibited media organisations from defending claims that should be fought and put pressure on them to settle early valid claims and, further, deterred such organisations from publishing material, including material which it would be proper to publish. The applicant relied on, inter alia, statements made to the House of Commons Constitutional Affairs Select Committee (paragraph 104 above) by numerous well-known press and media organisations, which statements set out those organisations' experience of, and concerns about, success fees in publications cases. 166.", "Fourthly, success fees did not achieve the aim of giving impecunious but deserving claimants access to justice because there were no obligations concerning, or mechanism controlling, a lawyer's use of success fees earned in one case to take on other poor claimants with deserving cases. The domestic consultation process confirmed that access to justice for impecunious clients had not increased. The impression of many media groups was that certain solicitors conducted weak cases on an ordinary retainer and strong cases on CFAs. Since, in addition, the media rarely win publication cases, a success fee was therefore a windfall profit for lawyers and a punitive award against the media. Indeed, since there was no means of ensuring that impecunious litigants benefited, the only result of the scheme was to shift the burden of funding civil litigation from the public purse to the private sector.", "167. Fifthly, allowing success fees to claimants such as Ms Campbell who could afford legal fees and were at no risk whatsoever of being denied access to justice was entirely unnecessary for the above-noted legitimate aim. Indeed, the House of Lords simply deferred to what it assumed was parliament's intention. The House of Lords failed to determine whether success fees (including for wealthy claimants) were necessary to contribute to access to litigation by impecunious litigants and, indeed, these were not factors which a judge assessing costs could take into account. The CFA system should therefore be amended to exclude wealthy claimants and means testing was possible to achieve this since the same financial eligibility for legal representation in criminal cases had been usefully employed in Magistrates Courts, which courts tried approximately 95% of criminal cases.", "168. Sixthly, publication cases were sufficiently distinguishable from other civil litigation, for the CFA scheme to exclude such cases. The applicant reiterated the reasons, also outlined by Lord Hoffman at paragraph 67 above, as to why the CFA/success fee system had a heavier impact in publication cases compared to other cases, such as traffic cases. C. The Government's observations 169. The Government noted that the applicant did not contest the costs in the High Court and the Court of Appeal or the base costs in the House of Lords.", "Moreover, it did not object in the domestic courts to the use of CFAs, to costs following the event or to a costs order including a lower level success fee. The applicant's core case before this Court had become a complaint that the domestic courts were precluded from reducing the total costs payable by an unsuccessful defendant, even when they were disproportionate and excessive as a result of the success fees, given paragraph 11.9 of the Costs Practice Directions. 170. The Government considered that the Court should examine only the underlying legislative provisions (sections 58 and 58A of the 1990 Act) namely, the overall scheme which permitted a person to enter into a CFA in practically all types of litigation with a success fee which could be recovered against an unsuccessful defendant in order to fund litigation by other persons. 171.", "As to whether those legislative provisions constituted an interference with the applicant's freedom of expression, the Government pointed out that the relevant provisions were permissive as to whether a CFA with success fee was concluded; as to the amount of that fee (subject to a statutory maximum of 100%); and, indeed, as to the making by a court of any specific form of costs order against an unsuccessful party. In any event, even if the interference of which the applicant appeared to complain may have been capable of amounting to an interference with its right to freedom of expression, it was one of a low order and was minimal. 172. The applicant had not disputed that the interference was prescribed by law and the Government clarified that the impugned costs order with success fees was based on sections 58 and 58A of the 1990 Act (inserted by the 1999 Act) and on Rule 44 of the CPR and the Costs Practice Directions. 173.", "The Government recalled that the purpose of allowing CFAs to be concluded was to achieve the widest public access to legal services funded by the private sector. In particular, CFAs provided a greater range of funding options to allow the widest possible range of people, including but not limited to claimants and defendants just above the means test for legal aid but not sufficiently wealthy to incur litigation costs, to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of litigation as possible. This was achieved through a fundamental re-balancing of the means of access to justice by resort to private sector funding (and hence funded indirectly by the public as a whole) rather than by the use of public (legal-aid) funds. It was intended to balance the rights of all litigants (claimants, defendants and successful or not), as well as the interests of lawyers who were expected to provide their services to the widest range of persons possible on a CFA. This allowed the State to re-allocate legal-aid resources by removing, for example, through the 1999 Act personal injuries claims from the legal-aid system, given the effectiveness of CFAs.", "174. Success fees enhanced the effectiveness of the CFA and were thus an integral part of the CFA scheme. It would ensure that lawyers would provide legal services on a CFA to the widest range of persons and not just to those whose claims were the strongest. Success fees were designed to broadly reflect the overall risk undertaken by a legal representative across his range of work and thus serve a purpose beyond a single piece of litigation. “Excessive” costs in a single case were justified by the general objective.", "In addition, the level of the success fee had to be high enough to provide a clear incentive to legal representatives to provide services under a CFA to those whose cases were less meritorious. The level also had to be sufficiently limited so as “to afford the client with the practical opportunity to pursue or defend legal proceedings”. The maximum uplift was therefore 100%. Moreover, it was also necessary for success fees to be recoverable from the unsuccessful party. Without this possibility, the CFA would not have been useful for claimants, unless the potential value of their cases would cover the success fee and other costs leaving sufficient damages to make the claim worthwhile, or for those seeking non-monetary remedies or for defendants.", "175. Promoting thereby access to justice, guaranteed by Article 6 of the Convention, was plainly a legitimate aim for the purposes of Article 10 § 2 of the Convention. 176. The Government went on to argue in some detail that recoverable success fees did not amount to a disproportionate interference with the applicant's right to freedom of expression. Contracting States were entitled to adopt rules and schemes of general application in support of social policy objectives and, in conceiving of such schemes, were required to carry out a delicate balance of a range of relevant and competing social and public interests including, as in the present case, issues under Articles 6 and 10 of the Convention.", "Indeed, “excessive” costs in a single case would be justified by the general objective. In these respects, they were to be afforded a significant margin of appreciation for this exercise (Blečić v. Croatia, no. 59532/00, § 64, 29 July 2004; and Evans v. the United Kingdom [GC], no. 6339/05, § 68, ECHR 2007‑IV). 177.", "The Government made lengthy submissions to the effect that the recovery of success fees was subject to a number of safeguards, the argument being that those safeguards struck a proper balance between the interests of unsuccessful litigants and the objective of expanding access to justice consonant with Article 6 of the Convention. 178. The first safeguard was the fixing of the maximum uplift at 100%. 179. The second safeguard was the requirement that the base costs and the success fees contained in a CFA were to be regulated by a court separately and on a case by case basis against the criterion that such amount should be no more than was reasonable and proportionate, any doubt to be resolved in favour of the paying party (Rule 44.4 of the CPR and paragraph 11 of the Costs Practice Directions).", "In particular, the base costs had to be reasonable and proportionate (paragraph 11.6 of the Costs Practice Directions) and thus were subject to assessment under Rule 44 of the CPR. A court was also required to consider whether there should be a success fee and, if so, whether the percentage uplift was reasonable (paragraph 11.7 of the Costs Practice Directions) and paragraph 11.8 contained a non-exhaustive list of factors to which a court could have regard in so deciding. All the impugned paragraph 11.9 of the Costs Practice Directions did therefore was to acknowledge the above-described control which had already been applied to the base and success fee elements of the costs order so that a further reduction of the total costs was unnecessary. Indeed, it would be illogical to allow a double reduction of the total costs as it would imply that a court would, in the end, award base costs that were less than what was initially considered reasonable. 180.", "As to the applicant's suggestion that “publication cases” be excluded from the system, there was no reason to suggest that those involved in publication cases should have less access to legal services; cases against newspapers concerned important and sensitive rights' issues for which CFAs should be available; and since legal aid was never available for defamation cases, those on modest incomes could not consider bringing or defending such actions without CFAs. 181. The applicant's submission that persons such as Ms Campbell should not have access to CFAs was rejected by the House of Lords. It did not matter if her solicitors had indicated that they did little CFA work: when pursuing broad social policy objectives, a State was entitled to adopt provisions of general application so that the justification of the general scheme was not undermined by one example. As to whether entitlement to the CFA system should be means tested, the Government relied on Lord Hoffman's judgment in the second appeal and maintained that this was precisely the type of social and economic decision to which the margin of appreciation applied.", "There were no clear objective criteria by which one could regulate access to the CFA/recoverable success fee scheme according to the financial status of a claimant and, indeed, any attempt to draw such a line would undermine the objective of promoting wide access to legal services and would risk those falling just the wrong side of the line being significantly disadvantaged. It would also be unrealistic to expect the private sector to control financial qualifications. 182. As to the consistency between the Government's submissions to the Court and those during the consultation process concerning paragraph 11.9 of the Costs Practice Directions in particular, the Government noted that the fact that it was considering reform of that specific provision did not mean that it was contrary to Article 10. If the Consultation Paper suggested that amending it might be an improvement (paragraph 108 above), that did not amount to a statement that it was “necessary” under Article 10, the Convention requiring minimum standards and States being free to provide further protection (Brecknell v. the United Kingdom, no.", "32457/04, § 70, 27 November 2007). The maintenance of the current CFA/recoverable success fee system fell within its margin of appreciation and, indeed, the ongoing domestic consultation process underlined why, in such a complex area of social and economic policy, that margin should be respected. 183. Nor was the application of these domestic provisions to the applicant's case a disproportionate interference. The only complaint made by the applicant before the domestic courts and this Court was the principle of recoverable success fees as regards both appeals to the House of Lords.", "However, it did not seek a determination by a court as to whether the level of those success fees was reasonable and proportionate. Equally, the applicant did not request a court to review the level of costs having regard to the low damages award made. Indeed, when the applicant did challenge the base costs in respect of Ms Campbell's lawyers in the second appeal, these were found to be disproportionate and reduced. D. The third parties' submissions and the Government's response 184. Joint submissions were made by Open Society Justice Initiative, Media Legal Defence Initiative, Index on Censorship, the English PEN, Global Witness and by Human Rights Watch.", "185. They considered that the case raised an important issue as to the chilling effect of high costs in defamation proceedings on NGOs and small media organisations with small budgets, which organisations were often involved in investigative reporting and dissemination of information on issues of significant public interest. 186. As to those high costs, they relied on a “Comparative Study of Costs in Defamation Proceedings across Europe”, as part of the “Programme in Comparative Media Law and Policy” of the Centre for Socio-Legal Studies at Oxford University, which had compared costs of defamation proceedings in 11 countries (Belgium, Bulgaria, Cyprus, France, Germany, Ireland, Italy, Malta, Romania, Spain and Sweden) as well as in England and Wales. Claimants with CFAs incurred substantially higher legal costs than defendants who had no CFA because of the lack of incentive of a client with a CFA to control the costs of legal work done on its behalf.", "In addition, the study estimated that, even in non-CFA cases, costs in the UK were 4 times higher than in the next most costly jurisdiction, Ireland. Ireland was, in turn, almost ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average. None of the comparator countries had CFA schemes, let alone success fees, a factor of itself demonstrative of its disproportion. 187.", "While CFAs had an important role to play in supporting public interest litigation, the system had to be designed so as not to infringe those organisations' Article 10 rights. The availability of CFAs had made it more difficult for non-governmental organisations (“NGOs”) and small publications to publish information on matters of public interest. 188. NGOs that investigated and exposed serious wrongdoing, which included many of the interveners, were increasingly assuming the traditional watchdog function of the media and, in seeking to expose unpopular truths, NGOs were particularly vulnerable to defamation actions. This was particularly so given libel tourism, the laws of England and Wales allowing organisations to be sued in that jurisdiction even if only a small proportion of the readership (print or internet) was located there.", "This was compounded by the difficulty in obtaining libel costs' insurance, given their risk profile, and by the CFA scheme. 189. The chilling effect of the excessive costs caused by CFA schemes in England and Wales amounted to a restriction on the Article 10 rights of these publishers which bore no relationship of proportionality to the injury suffered by a claimant and the Government had fashioned no doctrine to prevent this. 190. In response, the Government contended that these submissions were not directed to the costs matter at issue in the present case namely, recoverable success fees.", "As to the chilling effect of increased costs pursuant to CFAs, this was answered by the availability of defences to defamation actions under substantive law and by the role of the courts in controlling costs. 191. As to the comparative research, the Government contended that insufficient information was known about the study so as to ensure that like was being compared with like. It was inaccurate, for example, in stating that domestic law in England and Wales did not control the reasonableness and proportionality of the costs awarded. The extent to which the differing costs were reflective of the differing legal procedures was not known.", "Any lack of incentive on the part of a client with a CFA to control costs incurred on its behalf was again answered by the control exercised by the courts over the reasonableness and proportionality of costs' awards. In any event, the applicant's complaints did not concern the general level of base costs in defamation proceedings. E. The Court's assessment 1.Was there an interference? 192. The applicant's complaint, as noted at paragraph 157 above, concerns the impact on it of a costs award which, under domestic law, included success fees calculated at almost twice most of the base costs of two appeals to the House of Lords.", "The Court considers, and it was not seriously disputed by the Government, that the requirement to pay these success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with the applicant's right to freedom of expression guaranteed by Article 10 of the Convention. 193. The fact, as emphasised by the Government, that the underlying legal regime was “permissive”, in that it permitted a CFA including success fees to be concluded rather than requiring it, does not change the fact that the applicant was required, pursuant to a court order for costs, to pay costs including the impugned success fees to the claimant. 2.Was the interference “prescribed by law”? 194.", "The provisions relating to CFAs, the calculation of success fees by a percentage uplift and their recoverability from an unsuccessful defendant are regulated by the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the CPR and the relevant Costs Practice Directions, as outlined at paragraphs 89-98 above. It is clear, and the parties did not dispute, that the interference was prescribed by law within the meaning of Article 10 of the Convention. 3.Did the interference have a “legitimate aim”? 195. The essential objective of CFAs, of which success fees recoverable from an unsuccessful defendant were an integral part, were broader than the individual case and were described by the Government at paragraphs 173-175 above.", "This system was designed to provide a greater range of funding options to allow the widest possible range of people to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of civil litigation as possible, and to do so via a fundamental re-balancing of the means of access to justice by resorting to private sector funding rather than use of public funds. 196. The Court recalls that the right of effective access to a court is a right inherent in Article 6 of the Convention (Golder v. the United Kingdom, 21 February 1975, Series A no. 18). While it does not require state assistance in all matters of civil litigation, it may compel the State to provide, for example, the assistance of a lawyer when such assistance proves indispensable for effective access to court, depending on the particular facts and circumstances, including the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself (Airey v. Ireland, 9 October 1979, § 26, Series A no.", "32; and Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005‑II and references contained therein). 197. The Court therefore accepts that the CFA with recoverable success fees sought to achieve the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10 § 2 of the Convention. 4.Was the interference “necessary in a democratic society”?", "198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society” to achieve that aim. In particular, it must consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant, but also to contribute to the funding of other litigation and general access to justice, by paying up to double those costs in the form of recoverable success fees. The applicant did not complain about having had to pay any ATE premiums of the claimant. 199.", "This complaint also concerns the question of whether the authorities struck a fair balance between two values guaranteed by the Convention which may come into conflict with each other, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, an individual's right of access to court protected by Article 6 of the Convention. As noted at paragraph 142 above, this balancing of individual Convention interests attracts a broad margin of appreciation. 200. Moreover, a wide margin of appreciation is available to a legislature in implementing social and economic policies and the Court will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98).", "The Court later described this margin of appreciation as the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003‑VIII). However, if such general measures produce an individual and excessive burden, the requisite balance will not be found (James and Others v. the United Kingdom, at § 50): put otherwise, the Court may not regard as disproportionate every imbalance between the public interest and its effects on a particular individual but will do so in exceptional circumstances, when a certain “threshold of hardship” on the individual has been crossed (Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 192, 15 March 2007). 201.", "However, the Court has found the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (Jersild v. Denmark, cited above, § 35; and Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 64. It is, moreover, not necessary to consider, in any particular case, whether a damages award has a chilling effect on the press as a matter of fact so that, for example, unpredictably large damages awards in defamation cases are considered capable of having such an effect (Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 114, ECHR 2005‑V (extracts)). 202. The Court notes at the outset that the essential position of the Government was that any disproportionality visited on an individual case by the CFA/recoverable success fee regime was justified by the need to adopt provisions of general application when pursuing broad social and economic policy objectives.", "They referred to the reasoning of Lord Hoffman who had similarly responded to the applicant's argument based on the facts of its case namely, that Ms Campbell was wealthy so that a CFA/recoverable success fee was not necessary to ensure her access to court. Lord Hoffman found that the general policy objectives underlying the CFA/recoverable success fees scheme meant that the scheme could not be disallowed solely on the ground that liability of an individual applicant would be inconsistent with its rights under Article 10 of the Convention (relying on the above-cited James v. the United Kingdom case). He considered the scheme to be a rational legislative policy which the Government could adopt as a general scheme compatibly with Article 10 and which the courts had to accept (Lord Hoffman at paragraph 63 above. See also Lord Carswell, paragraphs 72-73 above). 203.", "However, one of the particularities of the present case is that this general scheme and its objectives have themselves been the subject of detailed and lengthy public consultation notably by the Ministry of Justice since 2003. While most of this process transpired after the House of Lords judgment in the second appeal in the present case (2005), it highlighted fundamental flaws underlying the recoverable success fee scheme, particularly in cases such as the present. The Court has therefore set out this public consultation process in some detail above (paragraphs 100-120 above) and has highlighted key elements below. 204. By March 2006 the House of Commons Constitutional Affairs Select Committee considered that the courts should address the question of disproportionate costs in defamation and privacy proceedings and it made certain proposals including cost-capping.", "No legislative action was taken. The proposal of staged success fees (re-assessing the risk and the percentage of the success fee as the action progressed) was then included in the “Theobalds Park Plus Agreement” drafted by the CJC following mediation between media organisations and claimants' representatives. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus Agreement could help ensure that costs of litigation were proportionate and reasonable. As a result, in 2007 it sought views on the implementation of the CJC's recommendations including on a range of fixed staged recoverable success fees. A slightly revised scheme was published with responses to the consultation in July 2008.", "The media, in particular, did not support the proposals and the scheme was not implemented. 205. The Ministry of Justice then published a further Consultation Paper in February 2009. It noted that the high levels of legal costs incurred in publication proceedings had been the subject of criticism and debate in the courts and in Parliament; that excessive costs might force defendants to settle unmeritorious claims which in turn threatened a risk to reporting; and that some had argued that it was a risk to freedom of expression. It sought views on measures to better control costs.", "While certain minor proposals concerning, inter alia, additional information and control of ATE insurance were proposed and introduced (The Civil Procedure (Amendment) Rules 2009), other matters were left open pending the Jackson Review. Amending the prohibition on reviewing the proportionality of the total costs (paragraph 11.9 of the Costs Practice Directions) was principally considered with respect to defamation disputes because it was mainly in those cases that the key problems addressed in the Paper were seen to arise. 206. The Jackson Review, commissioned by the Ministry of Justice and published January 2010, was an extensive review of costs in civil litigation and it highlighted four flaws inherent in the recoverability of success fees in civil litigation. 207.", "The first flaw of the recoverable success fee regime was the lack of focus of the regime and the lack of any qualifying requirements for claimants who would be allowed to enter into a CFA. He highlighted certain anomalies flowing from this. 208. Secondly, Jackson LJ considered flawed the fact that there was no incentive on the part of a claimant to control the incurring of legal costs on his or her behalf and that judges assessed those costs only at the end of the case, when it was considered too late to control what had been spent. This concern was highlighted by the third party submissions to this Court by media organisations (paragraph 186 above).", "The consequent “costs race” and resulting rise in costs were particularly underlined by the judiciary (the King case at paragraph 99 above and by Lord Hoffman in the costs' appeal in the present case at paragraph 65 above). 209. The third flaw was the “blackmail” or “chilling” effect of the system of recoverable success fees. The costs burden on the opposing parties was so excessive that often a party was driven to settle early despite good prospects of a successful defence. This “ransom” effect of the scheme was highlighted during the earlier public consultation processes (see paragraphs 101 and 107 above), by the judiciary in other cases (the Turcu and King cases, at paragraphs 98 and 99 above), in the judgments of the House of Lords in the second appeal in the present case (Lords Hoffman and Carswell, paragraphs 64 and 72 above) and by the third parties (paragraphs 185 and 189 above).", "210. The fourth flaw was the fact that the regime provided, at the very least, the opportunity, it not being possible to verify the confidential financial records of solicitors and barristers, to “cherry pick” winning cases to conduct on CFAs with success fees. The Court considers it significant that this criticism by Jackson LJ would imply that recoverable success fees did not achieve the intended objective of extending access to justice to the broadest range of persons: instead of lawyers relying on success fees gained in successful cases to fund their representation of clients with arguably less clearly meritorious cases, lawyers had the opportunity to pursue meritorious cases only with CFAs/success fees and to avoid claimants whose claims were less meritorious but which were still deserving of being heard. 211. Jackson LJ went on to point out that these flaws produced in defamation and privacy cases the “most bizarre and expensive system that it is possible to devise” for reasons which essentially concerned the excessive costs' burden imposed on defendants in such cases.", "212. Jackson LJ therefore recommended to the Ministry of Justice far-reaching reform. He recommended, for all civil litigation including privacy cases, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position), pointing out that the pre-1999 Act arrangements had not suffered from the above flaws and still extended access to justice for many individuals who formerly had none. If that recommendation were to be adopted, a further two recommendations (specifically concerning defamation and privacy actions) were made to ensure the objective of ensuring access to justice for claimants of slender means: increasing the general level of damages in defamation and breach of privacy cases by 10% and introducing a regime of qualified one-way costs shifting, so that the amount of costs an unsuccessful claimant might be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings. 213.", "The subsequent report of the House of Commons of 2010 again recognised similar flaws of recoverable success fees (the “blackmail” effect on the press; “cherry picking” by lawyers so that CFA cases were rarely lost; and the lack of incentive on lawyers or their clients to control costs). It considered that those problems had to be addressed urgently and it proposed to limit the recoverability of success fees to 10% of the base costs with the balance to be agreed between the solicitor and client. 214. The further Consultation Paper in January 2010 recorded the particular concern of the Ministry of Justice about the impact of 100% success fees in publication cases. It considered that experience over the past decade had shown that, in defamation proceedings in particular, “the balance had swung too far in favour of the interests of claimants and against the interests of defendants” and it noted that the Government did not believe that the “present maximum success fee in defamation proceedings is justifiable in the public interest”.", "Pending fuller consideration of Jackson LJ's proposals, the Ministry sought views on a proposal to reduce the maximum uplift from 100% to 10% of the base costs in defamation and privacy cases. In March 2010 the Ministry of Justice confirmed that legislation had been put to Parliament to reduce success fees. Pending a fuller assessment of the Jackson Review which set out a “clear case for CFA reform”, this was only an interim proposal. However, this interim solution was not maintained given the intervening general election in April 2010. 215.", "In summary, within four years of the introduction by the 1999 Act of recoverable success fees to the existing CFA scheme, concerns expressed in the industry about consequent excessive costs orders, notably, in defamation and other publication including privacy cases, led to detailed public consultations by the Ministry of Justice and inquiries by Committees of the House of Commons, as well as a far-reaching review of costs in civil litigation commissioned by the Ministry. The Ministry of Justice acknowledged in that process that, as a result of recoverable success fees, the costs burden in civil litigation was excessive and, in particular, that the balance had swung too far in favour of claimants and against the interests of defendants. This was particularly so in defamation and privacy cases. Not only was the burden on defendants in publication cases recognised as excessive but one of the acknowledged flaws of the scheme - the opportunity for solicitors to “cherry pick” cases evidenced by the success of publication cases run on a CFA/success fee basis - would appear to indicate that the scheme has not achieved the espoused aim of ensuring access to justice of the broadest range of persons. Of equal importance, Jackson LJ considered that the pre-1999 Act position achieved that aim without overburdening defendants, a point with which a large number of respondents to the 2010 consultation of the Ministry had agreed (paragraph 119 above).", "Moreover, pending fuller consideration of the broader recommendations of Jackson LJ, the Ministry of Justice introduced legislation as a first step towards solving the acknowledged problems by drastically reducing the maximum success fee to 10%, precisely the core point impugned by the present applicant. However, the Government were unable to ensure the adoption of the legislation and have not indicated whether this or any other legislation has since been proposed for adoption. 216. The Government relied on the domestic courts' ability to control costs in publication proceedings through the provisions of the CPR and the Costs Practice Directions. However, the second flaw highlighted in the Jackson Review indicates that those safeguards were undermined by a combination of an uncontrolled “costs race” provoked by the impugned scheme during an action and the difficulty of a court in effectively assessing those costs after the action.", "In addition, while those provisions addressed the reasonableness of base costs given matters such as the amount at stake, the interests of the parties and the complexity of the issues, Lord Hope underlined that the separate control of the reasonableness of success fees essentially concerned the review of the percentage uplift on the basis of the risk undertaken in the case and that, in an evenly balanced case such as the present, success fees were inevitably 100% (see also Designer's Guild Limited, cited at paragraph 97 above). Such safeguard provisions could not, therefore, as Lord Hoffman confirmed, address the applicant's rejection in principle of recoverable success fees calculated as a percentage of reasonable base costs. Moreover, these safeguards relied on by the Government were available throughout the period of public consultation at the end of which the Ministry of Justice accepted that costs were disproportionate, especially in publication cases, so that a drastic reduction in the maximum success fee was required. 217. The Government did not address in detail the public consultation process, much of which had taken place after their observations were submitted in March 2009.", "It is also true that attempts by a State to improve a scheme does not mean, of itself, that the existing scheme is in violation of the Convention (Brecknell v. the United Kingdom, cited above, at § 70). However, the Court considers that the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (the above-cited case of Tolstoy Miloslavsky v. the United Kingdom, at § 50). 218. This conclusion is indeed borne out by the facts of the present case. On the one hand, the claimant was wealthy and not in the category of persons considered excluded from access to justice for financial reasons.", "Her representatives accepted in the domestic proceedings (paragraph 181 above) that they did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems. The applicant's case was not without merit, in that the Court of Appeal and a minority of the House of Lords considered that the impugned articles did not violate Ms Campbell's right to private life. On the other hand, and while accepting that the proceedings were lengthy and somewhat complex, the total costs billed by the claimant, as regards the two appeals to the House of Lords alone, amounted to GBP 850,000.00, of which GBP 365,077.13 represented success fees. It is true that the applicant, in the end, reached a settlement of the costs of both appeals paying the total sum of GBP 500,000.00 (base costs and success fees). However, given the findings of the House of Lords and of the Judicial Taxing Officers in the second appeal (paragraphs 70 and 80, respectively) as well as in the similar above-cited case of Designer's Guild Limited, success fees were clearly recoverable against the applicant and, further, at the rates of 95% and 100% in the first appeal and 95% for the solicitors' costs in the second appeal.", "Accordingly, even if it is not possible to quantify with certainty the precise amounts paid by the applicant which can be attributed to success fees, it is evident that the negotiated costs settlements reflected the obligation on the applicant to discharge substantial success fees. 219. In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters. 220. Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 221. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 222. The applicant claimed reimbursement of the success fees paid to the claimant following both appeals to the House of Lords. Since the success fees claimed by her as regards the first appeal amounted to 47% of the total appeal costs billed, the applicant claimed reimbursement of GBP 164,500, being 47% of the total appeal costs actually paid in settlement by it.", "By the same reasoning, it claimed GBP 50,000 for the success fee for the second appeal, that being 33% of the total costs paid by it (the lower percentage reflecting the fact that only the solicitors' fees were subject to a CFA in the second appeal). This amounted to a total claim of GBP 214,000 in pecuniary damages. 223. The applicant also claimed GBP 100,000 (inclusive of interest and taxation costs) being the costs paid by it, using the above means of calculation, in settlement of the base costs claimed pursuant to the costs order against it as in the second appeal to the House of Lords. 224.", "The applicant further claimed GBP 41,258.00 in respect of its costs in preparing a separate application on the costs issue for this Court. A further GBP 52,349.00 was claimed for work done on both the breach of confidence and costs issues since the communication of the cases. Vouchers were submitted for all costs claimed. 225. The Government did not dispute the applicant's analysis as regards the success fees but disputed the amounts claimed.", "The costs' settlements between the applicant and the claimant did not specify an amount paid in respect of the success fees and, as a matter of principle, it should be assumed that the bulk of the costs paid were base costs, which would be consistent with the applicant's stance of opposition to payment of the success fees. The pecuniary loss for the first appeal should be GBP 35,511.00, the amount by which the sum paid in respect of the first appeal exceeded the base costs billed. The pecuniary loss as regards the second appeal should be zero since the sum paid by the applicant (GBP 150,000) was less than the claimed base costs (GBP 170,499.82). The Government did not address the applicant's request for reimbursement of the base costs of the second appeal to the House of Lords. 226.", "The Government also made detailed submissions to the effect that the costs claimed in respect of the application to this Court were plainly excessive. 227. The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Government and the applicants. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the application admissible; 2. Holds by six votes to one that there has been no violation of Article 10 of the Convention as regards the finding of a breach of confidence against the applicant; 3. Holds unanimously that there has been a violation of Article 10 of the Convention as regards the success fees payable by the applicant; 4. Holds unanimously that the question of the application of Article 41 is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicants to submit, within the three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 18 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıLjiljana Mijović Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge David Thór Björgvinsson is annexed to this judgment. F.A.L.M. PARTLY DISSENTING OPINION OF JUDGEDAVID THÓR BJÖRGVINSSON 1.I agree with the majority that there has been a violation of Article 10 of the Convention as regards the costs payable by the applicant. However, I disagree that there has been no violation of that provision on account of the domestic court's finding of a breach of privacy (“confidence”) against the applicant. 2.It is not disputed that the basic facts of Ms C's drug addiction and treatment were publishable in the public interest.", "This is so not only because she had earlier pronounced publicly that she did not take illegal drugs but also because she herself is a public figure who, as an international fashion model and celebrity, has a direct interest in projecting a certain image of herself in the mind of the general public in order to exploit that image to promote her professional ventures and interests. In this light, Ms C's earlier statements that she did not take drugs can be seen as an intentional projection of an inaccurate image. The applicant was therefore justified in alerting the public to the truth about her drug problem. 3.The main issue in dispute before the domestic courts was whether the publication of the additional information was justified. This additional information consisted of a report that Ms C was attending NA meetings, information about those meetings as well as two photographs of her outside the NA centre.", "The majority of the Chamber agreed with the domestic courts that the publication of this additional information was not justified. It would seem that the main reason for its stance is that the relevance and sufficiency of the reasoning of the House of Lords concerning the limits of the latitude given to an editor's decision to publish the additional material “is such that the Court does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords or to prefer the decision of the minority over that of the majority of the House of Lords...” (paragraph 155). I find the approach of the Chamber to be unacceptable for a number of reasons. 4.Firstly, at least some of the principles applied by the House of Lords are not relevant in the balancing exercise. I refer in this regard to Baroness Hale's opinion that it was “not necessary to publish any further information ...” (paragraph 152 of the judgment of the House of Lords and paragraph 38 above).", "The test implied in that opinion is the wrong one. From the point of view of journalistic discretion in the presentation of a legitimate story, it is the restriction on freedom of expression that must be justified by reference to 'necessity' and not the publication as such. Secondly, insofar as the relevant principles are concerned, they have not been correctly applied on all counts. I agree that the “public interest” test was correctly applied when the majority found that the publication of the original story was in the public interest. However, its finding that the publication of the additional material was not is difficult to justify.", "I find this distinction in principle between the original story and the supplementary material to be unconvincing. 5. However, in the final analysis, the majority simply defers to the assessment made by the domestic courts. This approach is inconsistent with the 'strict scrutiny' that is usually found in this Court's case law in balancing Article 8 and Article 10 rights where the Court regularly makes its own independent assessment of the facts involved and of the application of the relevant principles to those facts and it frequently substitutes its own views for those of the domestic courts. It has been the consistent approach of this Court that it is not enough, in itself, that the domestic courts consider the relevant principles; they must also be applied correctly (in this regard, see, for example, Fressoz and Roire v. France [GC], no.", "29183/95, ECHR 1999‑I; Von Hannover v. Germany, no. 59320/00, ECHR 2004‑VI; Biriuk v. Lithuania, no. 23373/03, 25 November 2008; Petrenco v. Moldova, no. 20928/05, 30 March 2010; Flinkkilä and Others v. Finland, no. 25576/04, 6 April 2010; and Mariapori v. Finland, no.", "37751/07, 6 July 2010). In these and many other cases, the Court has made its own assessment and reversed the findings of the domestic courts without suggesting that the domestic courts had considered irrelevant principles or applied improper criteria in the overall assessment made. I do not see why a different approach should be adopted in this case. 6. Annoying as Ms C may have found the publication of the story in question, the applicant newspaper was justified in alerting the public about her drug addiction.", "The additional information and the photographs were no more than a continuation of the original legitimate story. I agree with the unanimous decision of the Court of Appeal and the views of Lord Nicholls and Lord Hoffman JJ of the House of Lords that this addition did not reveal anything fundamentally significant to the story but served mostly “to add colour and conviction” to it. In my view, the publication of the supplementary materials fell well within the journalistic margin of the press in deciding the way in which a legitimate story is presented (see, for example, Fressoz and Roire v. France, cited above, at § 54). Thus, even accepting that the publication of the additional information and pictures was a further incursion into Ms C's private life, it was only to a relatively minor degree in the overall context of the story as a whole. It cannot be considered as sufficient and serious enough to justify the restriction on freedom of expression under Article 10." ]
[ "FOURTH SECTION CASE OF TARA AND POIATA v. MOLDOVA (Application no. 36305/03) JUDGMENT STRASBOURG 16 October 2007 FINAL 16/01/2008 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 Tara and Poiata 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. 36305/03) 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 Ţara, a newspaper based in Chişinău, and Petru Poiată (“the applicants”) on 15 September 2003. 2. The applicants were represented by Mr V. Gribincea and Mr V. Zamă, lawyers practising in Chişinău and members of the non-governmental organisation Lawyers for Human Rights.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog. 3. The applicants alleged, in particular, a breach of their right to freedom of expression on account of their having been found guilty of defamation of a politician. 4. On 9 February 2006 the President of the Fourth Section of the Court decided to give notice of 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. On 31 October 2002 Ţara published an article entitled “While ignoring the legislation on fair competition, the Stepaniuc clan is taking away the property of others by blackmail”. It reported by partly citing and partly summarising a letter addressed to the President of Moldova by a transport company, which used to operate several bus lines linking Chişinău with other towns.", "The article read, inter alia, as follows: “The other day Ţara received a document with a very interesting content. It is a letter addressed to President Vladimir Voronin by the managers of company F. located in Ialoveni. According to its authors, the company ... had been providing transport services and employing some 150 employees ... High-ranking individuals from the top of the power structure asked them to yield the Chişinău-Ialoveni route on the ground that “ours also need to work”. As a result, the company's revenues decreased and 32 people were left without employment.", "That is what the letter says. We are not sure that things happened exactly like that; however, Ţara and other newspapers have written about some strange goings-on with the Chişinău-Ialoveni route. ... the following passages from the letter are translated from Russian: 'The elections (of 25 February 2001) came. Knowing how we have been treated by the [former government], we supported the Communist Party, provided them on a daily basis with 3-4 transportation units and generated publicity in their favour using our own money. We were very glad that the truth had triumphed, and that from then on we would work only in accordance with the law, as they had promised in their election campaign.", "However, it appears that those were only empty words ... At the end of June 2002, Victor Stepaniuc, the leader of the Communist Faction of Parliament, telephoned A.C., the Minister of Public Transport and Roads, and asked that F.'s bus lines be taken away from it and given to [two other companies], whose owners were Victor Stepaniuc's nephew and son-in-law.' Due to lack of space we will limit the details of the letter and will summarise it: the minister complied. The ensuing complaints were fruitless ... and F.'s buses were replaced with [other buses]. Cover was also provided, according to the authors, by the Traffic Police. The whole thing was conducted by Victor Stepaniuc's son-in-law.", "The authors' last hope lies with the President of the Country and they ask him to put an end to the abuses and punish the corrupt public officials. We wonder when somebody will write to the President about similar abuses within the distribution network of the Chişinău Tobacco Company, where Victor Stepaniuc is presently getting ahead by eliminating his competitors using Bolshevik methods.” 6. On 21 November 2002 Ţara published another article entitled “Bolshevik habits. The Stepaniuc clan spreads its tentacles”. It stated, inter alia, the following: “The article of 31 October 2002 ... has not provoked any reaction from any State authority.", "I wonder why the Communist authorities do not react to serious allegations made by the media ... In that article I wrote about irregularities in the field of public transport caused by companies G. and T. headed by the son-in-law and nephew of Victor Stepaniuc, the leader of the Communist Faction from Parliament. ... Our newspaper was visited recently by other drivers from Chişinău Bus Depot No. 1 with similar complaints. After failing to obtain satisfaction from the courts, the people come to our newspaper for help.", "However, we are not all-powerful. The only thing that we can do is to sound the alarm on illegalities in the hope that those in charge will put an end to them. The drivers who visited us asked us to clarify how company T. had obtained licences for the same bus routes which they run... I cite from their letter: 'company T., with support from Parliament, something about which it sometimes expressly brags, can solve any problem. Its drivers work outside any timetable and their buses leave 10-15 minutes ahead of us on purpose.", "Any protests on our part are useless due to the support in employs from Parliament.' Their statements are confirmed by an official report by a local transport authority, confirming the abuses of company T. ... [and stating that] the activity of company T. seriously perturbs the normal circulation of buses on the Chişinău – Malcoci and Chişinău – Condrita routes. What timetables are we talking about when the father-in-law and the uncle occupy such high positions? While writing this article I contacted I.G., the chief engineer from Chişinău Bus Depot No. 1, to ask him whether the situation has improved.", "He told me that on the contrary it is becoming worse and worse. Thus, the Stepaniuc clan spreads its tentacles. How far? For how long?” 7. On an unspecified date Victor Stepaniuc brought civil defamation proceedings against the newspaper and against the author of the article.", "He argued, inter alia, that the article of 31 October 2002 contained the following statements which were untrue and defamatory of him: “... At the end of June 2002, Victor Stepaniuc, the leader of the Communist Faction of Parliament, telephoned A.C., the Minister of Public Transport and Roads, and asked that F.'s bus lines be taken away from it and given to [two other companies], whose owners were Victor Stepaniuc's nephew and son-in-law. ... the minister complied... We wonder when somebody will write to the President about similar abuses within the distribution network of the Chişinău Tobacco Company, where Victor Stepaniuc is presently getting ahead by eliminating his competitors using Bolshevik methods. 8. According to him, the meaning and wording of the article of 21 November 2002 contained the following defamatory statements implying that: “ in my capacity as an MP and leader of the Communist Faction of Parliament, I offer cover for the illegal actions of third parties in respect of the circulation of buses between Chişinău and some villages in Ialoveni county. 'Thus, the Stepaniuc clan spreads its tentacles.", "How far? For how long'?” 9. On 24 January 2003 the Buiucani District Court found in favour of Victor Stepaniuc, finding that he could not be held responsible for the activity of the companies owned by his nephew and his son-in-law, particularly since the State authorities had not found any illegalities in their activity and had not withdrawn their licences. No link between the activity of Victor Stepaniuc in his capacity as an MP and leader of a parliamentary group and the activity of those companies had been established. The court found the passages complained of by the plaintiff to be defamatory and ordered the newspaper and the author to pay Victor Stepaniuc 3,600 Moldovan Lei (MDL) (the equivalent of 238 euros (EUR) at the time) and MDL 1,440 (the equivalent of EUR 93 at the time) respectively.", "It also ordered the newspaper to issue an apology within fifteen days. The defendants were also ordered to pay the court fees. 10. The applicants appealed against this judgment, arguing, inter alia, that the first-instance court had totally disregarded their arguments. The articles had reported in fact on letters and statements of third parties, while the final conclusions had been mere value judgments.", "They had acted in good faith and verified the information contained in the statements of the third parties. One of the sentences found to be defamatory by the first-instance court had not even been included in the articles. 11. On 3 April 2004 the Chişinău Regional Court dismissed the appeal. The applicants lodged an appeal on points of law; however, that appeal was also dismissed by the Court of Appeal on 11 June 2003.", "II. RELEVANT DOMESTIC LAW 12. The relevant provisions of the Civil Code in force at the material time read: Article 7. Protection of honour and dignity “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality. (2) Where the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” Article 7§ 1.", "Compensation for non-pecuniary damage “(1) The non-pecuniary damage caused to a person as a result of circulation through the media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life, without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 month's minimum wages if the information has been circulated by a natural person.” THE LAW 13. The applicants complained under Article 10 of the Convention that the domestic courts' decisions had entailed interference with their right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads: “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.” I. ADMISSIBILITY OF THE CASE A.", "The complaints under Article 6, Article 1 of Protocol No. 1 and Article 13 of the Convention 14. In its initial application, the applicant newspaper also submitted complaints under Article 6, Article 1 of Protocol No. 1 and Article 13 of the Convention. However, in its observations on admissibility and merits it asked the Court not to proceed with the examination of these complaints.", "The Court finds no reason to examine them. B. Complaint under Article 10 of the Convention 15. The Court considers that the applicants' complaint under Article 10 of the Convention raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and that no grounds for declaring them inadmissible have been established. The Court therefore declares the application admissible.", "In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of this complaint. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. The arguments of the parties 1. The applicants 16.", "The applicants agreed that the interference was prescribed by law and had pursued a legitimate aim. However, it was not necessary in a democratic society because the impugned articles had merely disseminated statements made by third parties and had been part of a debate on an issue of distinct public importance, namely the management of public transport and alleged illegalities committed by public officials. The applicants had acted in good faith when publishing the article and verified the statements made by the third parties. They had considered the source to be reliable, since it was a letter addressed to the President of the country, contained many details, and official reports emanating from State transport authorities were attached to it. Of course it had been impossible for them to verify the statement according to which Mr Stepaniuc had telephoned the Minister of Public Transport.", "17. Referring to the statement concerning the involvement of Mr Stepaniuc in the distribution of the Chişinău Tobacco Company, the applicants argued that that involvement had been confirmed by an official report of the Moldovan Intelligence Service, a copy of which had been attached to the domestic case file. 18. The domestic courts had also ignored the fact that Mr Stepaniuc was a high-ranking politician and that therefore the limits of criticism in his respect were wide. 2.", "The Government 19. The Government agreed that the facts of the case disclosed an interference with the applicants' right to freedom of expression. The interference was nevertheless justified under Article 10 § 2 of the Convention. The applicants had been ordered to pay non-pecuniary damages for defamation on the basis of Articles 7 and 7 § 1 of the Civil Code. The interference had thus been “prescribed by law” and the law was accessible and foreseeable.", "It had served the legitimate aim of protecting the dignity of Mr Stepaniuc; furthermore, the measure had been necessary in a democratic society. 20. The Government pointed to the national authorities' margin of appreciation in assessing the need for interference and submitted that where the Convention referred to domestic law it was primarily the task of the national authorities to apply and interpret that domestic law. They contended that in the present case the domestic authorities had not overstepped their margin of appreciation and had made use of it in good faith, carefully and in a reasonable way. 21.", "The Government further submitted that the reasons given to justify the interference were “relevant and sufficient”. B. The Court's assessment 22. It is common ground between the parties, and the Court agrees, that the decisions of the domestic courts and the award of damages made against the applicants amounted to “interference by [a] public authority” with the applicants' right to freedom of expression under the first paragraph of Article 10. It is also undisputed that the interference was “prescribed by law” and pursued a legitimate aim.", "The Court's task is to establish whether the interference was “necessary in a democratic society”. 23. The test of whether the interference complained of was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued (the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference), and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (for the recapitulation of the relevant principles in more detail, see Giniewski v. France, no.", "64016/00, §§ 43-54, ECHR 2006‑...; Aydın Tatlav v. Turkey, no. 50692/99, §§ 22-27, 2 May 2006; Gündüz v. Turkey, no. 35071/97, § 38, ECHR 2003‑XI; and Murphy v. Ireland, no. 44179/98, §§ 65-69, ECHR 2003‑IX (extracts), with further references). 24.", "In addition to that, the Court recalls that in Lingens v. Austria (judgment of 8 July 1986, Series A no. 103, § 42) it held that: “[the politician] 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. No doubt Article 10 para. 2 enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.” 25. The Court notes that the articles were written by a journalist and reiterates the pre-eminent role of the press in a democratic society to impart ideas and opinions on political matters and on other matters of public interest (see Sunday Times v. the United Kingdom (no.", "1), judgment of 26 April 1979, Series A no. 30, § 65). It is not disputed in the present case that the subject matter of the impugned articles was of significant public interest. 26. The Court reiterates that “punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, judgment of 23 September 1994, Series A no.", "298, § 35). 27. The Court notes that the impugned statements for which the applicants were sanctioned could be divided into two groups: the statements concerning and related to the alleged abuses by Mr Stepaniuc and his relatives within the transport business, and the statement concerning the alleged abuses committed by Mr Stepaniuc within the distribution network of the Chisinau Tobacco Company. 28. Insofar as the first category of statements is concerned, it appears that the majority of those statements were citations from a letter written by the management of company F. to the President of the country and from a letter written to the newspaper by employees of another company who had read the first article.", "The author of the articles took the precaution of mentioning that he was citing or summarising third parties' statements. It also appears that the information contained certain accurate statements of fact, such as the family ties between Mr Stepaniuc and the managers of the companies who had allegedly committed abuses. It also relied on some official reports of transport authorities. In such circumstances, the information could have reasonably appeared to the author of the articles to be reliable (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 68, ECHR 1999‑III).", "29. Moreover, the Court notes that some of the impugned statements were pure value judgments, such as the conclusion in the second article: “Thus, the Stepaniuc clan spreads its tentacles. How far? For how long?” 30. In this context the Court reiterates that the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.", "The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Jerusalem v. Austria, no. 26958/95, § 42, ECHR 2001‑II). 31. Bearing in mind the language used by the applicants, the fact that Mr Stepaniuc was a high-ranking politician at the time of the events, the fact that the applicants were a newspaper and a journalist reporting on issues of public interest and the fact that the domestic courts did not distinguish between statements of fact and value judgments, the Court takes the view that there were no relevant and sufficient reasons for finding that the applicants had defamed Mr Stepaniuc and obliging them to pay compensation for disseminating the information contained in the above statements. 32.", "As far as the statement concerning Mr Stepaniuc's alleged abuses within the distribution network of the Chişinău Tobacco Company is concerned, the Court has a different view. That statement, in the Court's opinion, constitutes a statement of fact which does not appear to have been supported by any evidence and which appears to be totally unrelated to the facts presented in the rest of the article and the letters from the transport companies. The statement could, in the Court's view, be considered as offensive and damaging to the reputation of Mr Stepaniuc. Having examined the materials of the case file from the domestic proceedings, the Court has not found any copy of a report by the Moldovan Intelligence Service concerning the matter. Therefore the contention made by the applicants in paragraph 17 above cannot be upheld and the Court concludes that the applicants did not adduce before the domestic courts any arguments in support of that allegation against Mr Stepaniuc.", "Neither does it appear from the materials submitted by the parties that they sought to persuade the courts in some way that they had made any reasonable attempt to verify that information before publication. Accordingly, the finding of the Moldovan courts that that statement was defamatory could, in the Court's opinion, be justified as necessary in a democratic society. C. Conclusion 33. Having regard to the above, the Court concludes: (1) that there has been no violation of Article 10 of the Convention as regards the applicants' statement concerning the alleged abuses committed by Mr Stepaniuc within the distribution network of the Chişinău Tobacco Company; (2) that there has been a violation of Article 10 of the Convention as regards the rest of the impugned statements. IV.", "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. Pecuniary damage 35. The applicants claimed 251 euros (EUR) and EUR 93 respectively for pecuniary damage, representing the damages paid by them to Mr Stepaniuc and the court fees which they had to pay for the examination of the appeals. 36. The Government disputed the amount claimed and argued that the applicants should not be entitled to recover it because the proceedings had been fair and ample reasons had been given for the judgments.", "They asked the court to dismiss the applicants' claim for pecuniary damage. 37. Having regard to the fact that the Court has found no breach of Article 10 of the Convention in respect of one of the impugned statements, it considers that the applicants' claim for pecuniary damage should be reduced to EUR 200 and EUR 70 respectively. B. Non-pecuniary damage 38. The applicants claimed EUR 5,000 each for non-pecuniary damage caused to them by the breach of their Convention rights.", "In substantiating their claims, the applicants argued that they had been obliged to publish a retraction of the impugned statements and relied on previous case-law in Moldovan cases. In particular, they relied on the cases of Busuioc (Busuioc v. Moldova, no. 61513/00, 21 December 2004) and Savitchi (Savitchi v. Moldova, no. 11039/02, 11 October 2005) in which four and three thousand euros, respectively, had been awarded to the applicants. 39.", "The Government contested the claim and argued that it was ill-founded and excessive. 40. Having regard to the violation of Article 10 of the Convention found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards each applicant EUR 2,500. C. Costs and expenses 41.", "The applicants' representatives claimed EUR 3,089 for the costs and expenses incurred before the Court. They submitted a detailed time-sheet and a contract according to which the hourly rate was EUR 60 for Mr Gribincea and EUR 50 for Mr Zamă and according to which they had spent 41.08 and 12.5 hours on the case respectively. 42. They argued that the number of hours spent by them on the case was not excessive and was justified by its complexity and by the fact that the observations had to be written in English. 43.", "As to the hourly fees, the representatives argued that they were within the limits of the hourly rates recommended by the Moldovan Bar Association, which were EUR 40-150. They also pointed to the high cost of living in Chişinău, giving as examples the prices of accommodation and petrol. 44. The Government disputed the amount claimed for representation. They argued that it was excessive and that the amount claimed by the lawyers was not the amount actually paid to them by the applicants.", "They disputed the number of hours spent by the applicants' representatives and the hourly rate charged by them. They also argued that the rates recommended by the Moldovan Bar Association were too high in comparison with the average monthly salary in Moldova and pointed to the not-for-profit nature of the organisation Lawyers for Human Rights. 45. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and are reasonable as to quantum (see, for example, Amihalachioaie v. Moldova, no. 60115/00, § 47, ECHR 2004‑III).", "46. The reimbursement of fees cannot be limited only to those sums already paid by the applicant to his or her lawyer; indeed, such an interpretation would discourage many lawyers from representing less prosperous applicants before the Court. In any event, the Court has always awarded costs and expenses in situations where the fees were not paid by the applicants to their lawyers before the Court's judgment (see, among other authorities, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 493, ECHR 2004‑VII, and Christian Democratic People's Party v. Moldova, no. 28793/02, § 85, ECHR 2006‑...).", "In the present case, regard being had to the itemised list submitted and the complexity of the case, and also to the fact that the Court did not find a violation of Article 10 in respect of all of the impugned statements, the Court awards the applicants EUR 1,800 for costs and expenses. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been no violation of Article 10 of the Convention in respect of the statement concerning the alleged abuses by Mr Stepaniuc within the distribution network of the Chisinau Tobacco Company; 3. Holds that there has been a violation of Article 10 of the Convention in respect of the rest of the impugned statements; 4.", "Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 270 (two hundred and seventy euros) in respect of pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) each in respect of non-pecuniary damage; (iii) a global sum of EUR 1,800 (one thousand eight 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; 5. Dismisses unanimously the remainder of the applicants' 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 Bratza RegistrarPresident" ]
[ "THIRD SECTION CASE OF KLINAR v. SLOVENIA (Application no. 34544/02) JUDGMENT STRASBOURG 8 April 2008 FINAL 08/07/2008 This judgment may be subject to editorial revision. In the case of Klinar v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Corneliu Bîrsan,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele, judges,Rajko Pirnat, ad hoc judge,and Santiago Quesada, Section Registrar, Having deliberated in private on 18 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34544/02) 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, Mrs Andreja Klinar (“the applicant”), on 6 December 2000.", "2. 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 she was a party was excessive. In substance, she 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 28 September 2006 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 I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1943 and lives in Jesenice. 6. On 20 August 1994 the applicant’s mother, A.K., died. 7. On 7 October 1994 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner’s certificate (smrtovnica).", "8. On 22 March 1995 the applicant was given notice of the court’s intention to hold a hearing in the inheritance proceedings and received an invitation to attend it. 9. The court held hearings on 5 April and 25 October 1995. 10.", "Meanwhile, on 5 July 1995, the applicant lodged written submissions. 11. On 16 June 1997 the court issued an interim decision concerning the inheritance of A.K.’s ownership certificate (lastninski certifikat). 12. On 27 June and 5 September 2000 hearings were held.", "They were adjourned so as to allow the heirs to reach an agreement in respect of the inheritance. The subsequent negotiations were apparently unsuccessful. 13. On 8 November 2000 the applicant lodged written submissions. 14.", "At the hearing held on 14 November 2000 the court decided to stay the proceedings and instructed the parties to institute separate contentious proceedings with a view to determining the extent of A.K.’s estate which was disputed by the heirs. 15. On 5 February 2001 one of the heirs lodged a civil claim with the Kranj District Court (Okrožno sodišče v Kranju) in accordance with the Jesenice Local Court’s instructions (paragraph 14 above). On 27 October 2003 the civil proceedings ended with an agreement between the heirs and the inheritance proceedings subsequently continued. 16.", "In the meantime, on 19 December 2000 the Jesenice Local Court rejected the applicant’s request for interim measures. In addition, on 15 March 2001 the Jesenice Administrative Unit (Upravna enota Jesenice) issued a decision indicating that the farmland which was part of A.K.’s estate was not under the special protection which would prevent its division. The Jesenice Local Court received that decision on 18 May 2001. 17. On 28 November 2003 the Jesenice Local Court issued a decree of distribution (sklep o dedovanju) dividing the remainder of A.K.’s estate (see paragraph 11 above) between her four daughters.", "The decree was served on the applicant on an unspecified date in December 2003. II. RELEVANT DOMESTIC LAW 1. The Inheritance Act 18. Section 164 of the Inheritance Act (Official Gazette SRS, no.", "15-645/1976, with amendments, – Zakon o dedovanju) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead. In inheritance proceedings the court should establish the heirs, the property which is to be included in the deceased’s estate and the rights of heirs, beneficiaries and others (section 162). 19. According to section 199, after receiving the coroner’s certificate (a document concerning personal data about the deceased and his estate and information relevant for the inheritance, normally prepared by a registrar – matičar), the court examines whether it is competent to hold a hearing and, if not, sends the case to the competent court. According to sections 203 and 205, the court must hold a hearing if the deceased owned immovable property.", "It is the court’s obligation to invite those who might be affected to the hearing (section 205). 2. The Act on the Protection of the Right to a Trial without undue Delay 20. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007.", "Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. 21. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: Section 25 - Just satisfaction for damage sustained prior to implementation of this Act “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest.", "... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 22. The applicant complained about the excessive length of the proceedings.", "She 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...” 23. In substance, the applicant further complained that the remedies available for excessively lengthy court 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 24. The Government pleaded non-exhaustion of domestic remedies, in particular after the implementation of the Act on the Protection of the Right to a Trial without undue Delay (the “2006 Act”) from 1 January 2007. 25.", "The applicant contested that argument, claiming that the remedies available were not effective. 26. The Court notes that section 25 of the 2006 Act explicitly refers to proceedings before international courts and provides for certain remedies in cases of domestic proceedings which had terminated before 1 January 2007. However, the Court found in the Grzinčič judgment that the conditions laid down in that section were not fulfilled as regards applications concerning terminated proceedings which had been notified to the Slovenian Government before 1 January 2007, such as the present one (see Grzinčič v. Slovenia, no. 26867/02, § 67, 3 May 2007).", "27. The Court therefore notes that the present application is similar to that examined in the relevant part of the Grzinčič judgment (cited above, § 68), in which 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. 28. The Court finds that the Government have not submitted any convincing arguments which would require the Court to depart from its established case-law. 29.", "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 (a) The parties’ submissions 30. The Government submitted that, according to domestic legislation, a court should initiate inherence proceedings ex officio immediately after receiving the information about a person’s death. On the basis of this information, the case is entered into the court records. According to the Government, this represents the commencement of inheritance proceedings. The Government further submitted that before a hearing is held, the competent court may take the necessary preparatory measures, such as an appraisal of the deceased’s estate.", "31. The Government argued that this stage of inheritance proceedings, i.e. before the court invites potential heirs to a hearing, is conducted by a court independently from the parties to the proceedings. Therefore, it does not affect their situation and should not be taken into account in calculating the relevant period. In their opinion, the relevant period in the present case should start running at the earliest on the day the notice inviting the applicant to a hearing was sent to the applicant’s address, which is on 22 March 1995.", "32. The Government considered that the proceedings ended with the decree of distribution. 33. As regards the “reasonableness” of the length of the proceedings, the Government submitted that the case was a very complex one due to, inter alia, the fact that A.K.’s estate included specially protected farmland. Furthermore, the length of the proceedings should mostly be attributed to the applicant and other heirs, who were unable to reach an agreement concerning the inheritance at the earlier stage of the proceedings.", "Due to their attempts to reach an agreement, two hearings were adjourned and the proceedings were subsequently stayed since the heirs had still disputed the extent of A.K.’s estate. 34. The applicant disputed the Government’s arguments. She submitted that the farmland had not been under special protection and argued that her case was an obvious example of a violation of the right to a trial within a reasonable time. (b) The Court’s assessment 35.", "The Court recalls that Article 6 § 1 of the Convention requires that all stages of legal proceedings for the “determination of ... civil rights and obligations”, not excluding stages subsequent to judgment on the merits, be resolved within a reasonable time (see Robins v. the United Kingdom, judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, § 28). 36. As regards the beginning of the period to be taken into consideration in determining the length of the proceedings, the Court observes that under section 164 of the Inheritance Act (see paragraph 18 above) a competent court should always start inheritance proceedings ex officio as soon as it is informed of a person’s death. That moment, as the Government confirmed, represents the commencement of inheritance proceedings (see paragraph 31 above). 37.", "The Government, however, argued that the period which should be taken into account for calculating the length of the proceedings had started only on the day the applicant was first invited to a hearing. 38. The Court sees no reason why in the present case the relevant period should start running only at that point. As in other types of judicial proceedings concerning the determination of civil rights and obligations, the fact that certain stages are exclusively controlled by the domestic court does not exclude them from the protection of Article 6. To hold otherwise in the present case would entail that the courts dealing with inheritance proceedings could delay the first hearing and, as a result, the determination of the parties’ inheritance rights, without being subject to the “reasonable time” requirement.", "39. In view of the above, and since it is not disputed that the applicant had been aware of A.K.’s death and of the issue of inheritance being pending before the domestic court, the Court considers that the relevant period started running at the latest on 7 October 1994 when the Jesenice Local Court received the coroner’s certificate (see paragraph 7 above). 40. Taking into account that the decree of distribution was served on the applicant in December 2003, the Court notes that the relevant period lasted about nine years and two months. 41.", "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). 42. In the present case, the Court observes that the dispute concerning A.K.’s estate might have complicated the proceedings to some extent. It further observes that two hearings were adjourned due to the heirs attempts to reach an agreement (see paragraph 12 above) and that the inheritance proceedings were interrupted by the separate set of contentious proceedings (paragraph 14 above).", "43. However, the Court must note that the disputed issues relating to the inheritance arose and were to be determined in proceedings conducted under the supervision of the courts, which remained responsible for the speedy conduct of the case. Furthermore, the introduction of the separate set of contentious proceedings is, obviously, a normal course of resolving disputes arising in inheritance proceedings and, in the present proceedings, the judge instructed the parties to make use of this possibility. 44. As regards the Government’s argument concerning the alleged special protection of the farmland included in A.K.’s estate (see paragraphs 33 and 34 above), the Court notes that the case-file does not disclose any particular complications in the proceedings which would relate to this issue.", "45. Finally, the Court observes that the Government did not provide any explanation as to the obvious periods of inactivity which occurred in the course of the proceedings, in particular between 16 June 1997 and 27 June 2000 (see paragraphs 11 and 12 above) and between 5 February 2001 and 27 October 2003 (see paragraph 15 above). 46. In view of the above and having regard to its case-law on the subject, the Court considers that the length of nine years and two months for two sets of related proceedings which were conducted only at one level of jurisdiction cannot be regarded as reasonable and that there has accordingly been a breach of Article 6 § 1 of the Convention. 2.", "Article 13 47. 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 Grzinčič, cited above) and sees no reason to reach a different conclusion in the present case. 48.", "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 her right to have her case heard within a reasonable time, as set forth in Article 6 § 1. II. 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 41,576 euros (EUR) in respect of both pecuniary and non-pecuniary damage. 51. The Government contested the claim. They submitted that there was no causal link between the alleged pecuniary damage and the alleged violation of the right to a trial within a reasonable time. As regards the non-pecuniary damage, the Government asked the Court to decide the applicant’s claim on the basis of its established case-law.", "52. As regards the claim for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. The Court, however, considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 6,000 under that head.", "B. Costs and expenses 53. The applicant also claimed approximately EUR 739 for the cost and expenses incurred in the domestic proceedings and EUR 14 for the costs and expenses incurred before the Court. 54. The Government contested the claim for the cost and expenses incurred in the domestic proceedings, submitting that it did not relate to the applicant’s complaint concerning the length of the proceedings.", "55. Under the Court’s case-law, an applicant is entitled to the reimbursement of her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and awards the applicant, who was not represented by a lawyer, the full sum claimed in respect of the proceedings before the Court, namely EUR 14. C. Default interest 56. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 14 (fourteen 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 8 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "THIRD SECTION CASE OF GRA STIFTUNG GEGEN RASSISMUS UND ANTISEMITISMUS v. SWITZERLAND (Application no. 18597/13) JUDGMENT STRASBOURG 9 January 2018 FINAL 09/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Helen Keller,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 5 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18597/13) 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 GRA Stiftung gegen Rassismus und Antisemitismus (“the GRA Foundation against Racism and Anti-Semitism” — “the applicant organisation”), on 13 March 2013. 2. The applicant organisation was represented by Mr A. Joset, a lawyer practising in Liestal. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann. 3.", "The applicant organisation alleged, in particular, that the civil courts had violated its right to freedom of expression by finding it liable for the infringement of a politician’s personality rights. 4. On 12 October 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant is a non-governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich. 6. On 5 November 2009 the youth wing of the Swiss People’s Party (Junge Schweizerische Volkspartei) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts: “In his speech in front of the Thurgau government building [Thurgauer Regierungsgebäude], B.K., the president of the local branch of the Young Swiss People’s Party [“the JSVP”], emphasised that it was time to stop the expansion of Islam.", "With this demonstration, the Young Swiss People’s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.” 7. In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract: “According to the report of the event, B.K., the president of the local branch of the Young Swiss People’s Party, emphasised that it was time to stop the expansion of Islam.", "He added further: ‘The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.’ Swiss People’s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People’s Party speaks of a great success. (Verbal racism)” 8. On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced.", "9. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (Bezirksgericht Kreuzlingen). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court’s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned.", "10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K.’s action. It held that the publication of the impugned article on the applicant’s website had been justified since it had related to a political discussion on a matter of public interest. 11. On appeal, on 17 November 2011 the Thurgau Cantonal High Court (Obergericht des Kantons Thurgau) reversed the first-instance judgment.", "It held that classifying B.K.’s speech as “verbally racist” had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K.’s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant’s website and replaced with the court’s judgment. 12. On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court (Bundesgericht), reiterating its argument that any interference with B.K.’s personality rights had been justified.", "One of the applicant’s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and anti‑Semitism. 13. On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation’s appeal, finding as follows (unofficial translation): “3.", "The classification of and commenting on a person’s statements as ‘verbal racism’ violate that person’s honour. Not only in the context of the criminal offence of racial discrimination (Article 261bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘verbally racist’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent’s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘verbal racism’. It thereby violated the respondent’s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code.", "The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB). 4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent’s comments as ‘verbal racism’. 4.1. The case-law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ... 4.2.", "The appellant assigned the respondent’s statements to the section entitled ‘verbal racism’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent’s comments were indeed racist. 4.3. The term ‘racism’ is understood as ‘a doctrine’ which states that ‘certain races or nations are superior to others in terms of their cultural capacity’, and, on the other hand, a ‘certain attitude, manner of thinking and acting towards people of (certain) other races or nations’ (cf.", "Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘verbal’ describes racism as ‘[occurring] with words, with the help of language’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730).", "Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds). ‘Verbal racism’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second-instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity. 4.4.", "The statements that led the appellant to conclude that there had been ‘verbal racism’ are the core phrases ‘it is time to stop the spread of Islam ... The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one’s own identity’. 4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs (‘Christianity’) with foreign beliefs (‘Islam’), delimited them (‘to halt’, ‘preserving one’s own identity’) and described his own as worthy of protection and defence (‘Swiss leading culture’, ‘not to be repressed’).", "For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims. 4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘verbally racist’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light.", "Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code. 4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts.” II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMENTS 14.", "The relevant part of Part One, Chapter One of the Swiss Civil Code, as in force at the material time, reads as follows: Article 28 “Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.” Article 28a “The applicant may ask the court: 1. to prohibit a threatened infringement; 2. to order that an existing infringement cease; 3. to make a declaration that an infringement is unlawful if it continues to have an offensive effect. In particular, the applicant may request that a rectification or court judgment be notified to third parties or published. Claims for damages and satisfaction or for the handing over of profits are reserved, in accordance with the provisions which govern agency without authority.” 15. The relevant part of the Swiss Criminal Code, as in force at the material time, reads as follows: Article 261bis Racial discrimination “Any person who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin or religion, any person who publicly disseminates ideologies that have as their object the systematic denigration or defamation of the members of a race, ethnic group or religion, any person who with the same objective organises, encourages or participates in propaganda campaigns, any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of those grounds denies, trivialises or seeks a justification for genocide or other crimes against humanity, any person who refuses to provide a service to another on the grounds of that person’s race, ethnic origin or religion, when that service is intended to be provided to the general public, is liable to imprisonment of up to three years or to a fine.” 16.", "In October 2008, the Swiss Federal Commission against Racism issued an opinion on the initiative against the construction of minarets, the relevant part of which reads as follows: “The Federal Commission against racism recommends: 1. rejection of the initiative ‘against the construction of minarets’... The initiative against the construction of minarets ... ... discriminates against and defames Muslim men and women 1. The initiative and the arguments of those who support it equate to discrimination against Muslims. They are aimed at an outright ban on minarets, whereas Christians and members of other religions, such as Hindus, Buddhists and others, are not subject to a similar prohibition. 2.", "The initiative against the construction of minarets spreads and reinforces negative stereotypes concerning Islam and thereby defames Muslims. The minaret thereby becomes, in one sweeping judgment, the symbol of a will to power which, according to the supporters of the initiative, calls into question fundamental rights guaranteed by the Constitution, for instance gender equality. The text suggests that part of a religious building is a risk to society. All Muslims are therefore criticised for dishonest and even unlawful behaviour. However, such reproaches are contradicted by the facts.", "The initiative against the construction of minarets ... ...breaches fundamental and human rights 3. The intitiative violates the freedom of religion guaranteed by human rights and the liberty of conscience and faith guaranteed by the Federal Constitution (Article 15). A prohibition on constructing minarets limits the rights of Muslims to practise their religion alone and in community with others. No public interest justifies such a restriction .... The initiative against the construction of minarets ... ... fuels fear and creates insecurity 6.", "The initiative fuels fear among members of the majority population and among minorities. Muslims are and feel limited in exercising their rights. There will be a greater feeling of insecurity in Muslim communities because they will wonder about the extent of the restrictions. Moreover, the supporters [of the initiative] fuel fears by talking about ‘rampant Islamisation’ which represents a danger for the country. They completely ignore the fact that in Switzerland there is no serious problem of the integration of Muslims as far it concerns the practice of their religion.", "The initiative against the construction of minarets ... ...is an obstacle to integration 7. Spreading stereotypes encourages discrimination on an everyday basis. Young people looking for a place to learn are pushed to the sidelines if they have a name that makes people think they are Muslims because of a fear they will cause problems. Muslims are insulted in public or excluded by their neighbours, who fear them. Repeated instances of discrimination make young people less disposed to integrate ...” 17.", "The website of the Swiss Federal Commission against Racism has a “Definition of Racism”, which reads as follows: “Despite numerous studies on the subject, to date there is no universally accepted definition of racism. The one used most frequently is that of the French sociologist Albert Memmi: ‘Racism is a generalising definition and evaluation of differences, whether real or imaginary, to the advantage of the one defining or deploying them, to the detriment of the one subjected to the act of definition, whose purpose is to justify hostility or privilege.’... In addition to this strict definition of the term, which particularly applies to classic pseudo-biological racism, there is also racism in the wider sense, which relies on cultural, psychological, social or metaphysical arguments. ...” 18. In its General Policy Recommendation No.", "7, adopted on 13 December 2012, the European Commission against Racism and Intolerance (ECRI) gave the following definition of racism: “‘Racism’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons....” The relevant part of the Explanatory Memorandum to ECRI’s General Policy Recommendation No. 7 stated as follows: “6. In the Recommendation, the term ‘racism’ should be understood in a broad sense, including phenomena such as xenophobia, antisemitism and intolerance. As regards the grounds set out in the definitions of racism ..., in addition to those grounds generally covered by the relevant legal instruments in the field of combating racism and racial discrimination, such as race, colour and national or ethnic origin, the Recommendation covers language, religion and nationality. The inclusion of these grounds ... is based on ECRI’s mandate, which is to combat racism, antisemitism, xenophobia and intolerance.", "ECRI considers that these concepts, which vary over time, nowadays cover manifestations targeting persons or groups of persons, on grounds such as race, colour, religion, language, nationality and national and ethnic origin. As a result, the expressions ‘racism’ and ‘racial discrimination’ used in the Recommendation encompass all the phenomena covered by ECRI’s mandate.” 19. The relevant parts of ECRI’s Fourth report on Switzerland (CRI (2009) 32), published on 15 September 2009, read as follows: “III. Racism in political discourse ... 88. ECRI is deeply concerned at the changes in the tone of political discourse in Switzerland since the publication of its previous report.", "These changes are very closely linked to the growth of the UDC party (Union démocratique du centre/SVP Schweizerische Volkspartei). In the latest parliamentary elections at federal level, the UDC obtained the highest score: 29% of the votes. With 62 elected members of the National Council – the second chamber of parliament – (55 during the 2003 parliamentary term), the UDC now occupies a significant position in Swiss politics. This party alone has made “foreigners” its key issue. The programme, positions, campaigns, posters and other material produced by the party are described by all anti‑racism experts as xenophobic and racist.... 94.", "ECRI is pleased to note that the federal authorities regularly and openly oppose various parliamentary motions and requests for referenda launched or supported by the UDC, explaining that they infringe or are likely to infringe human rights, as in the case of the request for a referendum intended to ban the construction of minarets. The Swiss people themselves, although 29% voted for this party, reject some of its more extreme positions in referenda. The Federal Commission against Racism, the Federal Commission for Migration Issues and other bodies constantly warn the general public about this threat to the country’s social cohesion. 95. ECRI reiterates that unrestrained racist and xenophobic political discourse inevitably leads to a range of serious consequences – some of which can already be observed in Switzerland – including ill-conceived proposals which could disproportionately affect particular groups or their capacity for exercising their human rights in practice.", "Such discourse risks the undermining of social cohesion and an incitement to racial discrimination and racist violence.... V. Vulnerable / Target groups ... 119. In particular, ECRI is concerned to learn that, in recent years, some political parties, including the UDC, have considerably exploited and encouraged prejudice and racist stereotypes concerning Muslims within the majority population, not only in their rhetoric but also in political campaign posters. As a result some parts of public opinion may equate the entire Muslim population with terrorists and religious extremists. The fear of seeing Switzerland ‘swamped by Muslims’ is also exploited. In some cases, this prejudice apparently leads to discrimination, notably in employment, since Muslims are refused jobs because of the suspicion surrounding them.", "In particular, women who wear the Islamic headscarf encounter difficulties of access to jobs, housing and goods and services for the public. Muslims are also vulnerable to discrimination in matters of naturalisation. 120. To take but one example of hostility towards Muslims displayed in recent years, reference can be made to the federal popular initiative ‘against the construction of minarets’, aimed at adopting through referendum a new provision in the Federal Constitution, whereby ‘the construction of minarets is forbidden’. This initiative obtained the 100 000 signatures required and will therefore be submitted to the people and the cantons.", "It has, however, been deemed clearly incompatible with freedom of religion by the Federal Council, and hence in breach of the Swiss Constitution and international law as binding on Switzerland, and the Federal Council has called on the people and the cantons to reject it. The Federal Commission against Racism itself has stated that the initiative ‘defames Muslims and discriminates against them.’ However, it seems that, under Swiss law, only a popular initiative to amend the Constitution which violated ‘mandatory international law’ (jus cogens) would be invalid. ECRI regrets to learn that an initiative which infringes human rights can thus be put to the vote and very much hopes that it will be rejected. It regrets in particular the tone taken by the political discourse of the initiative’s supporters with regard to Muslims, as it largely contributes to their stigmatisation and to the reinforcement of racist prejudice and discrimination against them by members of the majority community.” 20. In its Concluding observations on the combined seventh to ninth periodic reports on Switzerland of 13 March 2014, the UN Committee on the Elimination of Racial Discrimination held as follows: “C.", "Concerns and recommendations ... Racism and xenophobia in politics and the media The Committee is deeply concerned at racist stereotypes promoted by members of right-wing populist parties and sections of the media, in particular against people from Africa and south-eastern Europe, Muslims, Travellers, Yenish, Roma, asylum seekers and immigrants. It is also concerned at the display of political posters with racist and/or xenophobic content and of racist symbols, as well as at racist behaviour and at the lack of prosecution in such cases. The Committee is further concerned at the xenophobic tone of popular initiatives targeting non-citizens, such as the initiative ‘against the construction of minarets’, adopted in November 2009, the initiative on the ‘expulsion of foreign criminals’, adopted in November 2010, and the initiative ‘against mass immigration’, adopted in February 2014. The Committee notes that such initiatives have led to a sense of unease among the affected communities and in Swiss society generally ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21.", "The applicant organisation complained that the domestic court’s finding of an infringement of B.K.’s personality rights had violated its right to freedom of expression, as guaranteed in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to ... 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 ... for the protection of the reputation or rights of others ...” A. Admissibility 22. The Government submitted that the applicant organisation had failed to exhaust the available domestic remedies as it had never expressly complained of a breach of its right to freedom of expression before the Federal Supreme Court.", "23. The applicant organisation contested that argument. It had relied in its appeal to the Federal Supreme Court on its right to freedom of expression and reiterated that any interference with B.K.’s personality rights had been justified. Referring to its essential role as a public watchdog, the applicant organisation complained that the High Court’s decision had prevented it from fulfilling its task of informing the public according to its statutory purpose and its publicly acknowledged standing. In general, it had contended before the Federal Supreme Court that there had been a breach of its right to pursue its information activities and thus a violation of its right to freedom of expression.", "24. The Court observes that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). 25. The rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism.", "At the same time, it requires, in principle, that the complaints intended to be made subsequently at 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 many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015). 26. 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 Fressoz and Roire v. France [GC], no.", "29183/95, § 39, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III). If the applicant has not relied on the provisions of the Convention, he or she must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged breach in the first place (see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010, and Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010).", "27. In the present case, the applicant organisation’s principal argument before the Federal Supreme Court was that the publication of a text which had put B.K.’s statements in the category of “verbal racism” had been wrongly classified by the second-instance court as an infringement of his personality rights. The Federal Supreme Court, for its part, acknowledged that the applicant had relied on matters relating to freedom of the press and reviewed the case from the aspect of freedom of expression. It further emphasised that the rights to freedom of expression and freedom of the press had to be taken into consideration when interpreting Article 28 of the Swiss Civil Code, which was relied on in the case before it. 28.", "In those circumstances, the Court is satisfied that through the arguments it raised before the Federal Supreme Court, the applicant organisation did complain, albeit only implicitly, about its right to freedom of expression. In doing so, it raised, at least in substance, a complaint under Article 10 of the Convention before the Federal Supreme Court and the court examined that complaint. It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Muršić v. Croatia [GC], no. 7334/13, § 72, ECHR 2016). The Government’s objection concerning a failure to exhaust domestic remedies must therefore be dismissed.", "29. 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 30. The applicant submitted that the Federal Supreme Court had wrongly found the expression “verbal racism” to be a mixed value judgment which required proof of veracity. In any event, considering the socio‑political context, the description of B.K.’s speech as an act of “verbal racism” could not be regarded as devoid of any factual basis. 31.", "The Federal Supreme Court found that because his statements were labelled as “verbal racism”, B.K was implicitly being accused of a criminal offence under Article 261bis of the Swiss Criminal Code. However, in the applicant organisation’s view, the criminal offence of “racial discrimination” could not be equated with the term “racism”. The concept of racism was highly complex and often disputed and a brief reference by the Federal Supreme Court to a dictionary entry could not sufficiently explain its complexity. 32. The applicant organisation regularly wrote about racist incidents that did not fall within the meaning of a criminal offence.", "Its website clearly explained its wide understanding of the term “racism” and detailed the contents of the category “verbal racism” so that readers were well aware of what to expect. In the applicant organisation’s view, prohibiting the term “racism” from being used to describe certain kinds of behaviour or statements if they did not amount to a criminal offence within the meaning of Article 261bis of the Criminal Code would be highly damaging to democratic society and in complete contradiction to various human rights standards. 33. In its role of “public watchdog”, the applicant organisation argued that it deserved the same protection as the press and that the margin of appreciation of the respondent State should therefore be restricted. Moreover, it had exercised the degree of discretion required from all journalistic publications in the impugned Internet entry and had refrained from provocation.", "34. The applicant stressed that the initiative against the construction of minarets had given rise to heated discussions in Switzerland. In its view, there was no doubt that that political initiative had been racist and discriminatory. That view had been confirmed by a number of renowned experts and bodies, which had held that the initiative was “racist” in nature, or at least racist-related. 35.", "The applicant organisation further argued that B.K., in his role as a politician, had to accept that he was more likely to become the subject of criticism than the average person, irrespective of his young age. Rejecting the Government’s argument in that regard, the applicant organisation stated that B.K. was an adult and thus bore full responsibility for his political activities. 36. Finally, the court proceedings at issue had had a chilling effect on the applicant organisation, not least in view of the considerable court and lawyers’ fees it had been ordered to pay.", "Such actions had de facto put an end to its public watchdog activities as it now had to fear further court action. If it had not complied with the court order to remove the impugned entry from its website, the applicant organisation would have faced a fine of up to 10,000 Swiss francs (CHF) (around 9,200 euros (EUR)). Such costs were a serious threat to the applicant’s right to freedom of expression, particularly in view of the fact that they could practically disable its functioning owing to its limited resources, which were earmarked for specific purposes. (b) The Government 37. The Government submitted that the classification of B.K.’s statements as an act of “verbal racism” had constituted a mixed value judgment, which had to have a factual basis.", "The Federal Supreme Court had relied on the sense generally attributed to the notion of racism and the perception of B.K.’s statements that an average person would have had. In that regard, the Federal Supreme Court had referred to the definition in the reference dictionary for the German language, according to which racism related to the superiority of certain races or peoples over others due to their cultural capacity and, on the other hand, a corresponding attitude or behaviour towards other people belonging to certain races or peoples. A simple mention of the differences between two individuals or groups could not be interpreted as racism. Racism began where such a difference at the same time involved belittlement of the victim and where the highlighting of such differences was used to present the victim in a negative light and to denigrate them. In the Government’s view, that definition corresponded to the one used by the Swiss Federal Commission Against Racism and the European Commission against Racism and Intolerance (ECRI).", "38. The applicant organisation defined racism on its website and in the proceedings it had pointed out that the notion of racism had to be understood in a particularly wide sense so as to cover any grouping according to race, skin colour, origin, nationality, culture or religion. Nevertheless, the Government argued that in the context of the protection of reputation, the general sense attributed to the notion of racism had to be borne in mind, which implied in particular that the target group was of a lower value than one’s own group. In his speech B.K. had only compared his own culture, founded on Christianity, with other cultures, including Islam.", "He had defined both of them and had designated his own culture as worthy of protection. His statements had not contained racist words according to the generally accepted meaning of that term. Consequently, describing his statements as “verbal racism” had not had a factual basis. 39. The Government admitted that the applicant organisation could be described as a social “public watchdog” because of its objectives and area of work and that, consequently, it could benefit from the same protection as the press.", "They also agreed that B.K., as president of the local branch of a youth wing of a political party, having spoken publicly during a demonstration, had entered into the public arena and engaged in a political debate. Thus normally the limits of permitted criticism would need to be wider for him than for a private individual. Nevertheless, the Government argued that that principle had to be applied in a differentiated way because B.K. was only 21 years old at the time. He had been at the beginning of his political career and was unknown at national level.", "Those circumstances justified proper protection for his personality rights and reputation. 40. For the Government, even if it was accepted that both B.K.’s statements and the applicant organisation’s Internet entry had been part of a political debate on a question of general interest, the impugned publication had not been a statement in a political debate but had merely been an account of a public gathering that was essentially factual in character. Furthermore, the applicant organisation had presented B.K.’s statements on the part of its website entitled “Chronology”, which contained objective information rather than comments, thereby further increasing the factual component of its statement. The degree of exaggeration that was allowed in information of an essentially factual character was necessarily lower than that tolerated for ideas or opinions.", "The applicant’s responsibility to supply exact and trustworthy information also took on particular importance when it came to the publication of a chronology. It had had the opportunity to prove the truth of the impugned statement, but had failed to do so. 41. The Government maintained that describing someone’s words as “verbal racism” could generally decrease respect for that person and be associated by the average reader with an accusation of an offence punishable under criminal law. In the presence of words which equated to liability for criminal conduct, there had been a “pressing social need” to prevent people gaining the impression of such serious charges.", "42. The sanctions against the applicant organisation had been of a civil nature and limited in scope. The ban on publishing the information in question on its website under the section “Chronology – Verbal racism” had not prevented the applicant organisation from publishing the information in question under another section or with another title. 43. In conclusion, there had been a pressing social need to take the impugned measure against the applicant organisation and the State had not overstepped the margin of appreciation it was afforded.", "2. The Court’s assessment (a) Whether there was an interference 44. It is not in dispute between the parties that the domestic courts’ finding against the applicant organisation constituted an interference with its right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve the aim sought.", "(b) Whether it was prescribed by law 45. The applicant argued that Article 28 of the Swiss Civil Code had lacked foreseeability in view of its general lack of unspecific wording. According to the Government, the impugned measures had a sufficient legal basis in Swiss law. 46. The Court accepts that the interference in the present case was based on Article 28 of the Swiss Civil Code (see paragraph 14 above) and that that provision was accessible.", "The parties’ views, however, diverge on its foreseeability. The Court must thus examine whether the provisions in question fulfill the foreseeability requirements. 47. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable individuals to regulate their conduct: they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.", "Again, whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see 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). 48.", "Turning to the present case, the Court finds no ambiguity in the content of the provisions of domestic law relied on by the national courts. As the Government submitted, the said provision has been in force since 1985 and the Federal Supreme Court has developed ample jurisprudence in relation to it. What is more, Article 28a of the Civil Code enumerates the possible measures that a court can take if it finds that there has been an unlawful infringement of an individual’s personality rights. While 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), the Court finds nothing to suggest that the applicant organisation was not in a position to foresee, to a reasonable degree, the national appellate court’s interpretation and application of Article 28 of the Civil Code to its case. 49. The Court therefore concludes that the impugned interference was “prescribed by law”.", "(c) Whether there was a legitimate aim 50. The Court finds that the interference pursued one of the legitimate aims set out in paragraph 2 of Article 10, namely the protection of the reputation and rights of others. (d) Whether it was necessary in a democratic society (i) General principles 51. 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-fulfillment. 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 Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV; and Perinçek v. Switzerland [GC], no. 27510/08, § 196, 15 October 2015). 52.", "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” or “penalty” is reconcilable with freedom of expression as protected by Article 10. 53. The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation.", "In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, among others, Mamère v. France, no. 12697/03, § 19, ECHR 2006‑XIII, and Lindon, Otchakovsky-Laurens and July, cited above, § 45). 54. The Court further recalls that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life.", "In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, ECHR 2017). When examining the necessity of an interference in a democratic society in cases where the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG v. Germany [GC], no.", "39954/08, § 84, 7 February 2012). 55. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87; Von Hannover v. Germany (no. 2) [GC], nos.", "40660/08 and 60641/08, § 106, ECHR 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, 10 November 2015). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).", "56. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria which may come into play in the context of balancing the competing rights (see Couderc and Hachette Filipacchi Associés, cited above, § 93). The relevant criteria thus defined include: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, and the content, form and consequences of the publication. 57.", "Lastly, the Court has previously accepted that when an NGO draws attention to matters of public interest, it is exercising a “public watchdog” role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (ibid., and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016). (ii) Application of the general principles in the present case 58. The Court notes that the present case concerns a conflict of concurring rights, namely, on the one hand, respect for B.K.’s right to respect for his private life and freedom of expression and, on the other, the applicant organisation’s right to freedom of expression.", "59. Where national jurisdictions have carried out a balancing exercise in relation to those rights, the Court has to examine whether, during their assessment, they applied the criteria established in its jurisprudence on the subject (see Axel Springer AG, cited above, § 88) and whether the reasons that led them to take the impugned decisions were sufficient and relevant to justify the interference with the right to freedom of expression (see Cicad v. Switzerland, no. 17676/09, § 52, 7 June 2016). It will do so by examining the criteria established in it case-law (see paragraph 56 above) which are of relevance to the present case. (ɑ) Contribution to a debate of public interest 60.", "When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made. 61. Both B.K.’s speech and the applicant organisation’s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution. (β) How well-known is the person concerned and the subject of the report 62.", "The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010). For them, the limits of critical comment are wider as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Ayhan Erdoğan v. Turkey, no.", "39656/03, § 25, 13 January 2009, and Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). 63. The Government argued that that principle had to be applied in a different way in the present case because B.K. was only 21 at the time he gave the critical speech.", "He was at the beginning of his political career and was unknown at national level. Those circumstances justified a proper level of protection for his personality rights and reputation. 64. The Court does not share the Government’s view in this respect. B.K.", "had been elected president of a local branch of the youth wing of a major political party in Switzerland. The speech cited by the applicant organisation was clearly political and was made in the framework of support for his party’s political goals, which at that time were to promote the popular initiative against the construction of minarets. 65. Consequently, B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.", "(γ) Content, form and consequences of the publication 66. In the present case the applicant reproduced B.K.’s speech, which had already been published on the political party’s own website, but called it “verbal racism”. 67. The Federal Supreme Court held that classifying B.K.’s speech as “verbal racism” had been a mixed value judgment which had had no factual basis because the speech had not been racist. In particular, the Federal Supreme Court held that for the average reader B.K.’s statements did not come across as belittling Muslims, but were merely defending Christianity as the Swiss guiding culture (“schweizerische Leitkultur”; see paragraph 13 above).", "68. At this point the Court reiterates that a distinction needs to be made between statements of fact and value judgments in that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103, and Prager and Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no.", "204). 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 (see Prager and Oberschlick, cited above, § 36). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there existed a sufficient “factual basis” for the impugned statement: if there was not, that value judgment may prove excessive (see Morice v. France [GC], no. 29369/10, § 126, 23 April 2015). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel v. France, no.", "54968/00, § 37, 22 December 2005). 69. Turning to the present case, the Court considers that the applicant’s classification of B.K.’s speech as “verbal racism” constituted a value judgment as it contained the applicant’s organisation’s own comment on B.K.’s statements. What the Court has to establish is whether such a comment could be said to have had a sufficient factual basis, bearing in mind the general background of the ongoing political debate in which the statement was made (see paragraph 61 above). 70.", "In the present case, it is not the Court’s task to settle the question of the definition of racism, which seems to have been in dispute between the applicant and the respondent in the domestic proceedings. The Court takes note of the Federal Supreme Court’s conclusion, which was that merely pointing out a difference between two individuals or groups could not be interpreted as racism (see paragraph 13 above). At the same time, it is mindful of the definitions of racism by ECRI and the Swiss Federal Commission against Racism (see paragraphs 18 and 17 above). 71. The Court also attaches importance to the documents from various specialised national and international bodies on the matter.", "The tone taken in the political discourse of the supporters of the initiative in question was described in ECRI’s 2009 report on Switzerland as one that “largely contributes to the stigmatisation [of Muslims] and to the reinforcement of racist prejudice and discrimination against them by members of the majority community” (see paragraph 19 above). Likewise, the Swiss Federal Commission Against Racism noted in its recommendations that the initiative defamed and discriminated against Muslim men and women (see paragraph 16 above). Furthermore, in 2014 the UN Committee on the Elimination of Racial Discrimination reported on the initiative in its concluding observations under the title “Racism and xenophobia in politics and the media” (see paragraph 20 above). 72. Moreover, as observed by the Federal Supreme Court, B.K’s speech implied that the “Swiss guiding culture” was “worthy of protection and defence” against the expansion of Islam (see paragraph 13 above).", "In the Court’s view, this in itself would suggest that the latter was something negative from which the former needed protection and that B.K.’s speech was thus not merely limited to the “demonstration of a difference”. 73. For the foregoing reasons, the Court considers that it cannot be said that classifying B.K.’s speech as “verbal racism” when it supported an initiative which had already been described by various organisations as discriminatory, xenophobic or racist, could be regarded as devoid of any factual basis. 74. The Court further observes that the applicant never suggested that B.K.’s statements fell within the scope of the criminal offence of racial discrimination under Article 261bis of the Swiss Criminal Code.", "In fact, in its arguments before the national authorities and the Court (see paragraph 32 above), the applicant organisation stressed the need to be able to describe an individual’s statement as racist without necessarily implying criminal liability. 75. What is more, in the Court’s view, the impugned description cannot be understood as a gratuitous personal attack on or insult to B.K. The applicant organisation did not refer to his private or family life, but to the manner in which his political speech had been perceived. As already stated, B.K., as a young politician expressing his view publicly on a very sensitive topic, must have known that his speech might cause a critical reaction among his political opponents.", "76. In view of the foregoing, the impugned categorisation of B.K.’s statement as “verbal racism” on the applicant organisation’s website could hardly be said to have had harmful consequences for his private or professional life (see, a contrario, Cicad, cited above, § 56). (δ) Severity of the sanction 77. Finally, the nature and severity of the sanction imposed on an applicant are also factors to be taken into account when assessing the proportionality of an interference. The domestic courts ordered the applicant organisation to remove the impugned article from its website and to publish the conclusion of the second-instance court.", "It also had to pay CHF 3,335 plus tax in court fees and reimburse B.K.’s legal costs of CHF 3,830 plus tax. 78. In the Court’s view, the above sanction, however mild, may have had a “chilling effect” on the exercise of the applicant organisation’s freedom of expression as it may have discouraged it from pursuing its statutory aims and criticising political statements and policies in the future (see, mutatis mutandis, Lewandowska-Malec v. Poland, no. 39660/07, § 70, 18 September 2012). (ε) Conclusion 79.", "In the light of all of the above-mentioned considerations, the Court considers that the arguments advanced by the Government with regard to the protection of B.K.’s personality rights, although relevant, cannot be regarded as sufficient to justify the interference at issue. In reviewing the circumstances submitted for their assessment, the domestic courts did not give due consideration to the principles and criteria laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression (see paragraphs 55 and 56 above). They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicant organisation’s right to freedom of expression and the legitimate aim pursued. 80. There has accordingly been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 82. The applicant organisation claimed 5,000 euros (EUR) in respect of non-pecuniary damage.", "83. The Government considered this claim excessive and submitted that the mere finding of a violation would suffice to cover any non‑pecuniary damage suffered by the applicant. 84. In view of the violation found, the Court awards the applicant the amount requested in full. B.", "Costs and expenses 85. The applicant organisation also claimed CHF 29,943.60 (approximately EUR 26,174.85) for costs and expenses, including legal representation, incurred before the domestic courts, and CHF 15,261.70 (approximately EUR 13,340.84) for costs and expenses incurred before the Court. The latter sum corresponds to approximately 47 hours of legal work billable by its lawyer at an hourly rate of CHF 300 plus postal and copying costs and tax. 86. The Government did not contest CHF 11,810.90 (approximately EUR 10,324.36) of the claim, which included the applicant’s costs for the domestic courts and the amount it was ordered to pay in respect of B.K.’s legal costs at the domestic level.", "However, they contested the applicant’s claims for its own legal representation in both the domestic and Court proceedings and proposed CHF 8,000 (approximately EUR 7,000) as appropriate compensation in that regard. 87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 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 30,000 covering costs under all heads. C. Default interest 88.", "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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 30,000 (thirty 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 9 January 2018, pursuant to Rule 77§§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF AYŞENUR ZARAKOLU v. TURKEY (no. 2) (Application no. 37061/97) JUDGMENT (Friendly Settlement) STRASBOURG 2 October 2003 This judgment is final but it may be subject to editorial revision. In the case of Ayşenur Zarakolu v. Turkey (no. 2), The European Court of Human Rights (Third Section), sitting as a Chamber composed of MrG.", "Ress, President,MrI. Cabral Barreto,MrL. Caflisch,MrR. Türmen,MrB. Zupančič,MrsH.S.", "Greve,MrK. Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 11 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37061/97) 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, Mrs Ayşenur Zarakolu (“the applicant”), on 20 May 1997. 2.", "The applicant was represented by Mr Özcan Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant complained under Article 6 § 1 of the Convention that she had been denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court which ordered the seizure of a book published by her publishing company. The applicant also complained under Article 6 § 2 of the Convention that the seizure of the book, which was not based on a finding of guilt following fair proceedings, had violated her right to be presumed innocent until proved guilty.", "She further submitted that the seizure constituted an unjustified interference with her right to freedom of expression by a public authority within the meaning of Articles 9 and 10 of the Convention. Invoking Article 13 of the Convention, the applicant complained of a lack of effective remedies in domestic law in respect of the above complaints. The applicant finally invoked Article 14 of the Convention in conjunction with Articles 9 and 10 of the Convention and alleged that the seizure of the book on account of the use of certain words such as “Kurdish”, “Kurdish Nation” and “Kurdistan” constituted discrimination on the ground of political opinion. 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 11 May 1999 the application was communicated to the Government. 6. On 5 December 2002, having obtained the parties' observations, the Court declared the complaints under Articles 10 and 14 admissible.", "The applicant's other complaints were declared inadmissible. 7. On 20 March 2003, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 9 May 2003 and on 23 June 2003 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 8.", "The applicant, Mrs Ayşenur Zarakolu, was a Turkish national and lived in Istanbul. She was represented before the Court by Mr Özcan Kılıç, a lawyer practising in Istanbul. 9. On 25 April 2002 the Court was informed of Mrs Zarakolu's death on 28 January 2002 and that Mr Ragıp Zarakolu, her widower, wanted the proceedings to continue and wished to participate in them, retaining the applicant's lawyer as his representative. 10.", "For practical reasons, Mrs Zarakolu will continue to be called “the applicant”, although Mr Zarakolu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI and see also Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3). 11. The applicant was the owner of a publishing company, Belge Uluslararası Yayıncılık, in Istanbul. 12.", "In June 1996 the applicant's company published a book entitled Özgürlüğün Bedeli (The Price of Freedom), written by Lissy Schmidt, a German journalist. The book, which was translated from German to Turkish, is a chronological compilation of articles and interviews involving the socio-economic and political evolution of an autonomous Kurdish region in Northern Iraq and criticism of Turkey's policy on the Kurdish issue. 13. On 15 January 1997 the principal public prosecutor at the Istanbul State Security Court lodged an application with the court requesting an order for the seizure of the book. 14.", "On the same day the 6th Chamber of the Istanbul State Security Court, sitting with a single civilian judge, ordered the seizure of the book in accordance with Article 28 of the Constitution and Article 86 of the Code of Criminal Procedure. The court considered that the chapter between pages 111 and 120 of the book contained separatist propaganda against the integrity of the State. 15. On 29 January 1997 the applicant filed an objection with the Istanbul State Security Court against its order of 15 January 1997. She pleaded that the book, including the article impugned by the principal public prosecutor, did not contain any element of separatist propaganda.", "She further stated that the court's order lacked reasons and merely repeated the request of the Public Prosecutor. She maintained that in publishing the book she aimed at enjoying her right to express ideas and impart information to the public. She also contended that the court's order for the seizure of the book contravened Articles 6, 9 and 10 of the Convention. She finally asked the court to set aside the seizure order of 15 January 1997. 16.", "On 3 February 1997 the 1st Chamber of the Istanbul State Security Court, sitting with three full members, including a military member, unanimously dismissed the applicant's objection and upheld the order for the seizure of the book. 17. In the meantime, on 28 April 1997 the principal public prosecutor at the Istanbul State Security Court filed an indictment with the court charging the applicant and two others who had translated the book, with disseminating separatist propaganda, an offence under Article 8 of the Prevention of Terrorism Act (Law No. 3713). The public prosecutor alleged that the applicant published a book, translated from German to Turkish by Süheyla Kaya and Zeynep Herkmen, in which references were made, between the pages 111-119, 163-165 and 167-182, to a certain part of Turkish territory as “Kurdistan”.", "He requested that the court punish the applicant in accordance with Article 8 § 3 of Law no. 3713, and that the incriminated book be confiscated in accordance with Article 36 of the Turkish Criminal Code. 18. In the proceedings before the 6th Chamber of the Istanbul State Security Court the applicant denied the charges against her. She pleaded that the incriminated book did not contain any separatist propaganda against the integrity of the State.", "She asserted that the book was the analysis of certain events in the eyes of a journalist. 19. On 13 October 1997 the Istanbul State Security Court postponed the criminal proceedings against the applicant pursuant to Article 1 § 3 of Law no. 4304 of 14 July 1997. The court also decided, under Article 2 of the same Law, that the criminal proceedings would be set aside provided that the applicant did not intentionally commit any offence in her capacity as an editor within three years of this decision.", "20. The applicant appealed against the Istanbul State Security Court's decision of 13 October 1997. 21. On 13 April 1999 the 9th Chamber of the Court of Cassation dismissed the appeal. THE LAW 22.", "On 24 June 2003 the Court received the following declaration from the Government: “1. The Government note that the Court's rulings against Turkey in cases involving prosecutions under the provisions of the Prevention of Terrorism Act relating to freedom of expression show that Turkish law and practice urgently need to be brought into line with the Convention's requirements under Article 10 of the Convention. This is also reflected in the interference underlying the facts of the present case. 2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant, the amount of 5,000 (five thousand) euros with a view to securing a friendly settlement of the application registered under no.", "37061/97. This sum, which is to cover any non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in Euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant. The sum shall be payable, free of any taxes which may be applicable, within three months from the date of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "3. Finally, the Government undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court's judgment.” 23. On 15 May 2003 the Court received the following declaration signed by the applicant's representative: “1. I note that the Government of Turkey are prepared to pay me ex gratia the sum of 5,000 (five thousand) euros with a view to securing a friendly settlement of the application registered under no. 37061/97.", "This sum, which is to cover any non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in Euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by me. The sum shall be payable, free of any taxes which may be applicable, within three months from the date of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 2. 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. 3. This declaration is made in the context of a friendly settlement which the Government and I have reached. 4. I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court's judgment.” 24.", "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). 25. 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 2 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]
[ "SECOND SECTION CASE OF KILINÇ v. TURKEY (Application no. 48083/99) JUDGMENT STRASBOURG 15 March 2005 FINAL 15/06/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kılınç v. Turkey, 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 February 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 48083/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mükremin Kılınç (“the applicant”), on 27 March 1999. 2. The applicant was represented by Mr H. Küçüksoy, a lawyer practising in Ankara. The Turkish Government did not designate an Agent for the purpose of the proceedings before the Court.", "3. On 27 April 2004 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the applicant’s right to a fair trial by an independent and impartial tribunal and the failure to notify him of the public prosecutor’s submissions on his appeal 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, who was born in 1959, lives in Ankara. 5. The applicant was the Deputy Mayor of the Sincan District in Ankara at the time of the events. In his capacity as the deputy mayor, he was responsible for the activities of the Culture and Education Department of the Sincan District Council. In January 1997, the Culture and Education Department prepared a thirty-day programme for the month of Ramadan.", "The draft programme was submitted to the applicant for his approval. After consulting the mayor, the applicant authorised the organising committee to begin the necessary preparations. 6. One of the events foreseen for 31 January 1997 was called the “Jerusalem Night”. This event was announced months in advance and representatives of several embassies as well as several important personalities living in the district were invited.", "The hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. A five-minute play was also written for the evening. The play took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people. The mayor of Sincan and the Ambassador to Iran made speeches before the play began. 7.", "On 6 February 1997 the applicant was taken into police custody. He was accused of having disseminated propaganda in support of an armed, illegal organisation, namely the Hezbollah. 8. In his statement at the police station, the applicant denied being involved in any illegal organisation. 9.", "On 13 February 1997 the applicant was brought before the public prosecutor. During his questioning, he repeated the statements he had made at the police station. 10. On the same day the applicant was brought before the investigating judge attached to the Ankara State Security Court and was remanded in custody. 11.", "In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicant. It was alleged that he had disseminated propaganda in support of an armed, illegal organisation. The prosecution therefore called for the applicant to be sentenced pursuant to Article 169 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. 12. On 15 October 1997 the Ankara State Security Court, which was composed of three judges including a military judge, concluded that the applicant had aided and abetted a terrorist organisation by engaging in propaganda in support thereof.", "It found the applicant guilty as charged, sentenced him to three years and nine months’ imprisonment and debarred him from public service for three years. 13. The applicant appealed to the Court of Cassation. The Chief Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the appeal. The opinion was not notified to the applicant, but was read out during the hearing before the Court of Cassation.", "14. On 21 September 1998 the Court of Cassation dismissed the applicant’s appeal, upholding the Ankara State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. 15. On 7 December 1998 the chief public prosecutor attached to the Court of Cassation rejected the applicant’s request for rectification. II.", "THE RELEVANT DOMESTIC LAW 16. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 17.", "The applicant complained in the first place that he had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the Ankara State Security Court. The applicant further maintained that the principle of equality of arms had been violated since he had not been notified of the public prosecutor’s observations at the appeal stage. In this connection, he invoked Article 6 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 and public hearing ... by an independent and impartial tribunal established by law. 3.", "Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ...” A. Admissibility 18. The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Ankara State Security Court must be rejected for non-exhaustion of domestic remedies. They maintained that the applicant had not invoked this complaint before the domestic courts. In this respect, they referred to the case-law of the Court (in particular Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V). 19.", "The Court reiterates that it has already examined similar preliminary objections of the Government in respect of the non-exhaustion of domestic remedies (see Vural v. Turkey, no. 56007/00, § 22, 21 December 2004, Çolak v. Turkey (no. 1), no. 52898/99, § 24, 15 July 2004, and Özel, cited above, § 25). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases.", "20. Accordingly, the Court rejects the Government’s preliminary objection. 21. In the light of its established case-law (see amongst many authorities, Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII), and in view of the materials submitted to it, the Court considers that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court therefore concludes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "No other grounds for declaring it inadmissible have been established. B. Merits 1. As to the independence and impartiality of the Ankara State Security Court 22. The Government maintained that the State Security Courts had been established by law to deal with threats to the security and integrity of the State.", "They submitted that in the instant case there was no basis to find that the applicant could have any legitimate doubts about the independence of the Ankara State Security Court. The Government further referred to the constitutional amendment of 1999 whereby military judges could no longer sit on such courts. Finally, they stated that the State Security Courts had been abolished as of 2004. 23. The Court notes that it has examined similar cases in the past and has concluded that there was a violation of Article 6 § 1 of the Convention (see Özel, cited above, §§ 33-34, and Özdemir, no.", "59659/00, §§ 35-36, 6 February 2003). 24. The Court sees no reason to reach a different conclusion in this case. It is understandable that the applicant who was prosecuted in a State Security Court for aiding and abetting an illegal organisation should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, he could legitimately fear that the Ankara State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.", "In other words, the applicant’s fear as to the State Security Court’s lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1573, § 72 in fine). 25. In the light of the foregoing the Court finds that there has been a violation of Article 6 § 1 of the Convention in this respect. 2. As to the remainder of the complaints submitted under Article 6 26.", "The Government maintained that the written opinion of the Chief Public Prosecutor had been submitted to the Court of Cassation and it was read out to the applicant’s representative during the hearing. The Government argued that, before the hearing, the applicant’s representative had sufficient time to find out about the submissions made by the Chief Public Prosecutor and to submit additional grounds of appeal. The Government also referred to the legislative amendment of 2003, which regulated the ex officio notification of the written opinion of the Chief Public Prosecutor at the Court of Cassation. 27. Having regard to its finding that the applicant’s right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant’s remaining complaint under Article 6 § 3 of the Convention (see Çıraklar, cited above, § 45, Durmaz and Others v. Turkey, nos.", "46506/99, 46569/99, 46570/99 and 46939/99, §§ 22-23, 14 October 2004, and Işık v. Turkey, no. 44057/98, §§ 39-40, 24 June 2003). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 29. The applicant requested the Court to award him 200,000 Euros (EUR) in respect of pecuniary damage and EUR 200,000 in respect of non-pecuniary damage. 30. The Government submitted that these claims were excessive and unacceptable. 31.", "On the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Moreover, the applicant’s claims in respect of pecuniary damage are not supported by any evidence whatsoever. The Court cannot therefore allow them. 32. The Court further considers that the finding of a violation of Article 6 constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant in this respect (see Incal, cited above, p. 1575, § 82, and Çıraklar, cited above, § 45).", "33. Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). B. Costs and expenses 34.", "The applicant did not seek reimbursement of any costs and expenses in connection with the proceedings before the Court. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the Ankara State Security Court; 3 Holds that there is no need to examine the remaining complaint submitted under Article 6 § 3 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 March 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF ŠTEFÁNIKOVÁ v. SLOVAKIA (Application no. 23846/02) 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 Štefániková v. Slovakia, 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,MrJ. Šikuta,MrsP. Hirvelä, 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. 23846/02) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Ms Tatiana Štefániková (“the applicant”), on 31 May 2002. 2. The Slovak Government (“the Government”) were represented by their Agent, Ms their Agent, Ms A. Poláčková, who was subsequently succeeded in that function by Ms M. Pirošíková.", "3. On 7 July 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1956 and lives in Žilina.", "A Action 5. On 13 May 1996 the applicant brought a civil action in the Žilina District Court (Okresný súd). In her capacity as a self-employed entrepreneur, she submitted that she had bought a cash register from another entrepreneur, that the cash register was faulty and that, therefore, she had repudiated the contract. She sought an order for payment of 24,750 Slovakian korunas[1] (SKK) by way of restitution of the purchase price. 6.", "On 7 June 1996, in summary proceedings, the District Court issued a payment order (platobný rozkaz) for the amount claimed. 7. The defendant then challenged the order by way of a protest (odpor), as a result of which the order was ex lege vacated. 8. On 23 March 1999 the District Court appointed an expert to draw up a report concerning the alleged defects in the cash register.", "On 1 March 2000 the District Court appointed a second expert since it had turned out that the first expert was not licensed to carry out the type of analysis needed. 9. On 19 April 2000 the expert report was drawn up and the District Court then sought the parties' observations on it. 10. In 2001 and 2002 the District Court sought further information from the parties and repeatedly requested them to make the cash register available for testing.", "11. Between 16 September 1996 and 5 March 2003 the District Court held 4 hearings. 12. Following the last-mentioned hearing, on the same day, the action was dismissed. The District Court found it established that the cash register did not function correctly and that this was caused by the applicant connecting it to an electrical outlet different from the one specified in the operating instructions.", "In other words, the applicant had failed to establish that the malfunction was due to defects in the cash register. 13. On 24 March 2003 the applicant lodged an appeal contesting both the factual findings as well as the legal conclusions of the District Court. 14. On 13 November 2003 the Žilina Regional Court (Krajský súd) heard the appeal following which, on the same day, it overturned the judgment of 5 March 2003.", "Disapproving the District Court's factual findings, the Regional Court granted the action in full. It was true that the cash register had not been connected exactly in accordance with the operating instructions. However, as concluded by the expert, the connection complied with all applicable technical norms and it was not the cause of the malfunction. The burden of proving the cause of the failure and establishing who was responsible for it rested with the defendant. The defendant had the cash register in his possession, had failed to deliver it to the court and had put up no other relevant defence to the action.", "Having been served on the parties, the judgment became final on 29 January 2004. B. Constitutional complaint 15. On 22 January 2003 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). She directed the complaint against the District Court, contesting the length of the proceedings before it and claiming SKK 145,000[2] in compensation for non-pecuniary damage.", "16. On 19 February and 2 July 2003, respectively, the Constitutional Court declared the complaint admissible and found that the District Court had violated the applicant's right to a hearing “without unjustified delay” under Article 48 § 2 of the Constitution. The applicant was awarded SKK 20,000[3] by way of just satisfaction in respect of non-pecuniary damage and the reimbursement of her legal costs. In view of the scope of the complaint, as formulated by the applicant, the period under the Constitutional Court's review was more than 6 years and 9 months. No justification for the length of this period could be found either in the nature of the case or in the applicant's procedural conduct.", "On the other hand, the District Court had been completely inactive for more than 2 years and 4 months between September 1996 and February 1999. The District Court's understaffing and its excessive workload could not be accepted as excuses in this respect. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 18.", "The Government objected that, as a result of the Constitutional Court's judgment of 2 July 2003, the applicant could no longer be considered a “victim” within the meaning of Article 34 of the Convention. They maintained that the Constitutional Court had examined the applicant's constitutional complaint thoroughly and that the amount of just satisfaction awarded complied fully with the Constitutional Court's practice and was reasonable in the circumstances of the case. Moreover, the proceedings before the Constitutional Court had been easily accessible to the applicant, had been speedy and had been conducted in the applicant's language and the compensation had been paid to her without any delay. 19. As for the substance of the application, the Government admitted, with reference to the Constitutional Court's finding of 2 July 2003, that the applicant's right to a hearing within a reasonable time had been violated.", "20. The applicant disagreed and submitted that she had caused no delays in the proceedings, that their excessive length had been entirely caused by the authorities and that that the redress she had obtained from the Constitutional Court could not be considered adequate. 21. The Court observes that, in view of the Constitutional Court's judgment of 2 July 2003, a question arises whether the applicant can still claim to be a “victim”, within the meaning of Article 34 of the Convention, of a violation of her right to a hearing within a reasonable time. 22.", "The Court observes that in the present case the applicant's status as a “victim” depends on whether the redress afforded to her at the domestic level was adequate and sufficient having regard to Article 41 of the Convention. This issue falls to be determined in the light of the principles established under the Court's case law (see, most recently, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-... and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-...).", "23. Before the Constitutional Court, the applicant complained of the length of the proceedings before the first-instance court. Their length was more than 6 years and 9 months. The Constitutional Court awarded the applicant the equivalent of approximately 575 euros (EUR) in respect of non-pecuniary damage. This amount is below 20% of what the Court would generally award in a similar situation in a Slovakian case.", "Such redress obtained by the applicant at the domestic level must be considered insufficient (see Scordino (no. 1), cited above, §§ 205-06 and 214-15). The applicant can accordingly still claim to be a “victim” of a breach of the “reasonable time” requirement. 24. The proceedings commenced on 13 May 1996 and ended with the decision of 13 November 2003.", "They thus lasted 7 years and some 6 months. In this period the action was examined at 2 levels of jurisdiction. Although, before the Constitutional Court, the applicant did not complain of the phase of the proceedings on her appeal, it cannot be dissociated completely from the proceedings before the District Court and should be taken into consideration (see, mutatis mutandis, Pavlík v. Slovakia, no. 74827/01, § 107, 30 January 2007). 25.", "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 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 and having regard to its case-law on the subject as well as the admission by the Government (see paragraph 19 above), 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 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 30. The applicant claimed SKK 26,000[4] in respect of pecuniary damage and SKK 14,000[5] in respect of non-pecuniary damage. The former amount represented the price of a new cash register. 31. The Government contested the claim concerning the alleged pecuniary damage.", "As for the alleged non-pecuniary damage, the Government pointed out that the applicant had already received compensation at the domestic level. 32. 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 and that the claim should be awarded in full. It accordingly awards the applicant EUR 400 under that head.", "B. Costs and expenses 33. The applicant also claimed SKK 10,000[6] for the costs and expenses. 34. The Government contested the claim.", "35. 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 that the applicant incurred expenses such as postage and out-of-pocket expenses and considers that the sum claimed should be awarded in full. It accordingly awards her EUR 285. 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 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 400 (four hundred euros) in respect of non-pecuniary damage and EUR 285 (two hundred and eighty five 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; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 23 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] SKK 24,750 is equivalent to approximately 700 euros (EUR). [2] SKK 145,000 is equivalent to approximately EUR 4,150.", "[3] SKK 20,000 is equivalent to approximately EUR 575. [4] SKK 26,000 is equivalent to approximately EUR 750. [5] SKK 14,000 is equivalent to approximately EUR 400. [6] SKK 10,000 is equivalent to approximately EUR 285." ]
[ "THIRD SECTION CASE OF S.S. v. THE NETHERLANDS (Application no. 39575/06) 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 S.S. v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,George Nicolaou,Helen Keller,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39575/06) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr S.S. (“the applicant”), on 4 October 2006. 2. The applicant was initially represented before the Court by Mr J. Enoch, a lawyer practising in Utrecht, who was succeeded by Mr P. Schüller, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.", "3. The applicant complained that he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if expelled from the Netherlands to Afghanistan. 4. On 20 November 2008 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 5.", "On 19 February 2009 the President communicated the application to the Government. The President further decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4). The Government submitted written observations on 4 August 2009 and the applicant submitted observations in reply on 19 October 2009. The Government submitted further observations on 1 December 2009. On 1 October 2013, the parties were requested to submit additional written observations on the admissibility and merits.", "The Government submitted these on 4 November 2013 and the applicant on 17 December 2013. On 26 June 2014 the applicant submitted additional, unsolicited observations which, under Rule 38 § 1 of the Rules of Court, were accepted by the President for inclusion in the case file. The Government submitted comments on those submissions on 15 September 2014. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant is of Pashtun origin, was born in 1964 and has been in the Netherlands since 1998. 7. The applicant entered the Netherlands on 3 August 1998 and on 4 August 1998 applied for asylum, submitting the following account in his interviews with immigration officials held on 4 August 1998, 26 August 1998 and 21 March 2000. 8. After completing his elementary education in 1976, the applicant had attended the military academy in Kabul.", "He had graduated in 1982 and had started working in 1982 with the rank of second lieutenant at an administrative department of one of the directorates of the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”)[1] during the former communist regime in Afghanistan. He had become head of this department – which was responsible for handling confidential documents – in 1988, which function he had continued to hold until the fall of the ruling communist People’s Democratic Party of Afghanistan (“PDPA”) in 1992. In 1990 he had been promoted to the rank of lieutenant-colonel. 9. The applicant’s directorate had been assigned the task of negotiating and concluding agreements with groups that opposed and fought the communist Government, namely the mujahideen.", "These agreements entailed remunerated cooperation with the ruling PDPA. The applicant had attended meetings between thus “employed” mujahideen commanders and executives of the directorate. During these meetings the performance of such commanders was assessed and decisions were taken on whether or not they should continue to be paid. The applicant had taken minutes at those meetings. He believed that the mujahideen were holding him personally responsible for the discontinuation of their pay where decisions to that effect had been taken.", "In addition, these mujahideen commanders had never admitted to cooperating with the KhAD and were very keen on keeping this a secret, for which reason they were interested in eliminating the applicant. 10. In 1992, after the fall of Kabul, these mujahideen commanders had come looking for the applicant. They were said to have come to his office and asked for him. The applicant had been informed of this by the president of the directorate he had worked for, who had maintained good relations with the mujahideen and hence had remained in post there.", "11. The applicant and his family had fled to Mazar-e-Sharif, where they had led a quiet life until 1997, when various mujahideen groups had come to the city, including those mujahideen feared by the applicant. He had gone into hiding, during which period his house had been searched by the mujahideen. The applicant and his family had then fled to Pakistan. 12.", "On 15 September 1999, a person-specific official report (individueel ambtsbericht) not concerning the applicant was drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken). According to this report, torture was systemic in WAD interrogation centres and within the KhAD the loyalty of its staff was carefully controlled. It was considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in the implementation of the above methods. This report was taken into account in the applicant’s asylum procedure. 13.", "The applicant’s asylum claim was also examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015). 14. By a decision of 18 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum claim.", "The Deputy Minister held, inter alia, that serious reasons had been found for believing that the applicant had committed acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). 15. Referring to the official report of 29 February 2000 (see paragraph 13 above), the Deputy Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Deputy Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. It was also noted that the KhAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service.", "Furthermore, new recruits were initially assigned to KhAD/WAD sections actively engaged in tracking down “elements that posed a threat to the State”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations the KhAD was associated with. In this regard the Deputy Minister emphasised that every promoted officer had been involved in arrests, interrogations, torture and even executions. 16. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention. In the light of the above, the applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed.", "In view of the applicant’s career and several promotions, the Deputy Minister excluded the possibility of the applicant not having been involved in human rights violations committed by the KhAD. 17. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof that the applicant had personally committed the alleged crimes; it sufficed that serious reasons existed to consider that the applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. In this context the Deputy Minister referred, inter alia, to paragraphs 42 and 43 of “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996), stating: “persons who are found to have performed, engaged in, participated in orchestrating, planning and/or implementing, or condoned or acquiesced in the carrying out of any specified criminal acts by subordinates, should rightly be excluded. ... voluntary continued membership of a part of a government engaged in criminal activities may constitute grounds for exclusion where the member cannot rebut the presumptions of knowledge and personal implication.” 18.", "The Deputy Minister further referred to a letter of 28 November 1997 sent by the Deputy Minister of Justice to the President of the Lower House of Parliament (Tweede Kamer) stating that Article 1F was also applicable when the person concerned had not himself committed any acts referred to in this provision but had been an active and conscious member of an organisation known for committing war crimes and crimes against humanity. As the applicant had not in any way distanced himself from or resisted the crimes committed by the KhAD, the Deputy Minister concluded that Article 1F was applicable to the applicant’s case. Consequently, the applicant’s asylum request was rejected and Article 1F held against him. 19. The Deputy Minister further found no grounds on the basis of which the applicant would be eligible for a residence permit on compelling humanitarian grounds (klemmende redenen van humanitaire aard).", "As regards the applicant’s plea under Article 3 of the Convention the Deputy Minister held that, even assuming that a real risk existed of the applicant being subjected to treatment contrary to that provision in Afghanistan, Article 3 did not guarantee a right to residence. The Deputy Minister considered in this context that granting residence to the applicant would conflict with the State’s interest in terms of its credibility on the international stage, particularly regarding its responsibility towards other States. In the Deputy Minister’s view, a situation in which the Netherlands was forced to become a host State for individuals who had elsewhere shocked public and international legal order with acts considered to constitute grave crimes under both Dutch and international law was to be avoided. 20. The applicant’s objection (bezwaar) to this decision was rejected, after he had been heard on it on 16 May 2003 before an official board of enquiry (ambtelijke commissie), on 11 August 2003 by the Minister of Immigration and Integration (Minister van Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice.", "The Minister endorsed the Deputy Minister’s impugned decision and proceeded, in addition thereto, to an analysis of the applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “personal and knowing participation test” and held Article 1F against him. 21. As regards the “knowing” element, the Minister – having regard to the official report of the Ministry of Foreign Affairs of 29 February 2000 (see paragraph 13 above) – found that the applicant had known or should have known about the criminal character of the KhAD. The Minister did not attach any credence to the applicant’s submissions that he had not known about the human rights violations committed by the KhAD. Basing herself on the Ministry of Foreign Affairs official report of 29 February 2000, the Minister held that the commission of human rights violations by the KhAD under the PDPA rule was a fact of common knowledge and that, therefore, it was unthinkable that the applicant would have been ignorant of those acts.", "The Minister emphasised in this regard the high rank the applicant had held, the long period he had worked for the KhAD and the fact that he had attended meetings with the executives of the Directorate in which he had been employed. The Minister concluded that the applicant had knowingly participated in torture and executions. 22. As regards the applicant’s personal participation in human rights violations attributed to the KhAD, the Minister found, basing herself to a large extent on the same factual information as the Deputy Minister had done in his previous decision, that the applicant had failed to demonstrate that he had not committed such violations himself or that his conduct, or lack thereof, had prevented these violations from being committed. The Minister held, therefore, that the applicant had personally participated in the commission of acts referred to Article 1F of the 1951 Refugee Convention.", "23. The Minister did not attach credence to the applicant’s rebuttal, which amounted to his case having to be distinguished from the general situation with regard to the KhAD and its officers as described in the official report of 29 February 2000. The applicant had claimed that he had obtained a desk job not by proving his loyalty to the KhAD in sinister ways – as the official report stated – but rather through bribes. The Minister held that, based on the applicant’s position and description of his tasks (including the processing of high-level classified information), he had attempted to trivialise his activities and had greatly impaired his credibility in consequence. On this point, the Minister relied, inter alia, on Amnesty International’s “Reports of torture and long-term detention without trial” of March 1991, according to which the Directorate in which the applicant had been employed was engaged in systematic torture.", "24. The Minister further identified several inconsistencies in the applicant’s declarations and rebuttals, from which it was concluded that his declarations concerning certain of the tasks he stated he had performed were highly implausible. As regards the applicant’s various rebuttals, it was found, in the relevant part, that the burden of proof in terms of Article 1F of the 1951 Refugee Convention was less stringent than in a criminal prosecution (“serious reasons for considering” that the applicant might have been guilty of human rights violations sufficed to render this provision applicable). Taking into account that the applicant had never sought to leave the KhAD or the WAD, for which he had worked for about ten years, in which his last held rank was that of lieutenant-colonel, and in which he had been promoted to head of his department, the Minister concluded that there were no indications that the applicant had been forced or had involuntarily worked for the KhAD/WAD. 25.", "As regards the applicant’s claim that the official report of 29 February 2000 of the Ministry of Foreign Affairs was not accurate and was based on unreliable sources and that, therefore, it was too general in scope and could not be applied to his case, the Minister held that this report was founded on several acclaimed sources, such as the United Nations Special Rapporteur, Human Rights Watch, numerous Amnesty International reports, and a variety of United Nations publications. 26. The Minister went on to analyse, of her own motion, the applicant’s eligibility for a residence permit for reasons not related to asylum. It was held that no such permit could be issued, since the application of Article 1F of the 1951 Refugee Convention gave rise to “contraindications” against the applicant in terms of his eligibility for other types of residence permit. However, while reiterating that Article 3 of the Convention did not guarantee a right to residence, the Minister considered that it could not be ruled out that the applicant, in the present circumstances, would run a real risk of treatment contrary to that provision if expelled to Afghanistan, for which reason the applicant was not to be expelled.", "27. The applicant lodged an objection against the refusal by the Minister to grant him a residence permit for reasons not related to asylum. This objection was rejected by the Minister on 16 January 2004, confirming her impugned refusal. 28. The applicant appealed against the Minister’s decisions of 11 August 2003 and 16 January 2004 before the Regional Court (rechtbank) of The Hague, arguing, inter alia, that the factual underpinning of the Ministry of Foreign Affairs official report of 29 February 2000 contained errors, which had led the Minister to draw incorrect conclusions as to the applicant’s personal and knowing participation in the crimes referred to in Article 1F of the 1951 Refugee Convention.", "29. In its judgment of 10 February 2005, the Regional Court of The Hague sitting in Utrecht held that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decisions, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and that therefore, the Minister had been entitled to rely on them. In addition, the Regional Court noted that the evaluation of the credibility of facts adduced by asylum seekers fell to a large extent within the Minister’s discretion and could, therefore, only be evaluated marginally by the court. The Regional Court agreed with the Minister on all points as to the latter’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant and, consequently, to refuse him an asylum-based residence permit. As regards the Minister’s separate decision of 16 January, refusing the applicant a residence permit for reasons not related to asylum, the Regional Court adopted a different reasoning, but reached the same conclusion.", "30. In respect of Article 3 of the Convention, the Regional Court held, with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed the Minister’s decision of 11 August 2003 and remitted the case back to the Minister for a fresh decision. 31.", "After the applicant had once more been heard on 20 May 2005 before an official board of enquiry, the Minister rejected the asylum request anew in a fresh decision of 2 August 2005. In this fresh decision, the Minister limited herself to Article 3 of the Convention. She dismissed the applicant’s fear of returning to Afghanistan as a (former) member of the PDPA and former officer of KhAD, referring to an official report issued by the Ministry of Foreign Affairs in January 2005 and holding that the sole fact that an asylum seeker had been a PDPA member was not enough in itself to render Article 3 applicable in the eventuality of expulsion. The Minister further noted that the mere fact that the applicant had a different political conviction from those currently in power in Afghanistan similarly did not suffice to render Article 3 applicable. The Minister further took into account that the applicant had stated that he was not a known person in Afghanistan.", "The applicant had no concrete indication that he would be searched for by any group or person. In addition, relatives of the applicant – including his father and brother – were still living in Afghanistan without ever having encountered any problem. 32. The Minister further addressed the applicant’s claim that he had reason to fear certain named mujahideen commanders, who would identify him as the KhAD officer who had not paid them, or paid them less than agreed upon. The applicant had submitted that he had attended meetings – where he had only taken minutes – in the course of which cooperation agreements had been reached between the KhAD and a mujahideen commander.", "In addition, the applicant had alleged that these mujahideen commanders were keen on ensuring that nobody in present-day Afghanistan would find out that they had cooperated with KhAD in the past, for which reason they were interested in eliminating the applicant. On this point, the Minister held that the applicant had failed to establish these commanders’ whereabouts and current influence in Afghan society. The Minister noted that according to the applicant’s own statements, he did not believe that these individuals occupied high positions in today’s Afghanistan. Furthermore, the Minister considered that the mujahideen commanders were aware of the applicant’s role in those meetings as well as of the identity of the person taking the decisions as regards financial support of the mujahideen, and that it was therefore implausible that they would be after the applicant. Finally, it was underlined that the applicant had been able to stay in Afghanistan until 1997 without any problems.", "For these reasons, the applicant’s claim that he was being sought by the mujahideen was dismissed as founded on nothing but suspicion and speculation. The claim based on Article 3 was consequently rejected. 33. The applicant appealed anew to the Regional Court of The Hague, arguing, inter alia, that the Minister had erred in finding him guilty of participation in torture under the auspices of the KhAD. In his view, the Minister had disregarded the fact that the applicant had held an administrative position in KhAD which was only concerned with maintaining contacts with the mujahideen and reaching agreements with them.", "Furthermore, the Minister had been inconsistent in finding, on the one hand, that the applicant had participated in human rights violations, but, on the other hand, that the applicant had not held an important position within the PDPA party. The applicant submitted that it was likely that he was well known enough for his former adversaries, who were now those in power in Afghanistan, to find him and subject him to treatment contrary to Article 3 of the Convention. 34. The Regional Court of The Hague sitting in Amsterdam rejected the applicant’s appeal on 12 April 2006. It noted that, according to a general official report on Afghanistan of July 2005 by the Ministry of Foreign Affairs, that some former military officials, members of the police and the KhAD/WAD security services possibly risk falling victim to human rights violations – not only by the authorities but also by the population (victims’ relatives), unless they maintained relations with influential Islamic and political parties or tribes.", "According to the court, this did not mean that every former KhAD officer ran a real risk of treatment contrary to Article 3, and the applicant was thus required to establish the existence of such a risk in the particular circumstances of his case. The Regional Court agreed with the Minister that the applicant had failed to do so, as his claims were found to be merely based on unsubstantiated expectations, including his claimed fear of persecution by the mujahideen commanders who had been paid by the KhAD/WAD. No further appeal lay against this ruling. II. RELEVANT DOMESTIC LAW AND PRACTICE 35.", "The relevant domestic policy, law and practice in respect of asylum seekers from Afghanistan against whom Article 1F of the 1951 Refugee Convention is being held have recently been summarised in A.A.Q. v. the Netherlands ((dec.), no. 42331/05, §§ 37-52, 30 June 2015). III. RELEVANT INTERNATIONAL LAW AND INTERNATIONAL MATERIALS 36.", "Article 1F of the 1951 Refugee Convention reads: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 37. On 4 September 2003 the United Nations High Commissioner for Refugees (“UNHCR”) issued the “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”. They superseded “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996) and the “Note on the Exclusion Clauses” (UNHCR, 30 May 1997) and intended to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. 38.", "These 2003 guidelines state, inter alia, that where the main asylum applicant is excluded from refugee status, his/her dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee (paragraph 29). 39. In July 2003, the UNHCR issued an “Update of the Situation in Afghanistan and International Protection Considerations”. This paper stated, in respect of persons associated or perceived to have been associated with the former communist regime, that: “Some of the former military officials, members of the police force and Khad (security service) of the communist regime also continue to be generally at risk, not only from the authorities but even more so from the population (families of victims), given their identification with human rights abuses during the communist regime.", "When reviewing the cases of military, police and security service officials as well as high-ranking government officials of particular ministries, it is imperative to carefully assess the applicability of exclusion clauses of Article 1 F of the 1951 Geneva Convention. To some extent, many of these previous Afghan officials were involved, directly or indirectly, in serious and widespread human rights violations.” 40. In May 2008, the UNHCR issued the “Note on the Structure and Operation of the KhAD/WAD in Afghanistan 1978-1992” in the context of the need to assess the eligibility for international protection for Afghan asylum-seekers who were members of KhAD/WAD. It provides information on the origins of the KhAD/WAD, its structure and staffing, linkages between these services and the Afghan military and militias, the distinction between operational and support services, and rotation and promotion policies within the KhAD/WAD. The Note did not express any views as to the question whether or not individuals who had worked for the KhAD/WAD should be regarded as being eligible for international protection.", "41. In July 2009, the UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (“the July 2009 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. Those Guidelines stated, inter alia, the following: “Significant numbers of the former People’s Democratic Party of Afghanistan (PDPA) – subsequently renamed Watan (Homeland) – members and former security officials, including the Intelligence Service (KhAD/WAD), are working in the Government. ... Former PDPA high-ranking members without factional protection from Islamic political parties, tribes or persons in a position of influence, who may be exposed to a risk of persecution, include the following: ... •former security officials of the communist regime, including KhAD members, also continue to be at risk, in particular from the population – e.g. families of victims of KhAD ill-treatment – given their actual or perceived involvement in human rights abuses during the communist regime.", "Former PDPA high-ranking members, or those associated with the commission of human rights violations during the former Communist regime, may also be at risk of persecution by mujaheddin leaders, and armed anti-Government groups. ... When reviewing the cases of military, police and security services officials, and those of high-ranking Government officials during the Taraki, Hafizullah Amin, Babrak Karmal, and Najibullah regimes, it is important to carefully assess the applicability of the exclusion clauses in Article 1F of the 1951 Convention. ... For individual cases of military officers of the Ministries of Defense and Interior and security services, it is relevant to assess their involvement in operations in which civilians have been subject to arrest, disappearances, torture, inhuman and degrading treatment and punishment, persecution and extrajudicial executions, ...” 42. On 17 December 2010, the UNHCR issued updated Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”).", "Those Guidelines read, inter alia: “These Guidelines supersede and replace the July 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. They are issued against a backdrop of a worsening security situation in certain parts of Afghanistan and sustained conflict-related human rights violations as well as contain information on the particular profiles for which international protection needs may arise in the current context in Afghanistan. ... UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds. ...", "In light of the serious human rights violations and transgressions of international humanitarian law during Afghanistan’s long history of armed conflicts, exclusion considerations under Article 1F of the 1951 Convention may arise in individual claims by Afghan asylum-seekers. Careful consideration needs to be given in particular to the following profiles: (i) members of the security forces, including KHAD/WAD agents and high-ranking officials of the communist regimes; (ii) members and commanders of armed groups and militia forces during the communist regimes; (iii) members and commanders of the Taliban, Hezb-e-Islami Hikmatyar and other armed anti-Government groups; (iv) organized crime groups; (v) members of Afghan security forces, including the NDS; and (vi) pro-Government paramilitary groups and militias. ...” 43. The December 2010 UNHCR Guidelines further state: “Members of the Security Forces, including KhAD/WAD agents and high-ranking officials of the Communist regimes, members of military, police and security services, as well as high-ranking Government officials during the Taraki, Hafizullah Amin, Babrak Karmal, and Najibullah regimes, were involved in operations subjecting civilians to arrest, disappearances, torture, inhuman and degrading treatment and punishment, and extrajudicial executions. ...", "In this context, careful consideration needs to be given to cases of former members of Khadamate Ettelaate Dowlati (KhAD), the State Information Service. Although the functions of KhAD/WAD evolved over time, culminating in the coordination and undertaking of military operations following the withdrawal of Soviet troops in 1989, it also included non-operational (support) directorates at central, provincial and district levels. Information available to UNHCR does not link the support directorates to human rights violations in the same manner as the operational units. Thus, mere membership to the KhAD/WAD would not automatically lead to exclusion. The individual exclusion assessment needs to take into consideration the individual’s role, rank and functions within the organization.” 44.", "Persons having worked for the KhAD/WAD during the former communist regime were not included in the potential risk profiles set out in the December 2010 UNHCR Guidelines. 45. The most recent update of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan was released on 6 August 2013 (“the August 2013 UNHCR Guidelines”) and replaced the December 2010 UNHCR Guidelines. As in the latter guidelines, the August 2013 UNHCR Guidelines do not include persons having worked for the KhAD/WAD during the former communist regime in the thirteen cited potential risk profiles, but again state that, as regards Article 1F of the 1951 Refugee Convention, careful consideration needs to be given in particular to, inter alia, former members of the armed forces and the intelligence/security apparatus, including KhAD/WAD agents, as well as former officials of the Communist regimes. 46.", "The “Country of Origin Information Report: Afghanistan – Insurgent strategies – intimidation and targeted violence against Afghans”, published in December 2012 by the European Asylum Support Office (“EASO”) of the European Union, deals with strategies used by the Taliban and other insurgent groups in Afghanistan to intimidate the local population. It points out that the ongoing conflict in Afghanistan is largely defined by historical underlying mechanisms: local rivalries, power play and tribal feuds. It further notes regional differences in this campaign of intimidation and targeted violence, which vary for the range of targeted profiles studied in the report, which include government officials and employees; Afghan National Security Forces, government supporters, collaborators and contractors, Afghans working for international military forces; Afghans working for international organisations, companies and non-governmental organisations, civilians accused by the Taliban of being a spy, journalists, media and human rights activists, educational staff or students, medical staff, construction workers, truck drivers and those judged as violating the Taliban’s moral code (for instance, prohibitions on shaving, women working outdoors, selling music and sweets or girls’ education). This report does not mention individuals who had worked for the former communist armed forces of Afghanistan or intelligence service as a targeted profile. 47.", "The 2015 UNHCR country operations profile on Afghanistan reads in its relevant part: “It is anticipated that the newly-formed national unity Government will demonstrate commitment to creating an enabling environment for sustainable returns. The withdrawal of international security forces, as well as a complex economic transition are, however, likely to affect peace, security and development in Afghanistan. Humanitarian needs are not expected to diminish in 2015. Support and assistance from the international community will be essential to ensure a transition towards more stable development. The Solutions Strategy for Afghan Refugees (SSAR) remains the main policy framework for sustainable reintegration of those returning to Afghanistan.", "The National Steering Committee established in 2014 aims to facilitate the implementation and monitoring of the SSAR’s initiatives. Many returnees have migrated to towns and cities, contributing to the country’s rapid urbanization. As rising poverty and unemployment in urban centres prevent them from reintegrating into society, many will need basic assistance. ... Insurgency continues to spread from southern Afghanistan to large areas of the north and centre and is likely to remain a threat to stability in 2015.", "While violence may displace more people, insecurity is likely to continue restricting humanitarian access. Economic insecurity and the Government’s limited capacity to provide basic services are also challenges. ... Since 2002, more than 5.8 million Afghan refugees have returned home, 4.7 million of whom were assisted by UNHCR. Representing 20 per cent of Afghanistan’s population, returnees remain a key population of concern to UNHCR.", "Refugee returns have dwindled during the past five years and owing to insecurity and a difficult socio-economic situation, only around 10,000 refugees returned during the first seven months of 2014. In June 2014, following military operations in North Waziristan Agency, Pakistan, more than 13,000 families (some 100,000 people) crossed into Khost and Paktika provinces in south-eastern Afghanistan. Many of them settled within host communities, however approximately 3,300 families reside in Gulan camp, Khost province. A substantial number could remain in Afghanistan, despite expectations that an early return may be possible. By mid-2014, 683,000 people were internally displaced by the conflict affecting 30 of the 34 Afghan provinces.", "More than half of Afghanistan’s internally displaced people (IDPs) live in urban areas.” 48. In January 2015 the EASO released its “Country of Origin Information Report: Afghanistan - Security Situation”. It reads, inter alia,: “The general security situation in Afghanistan is mainly determined by the following four factors: The main factor is the conflict between the Afghan National Security Forces, supported by the International Military Forces, and Anti‑Government Elements, or insurgents. This conflict is often described as an “insurgency”. The other factors are: criminality, warlordism and tribal tensions.", "These factors are often inter‑linked and hard to distinguish. Several sources consider the situation in Afghanistan to be a non‑international armed conflict. On 12 November 2014, the World Security Risk Index from the website Global Intake gave Afghanistan the second highest score (48), after Syria (59). Other conflict areas with high scores include: South Sudan (46); Iraq (45); Central African Republic (44); Somalia (41); Ukraine (38). ....", "The Taliban are insurgent groups that acknowledge the leadership of Mullah Mohammad Omar and the Taliban Leadership Council in Quetta, Pakistan. The Taliban leadership ruled Afghanistan between 1996 and 2001 and regrouped after it was ousted from power. The different groups have varying operational autonomy, but there is a governing system under the Leadership Council with several regional and local layers. They have a Military Council and a command structure with, at the lowest level, front commanders overseeing a group of fighters. The governing structure and military command is defined in the Taliban’s Lahya or Code of Conduct.", "On 8 May 2014, the Taliban leadership announced that its spring offensive, called “Khaibar”, would be launched on 12 May and would target “senior government officials, members of parliament, security officials, attorneys and judges that prosecute mujahideen, and gatherings of foreign invading forces, their diplomatic centres and convoys”. ... the Taliban’s core heartland is located in the south and their influence is strongest in the regions of the south‑east and east, where they can count on support from affiliated networks. In terms of the Taliban’s territorial control, there are only a limited number of districts under their full control, with most district administrative centres remaining under government control. However, outside these centres, there are varying degrees of Taliban control. They have exerted uninterrupted control over large swathes of territory, reaching from southern Herat and eastern Farah, through parts of Ghor (Pasaband), northern Helmand (Baghran and other districts), Uruzgan and northern Kandahar to the western half of Zabul (Dehchopan, Khak‑e Afghan) and southern Ghazni.", "The Haqqani network is an insurgent network in the south‑east of Afghanistan, with its origins in the 1970s mujahideen groups. Its leader, Jalaluddin Haqqani, has attacked Afghan government officials since 1971. It is believed he fled to Pakistan in late 2001, where currently the network has its most important base in North Waziristan. Due to his age, he handed over the practical leadership to his son, Serajuddin Haqqani. Although the network has maintained an autonomous position, structure and its own modus operandi, it is considered part of the Taliban.", "It is known for various high‑profile attacks on targets in Kabul city. Hezb‑e Islami Afghanistan (HIA) is an insurgent group led by Gulbuddin Hekmatyar. The group has the withdrawal of foreign troops as a goal, has conducted high‑profile attacks in the capital, but has been more open to negotiation with the Afghan government than the Taliban. The latter criticise HIA for this and on occasions there has been fighting between both insurgent groups in different areas. On other occasions they have cooperated.", "HIA’s strongholds are located in the east and south‑east of Afghanistan, in the areas surrounding Kabul, in Baghlan and Kunduz. The group’s major field commander is Kashmir Khan, who is active in eastern Afghanistan.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 49. The applicant complained that his removal to Afghanistan would violate his rights under Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 50. The Government contested that argument.", "A. Admissibility 51. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 52. The applicant argued that his expulsion to Afghanistan would expose him to a real risk of ill-treatment within the meaning of Article 3 due to his past work for the KhAD, in particular from the side of five identified former mujahideen commanders who had collaborated in the past with the KhAD. The applicant emphasised that, as a KhAD official, he had attended secret meetings with these mujahideen leaders, who still wielded considerable influence and power in Afghanistan and were keen to avoid their reputation being tarnished by ensuring that nobody in present-day Afghanistan should learn of their past collaboration with the KhAD. The actual risk posed to him by these mujahideen leaders could not only be inferred from their present positions of power, but also because they were linked to human rights abuses, fraud and intimidation.", "53. The applicant further based the claimed risk on his having pledged allegiance to the former communist regime, on being an (alleged) opponent of the present regime, on being a convinced atheist, on his long absence from Afghanistan, on the absence of a family of other protection network in Afghanistan, on his medical situation in that he was suffering from severe stress and psychological problems which also resulted in physical pain, and on the general security situation in Afghanistan, which had deteriorated since 2009, and particularly so in the Logar province from where he originated. 54. The applicant argued that, if the risks were weighed cumulatively, it was clear that he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention. In addition, relying on the most recent amendment of 6 February 2014 to the Netherlands policy position in respect of Afghan asylum seekers, the applicant submitted that protection against persecution can only be obtained in Kabul and by Afghans who are from Kabul, which he was not.", "Furthermore, the former mujahideen leaders whom he feared were now holding positions of power, particularly in the Afghan Government based in Kabul. (b) The Government 55. As regards the applicant’s individual situation, the Government submitted that the names of the former mujahideen leaders whom the applicant now stated he feared did not correspond to the names given by him in the domestic proceedings, in particular when he was heard before the official board of enquiry on 20 May 2005 (see paragraph 31 above). In addition, the applicant has not adducted any evidence of ever having encountered any problems from these former mujahideen leaders. After the fall of the communist regime in 1992, he had stayed in Afghanistan until 1997 without experiencing any problems and, according to the Government, it was difficult to imagine that now – more than twenty-two years after the fall of the communist regime – the applicant would experience problems from these people; his fear of them was based only on suspicion on his part.", "56. In so far as the applicant claimed a risk of ill-treatment in Afghanistan on his involvement with the former communist regime there, in particular his work for the KhAD, the Government submitted that, since its December 2010 Guidelines, the UNHCR Guidelines on Afghanistan no longer included ex-communists and former KhAD/WAD personnel among the “groups at risk”. Furthermore, the official country assessment report on Afghanistan, drawn up by the Netherlands Ministry of Foreign Affairs in July 2012, indicates that many former members of the PDPA and former personnel of the KhAD/WAD currently work for the Afghan authorities, for example as provincial governors or mayors, or in senior positions in the army or police, and that former PDPA members have formed various new political parties. According to the Government, as far as known, ex-communists have nothing to fear from the current Afghan government. 57.", "To the extent that the applicant argued that his medical condition was such that removal would be contrary to his rights under Article 3, the Government noted that this claim had remained unsupported by any medical documents and for this reason did not accept this part of the applicant’s complaint. 58. Accordingly, the Government were of the opinion that the applicant has failed to establish that on individual grounds he would have reason to fear treatment contrary to Article 3 of the Convention in Afghanistan. 59. In respect of the current general security situation in Afghanistan, the Government pointed out that the applicant would be removed to Kabul, and that it would then be up to him to decide in which part of Afghanistan he wished to live.", "Although the security situation in Afghanistan in general, including Kabul, still gave cause for great concern, it was not so poor that returning the applicant to Afghanistan, including Kabul, would in itself amount to a violation of the Convention. On this point, they referred, inter alia, to the Court’s findings in the cases of N. v. Sweden (no. 23505/09, § 52, 20 July 2010); Husseini v. Sweden, (no. 10611/09, § 84, 13 October 2011); J.H. v. the United Kingdom (cited above, § 55); S.H.H.", "v. the United Kingdom (no. 60367/10, 29 January 2013); and H. and B. v. the United Kingdom (nos. 70073/10 and 44539/11, §§ 92-93, 9 April 2013). Further pointing out that both the International Organisation for Migration (IOM) and the UNHCR were assisting Afghans who wished to return voluntarily to Afghanistan, the Government considered that the general security situation in Afghanistan was not such that for this reason the applicant’s removal to Afghanistan should be regarded as contravening Article 3. 2.", "The Court’s assessment (a) General principles 60. The Court reiterates at the outset that the Convention and its Protocols cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Marguš v. Croatia [GC], no. 4455/10, § 129 with further references, ECHR 2014 (extracts)). 61.", "It also reaffirms that a right to political asylum and a right to a residence permit are not, as such, guaranteed by the Convention and that, under the terms of Article 19 and Article 32 § 1 of the Convention, the Court cannot review whether the provisions of the 1951 Refugee Convention have been correctly applied by the Netherlands authorities (see, for instance, I. v. the Netherlands (dec.), no. 24147/11, § 43, 18 October 2011). 62. The Court further observes that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.", "In such a case, Article 3 implies an obligation not to deport the person in question to that country. The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence, except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3. The standards of Article 3 imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case.", "Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection. Finally, in cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic evidence as well as by evidence originating from other reliable and objective sources such as, for instance, other Contracting or non‑Contracting States, agencies of the United Nations and reputable non‑governmental organisations (see M.E. v. Denmark, no.", "58363/10, §§ 47-51, with further references, 8 July 2014). 63. As regards the material date, the existence of such risk of ill-treatment must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, ECHR 2012). However, since the applicant has not yet been deported, the material point in time must be that of the Court’s consideration of the case.", "It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996‑V). (b) Application of the general principles to the present case 64. The applicant gave both his personal situation as an employee of the KhAD and the general security situation in Afghanistan as reasons for his fear of ill-treatment in Afghanistan. 65. As regards the individual elements of the risk of ill-treatment claimed by the applicant, the Court notes that, after the collapse of the communist regime in Afghanistan in 1992, the applicant did not flee the country, but moved to Mazar-e Sharif where he lived a quiet life until 1997 without encountering any problems from the authorities, groups or individuals on account of his past activities for the KhAD.", "The Court further notes that there is nothing in the case file indicating in a concrete manner that the applicant, since he left Afghanistan in 1997, would have attracted negative attention from any governmental or non-governmental body or any private individual in Afghanistan. The Court lastly notes that, from 17 December 2010 and to date, the UNHCR no longer classifies former officials of the KhAD/WAD as one of the specific categories of person exposed to a potential risk of persecution in Afghanistan (see paragraphs 44-45 above), and that there is no indication in the two EASO reports on Afghanistan that members of the military or intelligence service under the former communist regime are specifically targeted by the Taliban or other insurgent groups in Afghanistan (see paragraphs 46 and 48 above). 66. The Court has next examined the question whether the general security situation in Afghanistan is such that any removal there would necessarily breach Article 3 of the Convention. In its judgment in the case of H. and B. v. the United Kingdom, (cited above, §§ 92-93), it did not find that in Afghanistan there was a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there.", "In view of the evidence now before it, the Court has found no reason to hold otherwise in the instant case. 67. The Court is therefore of the opinion that the applicant has failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that, at the time of his removal to Afghanistan, he was exposed to a real and personal risk in Afghanistan of being subjected to treatment contrary to Article 3 of the Convention. 68. Consequently, the applicant’s expulsion to Afghanistan would not give rise to a violation of Article 3 of the Convention.", "II. RULE 39 OF THE RULES OF COURT 69. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 70. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Afghanistan; and 3. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliLuis López GuerraDeputy RegistrarPresident [1] Between 1978 and 1992 Afghanistan had a communist regime. It had an intelligence and secret police organisation called Khadamat-e Aetela’at-e Dawlati (State Intelligence Agency), better known by its acronym KhAD, which became Wizarat-i Amaniyyat-i Dawlati (Ministry for State Security), known as WAD, in 1986." ]
[ "FIRST SECTION CASE OF ISGANDAROV AND OTHERS v. AZERBAIJAN (Applications nos. 50711/07, 50793/07, 50848/07, 50894/07 and 50924/07) JUDGMENT This version was rectified on 15 July 2010 under Rule 81 of the Rules of the Court STRASBOURG 8 July 2010 FINAL 08/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Isgandarov and Others v. Azerbaijan, 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 17 June 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in five applications 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”) on 8 August 2007 by five Azerbaijani nationals: – Mr Asif Isgandarov, born in 1954, application no.", "50711/07; – Mr Vagif Ismayilov, born in 1949, application no. 50793/07; – Ms Mirtarana Karimova, born in 1964, application no. 50848/07; – Mr Samid Karimov, born in 1959, application no. 50894/07; and – Ms Sadagat Ahmadova, born in 1959, application no. 50924/07.", "2. The applicants were represented by Mr N. Ismayilov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The applicants alleged that the failure to enforce the judgments in their favour violated their rights to a fair trial and their property rights, as guaranteed by Articles 6 and 13 of the Convention and Article 1 of Protocol No.", "1 to the Convention. 4. The President of the First Section decided to give notice of the applications to the Government on the following dates: on 23 October 2008 (application no. 50711/07), on 3 December 2008 (applications nos. 50793/07 and 50848/07), on 17 December 2008 (application no.", "50894/07) and on 8 January 2009 (application no. 50924/07). 5. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. On the dates indicated in the Appendix each applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in the same recently constructed residential building in Baku (see Table I). 7. At the same time, the applicants became aware of the fact that their respective flats had been occupied by families of internally displaced persons (“IDP”) from different regions under the occupation of Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno‑Karabakh. 8.", "According to the applicants, despite their numerous demands, the IDP families refused to vacate the flats, pointing out that they were IDPs and had no other place to live. 9. On different dates the applicants lodged civil actions with the Yasamal District Court asking the court to order the eviction of these families from their flats. A. Applications nos.", "50711/07, 50793/07, 50848/07 and 50894/07 10. On the dates indicated in the Appendix (Table I), the Yasamal District Court granted the applicants' claims and ordered that the IDP families be evicted from the flats. In all cases, the court held that the applicants were the sole lawful tenants of the flats on the basis of the occupancy vouchers and therefore the flats were being unlawfully occupied by the IDP families. 11. No appeals were lodged against the judgments of the Yasamal District Court and pursuant to the domestic law, they became enforceable upon the expiry of the relevant appeal periods.", "However the IDP families refused to comply with the judgments and despite the applicants' complaints to various authorities, they were not enforced. 12. On an unspecified date in 2006, the applicants, who were in the same situation, lodged a joint 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 applicants appealed against this judgment. On 12 November 2007, after a series of appeals and quashings, the Court of Appeal dismissed the applicants' request and terminated the case noting that there was no need to deliver a separate judgment on enforceability of the judgments. 14. It appears from the case file that after the lodging of the present applications with the Court, the defendant IDP families lodged several requests with the Yasamal District Court asking for postponement of the execution of the judgments on their eviction from the applicants' flats. They alleged that, as they were IDPs, they had no other place to live but the flats in question.", "At the time of the latest communications with the applicants, it appears that after a series of appeals and quashings, none of the IDPs' requests for postponement were upheld. These proceedings can be summarised as follows. 15. On 6 June 2008 the Yasamal District Court declared the defendants' joint postponement request inadmissible for non-compliance with procedural norms. The court explained that the IDPs should lodge their requests separately.", "16. Such separate requests were lodged by the IDP families concerned only by two applications (nos. 50848/07 and 50894/07): (a) As for the IDPs concerned by application no. 50848/07, on 10 November 2008, the Yasamal District Court upheld the postponement request. On 19 December 2008 the Baku Court of Appeal upheld the postponement decision.", "On 23 February 2009 the Supreme Court quashed the postponement decision and returned the case for review to the Baku Court of Appeal. (b) As for the IDPs concerned by application no. 50894/07, on 2 July 2008, the Yasamal District Court upheld the postponement request. On 21 August 2008 the Baku Court of Appeal quashed the postponement decision. On 20 October 2008 the Supreme Court upheld the quashing.", "B. Application no. 50924/07 17. In the case of Ms Sadagat Ahmadova, on 12 April 2007, the Yasamal District Court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher and that the IDP family occupied the flat unlawfully. However taking into account the fact that the defendant IDP family could not return to their permanent place of residence in Lachin and, in the meantime had no other place to reside, the court held that the execution of its judgment should be postponed until they could return to Lachin or be provided with another place of residence.", "The applicant appealed against this judgment claiming misinterpretation of the relevant law. On 6 November 2007 the Baku Court of Appeal delivered a new judgment quashing the first-instance court's judgment in the part concerning the postponement of the judgment's execution. The Baku Court of Appeal reaffirmed the order on the eviction of the defendant IDP family from the flat. No appeals were filed against this judgment and it became enforceable. C. Compensation proceedings 18.", "On an unspecified date in 2008, all the applicants lodged a joint action against different authorities seeking compensation for non‑enforcement of the judgments delivered in their favour. On 19 December 2008 the Yasamal District Court dismissed the applicants' claims as unsubstantiated. On 3 March 2009 the Baku Court of Appeal and on 3 July 2009 the Supreme Court upheld the first-instance court's judgment. 19. At the time of the latest communications with the applicants, the respective judgments remained unenforced.", "II. RELEVANT DOMESTIC LAW 20. The relevant domestic law is summarised in Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010). THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 21. Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the non‑enforcement of the Yasamal District Court's judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, 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.” 22. Pursuant to Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications given their common factual and legal background.", "A. Admissibility 1. The Court's competence rationae temporis in applications nos. 50711/07 and 50793/07 23. The Court observes that in two cases (application nos. 50711/07 and 50793/07) the domestic judgments in favour of the applicants had been delivered prior to 15 April 2002, the date of the Convention's entry into force in respect of Azerbaijan.", "24. The Court notes that in the light of the authorities' continued failure to execute the judgments in question, they remain still unenforced. Therefore there is a continuous situation and the Court is therefore competent to examine the part of the applications relating to the period after 15 April 2002 (see Gulmammadova, cited above, § 26). 2. Domestic remedies 25.", "In connection with the applications nos. 50711/07, 50793/07, 50848/07 and 50894/07, the Government argued that the applicants had failed to exhaust domestic remedies. In this regard, the Government argued that on the dates of introduction of the present applications before the Court, the proceedings against the Department of Enforcement Officers instituted by the applicants were still pending before the domestic courts. 26. The applicants disagreed with the Government and maintained that the remedies suggested by the Government were not appropriate in the circumstances of the present case.", "27. The Court notes that a similar objection was raised by the Government in the Gulmammadova case and was dismissed by the Court (see Gulmammadova, cited above, § 27). The Court refers to its reasoning in that case and sees no ground to depart from it. Therefore the Government's objection should be dismissed. 3.", "Conclusion 28. The Court further considers that the applications 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. B. Merits 29.", "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 the judgments in the applicants' favour could not be enforced because there was no other accommodation available for the IDPs settled in the flats in question. 30. The applicants reiterated their complaints. 31.", "The Court notes that judgments in the applicants' favour remained unenforced for considerable periods of time, ranging approximately from three years to eight years. 32. The Court points out that the factual circumstances of theses cases are similar and the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above). The Court reiterates that it has found violations of Article 6 § 1 and Article 1 of Protocol No. 1 in that case.", "33. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in these cases. 34. In particular, 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 judgments in the applicants' favour. Nevertheless, the judgments remained in force, but no adequate measures were taken by the authorities to comply with them.", "It has not been shown that the authorities had continuously and diligently taken the measures for the enforcement of the judgments 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 judgments (see Gulmammadova, cited above, § 40). 35. Concerning the applicants' submissions about violation of their property rights, 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 of balancing the applicants' right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against IDPs' right to be provided with accommodation.", "In such circumstances, the failure to ensure the execution of the judgments for several years resulted in a situation where the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for having this excessive individual burden to be borne by the applicants, 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 applicants' right to peaceful enjoyment of their possessions (see Gulmammadova, cited above, §§ 43-50). 36. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.", "37. 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). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 39. The applicants claimed different sums indicated in the Appendix (Table II) in respect of pecuniary damage. The amounts claimed covered the loss of rent and the alleged current market value of the flats.", "The applicant calculated the amount of the lost rent based on the information on the monthly market rent of flats situated in the relevant area of the city. This information was obtained from an association specialising in these matters. 40. The Government argued that the applicants could not claim any compensation for the market value of the flats. 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 applicants' inability to use their flats and indicated their willingness to accept the part of the applicants' claims in respect of the pecuniary damage under this head, up to the sums indicated in the Appendix (Table II).", "41. As for the part of the claims relating to the market value of the flats, the Court rejects this part as it does not find any causal link between the violation found and this part of the claim. 42. As for the part of the claims relating to the loss of rent, the Court finds that there is a causal link between this part of the claims and the violations found and that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats. Having examined the parties' submissions and deciding on an equitable basis, the Court accepts the basis for calculation of the damage proposed by the Government and awards the applicants the amounts indicated in the Appendix (Table II, sum accepted by the Government) on account of their loss of rent, plus any tax that may be chargeable on those amounts.", "2. Non-pecuniary damage 43. The applicants claimed different amounts ranging from EUR 20,000 to EUR 25,000 in respect of non‑pecuniary damage (see the Appendix, Table II). 44. The Government indicated their willingness to accept the applicants' claims for non-pecuniary damage up to a maximum of EUR 1,000 each.", "45. The Court considers that the applicants must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgment in their favour. However the amounts claimed are excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the following amounts under this head, plus any tax that may be chargeable on these amounts: – Mr Asif Isgandarov (no. 50711/07) – EUR 4,800; – Mr Vagif Ismayilov (no.", "50793/07) – EUR 4,800; – Ms Mirtarana Karimova (no. 50848/07) – EUR 4,800; – Mr Samid Karimov (no. 50894/07) – EUR 4,800; and – Ms Sadagat Ahmadova (no. 50924/07) – EUR 1,600. 46.", "Moreover, the Court considers that, in so far as the judgments remain in force, the State's outstanding obligation to enforce them cannot be disputed. Accordingly, the applicants are still entitled to enforcement of those judgments. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6, is to ensure that the applicants as far as possible are put in the position they 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 cases.", "It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgments in the applicants' favour. B. Costs and expenses 47. Each of the applicants also claimed EUR 1,500 for the costs and expenses incurred before the Court. These claims were not itemised or supported by any documents.", "48. The Government considered the claims to be unjustified. 49. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases, having regard to the fact that the applicants failed to produce any supporting documents, the Court dismisses the claims for costs and expenses.", "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. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. Holds that there is no need to examine the complaint under Article 13 of the Convention; 6. 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 courts' judgments in the applicants' favour; 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 sums: – Mr Asif Isgandarov (application no. 50711/07) – EUR 13,051 (thirteen thousand and fifty-one euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros) in respect of non‑pecuniary damage; – Mr Vagif Ismayilov (application no. 50793/07) – 12,191.35 (twelve thousand one hundred and ninety-one euros and thirty-five cents) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage; – Ms Mirtarana Karimova (application no. 50848/07) – EUR 11,369 (eleven thousand three hundred and sixty-nine euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage; – Mr Samid Karimov (application no. 50894/07) – EUR 10,407.8 (ten thousand four hundred and seven euros and eight cents) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred Euros) in respect of non-pecuniary damage; and – Ms Sadagat Ahmadova (application no.", "50924/07) – EUR 12,196 (twelve thousands one hundred and ninety-six euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred Euros) in respect of non-pecuniary damage; (b) that the above amounts shall be converted into New Azerbaijani manats at the rate applicable at the date of settlement, plus any tax that may be chargeable; (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 applicants' claim for just satisfaction. Done in English, and notified in writing on 8 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident APPENDIX Table I Application no. Applicant Date of issue of the occupancy voucher Date of final domestic judgment 50711/07 Asif Isgandarov 19 January 1998 20 April 1998, the Yasamal District Court 50793/07 Vagif Ismayilov 21 January 1998 9 June 1999, the Yasamal District Court 50848/07 Mirtarana Karimova 14 January 2000 16 May 2002, the Yasamal District Court 50894/07 Samid Karimov 29 January 1998 11 July 2003, the Yasamal District Court 50924/07 Sadagat Ahmadova 3 December 2007 6 November 2007, The Baku Court of Appeal Table II Application no.", "Claim for pecuniary damage (EUR) Sum accepted by the Government in respect of pecuniary damage (EUR) Claim for non pecuniary damage (EUR) Claim for cost and expenses 50711/07 72,944 13,051 25,000 1,500 50793/07 72,944 12,191.35 25,000 1,500 50848/07 68,809 11,369 20,000 1,500 50894/07 68,809 10,407.8 20,000 1,500 50924/07 72,944 12,196 25,000 1,500" ]
[ "FOURTH SECTION CASE OF EASTAWAY v. THE UNITED KINGDOM (Application no. 74976/01) JUDGMENT STRASBOURG 20 July 2004 FINAL 20/10/2004 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 Eastaway v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza,MrsV.", "Strážnická,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Ms F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 29 June 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 74976/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Nigel Eastaway (“the applicant”), on 3 August 2001. 2. The applicant was represented by Ms K. Mottee, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office.", "3. The applicant alleged that there had been a violation of his right to a hearing within a reasonable time. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By a decision of 18 November 2003, the Court declared the application admissible. 6. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lives in Bishops Stortford, Hertfordshire. A. The commencement of the disqualification proceedings and the strike-out application 8. The Blackspur group of companies (collectively, “Blackspur”), was formed by the applicant and others in September 1987 and at various times the applicant acted as director.", "Blackspur went into receivership in July 1990 with an estimated deficit of GBP 34 million. 9. On 1 July 1992, on the last day of the applicable two year limitation period, the Secretary of State for Trade and Industry (“the Secretary of State”) issued proceedings against the applicant and four others (“the Blackspur proceedings”) under section 6 of the Company Directors Disqualification Act 1986 (“the CDDA”: see below). 10. The Secretary of State’s evidence was not complete at the time he commenced proceedings, and he applied for an extension of time for the serving of evidence (see below).", "The defendants refused to consent to an extension being granted and instead, on 13 October 1992, three of the defendants (but not, at this stage, the applicant) applied to strike out the proceedings. 11. The Secretary of State’s evidence was completed and served on the applicant on 14 December 1992. On 13 May 1993 the applicant applied to strike out the proceedings. The Secretary of State’s application for permission to file the evidence out of time, and the cross-application to strike out the proceedings by the applicant and other defendants, were heard by the Registrar on 20 May 1993, when they were adjourned to 29 July 1993.", "On 27 January 1994 the Registrar granted the Secretary of State’s application for an extension of time and dismissed the strike-out application. Two of the applicant’s co-defendants appealed to the High Court. On 12 April 1995 the applicant also lodged an appeal. B. Criminal proceedings 12.", "Related criminal charges had been brought against the applicant and three other defendants in the Blackspur proceedings on 1 July 1992. In May 1993 the applicant and other defendants had applied to stay the disqualification proceedings pending the conclusion of the criminal proceedings. The criminal trial took place between March and June 1994, during which period the disqualification proceedings were adjourned generally, with liberty to restore. At the conclusion of the criminal trial, the applicant and one other defendant were acquitted, and two defendants were convicted. On appeal, the two convictions were quashed in February 1995.", "13. By a letter dated 16 September 1994 the applicant invited the Secretary of State to reconsider whether, in the light of the acquittals in the criminal trial, it was in the public interest to carry on with the disqualification proceedings. On 15 December 1994 the Treasury Solicitor replied that the Secretary of State had decided that it remained expedient in the public interest to continue. C. The strike-out and disqualification proceedings resumed 14. Once the criminal trial had been concluded, the appeal to the High Court brought by the first defendant to the disqualification proceeding, Mr Davies, against the Registrar’s decision of 27 January 1994, could proceed and was dismissed on 2 May 1995.", "In November 1995 Mr Davies was granted leave to appeal out of time to the Court of Appeal, and his substantive appeal was dismissed by that court on 24 May 1996. The Court of Appeal found that the reasons for the Secretary of State’s failure to complete his evidence before the proceedings were commenced had been “far from satisfactory”, but considered nonetheless that the case should proceed since it was in the public interest to determine the “particularly serious” allegations of false accounting and trading while insolvent made against the defendants. In addition, the court observed that the delay by the Secretary of State had not affected the timing of the hearing or prejudiced the applicant, and that, once the proceedings had commenced, “the respondents’ main concern was to delay the proceedings until after the conclusion of the criminal trial, not to hurry them on”. 15. On 1 July 1996 the Registrar directed that the defendants should serve their evidence in response to that of the Secretary of State by 29 November 1996.", "16. On 18 November 1996 the applicant wrote to the Secretary of State offering to settle the case by giving an undertaking not to act as a company director in the future. The Secretary of State refused to settle the case on that basis, insisting instead on a “Carecraft” settlement. This procedure, named after the case of Re Carecraft Construction Co. Ltd [1994] 1 WLR 172, allows the parties to proceedings under the CDDA to submit to the court an agreement that a disqualification order should be made for a specified period on the basis of undisputed (but not necessarily agreed) facts. 17.", "On 9 December 1996 the Registrar ordered that if the defendants had not served their evidence by 17 January 1997, they would be debarred from adducing any evidence. 18. The defendants served their evidence on 17 January 1997. On 20 January 1997 the Registrar directed that the Secretary of State should serve his evidence in reply by 17 March 1997. On 14 April 1997 the Registrar granted the Secretary of State a time-extension for the serving of evidence in reply until 30 June 1997, and this evidence was in fact served on 10 July 1997.", "At a further directions hearing on 4 August 1997 the defendants were given permission to adduce additional evidence in rejoinder by 1 December 1997. The defendants failed to comply with this order and on 8 December 1997 they were granted an extension of time until 9 February 1998. 19. On 30 January 1998 the applicant asked the Secretary of State to reconsider the continuance of the disqualification proceedings against him. On 6 February 1998 the Secretary of State informed the applicant that he intended to continue.", "On 9 February 1998 there was a further directions hearing, when the applicant was ordered to serve further evidence by 9 March 1998. 20. On 17 February 1998 the applicant’s solicitors informed the Secretary of State’s solicitor that the applicant was willing to negotiate a “Carecraft” settlement. On 5 March 1998 the Secretary of State replied that he would accept a settlement based on a disqualification period of five years. 21.", "In the light of these negotiations, at a directions hearing on 23 March 1998, the time-limit for the applicant’s further evidence was extended indefinitely. 22. On 17 June 1998 the Secretary of State’s solicitor sent a draft “Carecraft” statement. On 30 July 1998 the parties met to discuss it, and a revised statement was prepared. On 4 October 1998 the applicant broke off the settlement negotiations 23.", "On 8 December 1998 the matter was set down for trial on 4 October 1999. 24. On 23 April 1999 the applicant’s solicitors again wrote to the Secretary of State asking him to discontinue the proceedings, on the ground that they had already exceeded the “reasonable time” provision in Article 6 § 1 of the Convention. On 30 June 1999 the Secretary of State informed the applicant that he had decided not to discontinue them. 25.", "Meanwhile, on 10 June 1999 the applicant contacted the Secretary of State to resume negotiations on the “Carecraft” settlement. 26. On 29 July 1999 there was a pre-trial review in the disqualification proceedings, at which the court gave detailed trial directions. The trial was set down to begin on 4 October 1999. D. Judicial review 27.", "On 18 August 1999 the applicant applied for judicial review of the legality of the Secretary of State’s decision of 30 June 1999, not to discontinue the proceedings on grounds of delay. 28. On 13 September 1999 the applicant agreed that he would sign the “Carecraft” statement if he failed in the judicial review proceedings. The disqualification proceedings were adjourned. 29.", "On 15 September 1999 the application for leave to apply for judicial review was refused. On 27 January 2000, following an oral hearing, leave was again refused. 30. On 2 February 2000, the applicant renewed his judicial review application before the Court of Appeal. It was refused by the Court of Appeal on 15 March 2000, following an oral hearing.", "In the course of a considered judgment, Lord Justice Buxton described the application as “misconceived”, because the arguments on delay could, and should, have been made in the course of the disqualification proceedings and not in separate proceedings for judicial review. On 23 March 2000 Buxton LJ refused leave to appeal to the House of Lords. 31. The applicant appealed to the House of Lords, which granted leave on 11 July 2000. The House heard the applicant’s appeal on 18 October 2000, and on 2 November 2000 delivered judgment dismissing it on the grounds that the House had no jurisdiction to hear an appeal from the decision of the Court of Appeal refusing leave to apply for judicial review (R v. Secretary of State for Trade and Industry, ex parte Eastaway [2000] 1 WLR 2222).", "32. On 6 November 2000 the Secretary of State wrote to the applicant indicating that he wished to fix a hearing at which the “Carecraft” order could be made. E. Proceedings under the Human Rights Act 33. The Human Rights Act 1998 came into force on 2 October 2000, and on 10 November 2000 the applicant issued an application in the Companies Court to strike out or dismiss the disqualification proceedings on the ground of violation of the reasonable time provision in Article 6 § 1. 34.", "The application was heard by the Vice-Chancellor on 7 February 2001, and judgment was delivered dismissing it on 15 February 2001, because the Vice-Chancellor did not find a violation of Article 6 § 1 (Re Blackspur Group plc and Others; Secretary of State for Trade and Industry v. Eastaway and Others [2001] 1 BCLC 653). The Vice-Chancellor held, inter alia: “It is true that the events in question occurred over ten years ago. It is also true that eight and a half years have now elapsed since the proceedings were commenced. In those circumstances it is necessary to look critically at the events of the intervening period to determine whether more than a reasonable time has elapsed so as to constitute an infringement of Mr Eastaway’s Convention rights. In my view most of the time elapsed is to be attributed either to the requirements of justice down to the conclusion of the criminal proceedings in June 1994 or to the conduct of Mr Eastaway.", "Such conduct includes the attempt to strike out the proceedings concluded in May 1996; Mr Davies’ unsuccessful attempt, with which Mr Eastaway was associated, from October 1996 to November 1997 to have the proceedings stayed; the negotiations for a summary disposal under the Carecraft procedure from February to October 1998; the renewed attempts for that purpose between June and September 1999 and Mr Eastaway’s unsuccessful attempts between August 1999 and November 2000 to obtain a judicial review of the decision of the Secretary of State to continue. In the judgments of the Court of Appeal given in November 1997 in Re Blackspur Group [1998] 1 WLR 422, 427H and 433B it was recorded that Mr Davies did not suggest then that a fair trial was impossible. Mr Eastaway does not now suggest that the delay has been such that a fair trial is impossible. A very large proportion of the undoubtedly long time which has elapsed since these proceedings were commenced is due to the various actions taken by Mr Eastaway. Those actions were taken not to obtain but to avoid a fair and public hearing by an independent or impartial tribunal either within a reasonable time or at all.", "In my view there has been no breach of Mr Eastaway’s Convention rights under Article 6 and for the Secretary of State now to proceed with these proceedings would not be incompatible with them.” 35. The Vice-Chancellor refused leave to appeal, so the applicant appealed to the Court of Appeal, which also refused leave. The applicant renewed his application at an oral hearing on 6 April 2001, at which the Court of Appeal again refused leave to appeal, on the basis that there had been no violation of Article 6 § 1. F. Further proceedings 36. On 8 March 2001 the applicant issued a further action for a declaration that the continuation of the disqualification proceedings would be contrary to Article 6 § 1 of the Convention.", "The Secretary of State applied to have these proceedings struck out, on the grounds that they raised identical issues to the application dismissed by the Vice-Chancellor the previous month. 37. The applicant responded with three further applications. In the first, dated 9 April 2001, he sought to be released from his undertaking of 13 September 1999; in the second, on 18 April 2001, he sought a stay or dismissal of the proceedings on the grounds that the Secretary of State should now accept a far more limited undertaking from him in place of the agreed “Carecraft” statement; in the third application, issued 24 April 2001, he applied for judicial review of the Secretary of State’s refusal to accept his newly proffered undertakings. 38.", "On 23 May 2001 Patten J struck out the applicant’s new action and dismissed his further three applications. Patten J’s decision was upheld by the Court of Appeal on 13 September 2001. 39. Meanwhile, on 31 May 2001 the applicant signed an undertaking which provided for an agreed period of disqualification of four and a half years, commencing on 25 June 2001. The undertaking was accepted and the proceedings against the applicant were terminated on 4 June 2001.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 40. The Company Directors Disqualification Act 1986 (“the CDDA”) empowers the court, in specified circumstances, to disqualify a person from being a director, liquidator or administrator of a company, a receiver or manager of a company’s property or in any way, whether directly or indirectly, to be concerned in the promotion, formation or management of a company for a specified period starting from the date of the order (section 1(1)). 41. Under section 6 of the Act, it is the duty of the court to make a disqualification order against a person, “... in any case where, on an application under this section, it is satisfied - (a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and, (b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.” 42.", "The minimum period of disqualification under this section is two years, and the maximum is fifteen years. 43. Section 7(1) of the CDDA provides, inter alia, that the Secretary of State may apply for a section 6 order to be made against a person if it appears to the Secretary of State that such an order would be expedient in the public interest. Under section 7(2), proceedings under section 6 may not be commenced more than two years after the insolvency of the company. 44.", "Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 reads as follows: “(1) There shall, at the time when the summons is issued, be filed in court evidence in support of the application for a disqualification order, and copies of the evidence shall be served with the summons on the respondent. (2) The evidence shall be by one or more affidavits, except where the applicant is the official receiver, in which case it may be in the form of a written report (with or without affidavits by other persons) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it. (3) There shall in the affidavit or affidavits or (as the case may be) the official receiver’s report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 45. The applicant complained about the length of the proceedings under Article 6 § 1 of the Convention, which provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ...” 46.", "The Government submitted that the proceedings were extremely complex, both factually and procedurally. They had arisen out of complicated leasing and financing arrangements, the details of which had taken many months to unravel. There were five co-defendants, and whenever one or more of them brought an application or an appeal, the proceedings against all the defendants were unavoidably delayed; the same occurred during the course of the criminal proceedings against some of the directors. In addition to numerous directions hearings before the Registrar of the Companies Court, the disqualification proceedings against the applicant required the attention of a High Court judge on six occasions, the Court of Appeal on six occasions and the House of Lords on one occasion. 47.", "The Government contended that by far the most significant cause of the delay in the determination of the proceedings was the conduct of the applicant himself, as the Vice-Chancellor found in his judgment of 15 February 2001. They drew attention to the following acts and omissions on the part of the applicant which contributed towards the overall delay: (i) his choice, together with the other defendants, to refuse to consent to the late service of evidence by the Secretary of State; (ii) his slowness and reluctance to serve evidence in response to that of the Secretary of State; (iii) his decision to associate himself with the attempt by Mr Davies to compel the Secretary of State to accept undertakings; (iv) his inconsistent and dilatory approach to negotiating a “Carecraft” settlement; (v) his misguided decision to bring and pursue an application for judicial review; (vi) his refusal, following the dismissal of the judicial review proceedings, to abide by the undertaking he had given in September 1999; (vii) his decision to pursue a breach of Article 6 § 1 under the Human Rights Act 1998, when he knew that he had himself been the cause of much of the delay; (viii) his refusal to accept the rejection of his plea under the Human Rights Act, which resulted in further proceedings before Patten J and a further attempt to resile from his undertaking. 48. The Government submitted, further, that a certain amount of the delay was caused by third parties, such as the co-defendants, for which the State was not responsible. They accepted that the Court of Appeal was critical of the Secretary of State’s failure to prepare and file his evidence in compliance with the statutory time-limit, but pointed out that the domestic courts were not critical of the State authorities’ conduct thereafter.", "49. The applicant reminded the Court that, in its judgment in Davies v. the United Kingdom, no. 42007/98, 16.07.2002, it carried out an assessment of the reasonableness of the length of these same proceedings up to January 1988, and found them to have been too long. The period held by the Court in Davies to have violated the reasonable time guarantee included a year’s delay, between May 1995 and May 1996, when Mr Davies appealed against the decision to admit the Secretary of State’s late evidence: this delay could not be attributed to the present applicant. The proceedings against Mr Eastaway lasted three years and five months longer than those against Mr Davies.", "Although the Government criticised him for bringing proceedings for judicial review and under the Human Rights Act, the applicant was obliged to exhaust his domestic remedies and bring his Convention complaints before the domestic courts in the manner provided for by the law as it stood at the time. 50. It was agreed between the parties that Article 6 § 1 applied and that the proceedings in question commenced on 1 July 1992 and did not end until 4 June 2001, when the applicant’s undertaking was endorsed by the relevant authorities. 51. The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, having regard in particular to its complexity and the conduct of the parties to the dispute and of the relevant authorities (see the above-mentioned Davies judgment, § 26).", "52. The proceedings against the applicant lasted one month short of nine years. The Court - and the Commission before it - has held that where disqualification proceedings of this kind are brought against a company director and would have a considerable impact on his or her reputation and ability to practise his or her profession, special diligence is called for in bringing the proceedings to an end expeditiously (see the above-mentioned Davies judgment and E.D.C. v. the United Kingdom, Commission’s Report of 26 February 1997, no. 24433/94, unreported).", "53. As previously mentioned, the Court has already been called upon to examine a complaint about the length of these same proceedings, brought by one of the co-defendants (Davies v. the United Kingdom, op. cit.). In that case the Court found a violation of Article 6 § 1, observing, in paragraph 29: “... the State must be held responsible for the greater part of the delay. The Court accepts that the Secretary of State’s case against the applicant was based on complex evidence.", "However, as a matter of domestic procedural law, an outline of this evidence should have been served with the summons on 1 July 1992 ... . The Secretary of State’s failure to comply with this time-limit was described by the Court of Appeal as ‘far from satisfactory’. In the event, the evidence was served some five months later, on 14 December 1992, but the Secretary of State’s application for leave to serve the evidence out of time, together with the applicant’s cross-application to have the proceedings struck out, were not decided at first instance until 27 January 1994. The applicant appealed against the Registrar’s order, but this appeal was not finally determined by the Court of Appeal until 24 May 1996 (almost four years after commencement). For four months (March-June 1994) the civil proceedings were adjourned whilst a criminal trial against some of the co-defendants - but not the applicant - took place.", "A further five months elapsed after the criminal proceedings had come to an end while the Secretary of State decided whether or not it was in the public interest to continue the disqualification proceedings against the applicant.” 54. The above comments about the delay in the proceedings between their commencement on 1 July 1992 and the date on which they came to an end in respect of Mr Davies - 12 January 1998 - apply equally in respect of the present applicant. Moreover, while Mr Davies reached a settlement with the Secretary of State in January 1998, the proceedings against Mr Eastaway did not come to such a conclusion until some three and a half years later. 55. A great deal of the responsibility for this latter period of delay can be laid on the applicant.", "He chose to pursue an unmeritorious application for judicial review before the High Court, Court of Appeal and House of Lords. Almost as soon as the Human Rights Act became enforceable, the applicant brought an action alleging a breach of Article 6 § 1, which, again, he pursued to appeal level. The applicant cannot be criticised for making this application, but, given that it was dealt with fairly expeditiously by the courts, neither can blame be attributed to the State authorities in respect of the delay it occasioned. Finally, having failed in his arguments under Article 6, the applicant immediately brought a further action on almost identical grounds: when this was struck out in the High Court, he again appealed to the Court of Appeal. 56.", "Nonetheless, even if the Court were to base its findings only on the first five and a half years of the proceedings, it is difficult to distinguish this case from Davies. In all the circumstances, the Court does not consider that the proceedings against the applicant were pursued with the diligence required by Article 6 § 1. There has accordingly been a violation of that provision, in that the applicant’s “civil rights and obligations” were not determined within “a reasonable time”. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 58. The applicant did not claim any pecuniary damages, but he did claim to be entitled to EUR 4,500 in respect of non-pecuniary damage, which was the amount awarded to the applicant in the Davies case referred to above. 59. The Government had no comment in connection with this claim.", "60. The Court refers to its observation in paragraph 56 above that it is difficult to distinguish the present case from that of Davies. It therefore considers it appropriate to award the same amount of compensation for non-pecuniary damage, namely EUR 4,500. B. Costs and expenses 1.", "Domestic legal costs 61. The applicant claimed domestic legal costs in respect of his application for judicial review and his two applications under the Human Rights Act, which were pursued to prevent or redress the breach of Article 6 on grounds of undue length. The costs claimed in respect of these parts of the domestic proceedings totalled GBP 59,981.03. 62. The Government contended that the claim for the reimbursement of the applicant’s domestic legal costs should be rejected, because these had not been incurred to prevent or redress the violation in question.", "They submitted that the actions for judicial review and under the Human Rights Act had been misconceived in that the redress sought, namely striking out or dismissal of the disqualification proceedings, was inappropriate, the proper remedy for the violation in question being a relatively modest amount of damages. 63. The Court refers to paragraph 55 above, where it found the application for judicial review and the second application under the Human Rights Act to have been unmeritorious and misconceived. The first application under the Human Rights Act, which was dismissed by the Vice-Chancellor on 15 February 2001 was, however, an attempt by the applicant to use domestic remedies to address the issue of delay under Article 6. The Court awards EUR 15,000 in this connection, together with any tax that may be payable.", "2. Strasbourg legal costs 64. The applicant claimed a total of GBP 17,803.89 in respect of the Strasbourg proceedings, which comprised solicitors’ costs of GBP 6,457.80 and a barrister’s fees of GBP 11,346.09 (inclusive of value-added tax). 65. The Government submitted that this figure was excessive and that no more than GBP 8,500 should be awarded under this head.", "66. The Court notes that this was a simple length of proceedings case, which was rendered all the more straightforward because of the possibility of relying on the Davies judgment. It considers that EUR 10,000 would be a fair award in respect of Strasbourg costs, together with any tax that may be payable. C. Default interest 67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 25,000 (twenty-five thousand 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; 3. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosMatti PellonpääDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF MOŚCICKI v. POLAND (Application no. 52443/07) JUDGMENT STRASBOURG 14 June 2011 FINAL 14/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mościcki v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,Sverre Erik Jebens,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 52443/07) 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 Jacek Mościcki (“the applicant”), on 19 November 2007. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicant alleged that the lustration proceedings brought against him had been unfair. 4. On 12 March 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time. 5.", "Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1939 and lives in Koszalin. He began to practise as an advocate in 1971.", "7. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”). Persons falling under the provisions of the Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates.", "8. In May 1999 the applicant in his lustration declaration stated that he had not been an intentional and secret collaborator of the communist-era security services. 9. On 11 May 2005 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) notified the applicant that he had instituted proceedings aimed at verifying the truthfulness of the applicant’s declaration. 10.", "The Commissioner heard the applicant on 2 June 2005. The applicant stated that in the 1980s he had been harassed by two officers of the security service. However, he averred that his contacts with the security service had not amounted to secret and conscious collaboration. He stated that he had ceased all the contacts with the security services in August 1984. The applicant unsuccessfully requested the Commissioner to hear eight advocates of the Koszalin Regional Bar Association.", "11. On 8 August 2005 the Commissioner made an application to the Lustration Chamber of the Warsaw Court of Appeal, in which he challenged the truthfulness of the applicant’s declaration. 12. On 11 August 2005 the Warsaw Court of Appeal instituted lustration proceedings in the applicant’s case. 13.", "On 15 September 2005 the court held a hearing. The applicant stated that he would not make any statements and would not answer any questions put to him by the court. He upheld his statements given before the Commissioner on 2 June 2005. The applicant did not request the court to call advocates of the Koszalin Bar as witnesses. However, the court decided to hear two of those advocates (K.G.", "and R.K.). They stated that the applicant had informed them about the meetings with the security services but not about their contents. 14. On 5 January 2006 the Warsaw Court of Appeal, acting as the first‑instance lustration court, held that the applicant’s declaration had been untruthful. The court relied, in particular, on evidence given by J.B., an officer of the security services who had managed the applicant as a secret collaborator.", "It further had regard to the applicant’s statements given before the Commissioner and documentary evidence. It found that the applicant, albeit for a limited period of time, had been an intentional and secret collaborator with the security services within the meaning of the Lustration Act. 15. The applicant lodged an appeal. He argued that his meetings with the officers of the security services had not amounted to secret collaboration as he had informed his fellow advocates (K.G.", "and R.K.) about those meetings. Furthermore, he had never consented to collaborate with the security services and there had been no material evidence of his alleged collaboration. The applicant also argued that he had been registered as a “secret collaborator” without his knowledge. He requested the court to call further witnesses. 16.", "On 25 April 2006 the Warsaw Court of Appeal agreed to hear four witnesses called by the applicant (M.C., A.B.-S., J.T. and W.W.). It refused to hear the remaining witnesses since their evidence was not strictly related to the applicant’s alleged collaboration with the security services and thus would be irrelevant for the case. 17. On 30 May 2006 the Warsaw Court of Appeal heard three witnesses called by the applicant (M.C., J.T.", "and W.W.). It did not hear A.B.-S. as the applicant withdrew his request to hear that witness. 18. On 30 May 2006 the Warsaw Court of Appeal, acting as the second‑instance lustration court, upheld the judgment of 5 January 2006. It found that the first-instance court had duly assessed all relevant evidence and provided sufficient reasons for its findings which were confirmed by the additional witnesses heard by the appellate court.", "It held that according to the evidence given by J.B. the applicant had not signed a collaboration declaration, but had been orally providing information to the security services about advocates of the Koszalin Bar. 19. The applicant lodged a cassation appeal with the Supreme Court. He contested, amongst others, the Court of Appeal’s refusal to hear some of his witnesses. On 22 May 2007 the Supreme Court dismissed the cassation appeal.", "It found that the Court of Appeal’s refusal to hear certain witnesses had been justified and duly reasoned. 20. On 17 September 2007 the Koszalin Regional Bar Association struck the applicant off the roll of advocates. It found that in accordance with section 30 of the Lustration Act the applicant had lost his right to practise as an advocate following the dismissal of his cassation appeal by the Supreme Court. On 23 October 2007 the National Bar Association upheld the impugned decision.", "The applicant appealed to the Minister of Justice who however dismissed his appeal on 13 May 2008. 21. The applicant filed an appeal against the Minister’s decision with the Warsaw Regional Administrative Court. On 13 August 2008 the applicant requested the court to stay the proceedings on the ground that the Ombudsman had challenged the constitutionality of a relevant section of the amended Lustration Act and proceedings had been instituted before the Constitutional Court. On 11 December 2008 that court stayed the proceedings as requested.", "On 16 March 2010 the court resumed the proceedings at the applicant’s request. On 10 June 2010 the court again stayed the proceedings. On 8 November 2010 the applicant filed a complaint with the Supreme Administrative Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). On 30 November 2010 the Supreme Administrative Court dismissed his complaint. The proceedings before the Constitutional Court appear to be pending.", "22. By a letter dated 9 March 2009 the Szczecin Branch of the Institute of National Remembrance notified the applicant that doubts had arisen as to the truthfulness of his lustration declaration. He was summoned for 17 April 2009. The applicant has submitted no further information as regards the notification. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Lustration laws 23. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 27-39, ECHR 2007‑V. B. Resolution no 9/1999 of the National Bar Association of 17 April 1999 (amended by Resolution no.", "17/1999 of 9 October 1999). 24. In the Resolution the National Bar Association expressed the view that a secret and conscious collaboration of advocates with the security services between 1944 and 1990 amounted to a betrayal of the basic moral values and fundamental principles of advocates’ ethics. It called on advocates who had collaborated with the security services to leave the Bar. The Resolution stated further that: “The Bar will resort to all legally available means within the framework of disciplinary proceedings aimed at removing from the Bar all those advocates who by their work or service for or collaboration with the security services have lost the public trust [...] and who do not guarantee that they will correctly exercise their profession.", "[...] III. The National Bar Association obliges the organs of the Bar to carry out disciplinary investigations in the form of explanatory actions or disciplinary proceedings, or to institute proceedings under section 74 of the Bar Association Act, while respecting the principle of individual responsibility.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION REGARDING UNFAIRNESS OF THE PROCEEDINGS 25. The applicant complained under Article 6 of the Convention about the unfairness of the lustration proceedings. He alleged that he had had restricted access to the classified documents in the case file and could not take and use notes from it.", "The Court raised, of its own motion, the appropriateness of examining under Articles 6 § 1 and 8 of the Convention the significant delay which occurred between the date of the lodging of the applicant’s lustration declaration and the date of the institution of the proceedings by the Commissioner. It further raised of its own motion the question of whether the fact that the applicant was likely to be disbarred, pursuant to the Resolution of the National Bar Association, if he had admitted collaboration with the security services, amounted to a breach of Articles 6 § 1, 8 and Article 1 of Protocol No. 1 of the Convention. The Court considers that the applicant’s principal grievances concern the alleged unfairness of the lustration proceedings. For this reason it is appropriate to examine this complaint under Article 6 of the Convention.", "Article 6, in so far as relevant, provides: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...by [a] ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence;” A. Admissibility 26. The Government claimed that the applicant had not exhausted relevant domestic remedies. Firstly, he had never raised before the domestic courts the issue of the alleged unfairness of the lustration proceedings which he subsequently brought before the Court.", "He had not complained about the alleged hindrance in his access to the case file or restrictions on taking notes from it. In his appeal and cassation appeal the applicant contested the assessment of evidence by the courts, but had not raised the issue of access to the case file. Had he raised such objections, it was not excluded that that the case could have been remitted to the first-instance lustration court with a view to applying the necessary arrangements to facilitate the applicant’s access to the case file. Secondly, the applicant had not lodged a constitutional complaint, challenging the constitutionality of the provisions of the Protection of Classified Information Act which had been applied in his case. 27.", "The applicant disagreed. 28. The Court recalls that it has already considered the question of whether the applicant could effectively challenge the set of legal rules governing access to the case file and setting out the features of the lustration proceedings. The Court notes that the arguments raised by the Government are similar to those already examined and rejected by the Court in previous cases against Poland (see Matyjek v. Poland, no. 38184/03, § 64, ECHR 2007‑V; Luboch v. Poland, no.", "37469/05, §§ 69-72, 15 January 2008; Rasmussen v. Poland, no. 38886/05, §§ 52-55, 28 April 2009; and Górny v. Poland, no. 50399/07, § 22, 8 June 2010) and the Government have not submitted any new arguments which would lead the Court to depart from its previous findings. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 29.", "The Court further observes that it has already found that Article 6 of the Convention under its criminal head applied to lustration proceedings (see, amongst others, Matyjek v. Poland (dec.), no. 38184/03, ECHR 2006‑VII). 30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The applicant’s submissions 31. The applicant alleged that the principle of equality of arms had been breached in the proceedings since the Commissioner of Public Interest, contrary to the applicant’s position, had had a statutory right of access to all relevant documents.", "Furthermore, the applicant was prohibited from taking notes from the case file and from making copies of it. 2. The Government’s submissions 32. The Government submitted that each case had to be assessed by the Court taking into account its special circumstances. In the present case, the applicant had never raised before the domestic authorities the issue of unfairness, allegedly caused by the confidentiality of the case file, limitations on his access to it and the restrictions on taking notes from it.", "Secondly, the applicant had access to all evidence and all decisions given in the case. The only limitations which applied to him with regard to taking notes were of a technical nature. The applicant could consult the case file in the secret registry but could not use his notes based on the file outside the secret registry. The same restrictions applied to the Commissioner of Public Interest and the judges examining the case. 33.", "The Government referred to the Court’s case-law which recognised that the need to protect the public interest may justify withholding certain evidence from the defence in criminal proceedings (see, amongst others, Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, § 53, 22 July 2003). In this respect, they underlined that in the instant case all evidence had been disclosed to the applicant. The only difficulty for the applicant had been related to the fact that part of the evidence had been confidential. However, the rules applied by the domestic courts regarding arrangements on access to the case file had respected the principle of equality of arms.", "The Government rejected as unsubstantiated the applicant’s allegation that he could not take notes from the case file. 34. The situation where the lustration court had to apply the rules concerning the use of classified documents had been assessed by the Supreme Court in its judgment of 9 December 2004 (case no. II KK 342/03). The Supreme Court stated that the application of those rules could possibly hinder the preparation of an appeal by the lustrated person; however it rejected the view that the procedure followed could deprive or even restrict the rights of the defence.", "The Supreme Court further stressed that the application by the lustration court of a procedure provided for by the law could not be considered an infringement of the rights of the defence. 35. The Government submitted that the Commissioner’s initial assessment of the classified evidence had not been in any way binding on the lustration courts. Those courts conducted the proceedings anew and were entitled to assess freely all evidence before them. The applicant was guaranteed the right to challenge all the documents in his case.", "The Government observed that the applicant had benefited from an examination of his case at two instances by ordinary courts with full jurisdiction to assess the relevant facts and law. He further availed himself of an extraordinary appeal to the Supreme Court. For the Government there had been no appearance of a violation of the applicant’s right to a fair trial in the impugned proceedings. They concluded that there had been no breach of Article 6 § 1 in the present case. 3.", "The Court’s assessment 36. The Court recalls that the procedural guarantees of Article 6 of the Convention under its criminal head apply to lustration proceedings (see paragraph 29 above). In several cases against Poland concerning fairness of those proceedings (see, inter alia, Matyjek, § 56; Luboch, § 61; Rasmussen, § 43; Górny, § 31, all cited above) it considered it appropriate to examine the applicant’s complaints under Article 6 §§ 1 and 3 taken together. The relevant case‑law concerning the principle of equality of arms is stated in the above‑cited judgments. 37.", "The Court has already dealt with the issue of lustration proceedings in Turek v. Slovakia (no. 57986/00, § 115, ECHR 2006 ‑ (extracts)) and in Ādamsons v. Latvia (no. 3669/03, 24 June 2008). In Ādamsons the Court underlined that if a State is to adopt lustration measures, they must fulfil certain conditions in order to be compatible with the Convention. Firstly, the lustration law should be accessible to the person concerned and foreseeable as to its effects, such conditions being inherent in the expression “in accordance with the law” within the meaning of the Convention.", "Secondly, lustration should not exclusively serve the purpose of retribution or revenge, as the punishment of offenders should be limited to the criminal law sphere. Thirdly, if domestic law allows restrictions on the rights guaranteed under the Convention, it must be precise enough to allow for the individualisation of the responsibility of each person affected thereby and contain adequate procedural safeguards. Finally, the national authorities should keep in mind that lustration measures are by their nature temporary and that the objective need to restrict individual rights as a result of such proceedings diminishes over time (see Ādamsons, cited above, § 116). The Court confirms that the above principles are also applicable to the Polish lustration laws. 38.", "In the Turek judgment the Court held that, unless the contrary is shown on the facts of a specific case, it cannot be assumed that there remains a continuing and actual public interest in imposing limitations on access to materials classified as confidential under former regimes. This is because lustration proceedings are, by their very nature, oriented towards the establishment of facts dating back to the communist era and are not directly linked to the current functions and operations of the security services. Lustration proceedings inevitably depend on the examination of documents relating to the operations of the former communist security agencies. If the party to whom the classified materials relate is denied access to all or most of the materials in question, his or her possibilities of contradicting the security agency’s version of the facts will be severely curtailed. Those considerations remain relevant to the instant case despite some differences with the lustration proceedings in Poland (see Matyjek, § 56; Luboch, § 61; Rasmussen, § 43; Górny, § 33, all cited above).", "39. In the present case, the Court observes firstly that the Government have admitted that part of the evidence had been secret. In the previous cases concerning lustration proceedings in Poland the Court observed that under the series of successive laws the communist-era security services’ materials continued to be regarded as a State secret. The confidential status of such materials had been upheld by the State Security Bureau. Thus, at least part of the documents relating to the applicant’s lustration case had been classified as “top secret”.", "The Head of the State Security Bureau was empowered to lift the confidentiality rating. However, the Court recalls that it has considered the existence of a similar power of a State security agency inconsistent with the fairness of lustration proceedings, including with the principle of equality of arms (see Turek, § 115; Matyjek, § 57; Luboch, § 62; Rasmussen, § 44; Górny, § 34, all cited above). 40. Secondly, the Court notes that, at the pre-trial stage, the Commissioner of Public Interest had a right of access, in the secret registry of his office or of the Institute of National Remembrance, to all materials relating to the lustrated person created by the former security services. After the institution of the lustration proceedings, the applicant could also access his court file.", "However, pursuant to Article 156 of the Code of Criminal Procedure and section 52 (2) of the Protection of Classified Information Act, no copies could be made of materials contained in the court file and confidential documents could be consulted only in the secret registry of the lustration court. 41. The applicant has claimed that he had not been authorised to take notes from his case file, while the Government have disputed that assertion. Even accepting the Government’s argument, the Court observes that the applicant’s possibility of taking notes was considerably restricted. Any notes which he took could be made only in special notebooks that were subsequently sealed and deposited in the secret registry.", "The notebooks could not be removed from this registry and could be opened only by the person who had made them. The same restrictions applied to the applicant’s lawyers. 42. The Court reiterates that the accused’s effective participation in his criminal trial must equally include the right to compile notes in order to facilitate the conduct of his defence, irrespective of whether or not he is represented by counsel (see Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000 and Matyjek, cited above, § 59).", "The fact that the applicant could not remove his own notes, taken in the secret registry, in order to show them to an expert or to use them for any other purpose, effectively prevented him from using the information contained in them as he had to rely solely on his memory. Regard being had to what was at stake for the applicant in the lustration proceedings – not only his good name but also his right to practise as an advocate – the Court considers that it was important for him to have unrestricted access to those files and unrestricted use of any notes he made, including, if necessary, the possibility of obtaining copies of relevant documents (see Górny, cited above, § 37). 43. Thirdly, the Court is not persuaded by the Government’s argument that at the trial stage the same limitations as regards access to confidential documents applied to the Commissioner of Public Interest. Under the domestic law, the Commissioner, who was a public body, had been vested with powers identical to those of a public prosecutor.", "Under section 17(e) of the 1997 Lustration Act, the Commissioner of Public Interest had a right of access to full documentation relating to the lustrated person created by, inter alia, the former security services. If necessary, he could hear witnesses and order expert opinions. The Commissioner also had at his disposal a secret registry with staff that obtained official clearance allowing them access to documents considered to be State secrets and were employed to analyse lustration declarations in the light of the existing documents and to prepare the case file for the lustration trial. 44. The Court accepts that there may be a situation in which there is a compelling State interest in maintaining secrecy of some documents, even those produced under the former regime.", "Nevertheless, such a situation will only arise exceptionally given the considerable time that has elapsed since the documents were created. It is for the Government to prove the existence of such an interest in the particular case because what is accepted as an exception must not become a norm. The Court considers that a system under which the outcome of lustration trials depended to a considerable extent on the reconstruction of the actions of the former secret services, while most of the relevant materials remained classified as secret and the decision to maintain the confidentiality was left within the powers of the current secret services, created a situation in which the lustrated person was put at a clear disadvantage (see Matyjek, § 62; Luboch, § 67; Rasmussen, § 50; Górny, § 40, all cited above). 45. In the light of the above, the Court considers that due to the confidentiality of the documents and the limitations on access to the case file by the lustrated person, as well as the privileged position of the Commissioner of the Public Interest in the lustration proceedings, the applicant’s ability to prove that the contacts he had had with the communist‑era secret services did not amount to “intentional and secret collaboration” within the meaning of the 1997 Lustration Act were severely curtailed.", "Regard being had to the particular context of the lustration proceedings, and to the cumulative application of those rules, the Court considers that they placed an unrealistic burden on the applicant in practice and did not respect the principle of equality of arms (see Matyjek, cited above, § 63). 46. The Court notes that in the present case the applicant lost his right to practise as an advocate following the standard lustration proceedings in which the domestic courts established that his lustration declaration, in which he had denied collaboration with the security services, had been untruthful. In those circumstances there is no need for the Court to examine issues related to the Resolution of the National Bar Association which provided that advocates who admitted collaboration would be disbarred. 47.", "Having regard to the foregoing, the Court concludes that the lustration proceedings against the applicant, taken as a whole, cannot be considered as fair within the meaning of Article 6 § 1 of the Convention taken together with Article 6 § 3. There has accordingly been a breach of those provisions. II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 48. The applicant complained under Article 6 of the Convention that the Commissioner of Public Interest had refused to call advocates of the Koszalin Regional Bar as witnesses for him.", "Furthermore, the lustration courts had refused to hear a number of the applicant’s witnesses who were to testify that he had not been a secret and conscious collaborator of the security service. He also complained that he had been deprived of the right to practise as an advocate for ten years and accordingly sustained significant moral and pecuniary damage. Lastly, the applicant alleged that judges of the Lustration Chamber of the Warsaw Court of Appeal had not been permanently assigned to either the first or the second-instance lustration court but had heard cases sometimes sitting on the first-instance court and sometimes sitting on the second-instance court. 49. The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention.", "In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national court (see Garćia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, with further references). The applicant took issue with the Court of Appeal’s refusal to hear some of his witnesses. However, it was convincingly established by the Court of Appeal that the evidence of those witnesses would not be relevant to determine the fact of the applicant’s collaboration with the security services.", "Furthermore, the Supreme Court confirmed the Court of Appeal’s decision and found that it had been duly reasoned. In so far as the applicant appears to contest the principles underlying lustration proceedings, the Court recalls that it has examined and declared inadmissible as manifestly ill‑founded similar allegations raised in the case of Chodynicki v. Poland ((dec.), no. 17625/05, 2 September 2008). As regards the sanction imposed on the applicant in consequence of the outcome of the lustration proceedings, the Court finds no grounds on which that sanction could be contested under Article 6 of the Convention. Lastly, in respect of the complaint concerning the position of judges of the Lustration Chamber, the Court considers that the applicant failed to demonstrate how his Article 6 rights were effected in this respect.", "50. It follows, notwithstanding other possible grounds of inadmissibility, that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 4 OF THE PROTOCOL No. 7 TO THE CONVENTION 51.", "In his observations of 23 October 2009 the applicant complained of the institution of the second set of lustration proceedings against him by the Szczecin Branch of the Institute of National Remembrance which amounted to a breach of Article 4 of the Protocol No. 7 to the Convention. 52. The Court notes that the applicant submitted a copy of the notification of 9 March 2009 made by the Szczecin Branch of the Institute of National Remembrance in which he was informed about doubts concerning the truthfulness of his lustration declaration. It notes that the applicant has submitted no further information regarding any follow-up to the said notification.", "53. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 23,827.94 Polish zlotys (PLN) (EUR 5,950) in respect of pecuniary damage for lost earnings. He further claimed EUR 100,000 in respect of non-pecuniary damage for suffering and stress related to the breach of the Convention. 56. The Government submitted that there was no causal link between the alleged violation and the claim for pecuniary damage.", "In respect of the claim for non-pecuniary damage, they invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction. 57. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. It considers that in the particular circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage which may have been sustained by the applicant (see Matyjek, § 69; Luboch, § 83, both cited above). B.", "Costs and expenses 58. The applicant claimed in total 16,259.56 PLN (EUR 4,000) for costs and expenses, broken down as follows: a) PLN 2,100 for the costs of his defence counsel in lustration proceedings; b) PLN 3,045.56 for fees incurred in the lustration proceedings; c) PLN 1,114 for the costs of photocopying the case file in respect of related criminal proceedings against the officers of the former security services; d) PLN 10,000 for preparation of his application and his submissions to the Court. 59. The Government requested the Court to make an award, if any, only in so far as the costs and expenses were actually and necessarily incurred and were reasonable as to quantum. 60.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes that the applicant produced copies of documents related to the costs of his legal representation in the lustration proceedings and fees incurred in those proceedings (PLN 5,145.56). It observes that the costs claimed under c) were not relevant for the issues raised in his application to the Court. Consequently, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads. C. Default interest 61.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 of the Convention regarding the unfairness 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 taken in conjunction with Article 6 § 3; 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, 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 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident" ]
[ "FOURTH SECTION CASE OF PENDIUC v. ROMANIA (Application no. 17605/15) JUDGMENT STRASBOURG 14 February 2017 This judgment is final. It may be subject to editorial revision. In the case of Pendiuc 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 24 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17605/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Emanuela Elena Pendiuc (“the applicant”), on 3 April 2015. 2. The applicant was represented by Ms A.E. Ciurea, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.", "3. The applicant alleged, in particular, a breach of her right guaranteed by Article 3 of the Convention because of lack of access to water, food or a place to sit for the period she spent at the National Anticorruption Department’s office on 6 November 2014 prior to her placement in police custody; of the physical conditions of detention at the Bucharest Police Department’s Detention Centre; and of the lack of adequate medical care for her medical condition during her police custody. 4. On 1 September 2015 the above-mentioned 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. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1981 and lives in Piteşti. A. Background to the case 6. On 4 September 2014 a gynaecologist prescribed the medicine Utrogestan to the applicant, to be taken twice a day for three months.", "7. According to the applicant’s own statement before the Court, the medication was prescribed to help maintain her pregnancy and prevent a miscarriage. 8. According to the medicine’s patient information leaflet, it was recommended for the treatment of medical conditions causing an insufficient secretion of the hormone progesterone and could be used for several conditions, including inter alia, aiding a pregnancy. Its potential side effects included drowsiness and dizziness, usually as a result of an overdose.", "Stopping the treatment did not have any potential effects. 9. On 29 October 2014 M.N., a prosecutor attached to the National Anticorruption Department (Direcția Națională Anticorupție – hereinafter “the DNA”), summoned the applicant to be interviewed as a witness on 31 October 2014 in criminal proceedings opened by the authorities into alleged acts of corruption involving her father and others. Her father was the mayor of Pitești and a member of a major political party which formed the Romanian Government at the time. 10.", "According to the applicant’s own statement before the Court, on the morning of 31 October 2014 she started feeling unwell and asked her chosen legal representative to inform M.N. that she might not be able to testify that day because of her health. Her lawyer called M.N. and informed him of the situation. The lawyer also reassured the prosecutor that he would accompany the applicant to the DNA’s offices for the interview once her medical condition improved.", "Subsequently, the applicant’s lawyer informed her that the prosecutor had refused to allow a lawyer to be present during her interview and he advised her to attend alone. 11. On the same date a general practitioner issued a medical note and referred the applicant urgently to hospital. The note stated that she was suffering from an inflammation of her uterus. 12.", "On the same date the gynaecology department of the Panait Sârbu Clinical Hospital in Bucharest took an ultrasound of the applicant’s uterus. The ultrasound image produced by the applicant as evidence before the Court did not provide, contain or was accompanied by any explanation or medical report detailing her condition. 13. According to the applicant’s own statement before the Court, the examination at the Panait Sârbu Clinical Hospital confirmed that she was pregnant and was experiencing some complications as a result of stress and her medication’s side effects. However, the scan could not confirm whether the foetus had stopped developing or not.", "She was advised to continue the prescribed treatment and rest. 14. On the same date M.N. authorised two police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name. It stated that she had unjustifiably ignored the summons of 29 October 2014 and that her presence was required at the DNA’s offices in order to be interviewed as a witness.", "15. According to the applicant’s own statement before the Court, on her return from the hospital two police officers presented her with the warrant to appear and took her to the DNA’s offices even though she had informed them of her medical condition and had shown them her medical documents. During the interview she informed M.N. that she was feeling ill and presented him with the medical documents. Even though he was aware that she was pregnant, the prosecutor continued to interview her aggressively, using interview techniques aimed at intimidating her.", "Her interview was also recorded but in the absence of any procedural rules on the matter she was unable to ask for the recording. When she asked the prosecutor to mention in her statement that she was being interviewed while under treatment, in poor health and after a trip to the hospital, she was told that she would not be allowed to leave the premises for the rest of the evening. She became scared, gave in and fully complied with the investigating authorities’ demands. 16. On 31 October 2014, after the applicant’s interview, prosecutor M.N.", "prepared a report which stated that according to the statement made by her, she had been late for the interview because she had been feeling unwell on account of health problems (având probleme de sănătate). The report noted that the applicant had supported her statement by submitting a general practitioner’s referral to hospital (see paragraph 11 above) and the results of the ultrasound taken by the Panait Sârbu Clinical Hospital (see paragraph 12 above). The applicant signed the report without objection. 17. According to the applicant’s own statement before the Court, she also gave the prosecuting authorities a prescription for her medication and the medication’s patient information leaflet.", "18. On 19 January 2015 the applicant underwent a routine pregnancy check-up at a private clinic in Bucharest. According to the medical report prepared that day, she was thirteen weeks pregnant. B. Time spent by the applicant at the DNA on 6 November 2014 19.", "At 4 a.m. on 6 November 2014 M.N. authorised the police to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name in order to interview her in the criminal proceedings opened by the authorities into alleged acts of corruption. 20. At 11.30 a.m. two police officers went to the applicant’s home and presented her with the warrant to appear. According to a report produced by the officers, the applicant did not object to the warrant and followed them to the DNA’s offices.", "The applicant signed the report. 21. According to the applicant’s own statement before the Court, several police officers came to her home and took her to the DNA’s offices. On her arrival, even though M.N. was aware of her pregnancy, he left her waiting for eight hours in the corridor.", "During that time she was forced to stand and had no access to food or water. She started feeling very unwell because of her treatment and its side effects. After eight hours a statement was taken from her in the presence of her chosen legal representatives. 22. From 12.50 to 1.10 p.m. M.N.", "informed the applicant in the presence of her two chosen legal representatives that she was suspected of complicity in bribe taking and money laundering in criminal proceedings opened by the authorities into alleged acts of corruption. From 1.15 to 2.45 p.m. she was interviewed as a suspect in their presence. Her statement was recorded. 23. At 6 p.m. M.N.", "charged (a pus ȋn mişcare acțiunea penală) the applicant with complicity in bribe taking and money laundering. Between 6.05 and 6.10 p.m. he informed her of the charges against her in the presence of her two chosen legal representatives. From 6.15 to 6.20 p.m. she was interviewed in their presence about the circumstances of the case as a person charged with an offence. Her statement was recorded. 24.", "The applicant and her chosen legal representatives signed, without raising any written objections, all the documents produced by the DNA in respect of her case on 6 November 2014, including her statements. C. Conditions of the applicant’s detention and alleged lack of medical care 25. At 7.07 p.m. on 6 November 2014 M.N. decided to place the applicant in police custody for twenty-four hours and ordered that she be taken to the Bucharest Police Detention Centre (Centrul de Reținere şi Arestare Preventivă din cadrul Direcției Generale de Poliție a Municipiului Bucureşti). 26.", "At 7.12 p.m. M.N. informed the applicant of her impending detention in the presence of one of her chosen legal representatives. 27. According to the applicant’s own statement before the Court, she arrived at the detention centre at around 7.30 p.m. with only a bottle of water and a small box of vitamins and minerals. The detention centre authorities took the vitamins from her immediately.", "28. On the same date the applicant signed a statement for the detention centre medical service. According to the statement, she informed them that she had been monitored for endometrial hyperplasia, that she agreed with the information recorded by the medical staff and that the information in respect of her health was complete and accurate. 29. At 7.55 p.m. the medical service produced a report concerning the applicant’s health.", "The report noted, inter alia, that according to the statement made by her, she had been suffering from endometrial hyperplasia. Furthermore, she did not have her own Utrogestan. In addition, she stated that she would bring her medical documents in case she was detained pending trial and that she was a non-smoker. 30. According to the applicant’s own statement before the Court, she informed the detention centre medical service of her pregnancy and treatment and asked them to give her the medication and vitamins that evening and the following morning as recommended.", "However, during her detention she was not provided with the treatment needed for her pregnancy and therefore she could have suffered a miscarriage. Furthermore, according to her, the detention centre authorities did not provide her with any food or water until the next morning. The food she received was unsavoury, and she was warned by her cellmates not to eat it. Moreover, she was detained in a cell measuring 5 square metres with three smokers, even though she had informed the authorities that she was a non-smoker and that smoke was harmful to someone in her condition. The cell had four bunk beds and was cold.", "She was forced to sleep in a bed that had a mattress but no bed linen or duvet. The cell had a sink and a squat toilet. The toilet was separated from the rest of the cell by a curtain and was covered with a plastic device to prevent rats from entering the cell. A shower was fitted above the toilet which was also used for flushing it. No warm water was available and the cold water from the sink was contaminated and could not be used for drinking.", "Furthermore, she was allowed only thirty minutes of outdoor exercise at the same time as her other three cellmates, in a yard measuring 6 or 7 square metres. It had walls three metres high and was covered by a metal grill. The other three cellmates smoked constantly in the yard, so it was filled with cigarette smoke because fresh air could not enter as a result of the very high walls. D. Other relevant information 31. At around 7.07 p.m. on 7 November 2014 the Bucharest County Court dismissed the DNA’s request to detain the applicant pending trial for thirty days and ordered her release, on condition that she did not leave the country.", "In examining her personal situation, the court noted, inter alia, that she was a former national television presenter and a film producer. 32. On 25 February 2015 a gynaecologist prescribed the applicant Utrogestan, to be taken twice a day until the thirty-second week of pregnancy. 33. On 17 December 2015 the DNA informed the Government, inter alia, that on 6 November 2014 similar procedural measures to those taken in respect of the applicant had been taken around the same time against eleven other suspects who were being investigated in the same set of criminal proceedings.", "Moreover, during the proceedings the applicant had been assisted by her chosen legal representatives and, like all the other suspects, she had been offered water or had been able to purchase food and water. Furthermore, water dispensers and disposable cups had been available in every corridor and office of the building. Everyone inside the building, including those under investigation, had access to its canteen. Lastly, all the defendants and their chosen legal representatives had the option of sitting down during the proceedings. 34.", "On 28 January 2016 the detention centre coordination department informed the Government that the applicant had arrived at 8.20 p.m. on 6 November 2014. According to the rules in force at the time, detainees were served dinner from 5.30 to 6 p.m. There were no written rules setting out the procedure which needed to be followed for detainees arriving later than 6 p.m. and the applicant had not asked for a meal. In addition, detention centres did not have a clear procedure in respect of detainees statements on whether they were a smoker or non-smoker. As long as detainees were asked about that at the time of their incarceration and opted for smoker or non-smoker status, they would be detained as far as possible according to their preferences.", "35. According to the detention centre coordination department, none of the available documents proved that the applicant had stated that she was a non‑smoker at the time of her incarceration. Consequently, she had been assigned randomly to a cell for smokers. In addition, she had had access to running cold water which could have been used for drinking, and her cell had been heated at all times. 36.", "The applicant submitted excerpts from several newspaper and online articles concerning her detention and the time she spent at the DNA’s offices on 6 November 2014. According to three of these she was interviewed at the DNA’s offices for eight or more hours. II. RELEVANT DOMESTIC LAW 37. The relevant provisions of the Romanian Code of Criminal Procedure read: Article 106 “1.", "If, during an interview an individual shows visible signs of excessive fatigue or the symptoms of an illness which affects his physical or psychological ability to participate in the interview, the judicial body shall discontinue the interview and, where appropriate, shall take action for the individual to be examined by a doctor. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 38. The applicant complained that she had been subjected to inhuman and degrading treatment and intense physical and mental suffering because, even though the domestic authorities had been aware of her serious medical condition, on 6 November 2014 she had been forced to wait eight hours for an interview at the DNA’s offices without water, food or a seat. She had then been detained in an overcrowded, squalid and cold cell with smokers, without sufficient clean air, physical exercise, food or water, with no access to warm water and without being provided with bed linen or a duvet.", "Moreover, the detention centre’s doctor had refused to provide her with the treatment needed to prevent a miscarriage. She 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. Lack of access to food, water and seating at the DNA’s offices Admissibility (a) The parties’ submissions 39. The Government submitted that according to the documents produced by the domestic authorities, on 6 November 2014 the applicant had been presented with a warrant to appear at the DNA’s offices at 11.30 a.m., and had been placed in police custody for twenty-four hours at 7.07 p.m. They argued that given the distance between where she had been presented with the warrant and the DNA’s offices, the applicant had most probably arrived at her destination well after 12 noon.", "Consequently, they considered that she had remained at the offices for approximately seven hours. 40. The Government argued that the information contained in the extracts from the newspaper and online articles about the actual time the applicant had spent at the DNA’s offices on 6 November 2014 was inaccurate. Furthermore, only one of the extracts had stated that she had remained at the DNA’s offices for eight hours and the extract in question could not be regarded as irrefutable evidence. 41.", "The Government contended that the applicant’s interview and involvement in the investigative activities during her time at the DNA’s offices had not been continuous. From 2.45 to 6.05 p.m. she had not been interviewed or involved in any investigative activities, and those she had been involved in had not been excessively lengthy. Furthermore, there had been no evidence in the case file to suggest that she or her legal representatives had asked the prosecutor to suspend her interviews temporarily because they had been excessively lengthy or tiring, and she had not brought a criminal claim against the prosecutor regarding the treatment she had allegedly been subjected to while under the authorities’ control. 42. Relying on the Court’s case-law, the Government argued that the investigation concerning the applicant had been complex and had been part of a set of proceedings which had involved several other individuals and had required a large number of procedural measures which had been carried out within a short period of time.", "43. The Government submitted that on 6 November 2014 pending her interviews the applicant, like all the other suspects, had been offered water and had been able to purchase food. Furthermore, all the offices and the corridors in the building had had water dispensers and disposable cups. In addition, the DNA’s building had had a canteen which had been available to everyone, including those under investigation, and where anyone could purchase food or water and sit down. Consequently, the applicant could have bought food or water or could have asked one of her legal representatives to buy it for her as she had had plenty of time to do so.", "44. The Government argued that the available medical documents did not fully support the applicant’s claims about her medical condition. The only medical documents produced by a medical professional prior to 6 November 2014 had been a prescription by a gynaecologist for Utrogestan, a general practitioner’s medical note urgently referring the applicant to hospital because of an inflammation of her uterus, and a hospital ultrasound image. These medical documents had also been the only documents presented by the applicant to the prosecutor on 31 October 2014 and prior to 6 November 2014. Given the information contained in the documents, the prosecutor investigating the case could have only acknowledged the fact that the applicant had been suffering from an inflammation of the uterus and had been prescribed Utrogestan, a medicine which could have been prescribed both before her pregnancy as well as during it.", "However, none of the available medical documents stated that the applicant was pregnant. Furthermore, she had never informed the investigating authorities verbally that she had been in a vulnerable state. The ultrasound image was at best an inconclusive piece of evidence, considering that the applicant herself had stated that after the gynaecological examination of 31 October 2014 (when the ultrasound image had been produced), the doctor himself had not been able to confirm whether she was pregnant. In addition, the applicant had not submitted any evidence in support of her allegation that the doctor had advised her to rest, or which could have proven that she had received any other advice in respect of her condition. 45.", "The Government contended that according to the Utrogestan patient information leaflet, the medicine could cause drowsiness and dizziness, usually as a result of an overdose and only if taken orally, which the applicant had not been doing. 46. The Government submitted that shortly after she had arrived at the DNA’s offices the applicant had been informed of the reasons for the summons, the charges brought against her and her rights. She had also had continuous legal assistance. 47.", "The Government argued that the present case differed from the case of Iustin Robertino Micu v. Romania (no. 41040/11, 13 January 2015). In the present case, the applicant had spent less time at the DNA’s offices than the applicant in the above-mentioned case and had been assisted by her chosen legal representatives during her entire time there. Furthermore, she had admitted that she had been in the corridor and had not argued that her movements had been restricted by being kept under guard in an office. In addition, she had not been suffering from a medical condition or receiving medical treatment inextricably linked to a person’s diet, such as Type 2 diabetes.", "48. The Government contended that by contrast to the case of Soare and Others v. Romania (no. 24329/02, 22 February 2011), the applicant had been a suspect and not a witness in the case, and the prosecutor had informed her of her status immediately after she had arrived at the DNA’s offices. 49. The Government submitted that the applicant had failed to substantiate her allegation that she had not been given water or food and had never asserted in her complaint that her access to food or water had been restricted.", "Consequently, they considered that any other requirements than the measure that had already been made available to her by the offering of water and the supply of adequate facilities in that respect fell outside the scope of the Convention. 50. The applicant submitted that on 6 November 2014 she had spent eight hours at the DNA’s office and that her statement had been confirmed by several press articles and several television stations covering the event in question. Furthermore, the exact times mentioned in the documents produced by the DNA were not completely accurate. 51.", "The applicant argued that even if she had spent seven hours at the DNA’s offices, that would still have been an unreasonably length of time given her condition. In addition, she had been complaining constantly about feeling ill because of her pregnancy and feeling dizzy and hungry as a result of the treatment required for her pregnancy. 52. The applicant contended that there had been no water dispensers in the corridors of the DNA’s building and that everyone who had been summoned to appear before a prosecutor had been left waiting and standing in the corridor. Even assuming that the domestic authorities had since installed water dispensers, they had not been available on 6 November 2014.", "She had had some water left in a 500ml bottle which she had had no choice but to drink slowly so that it did not run out. Her doctor had advised her to drink liquids constantly to ensure a healthy pregnancy. If water dispensers had been available on the corridors of the DNA’s building she would not have had any problems in refilling her bottle. 53. The applicant submitted that between 2.45 and 6.05 p.m. she had been guarded by a police officer who had only allowed her to go to the bathroom and had accompanied her there.", "Furthermore, it was common sense to believe that a pregnant person who had not eaten for many hours would inform the authorities that she was hungry. She had been unaware that the DNA’s offices had had a canteen. In any event, she had had no money on her because when she had been presented with the arrest warrant, the police officers had asked her to follow them to the DNA’s offices and the only thing she had had time to take with her had been a half-drunk bottle of water. 54. The applicant argued that she had not asked the prosecutor to suspend her interviews because she had not been interviewed continuously over the eight hours she had spent at the DNA’s offices.", "Furthermore, the fact that the case had been complex had not justified the treatment she had been subjected to. The investigative activities carried out by the prosecutor had required her presence for approximately two hours. Consequently, the rest of the time she had spent at the DNA’s offices without being offered a seat, food or water had been unnecessary and had been aimed only at applying pressure on her. 55. The applicant contended that there was no evidence in the observations submitted by the Romanian Government to the Court that the prosecutor investigating her case had denied her allegations.", "56. The applicant submitted that unlike the applicant in the case of Iustin Robertino Micu, cited above, she had proven that she had informed the investigating authorities on 31 October 2014 of her pregnancy, her treatment and its side effects and her pregnancy complications. The simple fact that she had verbally notified the authorities of her pregnancy should have been sufficient for them to take preventive action, even though she had not submitted a medical file in this regard. 57. The applicant rejected the Government’s submission that she had stated that after the ultrasound examination of 31 October 2014 the doctor himself had been unable to confirm whether she was pregnant or not.", "She argued that her statement had referred to the doctor’s inability to determine whether the foetus had stopped developing or not. 58. The applicant contended that the DNA collection practices alleged by her had also been confirmed by the large number of individuals complaining about them. Furthermore, the fact that she had been pregnant at the time of the events could not be denied, and it was common sense that she would not have hidden her pregnancy and her health problems from the authorities. In addition, she had submitted documents in support of her claims, but they had been ignored by the authorities.", "59. The applicant denied the Government’s allegation that she had not been taking Utrogestan orally, and contended that it was common for the medicine to cause dizziness regardless of whether it was taken orally or not. (b) The Court’s assessment 60. 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 of the Convention (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).", "61. The Court has already held that making applicants wait for ten hours in order to be questioned as witnesses ‒ without food and water and the opportunity to rest ‒ amounted to inhuman and degrading treatment (see Soare and Others, cited above, §§ 221-222). Moreover, in the case of Iustin Robertino Micu (cited above, §§ 73-76) it considered that the authorities’ failure to provide the applicant with food during his stay at the DNA’s offices for approximately thirteen hours ‒ when he was suffering from Type 2 diabetes, required insulin shots and the absence of food affected him physically ‒ amounted to treatment which exceeded the inherent and inevitable suffering caused by the legal proceedings and questioning related to the case and breached Article 3. 62. The Court notes that the facts of the present case were fiercely disputed by the parties (contrast Soare and Others, cited above, § 221).", "Moreover, the applicant alleged that the documents drafted by the prosecutor during her interviews at the DNA’s offices were somewhat inaccurate in terms of the exact timeline of events of 6 November 2014. 63. However, the Court notes that the applicant and her legal representatives signed all the documents produced by the DNA on 6 November 2014 without making any written objections in respect of the exact time frame mentioned in them. Moreover, the applicant has not argued before the Court that she or her legal representatives had made verbal objections in respect of the above-mentioned time frame or had been coerced to withdraw them. 64.", "The Court therefore considers that the timeline recorded in the documents produced by the DNA on 6 November 2014 is generally accurate and may be relied on. 65. In these circumstances, the Court notes that according to the available evidence, the applicant was taken to the DNA’s offices at 11.30 a.m. and that she arrived at the detention centre between 7.30 and 8.20 p.m. Consequently, given that between 11.30 a.m. and 7.30 or 8.20 p.m. she was also transferred from her home to the DNA’s offices and from the DNA’s offices to the detention centre, the Court considers it reasonable to believe that she remained at the DNA’s offices for between seven to eight hours. 66. Moreover, the Court notes that at the time of the events the applicant was in the first few weeks of her pregnancy and that she was experiencing some complications.", "67. The Court notes, however, that none of the available evidence shows that either on 31 October or 6 November 2014 the applicant or her legal representatives informed the investigating authorities of her pregnancy, the required treatment for it, its side effects and the complications she was experiencing (contrast Iustin Robertino Micu, cited above, § 70). The medical documents actually submitted by the applicant to the authorities do not contain any specific reference or information about her pregnancy or the treatment prescribed to her. 68. Even assuming that her allegations that she informed the authorities of her condition and treatment at least verbally were true, the Court considers that the applicant’s simple statement made to the investigating authorities, in the absence of any medical document substantiating her allegations, was insufficient to prove the existence of her condition.", "69. The Court further observes that according to the applicant’s own submissions, on 6 November 2014 she brought a small bottle of water from home and was able to drink from it during her stay at the DNA’s offices. 70. The Court also notes that the applicant did not contest the Government’s submission that the DNA’s offices had a canteen which was accessible to everyone in the building and where anyone could purchase food or water and sit down. Even assuming that the applicant was unaware that the DNA’s offices had a canteen or that she did not have any money on her, she failed to provide any explanation as to why she could not have asked one or both of her chosen legal representatives to purchase some water and food for her from elsewhere.", "71. The Court also notes that the length of the investigation into the applicant’s case may be justified in view of the fact that it could be regarded as complex – it involved eleven other suspects and related to serious criminal accusations that had been brought against her. In addition, during the seven or eight hours she spent at the DNA’s offices, the applicant was repeatedly involved in procedural measures, and she did not contest the information submitted by the DNA to the Government that during the carrying out of those measures she and her legal representatives had the option to sit down. 72. Lastly, the Court notes that there is no evidence in the file that the treatment the applicant experienced on 6 November 2014 affected her physically or had a detrimental effect on her pregnancy (contrast Iustin Robertino Micu, cited above, § 73).", "73. In these circumstances, notwithstanding the applicant’s medical condition at the time of the events, the Court finds that the treatment she received on 6 November 2014 prior to her remand in police custody did not exceed the inherent and inevitable suffering caused by the legal proceedings and questioning related to the case. 74. It follows that this part of the applicant’s complaints is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 75.", "The above conclusion dispenses the Court from examining the remaining arguments put forward by the Government in respect of the admissibility of this complaint (see paragraphs 41 and 49 above). B. Physical conditions of detention at the detention centre 1. Admissibility 76. The Court notes that this part of the applicant’s complaints is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties’ submissions 77. The applicant submitted that the bed assigned to her at the detention centre had had a dirty and smelly mattress without any bed linen or blankets and she had been forced to sleep with her head on a jacket fully clothed.", "Furthermore, the squat toilet had been unsanitary and had been separated from the rest of the cell by a plastic curtain which had not stopped the smell and noise reaching the cell. A plastic bottle had been used to plug the toilet in order to prevent rats from entering the cell. In addition, no warm water had been available during her detention and cold water had had to be used for washing. 78. The applicant argued that the detention centre medical service had recorded in writing that she was a non-smoker.", "Even though the detention centre had had cells for non-smokers she had been detained with smokers. In any event, smoking had been allowed everywhere, even in the courtyard where the air had been unbreathable. It had been no larger than five steps and the high walls and wire mesh had transformed it into room with a high ceiling where smoking had been allowed. 79. The applicant argued that once she had arrived at the detention centre she had asked for food.", "However, she had been told that the evening meal had already been served at 6 p.m. and that she could eat the following day. In the morning she had been served some unsavoury food which her cellmate had warned her not to eat. 80. The applicant contended that the Government and the domestic authorities did not deny the unsanitary conditions she had faced during her detention or the presence of rats. They had also confirmed that she had been detained together with smokers.", "81. The Government submitted that the applicant had been incarcerated at the detention centre from 8.20 p.m. on 6 November 2014 to 7.07 p.m. on 7 November 2014. She had been detained together with three other inmates in a cell which had measured 8.87 square metres, excluding the bathroom. She had been provided with her own bed, bed linen and blankets. She had had access to a bathroom from inside the cell which had been separated from the cell by a plastic curtain.", "The bathroom had had a sink, a squat toilet and a shower. Hot and cold drinkable water had been available throughout her time there and she had not been detained in a cell with minors, drug addicts or convicts. According to the detention centre authorities, there had been no records that the applicant had informed them that she was a non-smoker. 82. The Government argued that the detention centre had two courtyards, one measuring 13.97 square metres and the other measuring 19.52 square metres.", "Furthermore, according to the relevant rules in force at the material time, the evening meal was served from 5.30 to 6 p.m. and the applicant had not asked for food when she had arrived at the detention centre. 83. The Government submitted that not even the statement signed by the applicant herself for the detention centre medical service contained any information about her pregnancy. Consequently, even though the authorities had presented her with the opportunity to disclose any circumstances that might have placed her in a vulnerable situation, she had failed to do so. The Government therefore considered that the applicant’s twenty‑four hour detention had not been incompatible with her health.", "84. The Government acknowledged that the applicant had been detained in a cell for smokers even though she had informed the detention centre medical service that she was a non-smoker. They also acknowledged that the treatment she had been subjected to should have been avoided. However, they argued that she had not been subjected to a level of stress that had gone beyond what had been inherent to detention. She had been detained in a cell for smokers for only twenty-four hours.", "Furthermore, the domestic authorities had not been aware of her condition, which would have rendered her detention in a room for non-smokers mandatory. In addition, the applicant had not provided any evidence in support of her allegations that the inhuman treatment she had allegedly been subjected to had affected her health or the development of her pregnancy. (b) The Court’s assessment 85. In Muršić v. Croatia ([GC] no. 7334/13, §§ 136-141, 20 October 2016) the Court clarified and summarised its principles concerning prison overcrowding, as follows: (i) the Court confirmed the standard predominant in its case-law of 3 sq.", "m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention; (ii) when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space; (iii) the strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met: - the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor; - such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; - the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention. 86.", "In the instant case, the Court notes that according to the available evidence, the applicant was detained at the detention centre from 8.20 p.m. on 6 November 2014 to 7.07 p.m. on 7 November 2014. While the parties disagree on the size of the applicant’s cell, they agree that the applicant had to share her cell with three other inmates. However, even taking into account the size of the cell put forward by the Government (see paragraph 81 above), the applicant’s living space during her detention seems to have been 2.21 sq. m. 87. In light of the above, the Court finds that a strong presumption of a violation of Article 3 of the Convention arises in the present case on account of the fact that the applicant was detained in a cell in which she disposed of less than 3 sq.", "m of floor surface. 88. Accordingly the Court must have regard to other relevant factors capable of rebutting such presumption – namely the length of the period she had to endure such conditions, the possibility of sufficient freedom of movement and out-of-cell activities, and the appropriateness of the detention facility – which might have been capable of alleviating the situation created by the scarce allocation of personal space (see Muršić, cited above, § 160). 89. The Court observes that the length of the applicant’s detention in the detention centre was very short, amounting according to the available evidence to around twenty-two hours.", "90. The Court also notes that it is uncontested by the parties that the applicant was allowed thirty minutes of outdoor exercise during her detention. However, even though the Government have contested some of the applicant’s allegations about the physical conditions of her detention, they have not contested her submission that for her thirty minutes outdoor exercise she was taken to a courtyard where the air was unbreathable because her cellmates were smoking and the walls of the courtyard were too high to allow in fresh air (see paragraph 78 above). 91. Be that as it may, the Court notes that the Government have also not contested the applicant’s submissions that the toilet was separated from the room by a simple plastic curtain and had to be plugged by a plastic bottle to prevent rats from entering the cell, that the shower was fitted above the toilet and was also used for flushing it, that she was detained with smokers even though she had specifically informed the detention centre medical service that she was a non-smoker, that she did not receive any food from 8.20 p.m. until the following morning or that the food received in the morning was unsavoury and inedible (see paragraphs 77-79 above).", "92. The Court notes that there is no evidence in the file that the applicant asked for food immediately after she arrived at the detention centre or that she disclosed to the detention centre authorities or medical service that she was pregnant. However, given the information provided by the detention centre coordination department to the Government – in particular, the absence of written rules setting out the procedure which needs to be followed with regard to a detainee’s evening meal in the event he or she arrives at the detention centre later than 6 p.m. and that he or she would be detained according to his or her smoking preferences as far as possible – the Court is not convinced that a specific request by the applicant or full disclosure of her medical condition would have changed her situation. 93. The Court considers therefore that the fact that the applicant’s detention was short and that she was allowed to walk outside her cell for thirty minute was insufficient to compensate for the scarce allocation of personal space to her, and thus to rebut the strong presumption of a breach of Article 3 of the Convention.", "94. The Court agrees with the Government that there is no evidence in the file that the physical conditions of the applicant’s detention affected her health or the development of her pregnancy and it notes that the applicant has not contradicted the Government’s allegation that she was not detained in a cell with minors, drug addicts or convicts. 95. Nevertheless, having regard to the cumulative effects of the physical conditions of her detention the Court considers, irrespective of the applicant’s medical condition, that even though there is no indication that there was a positive intention to humiliate or debase her, the distress and hardship she endured exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 of the Convention. 96.", "Accordingly, there has been a violation of that provision in respect of the applicant’s physical conditions of detention. C. Lack of adequate medical treatment during the applicant’s detention at the detention centre Admissibility (a) The parties’ submissions 97. The Government contended that according to the information provided by the detention centre, there had been no record in the medical report issued at the time of the applicant’s incarceration that she had been given any form of medication during her incarceration. 98. The Government argued that the authorities had been aware that the applicant had been taking Utrogestan.", "The medication was normally prescribed for pregnancy support in certain medical circumstances. Also, according to the medical prescription, the applicant had used the medicine first preventively and possibly afterwards to ensure a healthy pregnancy. In addition, the medicine’s patient information leaflet did not mention any effects in the event the treatment was discontinued. Consequently, the Government contended that given the available information, it would have been speculation to consider that by missing one day of treatment the applicant’s medical condition would have been affected. 99.", "The applicant argued that the detention centre medical service had recorded in writing that she had been taking Utrogestan. Even though she had also asked the medical service if she could take her vitamins twice a day, she had not been provided with the treatment. 100. The applicant submitted that the Government had acknowledged that she had not been provided with any medication during her detention. However, she denied the Government’s claim that the discontinuance of her treatment would not have had any side effects.", "She contended that she had been taking her medication long before she had been pregnant and her doctors had advised her that it had been essential for her to continue taking her treatment. Even if the medicine’s patient information leaflet had not listed any side effects in the event the treatment had been discontinued, it had also not mentioned that it guaranteed a pregnancy. The information in the leaflet had nothing to do with the consequences that the discontinuation of the treatment could have had on her body’s ability to carry the pregnancy. For those reasons, the doctors had advised her to continue taking her treatment even after she had become pregnant and until she was thirty-two weeks pregnant. (b) The Court’s assessment 101.", "The Court reiterates that when assessing the adequacy of medical treatment in prison, it must reserve, in general, sufficient flexibility in defining the required standard of healthcare, which must accommodate the legitimate demands of imprisonment but remain compatible with human dignity and the due discharge of its positive obligations by the State. In this regard, it is incumbent on the relevant domestic authorities to ensure, in particular, that diagnosis and care are prompt and accurate, and that supervision by proficient medical personnel is regular and systematic and involves a comprehensive therapeutic strategy. The mere fact of a deterioration in an applicant’s state of health, albeit capable of raising, at an initial stage, certain doubts concerning the adequacy of the applicant’s treatment in prison, cannot suffice, by itself, for a finding of a violation of the State’s positive obligations under Article 3 of the Convention, if, on the other hand, it can be established that the relevant domestic authorities in a timely fashion provided all reasonably available medical care in a conscientious effort to hinder development of the disease in question (see, among many other authorities, Fedosejevs v. Latvia (dec.), no. 37546/06, § 47, 19 November 2013, and Verdeş v. Romania, no. 6215/14, § 52, 24 November 2015).", "102. Turning to the present case, the Court notes that the applicant was examined by a doctor immediately after she arrived at the detention centre and that she informed him of her treatment with Utrogestan. However, she did not submit any medical documents in support of her statement, and there is no evidence in the file that she told the doctor that she was already pregnant or that she had also been prescribed treatment with vitamins and minerals. 103. The Court also notes that it is uncontested that the applicant was not given any form of medication during her detention.", "At the same time, based on the available evidence, it considers reasonable to assume that she had access to her medication both prior and immediately after her incarceration, and that her access to the medication was restricted for a very short time. 104. The Court is willing to accept that the applicant’s inability to take her medication during her detention could have caused her some distress. However, it notes that the root cause of her potential anxiety lasted very briefly and that according to the available evidence, the discontinuation of the treatment did not have any medical consequences to her general medical condition, health and the development of her pregnancy. 105.", "In these circumstances, after an assessment of the relevant facts as a whole, the Court considers that neither the applicant’s state of health, nor her potential distress generated by the brief interruption of her treatment alone, attained in the particular circumstances of the case a sufficient level of severity to amount to a breach of the right guaranteed by Article 3 of the Convention (see, mutatis mutandis, Viorel Burzo v. Romania, no. 75109/01 and 12638/02, § 86, 30 June 2009). 106. It follows that this part of the applicant’s complaints 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 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 5,000 euros (EUR) in respect of non‑pecuniary damage. She argued that although the finding of a violation constituted sufficient just satisfaction, the payment by the domestic authorities of symbolic compensation was a means of making them realise the potentially serious consequences of their actions.", "She submitted that her complaints were meant as a warning so that other people, particularly pregnant women, were not subjected to similar treatment and detention conditions. 109. The Government submitted that a finding of a violation would amount to sufficient just satisfaction in the instant case. In any event, the sum claimed by the applicant in respect of non-pecuniary damage was excessive. Also, the aim of an award was to compensate an injured party for the damage incurred.", "Consequently, it should not be regarded as a punishment inflicted on the respondent State, because such an approach was not the goal of awarding just satisfaction claims. 110. The Court considers that the applicant must have suffered distress as a result of the physical conditions of her detention, which cannot be made good by the mere finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 600 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 111. The applicant did not claim any costs or expenses. C. Default interest 112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint under Article 3 of the Convention concerning the physical conditions of the applicant’s detention at the Bucharest Police Detention Centre admissible and the remainder of her complaints inadmissible; 2. Holds that that there has been a violation of Article 3 of the Convention in respect of the applicant’s physical conditions of detention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF KRZEWSKI v. POLAND (Application no. 11700/04) JUDGMENT STRASBOURG 2 December 2008 FINAL 06/04/2009 This judgment may be subject to editorial revision. In the case of Krzewski 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 13 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11700/04) 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 Zenon Krzewski (“the applicant”), on 3 December 2003.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3. On 23 October 2007 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).", "THE FACTS I THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1935 and lives in Wrocław. 5. On 23 April 1999 the applicant notified the authorities of the illegal conversion of premises (a former boiler room) adjacent to his apartment into a grocery shop. 6.", "On 23 June 1999 administrative proceedings were initiated by the District Inspectorate for the Supervision of Construction (Powiatowy Inspektorat Nadzoru Budowlanego). 7. On 15 July 1999 the applicant lodged a complaint with the Supreme Administrative Court – Regional Branch – in Wrocław alleging that the Regional Construction Inspector had failed to take any action. On 8 September 1999 the applicant withdrew his complaint, as a result of which, on 20 September 1999, the court decided to discontinue its examination. 8.", "On 17 August 1999 the District Construction Inspector made an on-site inspection. The applicant failed to participate in the inspection, despite having been informed about it. 9. On 23 August 1999, following a visit to the site, the District Inspectorate for the Supervision of Construction issued an injunction against the illegal conversion of the premises in question. 10.", "On 7 September 1999 a party to the proceedings filed an appeal against the decision of 23 August 1999. 11. By a letter of 9 September 1999 the applicant was informed that all the evidence had been collected in the case. 12. By a letter of 21 September 1999 the owner of the premises, the housing co-operative “Maślice” (Spółdzielnia Budowlano-Mieszkaniowa), ordered Mr J.", "Sz., who had been leasing the former boiler room and running the grocery shop, to cease his activities with immediate effect. 13. On 29 September 1999 the District Inspectorate for the Supervision of Construction ordered the housing co-operative to bring the existing situation of the premises into conformity with the law by submitting a set of required documents (post-construction documentation and expert opinions). The Inspectorate alleged that the construction was not compatible with the local master plan. 14.", "On 5 October 1999 the applicant lodged an interlocutory appeal against that decision. 15. On 26 October 1999 the housing co-operative filed with the District Inspectorate the documents requested in the decision of 29 September 1999. The co-operative further requested that permission be granted for the grocery shop. 16.", "On 20 December 1999 the Regional Inspectorate for the Supervision of Construction upheld the impugned decision, finding that it had been issued in accordance with the law. 17. On 28 December 1999 the applicant lodged an appeal with the Supreme Administrative Court. 18. On 2 June 2000 the applicant filed an application to have the decision of 20 December 1999 suspended.", "His application was dismissed by the Supreme Administrative Court on 12 June 2000 due to the applicant’s failure to substantiate his allegations that he would incur damage. 19. On 9 August 2000 the District Inspectorate decided to have the case transferred to the relevant department of the Municipality Office. 20. On 19 October 2000 the Supreme Administrative Court dismissed the applicant’s appeal of 28 December 1999.", "The court found that the construction works carried out in the grocery shop met the technical requirements and were in compliance with the local master plan. 21. On 13 December 2000 the Mayor of Wrocław granted the housing co-operative the requested permission. Relying on all the documents collected in the case, the Mayor found that the premises met all the technical requirements and could be converted into a grocery shop. 22.", "On 3 January 2001 the applicant lodged an interlocutory appeal against that decision. 23. On 28 February 2001 the Dolnośląski Governor quashed the impugned decision and remitted the case to the first-instance body for reconsideration, finding the proceedings to be tainted with procedural shortcomings. He stressed, in particular, that no on-site inspection had been carried out. 24.", "On 11 May 2001 the Mayor of Wrocław again granted the housing cooperative the requested permission, following visits to the site in question on 17 and 20 April 2001. 25. On 9 July 2001 the applicant appealed against that decision. On 28 August 2001 the Dolnośląski Governor upheld the Mayor’s decision. 26.", "On 3 September 2001 the applicant lodged an appeal against the Governor’s decision with the Wrocław Regional Administrative Court. 27. On 16 June 2004 the Wrocław Regional Administrative Court dismissed the applicant’s appeal. The applicant lodged a cassation appeal against that judgment. 28.", "On 31 May 2005 the Supreme Administrative Court quashed the contested judgment and remitted the case to the Wrocław Regional Administrative Court for reconsideration. 29. On 22 November 2005 the Wrocław Regional Administrative Court quashed the Governor’s decision of 28 August 2001. It found that some evidence had been disregarded during the examination of the case and that some of the discrepancies in the findings of the various administrative bodies had not been clarified. 30.", "On 21 March 2006 the Dolnośląski Governor remitted the case for re-examination by the District Inspectorate for the Supervision of Construction. 31. On 27 March 2006 the applicant lodged a complaint with the Wrocław Regional Administrative Court alleging that the Dolnośląski Governor had failed to take any action following the court’s judgment of 22 November 2005. 32. In January 2007 the applicant received a letter from the District Inspectorate for the Supervision of Construction informing him that clarification proceedings (postępowanie wyjaśniające) had been instituted in order to establish the current facts of the case.", "33. By a letter of 23 July 2007 the applicant asked the Municipality Office whether the lessee of the premises had a licence to sell alcoholic beverages in the grocery shop. In reply, on 22 August 2007, the applicant was informed that the licence had been granted in 2006 following consultations with the relevant authorities. 34. On 29 August 2007 the District Inspectorate for the Supervision of Construction decided to reinitiate administrative proceedings.", "35. On 30 January 2008 the District Inspectorate decided that the obligations imposed by the decision of 29 September 1999 had been complied with and that the construction works carried out in the premises had been brought into line with the law. 36. It appears that the applicant filed an appeal against that decision and that the proceedings are currently pending. B.", "Proceedings under the 2004 Act 37. On 9 August 2005 the applicant lodged a complaint with the Supreme Administrative Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He sought a ruling declaring that the length of the proceedings before the Wrocław Regional Administrative Court had been excessive and just satisfaction in the amount of 10,000 Polish zlotys (PLN) – the maximum amount of compensation available under section 12 of the 2004 Act (approximately 2,941 euros (EUR)). 38. On 19 September 2005 the Supreme Administrative Court gave a decision in which it acknowledged the excessive length of the proceedings, finding that there had been three years and ten months of unjustified inactivity on the part of the Wrocław Regional Administrative Court.", "It awarded the applicant PLN 1,000 (approx. EUR 294) in just satisfaction. In determining the amount of just satisfaction the court relied on the nature of the case and the period of time the applicant had had to wait to have his case examined, but also on the “lack of initiative on the part of the applicant in terms of requesting the court to give his case priority or to examine the case under the simplified procedure”. 39. The Supreme Administrative Court examined only the part of the administrative proceedings which had been held before the Regional Administrative Court.", "It did not take into account the period during which the case had been handled by administrative bodies, because the 2004 Act referred only to “judicial proceedings”. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Inactivity of administrative authorities 40. For a summary of the relevant domestic law, see Kaniewski v. Poland, no.", "38049/02, 8 February 2006 and Koss v. Poland, no. 52495/99, 28 March 2006. 2. Length of proceedings 41. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions 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”), are stated in the Court’s decisions in the cases of Charzyński v. Poland no.", "15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 42.", "The applicant first complained that the proceedings in his case had been unfair. In particular, he alleged that errors of fact and law had been committed by the administrative bodies and the administrative courts. He alleged a breach of Article 6 § 1 of the Convention, which, in its relevant part, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 43. The Court notes, however, that, as can be seen from the case file, the administrative proceedings in the applicant’s case are currently still pending, so his complaint in this respect is premature. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 44. 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...” 45. The Government contested that argument. 46.", "The period to be taken into consideration began on 23 June 1999 and on 30 January 2008 had not yet ended. On that date it had already lasted eight years and seven months for three levels of jurisdiction. A. Admissibility 1. The Government’s plea of non-exhaustion of domestic remedies 47. The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law, as required by Article 35 § 1 of the Convention.", "They maintained that he had failed several times to lodge a complaint about the inactivity of the administrative authorities as he could have done under Polish law. They admitted, however, that on one occasion, namely on 27 March 2006, the applicant had lodged a complaint with the Wrocław Regional Administrative Court alleging that the Dolnośląski Governor had failed to take any action. 48. The Government further maintained that, following the Supreme Administrative Court’s decision of 19 September 2005, the applicant could have filed an action for damages under Article 417 of the Civil Code read in conjunction with section 15 of the 2004 Act. 49.", "The applicant contested the Government’s arguments and stressed that he had had recourse to all available domestic remedies: he had filed a complaint about the inactivity of the administrative bodies and a complaint under the 2004 Act. 50. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp.", "2275–76, §§ 51–52). 51. In this connection the Court notes that the applicant did lodge a complaint with the relevant higher authority alleging inactivity on the part of the administrative authorities, as provided for by Article 37 § 1 of the Polish Code of Administrative Procedure of 1960 (see paragraph 31 above). The Court further notes that the applicant also had recourse to the remedies available under the 2004 Act (see paragraphs 37-39 above). As to the latter, the Court observes that it has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland (see Michalak v. Poland (dec.) no.", "24549/03, §§ 37-43). 52. With regard to the Government’s second claim that the applicant failed to institute proceedings for damages under Article 417 of the Civil Code read in conjunction with section 15 of the 2004 Act, the Court reiterates that although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, mutatis mutandis, H.D. v. Poland (dec.), no. 33310/96, 7 June 2001; Kaniewski v. Poland, no.", "38049/02, §§ 32-39, 8 November 2005; and Cichla v. Poland, no. 18036/03, §23-26, 10 October 2006). 53. The Court considers therefore that, having exhausted the available remedies provided by the Polish Code of Administrative Procedure of 1960, as well as the 2004 Act, the applicant was not required to embark on another attempt to obtain redress by bringing an additional civil action for compensation. Accordingly, the Court concludes that, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies.", "For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 2. The applicant’s victim status – compatibility ratione personae 54. In the present case the Supreme Administrative Court acknowledged a breach of the applicant’s right to a hearing within a reasonable time and awarded him the equivalent of EUR 294 in respect of non-pecuniary damage. The just satisfaction granted by the court amounts to approximately 8.3% of what the Court would be likely to have awarded the applicant at that time in accordance with its practice, taking into account the particular circumstances of the proceedings.", "Therefore the Court finds that the redress afforded to the applicant at domestic level, considered on the basis of the facts of which he complains in the Convention proceedings, was insufficient. 55. Having regard to the criteria for determining victim status in respect of length-of-proceedings complaints (as set out in: Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107, ECHR 2006-...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, 29 March 2006; and Dubjakova v. Slovakia (dec.), no.", "67299/01, 10 October 2004), the Court concludes that the complaint cannot be rejected as being incompatible ratione personae with the Convention. 56. 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 57. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities 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). 58.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 59. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "III ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 60. Regarding the applicant’s allegations that his complaint about a breach of his right to a trial within a reasonable time was not effective, the Court considers it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 13 of the Convention on account of indications that the applicant had no effective domestic remedy in respect of the protracted length of proceedings in his case. Article 13 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.” 61. The Government refrained from making any comments in this respect. 62.", "The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI, §§ 156-57). 63. While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision.", "In particular, where the State has introduced a compensatory remedy, the Court must leave to it a wide margin of appreciation and allow it to organise the remedy – including the interpretation and application of the notion of “damage” in a given case – in a manner consistent with its own legal system, traditions and the standard of living in the country concerned (see Kudła, ibid., and Scordino (no. 1), cited above, §§ 188-89). 64. The fact that in the present case the applicant’s claim for just satisfaction failed and that the redress obtained from the domestic court was not sufficient for Convention purposes does not in itself render the remedy under the 2004 Act incompatible with Article 13, albeit that it has consequences for the Court’s assessment of his victim status in respect of the alleged breach of the reasonable-time requirement (see paragraph 54 above, with references to the Court’s case-law, and, mutatis mutandis, Zarb v. Malta, no. 16631/04, §§ 49-52, 4 July 2006, and Figiel v. Poland, no.", "38190/05, §29, 17 July 2008). 65. As stated above, the expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see paragraph 61 above, and, also, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006). In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected.", "66. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 68. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage. 69. The Government contested the claim, finding the amount to be exorbitant. 70.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 3,300 under that head. B. Costs and expenses 71. The applicant also claimed EUR 60[1] for the costs and expenses incurred before the Court.", "He attached receipts for postal stamps he had paid for while corresponding with the Court during the examination of the present application. 72. The Government did not express an opinion on the matter. 73. 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 that it should award the full sum claimed. C. Default interest 74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. 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, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,300 (three thousand three hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii) EUR 60 (sixty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 2 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident [1] PLN 207" ]
[ "FIRST SECTION CASE OF ELMURATOV v. RUSSIA (Application no. 66317/09) JUDGMENT STRASBOURG 3 March 2011 FINAL 15/09/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Elmuratov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Christos Rozakis,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66317/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbekistani national, Mr Ziyadullo Khuzhayarovich Elmuratov (“the applicant”), on 17 December 2009. 2. The applicant was represented by the lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 18 December 2009 the President of the First Section decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Uzbekistan until further notice and granting priority treatment to the application. 4. On 15 January 2010 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1966 and lives in St Petersburg. A. Background events 6. On several occasions (in 1988, 1992, 1994 and 1999) the applicant was convicted in Uzbekistan of disorderly conduct and attempted escape.", "In the applicant’s submission, in 1988, 1992, 1994, 1998, 1999, 2003 and 2004, while in the hands of Uzbek officials, he was subjected to ill‑treatment. 7. On 7 June 2004, in Uzbekistan, the applicant inflicted numerous cuts on himself and was placed in a hospital. He was discharged from the hospital on 16 June 2004. 8.", "In February 2008 the applicant arrived in Russia to look for work. He was registered as a migrant in St Petersburg. 9. On 28 March 2008 the Kumkurgan District Court of Uzbekistan ordered the applicant’s placement in custody under suspicion of having committed aggravated theft of cattle. 10.", "On 10 April 2008 an Uzbek investigator placed the applicant’s name on a wanted list. B. Extradition proceedings 11. On 27 April 2009 the applicant was arrested by Russian police at his place of residence in St Petersburg. 12.", "On 25 May 2009 the Uzbek Prosecutor General’s Office requested the applicant’s extradition. On 4 June 2009 the request was received by the Russian Prosecutor General’s Office. 13. On 28 September 2009 the Russian Prosecutor General’s Office decided to extradite the applicant to Uzbekistan. 14.", "On 12 October 2009 the applicant’s counsel lodged an appeal against the extradition order, arguing the following: proceedings concerning the applicant’s request for temporary asylum were still pending (see paragraphs 18‑21 below); the applicant’s extradition would entail a breach of Article 3 of the Convention because the Court had already found violations in the cases of Ismoilov and Others v. Russia and Muminov v. Russia involving extradition to Uzbekistan; according to independent international observers ill-treatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. No reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 15. On 10 November 2009 the St Petersburg City Court dismissed the applicant’s appeal against the extradition order. It reasoned, in particular, that the applicant’s references to possible ill-treatment in Uzbekistan had been unsubstantiated and that the applicant had not argued that he might be persecuted on racial, religious, social or political grounds.", "16. The applicant appealed against the decision of 10 November 2009, arguing that his submission that he would face ill-treatment in Uzbekistan had not been examined by the court. Again no reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 17. On 24 December 2009 the Supreme Court of Russia upheld the decision of 10 November 2009.", "It reasoned as follows: the applicant had absconded from the Uzbek authorities; the decision to arrest the applicant had been taken by a competent Uzbek court; the applicant was not a Russian national; the Uzbek Prosecutor General’s Office had guaranteed that the applicant would not be extradited to a third State or punished for another crime, and that he would be free to leave Uzbekistan when he had served his sentence; there were no reasons to reject the extradition request; the applicant’s allegations that torture of detainees was a widespread practice in Uzbekistan had not been substantiated; the applicant had not proved that he might be persecuted on the grounds of race, religion, membership of a social group, political convictions or anything else. C. Asylum proceedings 18. In July and September 2009 the applicant applied for asylum to the Federal Migration Service of St Petersburg Region (“the FMS”). In his application, dated 23 September 2009, he claimed that all detainees in Uzbekistan were kept in poor conditions. On 15 October 2009 he was interviewed by FMS officials.", "19. On 21 October 2009 the FMS dismissed the applicant’s request; he was notified of the decision on 23 October 2009. 20. The applicant then applied for temporary asylum. On 24 December 2009 the FMS dismissed his request.", "21. On 10 February 2010 the applicant appealed against the FMS decision, arguing for the first time before the Russian authorities that he had been ill-treated in Uzbek prisons while serving his previous sentences. D. The applicant’s detention 22. Following the applicant’s arrest on 27 April 2009 (see paragraph 11 above), on 28 April 2009 the prosecutor’s office of the Krasnogvardeyskiy District of St Petersburg (“the district prosecutor’s office”), relying on Article 61 of the Minsk Convention, ordered the applicant’s placement in custody pending extradition on the basis of the decision of 28 March 2008 by the Kumkurgan District Court of Uzbekistan (see paragraph 9 above). 23.", "On 16 June 2009 the district prosecutor’s office, referring to Article 466 § 2 of the CCP, issued a new decision authorising the applicant’s placement in custody pending extradition on the basis of the Uzbek court decision of 28 March 2008. 24. On 28 June 2009 the applicant complained to a court, referring to Decision no. 333-O-P of 1 March 2007 of the Constitutional Court and the Court’s case-law, that he had been unlawfully detained for more than two months and that the term of his detention had not been extended. 25.", "On 24 August 2009 the Krasnogvardeyskiy District Court of St Petersburg (“the district court”) examined the complaint about unlawfulness of detention. It reasoned that, pursuant to Article 466 § 2 of the CCP, a prosecutor could place a person in custody where a foreign court’s arrest warrant and a request for extradition existed. However, in the applicant’s case, the district prosecutor’s office had applied the preventive measure before the extradition request had been sent and thus had breached Article 466 § 2 of the CCP. At the same time, the second district prosecutor’s office’s decision to remand the applicant in custody had been taken after the extradition request had been received. The district court concluded that the district prosecutor’s office’s decision of 28 April 2009 was unlawful.", "Nonetheless, it refused to release the applicant, arguing that the decision of 16 June 2009 was compatible with domestic law and thus served as a legitimate ground for the applicant’s detention. It also noted that “[t]he provisions of the CCP do not establish terms for deciding on extradition issues and procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign State”. 26. Both the applicant and the district prosecutor’s office appealed against the decision of 24 August 2009. 27.", "On 19 October 2009 the St Petersburg City Court quashed the decision of 24 August 2009 for procedural defects and remitted the case for a fresh examination at the first level of jurisdiction. It also stated that the preventive measure applied to the applicant should remain unvaried, without citing any legal grounds for his detention or specifying its term. 28. On 10 November 2009 the St Petersburg City Court, while upholding the extradition order, extended the applicant’s detention for three months, that is until 9 February 2010. 29.", "On 8 December 2009 the district court discontinued the proceedings concerning the applicant’s complaint that his detention was unlawful, for the reason that the St Petersburg City Court had extended the term of detention until 9 February 2010. 30. On 24 December 2009 the Supreme Court of Russia, while dismissing the applicant’s appeal against the extradition request, touched upon the issue of lawfulness of the applicant’s detention in one sentence: “There are no reasons to doubt the lawfulness of Mr Elmuratov’s custodial detention pending his extradition”. 31. On 29 January 2010 the district prosecutor’s office requested a court to extend the term of the applicant’s detention for two months.", "32. On 8 February 2010 the district court granted the prosecutor’s request in part. It reasoned that the applicant had been charged with very serious crimes, such as theft of cattle, and that Rule 39 of the Rules of Court had been applied in his case and concluded that there were no grounds for varying the preventive measure. The term of the applicant’s detention was extended until 9 April 2010. 33.", "On 27 February 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 December 2009, for the reason that the Supreme Court of Russia had ruled on 24 December 2009 that his detention pending extradition was lawful. 34. On 18 March 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 February 2010. 35. On 6 April 2010 the district court extended the term of the applicant’s detention until 27 April 2010, for the reason that he had been charged with serious crimes, did not have a permanent place of residence and thus could abscond or continue his criminal activities.", "36. On 27 April 2010 the district prosecutor’s office ordered the applicant’s release from custody, for the reason that the maximum period of his detention had expired. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Russian Federation of 1993 37.", "Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2). B. Code of Criminal Procedure 38.", "The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54). 39. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 40.", "Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge’s decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2).", "Further extensions may be granted only if the person has been charged with serious or particularly serious criminal offences (Article 109 § 3). 41. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons’ interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124).", "Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125). 42. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 43.", "Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 44. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). C. Decisions of the Russian Constitutional Court 1. Decision of 17 February 1998 45.", "Verifying the compatibility of Article 31 § 2 of the Law on Legal Status of Foreign Nationals in the USSR of 1982[1], the Constitutional Court ruled that a foreign national liable to be expelled from the Russian territory could not be detained for more than forty-eight hours without a court order. 2. Decision no. 101-O of 4 April 2006 46. Assessing the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.", "47. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 48.", "The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code. 3. Decision no. 158-O of 11 July 2006 on the Prosecutor General’s request for clarification 49.", "The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition. 50. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction.", "4. Decision no. 333-O-P of 1 March 2007 51. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision.", "That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 52. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. 5.", "Decision no. 383-O-O of 19 March 2009 53. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...” D. Decisions of the Russian Supreme Court 1. Directive Decision no.", "1 of 10 February 2009 54. By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court’s decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to quash the impugned decision or to oblige the official responsible to quash it, but could only request him or her to rectify the shortcomings indicated.", "Should the impugned authority fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s inaction and the latter body could issue a special decision [частное определение], drawing the authority’s attention to the situation. Lastly, the decision stated that a prosecutor’s decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCP. 2. Directive Decision No. 22 of 29 October 2009 55.", "In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCP and following a prosecutor’s request for that person to be placed in custody. In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCP.", "In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCP. III. INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS A. The 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention) 56. When carrying out actions requested under the Minsk Convention, to which Russia and Uzbekistan are parties, an official body applies its country’s domestic laws (Article 8 § 1).", "57. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 58. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1).", "If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 59. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1). B. Reports on general human-rights situation in Uzbekistan 60.", "The UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006 the following: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan.", "The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 61. In November 2007 Human Rights Watch issued a report entitled “Nowhere to Turn: Torture and Ill-Treatment in Uzbekistan”, which provides the following analysis: “Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools ... Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ... Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut ...” 62.", "The UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008 the following: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ... 743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted.", "744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...” 63. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention.", "... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill‑treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill‑treatment remains the exception rather than the rule. ...", "Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible. ...", "The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 64. The applicant complained that if extradited he would be ill-treated in Uzbekistan in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Arguments by the parties 1.", "The Government 65. The Government claimed at the outset that the applicant could not claim to be a victim of the alleged violation of Article 3 of the Convention. In their view, the fact that the Court had indicated under Rule 39 of the Rules of Court that “the applicant should not be extradited to Uzbekistan until further notice” meant that the applicant ran no proximate or imminent risk of being removed from the country. 66. The Government further asserted that the Uzbek Prosecutor General’s Office had given diplomatic assurances that the applicant would be prosecuted only for the crime for which he would be extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served his sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities.", "67. The applicant was not facing any risks of being sentenced to capital punishment. Uzbekistan ratified the UN Convention Against Torture 1984. The Federal Security Service of Russia had concluded that it had no information which would confirm that the applicant had been persecuted in Uzbekistan on political grounds. The Russian courts had concluded that there had been no reason to believe that the applicant had been persecuted on political grounds, and had thus examined in detail the applicant’s allegations of possible ill-treatment.", "2. The applicant 68. The applicant claimed that he could not be regarded to have lost victim status as regards his complaint under Article 3 of the Convention as his extradition had not been cancelled but simply postponed pending examination of his application by the Court. 69. The applicant further submitted that the Russian authorities had failed to properly examine his submission that he risked ill-treatment in Uzbekistan.", "Referring to a number of international reports on the general human rights situation in the requesting country, he asserted that detainees in Uzbek prisons were regularly beaten. 70. The applicant also emphasised that he had sustained injuries while in the hands of the Uzbek authorities. In support of his claims he referred to the fact that he had been admitted to hospital on 7 June 2004, substantiating this by an extract dated 12 September 2009 from the medical record. 71.", "The applicant enclosed a medical examination report drawn up on 8 June 2010 with his observations on the admissibility and merits of the case of 24 June 2010. The report stated that when examined by an expert the applicant had claimed that numerous scars on his head, neck, upper body, arms and hands were the result of ill-treatment exercised by Uzbek prison officers in December 1998 and in 2001 and by Uzbek police officers in 2004. He had also submitted that in 2005 while in detention he had inflicted injuries on himself. The medical expert had concluded that the applicant had numerous scars which were the result of injuries sustained at least eighteen months before the examination; the expert had stated that it was impossible to establish the date the injuries had been incurred more precisely. B.", "The Court’s assessment 1. Admissibility 72. As to the Government’s claim that the applicant was not a victim of the alleged violation, the Court notes the exceptional nature of the application of the “victim” notion in Article 3 cases involving extradition, namely, “by reason of foreseeable consequences” (see Soering v. the United Kingdom, 7 July 1989, § 90 Series A no. 161). The Court further notes that the decision of the Prosecutor General’s Office of 16 December 2008 to extradite the applicant was upheld on appeal by the Supreme Court and remains in force.", "The Court accordingly dismisses this objection (see Galeyev v. Russia, no. 19316/09, § 51-52, 3 June 2010). 73. The Court further notes that the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It considers that it is not inadmissible on any other grounds and must therefore be declared admissible.", "2. Merits (a) General principles 74. Turning to the thrust of the applicant’s complaint, namely to his submission that he risked ill-treatment in Uzbekistan, the Court reiterates the following principles established in its constant case-law. 75. In order to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity.", "The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see T. v. the United Kingdom [GC], no. 24724/94, § 68, 16 December 1999). Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX).", "76. The Court further reiterates that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 of the Convention in the receiving country. The establishment of that responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise (see Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).", "77. In determining whether it has been shown that the applicant runs a real risk, if extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see H.L.R. v. France, 29 April 1997, § 37, Reports of Judgments and Decisions 1997-III). Since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition (see Cruz Varas and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201, and Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no.", "215). However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, 15 November 1996, §§ 85‑86, Reports 1996-V). 78. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no.", "38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008). 79. As regards the general situation in a particular country, the Court considers that it can attach certain importance to the information contained in recent reports from independent international human rights protection organisations such as Amnesty International, or governmental sources (see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no.", "53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005-VI; and Al‑Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007). 80. At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, cited above, § 111, and Katani and Others v. Germany (dec.), no.", "67679/01, 31 May 2001). Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I). (b) Application of the above principles to the present case 81. In line with the case-law cited above, it is necessary to examine whether the foreseeable consequences of the applicant’s extradition to Uzbekistan are such as to bring Article 3 of the Convention into play.", "Since he has not yet been extradited, owing to the indication by the Court of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court’s consideration of the case. 82. The Court does not lose sight of the disquieting reports on human rights situation in Uzbekistan (see paragraphs 60-63 above), which, admittedly, is far from being perfect. Nonetheless, it emphasises that reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition (see Kamyshev v. Ukraine, no. 3990/06, § 44, 20 May 2010).", "83. The Court is mindful of the fact that it has on several occasions found violations of Article 3 of the Convention in cases involving extradition to Uzbekistan. However, the applicants in those cases had been charged with political crimes (see Ismoilov and Others v. Russia, no. 2947/06, § 122, 24 April 2008; Muminov v. Russia, no. 42502/06, § 94, 11 December 2008; and Yuldashev v. Russia, no.", "1248/09, § 84, 8 July 2010) and thus were members of a group systematically exposed to a practice of ill-treatment (see Saadi v. Italy [GC], no. 37201/06, § 132, ECHR 2008‑...) as confirmed by reports by reliable independent international sources. 84. The applicant in the present case, however, is charged in Uzbekistan with aggravated theft, an ordinary crime against property. He does not assert that he is being persecuted for political reasons.", "Nor does he claim to belong to any proscribed religious movement. It does not follow from the materials at the Court’s disposal that the applicant belongs to any other vulnerable groups susceptible of being ill-treated in the requesting country. The applicant’s allegations that any criminal suspect in Uzbekistan runs a risk of ill-treatment are too general and there is no indication that the human rights situation in the requesting country is serious enough to call for a total ban on extradition to it. Therefore, it cannot be said that the applicant referred to any individual circumstances which could substantiate his fears of ill‑treatment (see Puzan v. Ukraine, no. 51243/08, § 34, 18 February 2010).", "85. As to the applicant’s reference to previous instances of ill-treatment while in the hands of the Uzbek authorities (see paragraphs 6, 7 and 70 above), the Court notes the following. 86. In his submissions before the Court the applicant has not produced any details related to the alleged beatings. The applicant’s hospitalisation between 7 and 16 June 2004 (see paragraph 7 above) was necessitated by self-inflicted wounds and was not a result of police abuse.", "The medical expert examination report enclosed with his observations on the admissibility and merits of the application (see paragraph 71 above) is not conclusive as to the date the injuries were inflicted and cannot in itself serve as evidence of ill-treatment. The Court is thus unable to conclude that the applicant’s description of previous ill-treatment in 1994‑2004 is very detailed or convincing (see, by contrast, Garayev v. Azerbaijan, no. 53688/08, § 72, 10 June 2010). 87. More importantly, in the course of extradition proceedings in Russia the applicant never referred to ill-treatment by Uzbek officials.", "In their appeals against the extradition order the applicant and his counsel merely cited the Court’s case-law, which is clearly distinguishable from the applicant’s personal situation (see paragraph 83 above), and referred to the overall poor human rights situation in the receiving country, as described by international observers (see paragraphs 14 and 16 above). He raised an issue of his experience of ill-treatment for the first time when complaining about refusal to grant him temporary asylum on 10 February 2010 (see paragraph 21 above), that is when the extradition order had already become final. In such circumstances the Court is disinclined to find that the applicant has substantiated allegations of an individualised risk of ill-treatment in the requesting country. 88. Having regard to the above, the Court considers that the applicant has failed to substantiate his allegations that his extradition to Uzbekistan would be in violation of Article 3 of the Convention.", "89. There has accordingly been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 90. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been “unlawful”.", "He also complained under Article 5 § 4 of the Convention that he could not challenge in the Russian courts the lawfulness of his detention pending extradition. 91. Article 5 of the Convention reads, in so far as relevant, as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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. Arguments by the parties 1. The Government 92. The Government contested the applicant’s arguments.", "93. They claimed that the applicant’s detention had been repeatedly extended by competent prosecutors and courts in full conformity with domestic procedural laws. The latest extension, to twelve months, had been authorised, in accordance with Article 109 of the CCP and the Directive Decision of 29 October 2009 of the Russian Supreme Court, on 6 April 2010. On 27 April 2010 the applicant had been released from custody because the maximum period of detention under Article 109 of the CCP had expired. 94.", "The applicant’s detention had not been arbitrary, as the provisions of Chapter 13 of the CCP, pursuant to the decisions of the Russian Constitutional Court, were fully applicable to persons detained with a view to extradition under Article 466 § 1 of the CCP. In their submission, Article 466 § 1 of the CCP read in the light of the decision of the Constitutional Court of 17 February 1998 did not allow to detain a foreign national in the Russian territory without a court order for more than forty‑eight hours. They concluded that the applicant’s right had not been violated by Article 466 § 1 of the CCP. In their view, Russian domestic legal provisions governing detention pending extradition met the criteria of “quality of law”. 95.", "The applicant had had an opportunity to challenge lawfulness of his detention in Russian courts pursuant to the Constitutional Court’s decision of 1 March 2007. 2. The applicant 96. The applicant reiterated his complaint that his detention between 27 April 2009 and 27 April 2010 had been unlawful. He claimed that the initial decision of 28 April 2009 authorising his placement in custody had not been compatible with domestic laws.", "Further, he emphasised that the first court’s decision to extend his detention was taken more than six months after the original remand in custody, in breach of domestic law. In sum, he claimed that his detention was incompatible with Article 5 § 1 (f). 97. The applicant further asserted that no procedure to challenge the lawfulness of the prosecutor’s decisions authorising his detention was available to him, as Article 125 of the CCP did not provide for an opportunity for immediate release. Moreover, the applicant claimed that his appeals against decisions to extend his term of detention had not been examined speedily.", "B. The Court’s assessment 1. Admissibility 98. The Court notes that the complaints under Article 5 §§ 1 and 4 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It considers that they are not inadmissible on any other grounds and must therefore be declared admissible.", "2. Merits (a) Article 5 § 1 of the Convention 99. The Court reiterates at the outset that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 162, ECHR 2009‑...).", "Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (ibid., § 163). 100. It is common ground between the parties that the applicant was detained as a person “against whom action is being taken with a view to ... extradition” and that his detention fell under Article 5 § 1 (f). The parties disagreed, however, as to whether the detention was “lawful” within the meaning of Article 5 § 1 of the Convention. 101.", "Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998-VI, and Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII). 102. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III; Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX; and Ladent v. Poland, no.", "11036/03, § 47, ECHR 2008‑...). 103. Turning to the circumstances of the present case, the Court observes that the applicant’s initial placement in custody was ordered, on 28 April 2009, by the district prosecutor’s office on the basis of Article 61 of the Minsk Convention. The Court also notes that, although the decision of 28 April 2009 contained no reference to Article 466 § 2 of the CCP, the prosecutor’s authority under domestic law to decide on the applicant’s placement in custody without a Russian court order must have derived from that provision (see paragraph 43 above). 104.", "The Court points out that neither Article 61 of the Minsk Convention nor Article 466 § 2 of the CCP stipulate any rules on procedure to be followed when choosing a preventive measure in respect of a person whose extradition is sought, or any time-limits for his or her detention pending extradition. 105. The Court observes in this respect that by the time of the applicant’s placement in custody the Russian Constitutional Court had already proclaimed that in extradition proceedings the right to liberty should be attended by the same guarantees as in other types of criminal proceedings. It unambiguously indicated that the application of preventive measures with a view to extradition should be governed not only by Article 466 but also by the norms on preventive measures contained in Chapter 13 of the CCP (see paragraph 46 above). 106.", "Furthermore, the Government confirmed that the applicant’s detention pending extradition had been governed by Chapter 13 of the CCP, among other provisions. 107. In such circumstances the Court considers that, in order to be “lawful” within the meaning of Article 5 § 1 (f) of the Convention, the applicant’s detention should be compatible not only with the requirements of Article 466 § 2 but also with the provisions governing application of a preventive measure in the form of placement in custody, namely Articles 108 and 109, which are included in Chapter 13 of the CCP. 108. Article 108 § 4 of the CCP expressly provides that an issue of placement in custody is to be decided upon by a judge of a district or military court in the presence of the person concerned.", "It follows from the wording of Articles 5 § 48 and 31 § 2 of the CCP (see paragraphs 38 and 39 above) that a district court is a court authorised to act on the basis of the Russian Code of Criminal Procedure, which implies that the term “district court” refers to a court established and operating under Russian law. Accordingly, a judge of a district court is an official authorised to administer justice on the territory of the Russian Federation. Nothing in the wording of Article 108 § 4 of the CCP suggests that a foreign court may act as a substitute for a Russian district court when deciding on a person’s placement in custody. 109. Accordingly, the fact that the applicant’s placement in custody was not authorised by a Russian court is clearly in breach of Article 108 § 4 of the CCP (see Dzhurayev v. Russia, no.", "38124/07, § 74, 17 December 2009). 110. Furthermore, even assuming that the applicant’s initial placement in custody was compatible with domestic legal provisions, it would have ceased to be “lawful” after the lapse of the two-month period provided for by Article 109 § 1 of the CCP. Article 109 § 2 of the CCP unequivocally stipulates that the two-month term of custodial detention can be extended to six months only on the basis of a decision by a judge of a district court or a military court at an equivalent level. However, in the present case the Russian courts failed to extend the term of the applicant’s detention after two months.", "The first judicial extension of the applicant’s detention took place as late as 19 October 2009, when the St Petersburg City Court merely stated that the applicant should remain in custody for an unspecified period of time (see paragraph 27 above). In such circumstances the Court is bound to conclude that after 27 June 2009, that is, over two months after the date of his remand in custody, the applicant was detained in breach of domestic law. 111. The Court thus finds that the applicant’s detention pending extradition cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. In these circumstances, the Court does not need to consider the applicant’s additional arguments separately.", "112. There has therefore been a violation of Article 5 § 1 of the Convention. (b) Article 5 § 4 of the Convention 113. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12).", "A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Talat Tepe v. Turkey, no. 31247/96, § 72, 21 December 2004). 114.", "The Court observes that it is not disputed between the parties that the applicant spent one year in detention pending extradition. It considers that new issues affecting the lawfulness of the detention might have arisen during that period and that, accordingly, by virtue of Article 5 § 4, he was entitled to apply to a “court” with jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which emerged after the decision on his initial placement in custody (see Ismoilov and Others, cited above, § 146). 115. The Court emphasises that it has already found on numerous occasions that the provisions of Articles 108 and 109 of the CCP did not allow those detained with a view to extradition to initiate proceedings for examination of the lawfulness of the detention in the absence of a request by a prosecutor for an extension of the custodial measure (see Nasrulloyev, cited above, § 88; Ismoilov and Others, cited above, § 151; and Muminov, cited above, § 114). 116.", "Furthermore, in the present case the applicant’s attempt to complain about the lack of judicial authorisation of his detention proved to be futile, as the district court expressly stated that “[t]he provisions of the CCP do not establish procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign State” (see paragraph 25 above). This decision was subsequently quashed. However, the applicant could not obtain a final decision on the merits of his complaint, as the proceedings were discontinued on 8 December 2009 (see paragraph 29 above). 117. The Government have not put forward any detailed explanation as to how the applicant could challenge the lawfulness of his detention pursuant to the Constitutional Court’s decision of 1 March 2007.", "In the absence of any examples of domestic court practice furnished by the Government demonstrating that persons in situations similar to that of the applicant could rely on that decision to obtain judicial review of their detention, the Court is unable to conclude that the domestic law and practice at the material time enabled the applicant to effectively challenge the lawfulness of his detention pending extradition. 118. In these circumstances the Court is not satisfied that the provisions of the domestic law secured the applicant’s right to bring proceedings by which the lawfulness of his detention would be examined by a court. 119. It follows that throughout the term of the applicant’s detention pending extradition he did not have at his disposal any procedure for a judicial review of its lawfulness.", "120. There has therefore been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 121. The applicant contended that he had had no effective remedies in respect of his complaint under Article 3 of the Convention, in breach of Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 122.", "The Government contested the applicant’s arguments and claimed that he had had effective domestic remedies as regards his grievances. 123. The applicant maintained his complaint. 124. The Court reiterates that the remedy required by Article 13 must be effective both in law and in practice.", "The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). 125. The Court further reiterates that, given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 in the context of extradition and expulsion cases requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (see, with further references, Muminov, cited above, § 101). 126.", "In the present case, the applicant’s appeal against the extradition order was examined by the Russian courts in two levels of jurisdiction. The Court reiterates that judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II, and Muminov, cited above, § 102). It is not disputed between the parties that the Russian courts have a power to quash an extradition order. It follows that the applicant has at his disposal a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien] v. France, no.", "25389/05, § 66 in fine, ECHR 2007-...). 127. However, the Court has already established above that the applicant failed to refer to any individualised risks of ill-treatment in the requesting country in the course of these proceedings (see paragraph 87 above). Accordingly, it cannot be said that the Russian courts disregarded his arguments that there existed substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the requesting country thus depriving him of effective remedies in respect of the alleged violation of this provision. 128.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. RULE 39 OF THE RULES OF COURT 129. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 130.", "It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final. V. 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. Damage 132. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.", "133. The Government considered the amount claimed excessive. 134. The Court notes that it has found violations of Article 5 §§1 and 4 of the Convention in the present case and accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. The Court therefore awards the applicant EUR 25,000 in respect of non-pecuniary damage.", "B. Costs and expenses 135. The applicant also claimed the following amounts for costs and expenses incurred before the domestic courts and the Court: EUR 1,800 and 1,650 pounds sterling (GBP) for lawyers’ fees; GBP 175 in administrative expenses; GBP 2,651.90 in translation fees; and 3,200 Russian roubles (RUB) for medical check-ups. He submitted his lawyers’, translators’ and doctors’ invoices as evidence. 136.", "The Government claimed that not all invoices for translation fees submitted by the applicant bore stamps or signatures, and asserted that it was not proven that the sums in question had actually been paid. 137. 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, to the above criteria and to the fact that no violation was found in part of the application, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. C. Default interest 138.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 3, 5 §§ 1 (f) and 4 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 5. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment becomes final or further order; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, plus any tax that may be chargeable to the applicant, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 25,000 (twenty-five thousand euros) in respect of non‑pecuniary damage; and (ii) EUR 3,000 (three 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; 7. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 3 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenNina VajićRegistrar President [1]. Repealed by Federal Law on Legal Status of Foreign Nationals in the Russian Federation of 25 July 2002 No. 115-FZ" ]
[ "FOURTH SECTION CASE OF YAKAR v. TURKEY (Application no. 36189/97) JUDGMENT (Friendly settlement) STRASBOURG 26 November 2002 This judgment is final but it may be subject to editorial revision. In the case of Yakar v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsE. Palm,MrR. Türmen,MrsV.", "Strážnická,MrM. Fischbach,MrR. Maruste,MrJ. Casadevall, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 16 April 2002 and on 5 November 2002, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "36189/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Yakar (“the applicant”), on 8 April 1997. 2. The applicant, who had been granted legal aid, was represented by Ms E. Keskin and Ms F. Karakaş, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.", "The applicant complained, inter alia, that his son was killed whilst in the custody of security forces. He further complained of lack of any effective system for ensuring protection of the right to life in domestic law. 4. Following communication of the application to the Government by the Commission, the case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.", "On 16 April 2002, having obtained the parties’ observations, the Court declared the application partially admissible. The applicant’s further complaints under Articles 6 (the criminal proceedings in respect of his son), 14, 15 and 18 of the Convention were declared inadmissible. 5. 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.", "6. On 5 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 13 August 2002 and on 27 August 2002 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 7. The applicant was born in 1949 and lives in Ağrı.", "He is the father of the deceased Orhan Yakar, who was 16 years old at the time of the events in question. 8. In June 1996 the applicant’s son went to Istanbul where he worked as a painter for a couple of months. In September 1996 the applicant lost contact with his son. In November 1996 the applicant went to Istanbul in order to find out his son’s whereabouts.", "Orhan’s neighbours told him that his son had disappeared two months earlier. 9. On 13 November 1996 the applicant filed a petition with the office of the Istanbul Public Prosecutor. He requested that his son be found and that those responsible be punished if anything had happened to him. The applicant also filed a petition with the Istanbul Security Directorate as to the whereabouts of his son.", "Then, he returned to his village in Ağrı. 10. On 17 November 1996 the security forces carried out a search in order to arrest a member of the PKK who had been located near the township of Sancak in the province of Bingöl. The security forces arrested the applicant’s son in the course of the search. In an incident report drafted by the gendarmes it was noted that the applicant’s son had been carrying a rifle and some ammunition when he was arrested.", "In a further incident report it was noted that Orhan Yakar had been arrested at 2.45 p.m. and that he had been subsequently transferred to the Interrogation Department in the Provincial Gendarmerie Command (İl Jandarma Komutanlığı Sorgu Kısım Amirliği) by a helicopter. 11. Neither reports bore the signature of the applicant’s son. 12. On 18 November 1996 the gendarmes, accompanied by the applicant’s son, carried out a search in order to find the body of a terrorist.", "While the gendarmes were 40 or 45 metres away from the location where the body had been left, Orhan, who was walking in front of the gendarmes, stepped on a mine placed by the PKK and died. The gendarmes continued their search and found the body of the terrorist. They also arrested a member of the PKK and seized two rifles. 13. In the meantime, the applicant was told at the Doğubeyazıt Gendarmerie Command that his son had joined the PKK and that he had surrendered to the security forces in Bingöl where he had been held in custody.", "14. The applicant went to Bingöl in order to investigate the whereabouts of his son. He was told at the Bingöl Gendarmerie Command that his son, who had just surrendered to the security forces, had died after stepping on a mine. 15. In a letter of 22 November 1996 the Bingöl Gendarmerie Command informed the public prosecutor in Bingöl that the applicant’s son had been arrested on 17 November 1996, at 2.30 p.m., in the township of Sancak near the village of Karapınar and had been transferred to the Interrogation Department in the Provincial Gendarmerie Command.", "During his interrogation the applicant’s son had stated that he knew where the body of İhsan Meriç, who had died during the clashes of 16 November 1996, was hidden. The gendarmes, accompanied by Orhan, had carried out a search in order to find out where the body was hidden. However, Orhan had died after stepping on a mine. 16. On 23 December 1996 the applicant filed a petition with the office of the Bingöl public prosecutor.", "He requested that the corpse of his son be handed over to him. 17. On 6 January 1997 the applicant requested from the Bingöl Gendarmerie Command access to all information and documents concerning the death of his son. 18. In a letter by the Bingöl Gendarmerie Command dated 9 January 1997 the applicant was informed that the documents concerning his son’s death had been transferred to the office of the Bingöl public prosecutor and that the Command had no authority to give information to the applicant.", "The applicant was also informed that he could seek the relevant information from the office of the Bingöl public prosecutor or from the Ministry of Interior. 19. On 14 March 1997 the applicant filed a petition with the Ministry of Interior. The applicant stated that he had been unable to receive any documents or information from the authorities concerning the death of his son. He requested that all relevant information and documents be transmitted to him.", "20. On 22 May 1997 the Istanbul Security Directorate transmitted the relevant information and documents provided by the Bingöl Gendarmerie Command to the applicant’s lawyer in Istanbul. 21. On 27 May 1997 the Bingöl public prosecutor made a written request to the Bingöl Gendarmerie Command to summon the gendarmes who had witnessed the death of the applicant’s son. The prosecutor stated that he would hear them within the preliminary investigation into the death of the applicant’s son.", "22. On 10 July 1997 Major Muharrem Fındık gave a statement before the Bingöl public prosecutor. He stated that the applicant’s son had died in the course of an operation carried out in order to find the body of İhsan Meriç. Major Fındık had been walking 40 or 45 metres behind the applicant’s son when he heard an explosion. The gendarmes had been unable to collect the dismembered body owing to heavy weather conditions.", "23. The gendarmes, Gürbüz Beyiktaş, Mehmet Tutak and Niyazi Patır, who also appeared before the public prosecutor, reiterated the Major’s statement. 24. In a letter dated 11 July 1997 the Bingöl public prosecutor reported the death of the applicant’s son to the Populations Office (Nüfus Müdürlüğü) in Bingöl. 25.", "On 22 August 1997 the public prosecutor at the Diyarbakır State Security Court decided that no prosecution should be brought against Orhan Yakar on account of his membership of the PKK as he had died on 18 November 1996. 26. On 23 September 1999 the applicant gave a statement to Sergeant Süleyman Üçkuyulu. He stated that he had been trying to find out the whereabouts of his son since 1996. The authorities had told him that his son had died after stepping on a mine.", "However, despite his requests, his corpse had not been handed over to him. He had lodged an application with the European Court of Human Rights and this application was pending before the Court. He requested that his son’s corpse be handed over to him. 27. In the course of the investigation into the death of the applicant’s son the Bingöl Provincial Administrative Council issued a decision, on 23 August 2000, stating that no prosecution should be brought against the members of the security forces.", "In its view, Orhan Yakar had died after stepping on a mine, which had been placed by the PKK. The security forces had been unable to collect Orhan’s body owing to heavy weather conditions and the possible existence of other mines in the region. It was concluded that the security forces had performed their duty with diligence. 28. On 3 October 2000 the Doğubeyazıt Gendarmerie Command transmitted the Bingöl Provincial Administrative Council’s decision of 23 August 2000 to the Sarısu Gendarmerie Command.", "The Doğubeyazıt Gendarmerie Command requested that the applicant be notified of this decision. 29. In a letter dated 16 October 2000 the applicant informed his lawyer that he had been forced to sign some papers at the Sarısu Gendarmerie Command without having read them. He had requested to see the papers but he had been given them after his lawyer had telephoned the Command. Then, he had been asked why he had appointed Ms Keskin as his lawyer.", "It had been suggested to him that he withdraw his application before the Court and he had been advised to claim compensation from the national authorities. 30. On 16 October 2000 the applicant filed an objection with the Bingöl District Administrative Court (Bölge İdare Mahkemesi) against the decision of the Bingöl Provincial Administrative Council. 31. The case is still pending before the Bingöl District Administrative Court.", "THE LAW 32. On 27 August 2002 the Court received the following declaration from the Government: “1. The Government regret the occurrence of individual cases of death resulting from the failure of the authorities to take the necessary measures to safeguard the lives of individuals as in the circumstances of the death of Orhan Yakar, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the failure of the authorities to protect the right to life of the applicant’s son in the instant case constituted a violation of Article 2 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future.", "It is noted in this connection that new legal and administrative measures have been adopted, which have resulted in a reduction in the occurrence of deaths in circumstances similar to those of the instant application as well as more effective investigations. 2. I declare that the Government of Turkey offer to pay ex gratia to the applicant the amount of EUR 40,000 (forty thousand euros). This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, free of any taxes that may be applicable, to a bank account named by the applicant, within three months from the date of the judgment delivered by the Court pursuant to the Article 39 of the European Convention on Human Rights. This payment will constitute the final settlement of the case.", "3. The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place. 4. Finally, the Government undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court’s judgment” 33.", "On 13 August 2002 the Court had received the following declaration previously signed by the applicant’s representative: “1. In my capacity as the representative of the applicant Mr Mehmet Yakar I have taken cognisance of the declaration of the Government of Turkey that they are prepared to make to the applicant an ex gratia all-inclusive payment of EUR 40,000 (forty thousand euros) with a view to concluding a friendly settlement of his case that originated in application no. 36189/97. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, will be paid in accordance with the terms stipulated in the said declaration within three months after notification of the Court’s judgment delivered pursuant to Article 39 of the European Convention on Human Rights. 2.", "Having duly consulted the applicant, I accept that offer and he, in consequence, waives all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that the case has been settled finally and we undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment. 3. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicant, have reached.” 34. 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). 35. 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 26 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]
[ "FIRST SECTION CASE OF MITOVI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 53565/13) JUDGMENT STRASBOURG 16 April 2015 FINAL 16/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mitovi v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Elisabeth Steiner, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 24 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "53565/13) 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 three individuals, Mr Marjan Mitov (“the first applicant”), Mrs Cveta Mitova (“the second applicant”) and Mr Denčo Mitov (“the third applicant”), on 20 August 2013. The second and third applicants are the parents of the first applicant. They all have Macedonian and Bulgarian nationality. 2. The applicants were represented by Ms N. Najdenova Levik, a lawyer practising in Skopje.", "The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The applicants complained under Articles 6, 8 and 13 of the Convention that they were deprived of the right to have contact with M.M. (the daughter of the first applicant), despite the orders to that effect made by the Social Care Centre (“the Centre”). 4.", "On 4 November 2013 these complaints were communicated to the Government and the remainder of the application was declared inadmissible. It was also decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application. 5. On 19 August 2014 the Bulgarian Government informed the Court that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1972, 1949 and 1950 respectively. The first applicant lives in Sydney, Australia and the second and third applicants live in Skopje. A. The first applicant 7.", "On 19 September 2008 the first applicant married Mrs J.S.M. in Skopje. They went to Australia, where on 30 August 2010 Mrs J.S.M. gave birth to their daughter, M.M. Relations between the first applicant and Mrs J.S.M.", "became strained, and on an unspecified date in 2011 Mrs J.S.M. and M.M. came back to the respondent State. In November 2011 the first applicant took eleven months’ unpaid leave from work in Australia and went to the respondent State to stay with his daughter. 8.", "On 10 October 2011 Mrs J.S.M. brought a civil claim before the Skopje Court of First Instance (“the first-instance court”) seeking the dissolution of her marriage with the first applicant. 9. On 13 October 2011, at the request of the first-instance court, the Centre initiated proceedings regarding the parental rights of the first applicant and Mrs J.S.M. 10.", "On 6 December 2011 the first applicant requested that the Centre establish his specific rights in respect of contact with his daughter. On 3 January 2012 the Centre gave interim custody of the child to Mrs J.S.M. and set out the first applicant’s contact rights regarding M.M. (one hour twice a month in the Centre under supervision by professionals). Mrs J.S.M.", "was ordered to bring the child to the Centre. The decision further stated that it would be valid until the final conclusion of the civil proceedings regarding the dissolution of the marriage. It further provided that an appeal would not suspend its enforcement. On 8 April 2012 the Ministry of Labour and Social Policy (“the Ministry”) quashed this decision and ordered the Centre to reconsider the facts of the case, taking into consideration the interests of the child. Before that date the first applicant saw his daughter on only one occasion (13 January 2012).", "11. On 16 May 2012 the first-instance court dissolved the marriage between the first applicant and Mrs J.S.M. It granted custody of the child to the mother, ordered the first applicant to pay child maintenance, and established that he would have continuing contact with his daughter as decided by the Centre. This decision became final on 25 December 2012. 12.", "In the meantime, on 10 May 2012, the first applicant made a new application to the Centre for a contact order in respect of M.M. On 4 July 2012 the Centre set out that the first applicant could meet with his daughter four times a month at intervals specified in the decision. It no longer specified supervised meetings in the Centre and ordered his ex-wife to comply with the decision. The decision again stated that an appeal would not suspend its enforcement. On 1 October 2012 the Ministry dismissed an appeal by Mrs J.S.M.", "13. On 8 October 2012 the first applicant informed the Centre that he was going back to Australia. On 22 October 2012 the Centre set aside its decision of 4 July 2012 and stated, inter alia, that: “[The first applicant], despite the decision (of 4 July 2012), did not see his minor child at any of the scheduled meetings set up in accordance with the decision dated 4 July 2012.” 14. This decision was served on the first applicant on 29 October 2012. 15.", "In April 2013 the first applicant informed the Centre that he would be staying in the respondent State between 16 May and 2 September 2013. In this connection, on 23 April 2013 he requested that the Centre set out his right to have contact with his daughter during this period, which the Centre did with a decision of 7 June 2013: it specified that the first applicant could meet M.M. twice a month in duration of 8 hours without supervision by the Centre. It also arranged their meetings concerning working days and the child’s birthday. According to the first applicant, he had seen M.M.", "only once, briefly, in the Centre in the presence of a professional. 16. The first applicant wrote to the Ministry on 3 July 2013, seeking the assistance of police to enforce the Centre’s decisions. 17. On 8 July 2013 the first applicant requested enforcement action by the Centre.", "He also sought, under section 87(4) and (6) of the Family Act (see paragraph 35 below), temporary custody of the child, given the lengthy period in which he had had no contact with her. By a letter of 11 July 2013 addressed to the Centre the first applicant complained that he had not seen his daughter for two years, and demanded that the Centre take responsibility for enforcing its contact orders. 18. By a letter of 27 August 2013, the Centre informed the first applicant that the Ministry of Justice was responsible, under section 277(2) of the Administrative Proceedings Act (see paragraph 42 below), for enforcing its decisions at the request of the Centre or the party concerned. According to the first applicant, the Ministry of Justice informed him that it had no jurisdiction over enforcement of the Centre’s decisions.", "The Government did not contest this assertion. 19. On 2 September 2013 the first applicant left for Australia. 20. By a letter of 6 September 2013, the Centre gave him the following information: “[The enforcement of the decision of 7 June 2013] is being totally obstructed by the child’s mother Mrs J.S.M., and none of the scheduled meetings have taken place so far ...", "The minor child is being completely deprived by the mother of the presence of her father in her life. As a result irreparable damage is being done to her psychological, emotional and social development ... [the decision of 7 June 2013] is being totally obstructed by Mrs J.S.M., who has stated, in the presence of a professional employed by the Centre and a police officer, that she will not comply with the decision ...” 21. On 20 September 2013 the Centre dismissed the first applicant’s request of 8 July 2013 to obtain temporary custody of the child (see paragraph 17 above), stating: “... the team of experts considers that the above request is not in the best interests of the minor child, as it may affect the development of little M.M. ... The expert team took into consideration the age of the minor M.M.", "and the risk of stress and trauma if she is separated from the environment in which she is being brought up, which could affect her psycho-social and emotional development.” 22. The first applicant appealed against this decision, arguing that the Centre itself had established that the lengthy period with no contact between himself and M.M. was causing “irreparable damage” to her development (see paragraph 20 above) and that his request should therefore be granted. On 10 February 2014 the Ministry dismissed his appeal and upheld the Centre’s decision. The first applicant did not specify whether he had appealed against this decision before the Administrative Court, which has jurisdiction to decide in such matters.", "23. With submissions of 9 April 2014 the first applicant informed the Centre that he would arrive in the respondent State in May 2014. He also sought that the Centre specified his contact rights with M.M. 24. On 15 May 2014 the Centre set out the first applicant’s right to contact his daughter.", "It specified five supervised one-hour meetings with the child in the premises of the Centre. The order concerned May and July 2014. The first applicant appealed this decision, which the Ministry confirmed on 25 July 2014. In the meantime, the Centre dismissed his fresh request for more frequent contacts with M.M. 25.", "On 1 August 2014 the first applicant requested that the Centre specify his visiting rights regarding his daughter for that month. On 30 September 2014 the Centre dismissed this request since the first applicant had left the respondent State on 4 September 2014. B. The second and third applicants 26. On 4 October 2012 the second and third applicants asked the Centre to set out their contact rights in respect of M.M., which the Centre did with a decision of 9 January 2013.", "The decision further specified that all the scheduled meetings of the second and third applicants with M.M. which had not been held were to take place (да се надомести секое пропуштено видување). The decision stated that an appeal would not suspend its enforcement. As stated by the second and third applicants, and confirmed by a letter that the Centre sent on 8 May 2013 to the Helsinki Committee office in Skopje, they did not meet with M.M. at any of the meeting times specified by the Centre.", "According to the Centre, this was because: “... (Mrs J.S.M.) does not respond to any invitations or to telephone calls, does not show any intention of cooperating, and totally obstructs the work of the expert team of the Centre and the enforcement of this decision [9 January 2013].” 27. On 24 April 2013 the Ministry quashed this decision and remitted the case to the Centre for renewed examination. 28. The applicants provided copies of letters submitted to the State Administrative Inspectorate and the Ministry of the Interior in which they complained about the non-compliance of Mrs J.S.M.", "with the decisions of the Centre and that the latter had failed to enforce them. 29. On 5 September 2013 the second and third applicants asked the Centre to rule on their contact rights in respect of M.M., which the Centre did by a decision of 21 January 2014 (it specified supervised meetings on the Centre’s premises). This decision was served on these applicants on 7 February 2014. The applicants were also instructed to visit the First Family Centre in Skopje, which specialised in issues related to domestic violence.", "The applicants had no contact with M.M. until 13 February 2014, the date when they first met her on the Centre’s premises. On 27 February 2014 they visited the First Family Centre, which issued a document attesting that it had no jurisdiction in childcare matters and did not consider that there was a need for the second and third applicants to attend sessions regarding domestic violence. 30. According to the applicants, the Centre did not reply to their requests for it to arrange for the meetings with M.M., as specified by the decision of 9 January 2013 (see paragraph 26 above).", "31. On 2 April 2014 the Centre delivered a new decision, confirmed on appeal on 24 June 2014, setting out the rights of the second and third applicants to contact M.M. According to the applicants, this decision provided for less contact with M.M. than the decision of 21 January 2014. No information was provided as to whether the decision was being enforced in practice.", "C. Criminal proceedings against Mrs J.S.M. 32. On 26 August and 21 October 2013 the first applicant and the Centre both lodged criminal complaints against Mrs J.S.M. regarding her refusal to comply with the Centre’s orders concerning the first applicant’s rights of contact with M.M. On 29 October 2013 the public prosecutor submitted an indictment to the first-instance court against her for child abduction.", "On 12 December 2014 Skopje Court of First Instance found Mrs J.S.M. guilty of child abduction because she had prevented the father from contacting the child as specified by the Social Care Centre. It further sentenced her to three months’ imprisonment suspended for one year after the judgment would become final. No information was submitted whether this judgment became final. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Family Act 2008 (Official Gazette no. 157/2008, consolidated version) 33. According to section 14(1) and (6) of the Family Act 2008, the Social Care Centre is responsible for providing assistance and protection where needed in family-related matters. An appeal does not suspend enforcement of its decisions.", "34. Section 83 provides that the Social Care Centre is responsible for enforcing parental rights. 35. Under section 87(4) and (6) of the Family Act, the Centre can order temporary residence (no longer than fifteen days) of a child with a parent if the custodial parent does not comply with the Centre’s decisions and prevents the non-custodial parent from seeing the child at two consecutive scheduled meetings. The Centre can grant temporary residence of a child with a parent if direct contacts cease for over two months because of failure of the custodial parent to comply with the Centre’s decisions.", "B. Administrative Proceedings Act 2005 (Official Gazette no. 38/2005) 36. Section 30 of the Administrative Proceedings Act provides that the Government decide conflicts of jurisdiction between State administrative bodies and between State administrative bodies and legal and physical persons carrying out public duties. 37.", "Under section 31, when two bodies accept or decline jurisdiction to decide a matter, a request for conflict resolution is submitted by the body which last decided the matter or the party concerned. The decision by which the conflict of jurisdiction is settled cannot be subject to an appeal or judicial review. 38. Section 221(2) of the Administrative Proceedings Act provides that a party whose request was not decided by the first-instance administrative body can lodge an appeal in the same way as if the request was dismissed. 39.", "Sections 270(1) and 2(3) of the Act provide that a decision rendered in administrative proceedings is to be executed once it has become enforceable. When an appeal does not suspend enforcement of a first-instance decision, the latter becomes enforceable after it has been served on the party concerned. 40. Under section 274, the enforcement is carried out of the enforcement body’s own motion or at the request of the party concerned. A decision may be enforced of the enforcing body’s own motion if the public interest so requires.", "The enforcement of a decision that is in the interest of a party concerned is carried out at his or her request. 41. Pursuant to section 276(1), the enforcement of a decision that provides for non-pecuniary obligation is carried out administratively. 42. Section 277 provides that administrative enforcement is carried out by the body that rendered the decision in respect of which enforcement is required in the first instance, unless otherwise specified by law.", "If that body has no jurisdiction in this respect, the administrative enforcement of a decision falls within the competence of the administrative body of general competence. The Ministry of the Interior is obliged to provide assistance regarding the enforcement of an administrative decision if the competent body requires it. 43. Under section 278, the competent body renders, on its own motion or on request by the party concerned, immediately or no later than thirty days after an administrative decision becomes enforceable, a separate decision by which it authorises the administrative enforcement (заклучок за дозвола на извршувањето). This decision specifies the manner of enforcement.", "It can be appealed before the second-instance body. 44. Sections 286-88 set out the rules on enforcement of non-pecuniary obligations (извршување по пат на принуда), which can be carried out by way of lodging a misdemeanour complaint against the person who refuses to comply with the administrative decision (section 286) or directly (непосредна принуда) if such enforcement is specified by law (section 287). C. Administrative Disputes Act of 2006 45. Section 22(1) and (3) of the Administrative Disputes Act provides that if the second-instance body does not give a decision within 60 days, an interested party can lodge an appeal on points of law with the Administrative Court in the same way as if his or her appeal had been dismissed.", "The interested party can ask the second-instance body to decide on his or her request if the first-instance body failed to issue a decision within 60 days from the submission of that request. If the second-instance body fails to give a decision, the interested party can lodge an appeal on points of law. D. Enforcement Act of 2011, consolidated version (Закон за извршување) 46. Section 1 of the Enforcement Act of 2011 provides as follows: Section 1 “(1) This Act regulates the way in which bailiffs enforce court judgments ... (2) Provisions of this Act apply to forcible enforcement of an administrative decision that provides for a pecuniary obligation ...” E. Criminal Code 47. Under Article 198, a person who abducts a minor or prevents him or her from staying with a person who has custody is liable to a fine or one year’s imprisonment.", "Under § 3 of this Article, if a suspended prison sentence is issued, the court can order the offender to return the minor, or it may enable the enforcement of a final judgment regarding the custody of the child. F. Relevant domestic practice 48. The Government submitted copies of two judgments delivered in 2008 and 2013, in which the first-instance court found a mother guilty of child abduction because she had prevented the father from contacting the child as specified by the Social Care Centre. In both cases the court sentenced the mother to a suspended prison term (K.br.843/08 and K.br.1639/13). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicants complained under Articles 6 and 8 of the Convention that the domestic authorities had failed to enforce the Centre’s decisions regarding their right to have contact with M.M. Being the master of the characterisation to be given in law to the facts of a case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013 Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010), the Court finds it appropriate to examine these complaints only under Article 8 of the Convention in view of the State’s positive obligation in the sphere of family life.", "Article 8 of the Convention reads as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 50. The Government did not raise any objection as regards the admissibility of these complaints.", "51. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 52. The applicants reiterated that there had been a violation of their rights under this Article. In this connection they maintained that owing to the uncooperative attitude of Mrs J.S.M. and the reluctance of the domestic authorities to enforce the contact orders made by the Centre, the applicants were unable to see M.M.", "53. The Government stated that this was a sensitive matter and, referring to the facts of the case, maintained that there had been no violation under this head. 2. The Court’s assessment (a) General principles 54. The Court recalls that the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities.", "There may however 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 Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005). 55. Article 8 includes for parents a right to have measures taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions, including in the event of conflict between the two parents.", "This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Mihailova v. Bulgaria, no. 35978/02, § 80, 12 January, 2006; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Ignaccolo-Zenide v. Romania, no.", "31679/96, § 94, ECHR 2000-I). 56. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute. The key consideration is whether those authorities have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case (see Zawadka, cited above, § 56 and Ignaccolo-Zenide, cited above, § 96). In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the non-resident parent (see Krivošej v. Serbia, no.", "42559/08, § 52, 13 April 2010; Felbab v. Serbia, no. 14011/07, § 67, 14 April 2009; and Maire v. Portugal, no. 48206/99, § 74, ECHR 2003‑VII). (b) Application of these principles to the present case 57. The Court reiterates that it is a common ground that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see Scozzari and Giunta v. Italy [GC], nos.", "39221/98 and 41963/98, § 169, ECHR 2000‑VIII, and Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). This Article is therefore applicable to the situation of which the first applicant complained. 58. As regards the second and third applicants, who are the child’s paternal grandparents, the Court notes that the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection.", "The right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them, even though those contacts normally take place with the agreement of the person who has parental responsibility (see Kruškić v. Croatia (dec.), no. 10140/13, §§ 120-122, 25 November 2014). 59. The Court notes that the Centre delivered three decisions specifying the second and third applicants’ contact rights in respect of M.M. (9 January 2013 and 21 January and 2 April 2014, see paragraphs 26, 29 and 31 above).", "Accordingly, these applicants were given, under the domestic law, the right to establish, through frequent contacts, close relationships with their grandchild. The Court is therefore satisfied that this entitlement, the aim of which was to create a tie between the second and third applicants and M.M., may fall under the scope of “family life” within the meaning of Article 8 of the Convention. 60. Accordingly, the Court must determine whether there has been a failure to respect the applicants’ family life. 61.", "The Court observes that the Centre delivered seven orders regulating the applicants’ contact rights in respect of M.M. The Court cannot but note the delays in the Centre’s dealing with the applicants’ requests regarding their rights to have contact with M.M. (it took between two and five months for the Centre to decide on the applicants’ requests, see paragraphs 12, 26 and 29 above). No explanation was put forward to justify those delays. Such a lengthy period of time was excessive, in particular regarding the first applicant, who had a limited stay in the respondent State.", "62. Given that an appeal did not suspend the enforcement of those decisions, they became binding and enforceable as soon as they were served on the parties (see paragraph 39 above). On the facts, the Court notes that the authorities did not take any measures to create the necessary conditions for executing these orders, notwithstanding that they were aware of the uncooperative behaviour of the mother and the fact that they were competent to proceed of their own motion (see paragraph 40 above). 63. In such circumstances, the Centre’s contact orders remained unenforced for a lengthy period, during which the applicants were unable to see M.M.", "The first applicant did not see his daughter (with two exceptions, see paragraphs 10 and 15 above) during his limited stay in the respondent State, namely between November 2011 and October 2012 (see paragraphs 7 and 13 above) and between April and September 2013 (see paragraphs 15 and 19 above). The Government did not provide any information as to whether the first applicant had seen his daughter during his stay in the respondent State between May and September 2014 (see paragraphs 23-25 above). Similarly, the second and third applicants were unable to see M.M. until 13 February 2014, which was a year and four months after they had requested that the Centre establish their rights in this respect (see paragraphs 26 and 29 above). 64.", "In view of the facts of the case, the Court considers that the authorities have failed to do everything in their power that could reasonably have been expected of them in order to secure the applicants’ rights under this head. Whereas the Centre examined the long-term effects which the separation from her father might have on M.M. (see paragraph 20 above), the legitimate interest of the applicants in developing and sustaining a bond with M.M. were not considered. In this connection the Court reiterates that the likelihood of family reunification will be progressively diminished and eventually destroyed if the biological father and the child are not allowed to see each other at all, or only so rarely that no natural bonding between them is likely to occur (see, mutatis mutandis, Görgülü v. Germany, no.", "74969/01, § 46, 26 February 2004). Similar considerations apply to the second and third applicants, who had the right, as established by the domestic authorities, to maintain a normal grandparent-grandchild relationship through contacts between them. 65. Having regard to the foregoing, and notwithstanding the sensitivity of the matter, the Court concludes that the domestic authorities failed to make adequate and effective efforts to enforce the applicants’ right to respect for their family life, as guaranteed by Article 8 of the Convention. There has consequently been a violation of this Article.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 66. The applicants complained of a violation of their right to an effective remedy in respect to their rights under Article 8 of the Convention, as specified above. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 67. The Government did not raise any objection as regards the admissibility of this complaint.", "68. 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 69. The applicants submitted that all the remedies used were ineffective since they had not enabled them to see M.M. at the meeting times specified by the Centre. They argued that the relevant legislation did not provide for clear rules as to which body had competence to enforce the Centre’s decisions regarding their right to have contact with M.M.", "70. The Government submitted that the applicants had sufficient effective remedies regarding their claims. The Centre and Ministry had notified the applicants of their decisions in good time. Criminal proceedings against Mrs J.S.M. were under way.", "2. The Court’s assessment 71. The Court has reiterated on numerous occasions 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 are secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint.", "The States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see De Souza Ribeiro v. France [GC], no. 22689/07, § 78 and 80, ECHR 2012). 72. In addition, particular attention should be paid to the speediness of the remedial action itself, since it is not inconceivable that the adequate nature of the remedy can be undermined by its excessive duration (see Doran v. Ireland, no.", "50389/99, § 57, ECHR 2003‑X). 73. In the present case the applicants made use of the following remedies: the first applicant requested the Centre and the Ministry of Justice to enforce the Centre’s contact orders (see paragraphs 17 and 18 above); he unsuccessfully sought, under section 87 of the Family Act (see paragraph 17 above) temporary custody of the child; and he brought a criminal complaint against Mrs J.S.M. for child abduction (see paragraph 32 above). The proceedings regarding the latter two remedies apparently are still pending.", "The applicants also sought assistance from other national authorities (see paragraphs 16 and 28 above). 74. The Court observes that the first applicant’s requests for enforcement of the Centre’s decisions were to no avail. This was so because both the Centre and the Ministry of Justice declined jurisdiction in this respect. Accordingly, the system of administrative enforcement of administrative decisions specified under the Administrative Proceedings Act (see paragraphs 40-44 above) could not have been set in motion.", "In this connection the Court underlines that the Government did not bring to the Court’s attention any special piece of legislation or domestic practice regarding which body had competence for the administrative enforcement of the Centre’s contact orders. This issue remained open in the applicants’ case notwithstanding the mechanism for resolution of conflicts of jurisdiction between administrative bodies provided for by the domestic law (see paragraphs 36 and 37 above). In so far it concerns enforcement by bailiffs, the Court is not convinced, and the Government did not provide any comments to the contrary, that the enforcement machinery provided for in the Enforcement Act (see paragraph 46 above) applied to the Centre’s access orders. It is so since that machinery concerns enforcement of court judgments or administrative decisions that provide for a pecuniary obligation, which was not the case with the Centre’s contact orders. In such circumstances the Court cannot but note that there was no effective remedy under domestic law for the applicants’ complaint about the non-enforcement of the Centre’s contact orders in respect of M.M.", "75. Furthermore, the Court notes that the criminal proceedings brought in October 2013 against Mrs J.S.M. apparently are still pending before the domestic courts. No such proceedings were instituted in view of her refusal to comply with the access orders regarding the grandparents. The foregoing and the domestic practice to which the Government referred (see paragraph 48 above) cannot persuade the Court that the criminal avenue of redress provided for an effective remedy regarding the applicants’ rights under Article 8 of the Convention.", "76. Against this background, the Court considers that the applicants did not have an effective remedy regarding their complaints under Article 8 of the Convention. There has, accordingly, been a violation of Article 13 taken in conjunction with Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 78. The first applicant claimed 100,000 euros (EUR) in respect of pecuniary damage for unpaid salary of which he had been deprived during his stay in the respondent State. He also claimed EUR 50,000 in respect of non-pecuniary damage for mental stress suffered owing to the alleged violations. The second and third applicants claimed EUR 10,000 each for non-pecuniary damage.", "79. The Government contested these claims as unsubstantiated. They further argued that there was no causal link between the damage and the alleged violations. 80. The Court does not discern any causal link between the violations found and the pecuniary damage claimed by the first applicant; it therefore rejects this claim.", "On the other hand, it considers that the applicants suffered non-pecuniary harm as a result of the violations found. Ruling on an equitable basis it awards, under this head, the first applicant EUR 13,000 and the second and third applicants EUR 7,000 jointly, plus any tax that may be chargeable. B. Costs and expenses 81. The applicants also claimed EUR 11,000 for the costs and expenses incurred before the domestic courts and the Court.", "82. The Government contested this claim as unsubstantiated, arguing that the applicants had not presented any evidence that the costs claimed had been “actually and necessarily” incurred. 83. The Court notes that the applicants did not submit supporting documents in respect of their claim for reimbursement of costs and expenses. However, they were represented by a lawyer in the proceedings before the Court and observations, as requested, were submitted.", "In these circumstances, the Court finds it appropriate to award EUR 850 under this head, plus any tax that may be chargeable, to the applicants jointly. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 8 of the Convention in respect of the applicants’ right to respect for their family life; 3. Holds that there has been a violation of Article 13 of the Convention taken together with Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into national the currency of the respondent State at the rate applicable at the date of settlement: (i) to the first applicant, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to the second and third applicants, EUR 7,000 (seven thousand euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage; and (iii) to the applicants jointly, EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to them, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 16 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenElisabeth SteinerRegistrarPresident" ]
[ "FIFTH SECTION CASE OF KIN AND OTHERS v. UKRAINE (Application no. 19451/04 and 7 others - see appended list) JUDGMENT STRASBOURG 20 October 2016 This judgment is final but it may be subject to editorial revision In the case of Kin and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Faris Vehabović,Carlo Ranzoni, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 29 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Ukrainian Government (“the Government”).", "THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no.", "42373/06 the applicant also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6.", "The applicants complained principally that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...” 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.” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 8.", "In the leading cases of Svetlana Naumenko v. Ukraine, no. 41984/98, 9 November 2004 and Efimenko v. Ukraine, no. 55870/00, 18 July 2006, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.", "III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. In application no. 42373/06 the applicant submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground.", "Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009). IV. REMAINING COMPLAINTS 13.", "Some applicants also raised other complaints under various Articles of the Convention. 14. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Svetlana Naumenko v. Ukraine, cited above, §§ 109 and 112), the Court considers it reasonable to award the sums indicated in the appended table. 17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the excessive length of civil proceedings and the lack of any effective remedy in domestic law and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of the applications inadmissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings; 4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıKhanlar HajiyevDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of civil proceedings and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth 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] 19451/04 03/05/2004 Nadiya Olegivna KIN 02/06/1980 30/03/2001 12/11/2008 7 years, 7 months and 14 days 3 levels of jurisdiction 800 41402/05 28/10/2005 Oleksandr Sergiyovych PANTELEYENKO 28/09/1960 25/12/2001 23/05/2013 11 years, 4 months and 29 days 3 levels of jurisdiction 3,000 5622/06 11/01/2006 Grigoriy Nikolayevich BEREZHNOY 08/09/1950 02/08/1999 02/11/2006 7 years, 3 month and 1 day 3 levels of jurisdiction 900 8747/06 21/02/2006 Georgiy Anatolyevich GALENYA 23/04/1959 07/10/2002 12/11/2002 01/02/2008 19/02/2014 5 years, 3 months and 26 days 3 levels of jurisdiction 11 years, 3 months and 8 days 3 levels of jurisdiction 3,000 8790/06 10/02/2006 Yuriy Mikhaylovich TISHCHENKO 20/01/1940 06/06/2001 31/07/2007 6 years, 1 month and 26 days 3 levels of jurisdiction 500 10473/06 10/03/2006 Olga Anatolyevna KARBOVSKAYA 02/05/1954 11/09/1997 23/12/2008 11 years, 3 months and 13 days 3 levels of jurisdiction 3,000 15153/06 29/03/2006 Nadezhda Grigoryevna BORISOVA 17/11/1952 15/05/2002 05/10/2009 7 years, 4 months and 21 days 3 levels of jurisdiction 900 42373/06 05/10/2006 Tamara Vasilyevna POLYANSKAYA 10/11/1948 05/12/2005 07/07/2010 4 year, 7 months and 3 days 1 level of jurisdiction Art. 6 (1) - non-enforcement or delayed enforcement of domestic decisions - Non-enforcement of final judgment adopted by Kyiv District Court of Odesa on 31 December 2004 2,600 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FOURTH SECTION CASE OF MIKALAUSKAS v. MALTA (Application no. 4458/10) JUDGMENT STRASBOURG 23 July 2013 FINAL 23/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mikalauskas v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,David Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva, judges,Lawrence Quintano, ad hoc judge,and Fatoş Aracı, Section Registrar, Having deliberated in private on 23 July 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4458/10) against the Republic of Malta 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 Tomas Mikalauskas (“the applicant”), on 13 January 2010. 2. The applicant was represented by Dr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr. P. Grech. 3.", "The applicant alleged that he had suffered a violation of Article 5 §§ 3 and 4 of the Convention. 4. On 15 May 2012 the Chamber decided to communicate the complaints to the respondent Government under Article 3 and Article 5 §§ 3 and 4. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.", "The Government of the Republic of Lithuania, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), did not indicate that they intended to do so. 6. Mr Vincent De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly, the President of the Chamber decided to appoint Mr Lawrence Quintano to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1981 and was detained in the Corradino Correctional Facility, Paola, Malta, at the time his application was lodged. He now lives in Qawra, Malta. A. Background of the case 8.", "The facts of the case, as submitted by the parties, may be summarised as follows. 9. Following, the applicant’s arrival in Malta on holiday, on 8 September 2009, he was arrested and questioned without the presence of a lawyer or an interpreter. On 10 September 2009, two days after his arrest, the applicant and some other Maltese and foreign suspects were charged with the possession of cannabis, not for their own exclusive use, and with conspiracy for the purposes of drug trafficking. They were brought before a magistrate and remanded in custody.", "10. The applicant alleged that the conditions of detention in prison amounted to inhuman and degrading treatment. There was no access to hot water and there were no heaters. The prison had very dim lighting, which made it impossible to read. No drinking water was provided and had to be purchased by detainees themselves, and there were no facilities for washing clothes.", "11. The applicant, who suffers from health problems in relation to a dilated cerebral blood vessel which he claimed can be potentially fatal, complained that while in detention he had not received the relevant treatment he had previously been prescribed. According to a Lithuanian medical certificate of 2008 that he submitted, his condition caused headaches and required annual screening. In the event of increased dilation, surgical treatment might be needed. The certificate recommended that a computerised tomography (CT) scan be carried out between November and December 2009 and that the applicant avoid emotional strain and physical activity.", "12. According to the first medical report submitted by the Government, namely a prison doctor’s summary dated 9 August 2011, the applicant’s condition was as follows. On admission, the applicant was not on any regular treatment save for analgesics (paracetamol and later a different type), which he took regularly. He had a history of recurring headaches and mental illness, for which he had received regular psychotherapy in the United Kingdom. Subsequent (blood and chest X-ray) tests did not reveal anything unusual.", "He was seen once by a forensic psychologist who expressed concern about the level of anxiety he was exhibiting on account of his incarceration, but the applicant refused to attend any further sessions. On 13 January 2010 the applicant asked to see a doctor because of headaches connected to his medical condition. He was referred to hospital with the relevant Lithuanian medical certificate from 2008. On 14 July 2010 the applicant visited the prison clinic, complaining that he had not yet been sent to hospital. The hospital was contacted the following day and an appointment was obtained for 8 March 2011.", "The applicant refused to attend. 13. In his reply, the applicant contested the veracity of the medical summary. He claimed that he had only had a blood test on admission, and had never been taken to hospital for an X-ray. He had persistently requested to be seen by a prison psychologist after his first visit, but had repeatedly been told that he had to wait his turn as the prison was overcrowded.", "He had even attempted to go to see the psychologist in person, but the latter had given him the same reply. He claimed that he had been left suffering from headaches for days and that the prison authorities had refused to give him even simple paracetamol. At times he had been given just one tablet, which had not been enough. Any other stronger medication had to be provided by the inmates themselves. Only after a whole year of detention had he been allowed to purchase his own medication.", "He conceded, however, that he had refused to go to his hospital appointment on 8 March 2011. Having lost trust in the medical staff at the prison and the prison authorities over time, and expecting to be released on bail, he had thought that he would be able to seek appropriate medical assistance once released. 14. The Government later submitted further documents, through which it transpired that following admission to the Corradino Correctional Facility (on 10 September 2009) the applicant was examined by a prison doctor. The relevant medical report was completed on 1 October 2009.", "Another examination was held in the months that followed, and the applicant was found to be fit enough to use the gym. Blood and virology tests were also carried out. The applicant was assessed by a psychologist and a report was compiled, stating, inter alia, the following: [He] “appeared to be paranoid and suspicious of everyone and everything. The inmate was offered psychological treatment should he need it in the future. The inmate resisted and stated that he does not need it at the moment.", "It would therefore be up to the inmate to seek help if ever he needed it”. From the applicant’s file, it did not appear that the applicant ever sought further treatment. On 13 January 2010 he was referred to the Neurology Department of St Luke’s Hospital (with the Lithuanian medical certificate attached) following complaints that he was suffering from headaches. On 1 February 2010 an appointment was fixed for him for 8 March 2011, but he refused to attend. In the meantime, on 7 February 2010 a chest X-ray was performed at Mater Dei Hospital, but no abnormalities were detected.", "The Government further alleged that on 1 November 2010 the applicant had had a dental appointment at the same hospital. B. The bail applications 15. The applicant’s first application to be granted bail, dated 3 November 2009, was refused by the Court of Magistrates as a Court of Criminal Inquiry (“Court of Magistrates”) on 17 December 2009. Having considered the applicant’s personal circumstances (from documents showing that financial support was available from his relatives), his academic background (he was a graduate in accountancy), his character reference as supported by evidence given by the Republic of Lithuania’s counsel (who was heard by the court in person), evidence that a third party was willing to rent an apartment to him if he were to be granted bail, pleadings relating to the fact that the applicant was a European Union citizen to whom the provisions of a European arrest warrant could apply, and the fact that the other co-accused had already been granted bail, the court nevertheless concluded that the applicant had no other ties with Malta capable of satisfying it that he would remain on the island.", "16. A second application for bail, dated 24 December 2009 (accompanied by documentation showing that financial support was available from the applicant’s relatives), was refused by the Criminal Court on 28 December 2009, on the grounds that there was a serious risk that the proceedings could be thwarted, either because the applicant would not appear for trial or would abscond or interfere with witnesses and that the case concerned a crime with international ramifications. The Criminal Court considered that he had no ties with Malta. Neither the intervention of the Lithuanian Consulate, which had offered to accommodate the applicant and employ him, nor the fact that he was an EU citizen could outweigh the other factors. However, the court acknowledged that the matter could be reviewed at a later date and specifically ordered that the proceedings be continued with speed and diligence in view of the applicant’s detention.", "17. A third application for bail, dated 19 January 2010, was refused by the Court of Magistrates on 26 January 2010 on the ground that the courts’ position had already been made clear. The prosecution was ordered to produce further evidence by the next hearing. 18. A fourth application to be granted bail was made on 9 February 2010 when proceedings were still pending, making particular reference to the applicant’s medical condition, but it was refused by a decision of the Court of Magistrates on 12 February 2010.", "Having heard submissions and having read the previous decisions refusing bail, the court said it had nothing further to add to the position previously adopted by the courts. 19. A fifth bail application was made on 14 April 2010. The applicant highlighted the fact that the witnesses in the case had been heard, that he had cooperated with the police, that he was an EU national with no criminal record, that he was suffering from a medical condition (as evidenced by the relevant medical documents already submitted to the court) in relation to which he should have undergone certain medical tests, and that he had financial support and a job offer and accommodation in Malta from the Lithuanian Consulate. He also argued that the passage of time should weigh heavily on the decision whether to grant him bail, particularly given the lack of special diligence on the part of the prosecution.", "On 19 April 2010, the Criminal Court refused the application, considering that the grounds for refusing bail made in the previous decisions were still valid. 20. A sixth bail application was lodged on 1 July 2010, but was refused by the Court of Magistrates on 6 July 2010 on the basis of the previous decisions. The court requested the prosecution to determine the case expeditiously. 21.", "The Attorney General objected to all the above-mentioned bail applications on account of the applicant’s lack of ties with Malta and the seriousness of the offences. The applicant claimed to have been the only suspect not to have been released on bail. 22. The applicant lodged a further application for bail on 16 July 2010. On 22 July 2010 the Criminal Court, having considered that the Attorney General’s objection related to the risk of the applicant absconding and that the applicant had a job and accommodation waiting for him on his release, granted the applicant bail subject to conditions which included: (i) a declaration by the Lithuanian Consulate regarding the details of his future residence and job in Malta; (ii) an undertaking that he appear in person at every stage of the proceedings; (iii) a prohibition on him leaving the island, committing a crime while on bail, or speaking to any witnesses; (iv) a requirement that he report to the police station twice daily; (v) a curfew confining him to his residence between 6 p.m. and 7.45 a.m.; and (vi) financial guarantees by way of a deposit of 50,000 euros (EUR) and a personal guarantee of EUR 15,000 (a total of EUR 75,000 [sic]), which would be forfeited on breach of any of the above conditions.", "23. On 6 September 2010 the applicant, who was still in detention, requested to have the financial guarantees lowered to reflect his family’s income (as evidenced by supporting documents). The decision, if any, on that request has not been submitted to the Court. 24. On 15 October 2010 the applicant, who remained in detention, reiterated his request to have the financial guarantees lowered.", "On 23 December 2010 the Court of Magistrates, following an objection by the Attorney General, denied the request on the basis that it should not alter the decision of the Criminal Court. 25. The applicant lodged a third request while still in detention, in which he included evidence of his parents’ earnings and stated that he could reside with his girlfriend, as she was moving to Malta. On 22 February 2011 the Court of Magistrates reduced the deposit to EUR 40,000, but increased the personal guarantee to EUR 60,000. 26.", "On 28 April 2011 a fourth request was lodged, in which the applicant insisted on his inability to pay the required sums and stated that his girlfriend, who had now moved to Malta, was willing to stand surety for him. On 4 May 2011 the Court of Magistrates amended the financial guarantees as follows: a deposit of EUR 30,000, or a third party surety of the same amount (upon disclosure of the financial resources of the person standing surety), and EUR 15,000 as a personal guarantee. 27. The applicant was released on bail on 7 July 2011 having satisfied the said conditions. Over the months that followed, various decisions were delivered agreeing to change the police station to which he was required to report.", "On 5 June 2012 the applicant requested to have his bail conditions changed by withdrawing part of the deposit made in court. On 6 June 2012 the Court of Magistrates denied his request, considering that there were no legal grounds to revise the deposit imposed. C. The criminal proceedings against the applicant 28. The relevant time-lines of the criminal proceedings against the applicant (and other co-accused), together with what happened at the hearings (excluding matters related to bail which have been mentioned above) are as follows: The applicant was arraigned on 10 September 2009 and pleaded not guilty to the charges. On 14 September 2009 the prosecuting officer and eight other police officers gave evidence, and documents were exhibited.", "On 22 September 2009 further documents were exhibited, a pharmacist, another police officer and a third person gave evidence. An expert in communications technology and a translator were appointed. On 3 November 2009 a copy of the inquiry was exhibited and one person gave evidence and exhibited documents. On 13 November 2009 another two police officers and a lawyer gave evidence and exhibited documents. A fingerprints expert was appointed.", "Another hearing was held on 11 December 2009 (no record). On 16 December 2009 the communications technology expert and two other individuals gave evidence. On 21 January 2010 the fingerprints expert gave evidence. On 2 February 2010, three witnesses, who had already been heard, gave further evidence, together with another two individuals. On 11 February 2010 another witness gave evidence.", "On 23 March 2010 the case was adjourned as the magistrate was indisposed. On 25 March 2010 a doctor and the prosecuting officer gave evidence; the latter declared that only three witnesses remained to be heard. On 4 May 2010 the case was adjourned as the magistrate was indisposed. On 5 May 2010 a police inspector and another person gave evidence and were cross-examined. The co–accused’s lawyer objected to the proceedings being protracted.", "On 11 May 2010 the case was adjourned due to technical problems. On 22 June 2010 two witnesses who had already given evidence were further heard and cross-examined. The applicant’s lawyer reserved the right to further cross-examination, and requested that a witness be re-heard. On 2 July 2010 the communications technology expert was cross‑examined and the applicant’s lawyer requested that another witness be re-heard. On 4 August 2010 the case was adjourned.", "On 6 September 2010 one of the witnesses called by the applicant was re-heard and cross-examined. The prosecution was to summon four further witnesses. On 15 September 2010 a lawyer from the prosecutor’s office was heard. On 27 September 2010 the case was adjourned following a request for letters rogatory by the co-accused. On 30 September following a request for a change in the letters rogatory the case was adjourned.", "On 12 October 2010 the court suspended the inquiry and the case was adjourned. On 29 October 2010 the witness requested by the defence gave evidence, and another person whose evidence had already been tendered in writing was cross-examined. A third person refused to tender evidence. A translator was appointed. On 10 November 2010, following a request to destroy the substances, the case was adjourned.", "On 17 November 2010 another two police officers gave evidence. The prosecutor declared that he had no further evidence to produce. On 26 November 2010 the case was adjourned as the prosecutor was indisposed. From 3 December 2010 until 6 July 2011 the case was adjourned more than fifteen times for either unknown reasons, or because the magistrate was indisposed or because the letters rogatory were still pending. In the meantime, on 22 February 2011 two other persons gave evidence.", "On 3 March 2011 defence counsel requested the summoning of witnesses. On 16 March 2011 the prosecuting officer gave evidence again. On 7 April 2011 another individual gave evidence. On 13 May 2011 a doctor who had already given evidence was re-heard. On 3 June 2011 another person gave evidence.", "The applicant was effectively released from detention on 7 July 2011. On 8 April 2013, date of the last communication with the Government, the committal proceedings were still on-going and no bill of indictment had yet been filed. D. Other relevant information 29. The applicant acknowledged that he did not institute constitutional redress proceedings, but argued that he did not, in any event, have sufficient funds for doing so. II.", "RELEVANT DOMESTIC LAW A. The Civil Code 30. The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, regarding actions in tort, read as follows: Article 1031 “Every person, however, shall be liable for the damage which occurs through his fault.” Article 1032 “(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus pater familias. (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.” Article 1033 “Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.” Article 1045 “(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused. (2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.” B.", "The Criminal Code 31. Article 401 of the Criminal Code, Chapter 9 of the Laws of Malta, regarding the terms for the conclusion of an inquiry, reads as follows: “(1) The inquiry shall be concluded within the term of one month which may, upon good cause being shown, be extended by the President of Malta for further periods each of one month, each such extension being made upon a demand in writing by the court: Provided that the said term shall not in the aggregate be so extended to more than three months: Provided further that unless bail has been granted, the accused shall be brought before the court at least once every fifteen days in order that the court may decide whether he should again be remanded in custody. (2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge. (3) In either case, the court shall order the record of the inquiry, together with all the exhibits in the case, to be, within three working days, transmitted to the Attorney General.", "(3A) Where the court has committed the accused for trial by the Criminal Court the court shall, besides giving the order mentioned in subarticle (3), adjourn the case to another date, being a date not earlier than one month but not later than six weeks from the date of the adjournment. The court shall also adjourn the case as aforesaid after having received back from the Attorney General the record of the inquiry and before returning the record to the Attorney General in terms of any provision of this Code.” 32. Article 409A of the Criminal Code, concerning applications by persons in custody regarding unlawful detention, reads as follows: “(1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing.", "(2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to the Criminal Court.” 33.", "Article 412B, concerning applications by persons in custody regarding unlawful detention pending criminal proceedings reads as follows: “(1) Any person in custody for an offence for which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing. (2) The provisions of article 574A(2) and (3) shall mutatis mutandis apply to an application under this article. (3) Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings the application shall be filed in the Criminal Court and the foregoing provisions of this article shall mutatis mutandis apply thereto. (4) The provisions of article 409A(4) shall apply to a decision of the Court of Magistrates under this article.” 34.", "Article 525(2A) reads as follows: “The provisions of article 412B(1) and (2) shall also apply mutatis mutandis to the Criminal Court with respect to a person in custody for an offence for which a bill of indictment has been filed as well as to the Court of Criminal Appeal with respect to a person in custody who is a party to appeal proceedings before that court: Provided that with respect to the Criminal Court the relevant decision shall in all cases be taken by the Court sitting without a jury.” 35. Under domestic law, bail is regulated by the provisions of Article 574A, which in so far as relevant read as follows: “(1) When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused. (2) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in subarticle (1) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release. (3) Where any of the offences charged consists in any of the offences mentioned in article 575(2) the court shall, after hearing the person charged or accused as provided in subarticle (2) of this article, ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond. (4) Where none of the offences charged consists in any of the offences mentioned in article 575(2) the court shall, after hearing the person charged or accused as provided in subarticle (2) of this article, ask the prosecuting or arraigning officer whether he and the Attorney General have any submissions, in writing or otherwise, to make on the question of the temporary release from custody of the person charged or accused and the latter shall be allowed to respond.", "(5) At the end of submissions as provided in the preceding subarticles of this article the court shall review the circumstances militating for or against detention. (6) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody. (7) If the court does not find cause to release unconditionally the person charged or accused under the provisions of subarticle (6) it may nevertheless, saving the provisions of article 575(1) and unless release is prohibited by any provision of law, release that person from custody on bail subject to such conditions as it may deem appropriate. (8) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody and the provisions of article 575(11) shall apply. (9) Where the court orders the release from custody of the person charged or accused, whether unconditionally or on bail subject to conditions, under any of the provisions of this article the decision of the court to that effect shall be served on the Attorney General by not later than the next working day and the Attorney General may apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released or to amend the conditions, including the amount of bail, that may have been determined by the Court of Magistrates.” 36.", "Article 575, regarding crimes in respect of which bail is granted only in certain circumstances, in so far as relevant reads as follows: “(1) Saving the provisions of article 574(2), in the case of – ... (ii) a person accused of any crime liable to the punishment of imprisonment for life, the court may grant bail, only if, after taking into consideration all the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused, as well as any other matter which appears to be relevant, it is satisfied that there is no danger that the accused if released on bail - (a) will not appear when ordered by the authority specified in the bail bond; or (b) will abscond or leave Malta; or (c) will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; or (d) will interfere or attempt to interfere with witnesses or otherwise obstruct or attempt to obstruct the course of justice in relation to himself or to any other person; or (e) will commit any other offence.” 37. Article 576, regarding security for the purposes of bail, reads as follows: “The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable.” C. European Convention Act 38. Article 4(3) of the European Convention Act, Chapter 319 of the laws of Malta, reads as follows: “If any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subarticle and, subject to the provisions of subarticle (4), the court in which the question arose shall dispose of the question in accordance with that decision.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39. The applicant complained that while in detention he had not received prompt or adequate medical care, and that the conditions in the prison, given his medical condition, constituted inhuman and degrading 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.” 40.", "The applicant also cited Article 2 of the Convention; however, in the circumstances of the case, the Court considers that the complaint is to be examined solely under Article 3. A. Admissibility 1. The Government’s objection of non-exhaustion of domestic remedies (a) The parties’ submissions 41. The Government submitted that the applicant had not instituted any proceedings before the domestic courts relating to his Article 3 complaint, and consequently he had not exhausted domestic remedies. 42.", "They noted that the applicant could have instituted a civil action for damages (in tort), which could have made good any damage or loss sustained as a result of his detention conditions, if he could have shown on the basis of probabilities that he had suffered damage attributable to the Government’s acts or omissions (Articles 1031 and 1033 of the Civil Code, see paragraph 30 above). The Government cited the case of Sammut and Visa Investments Ltd v. Malta ((dec.), no. 27023/03, 28 June 2005) and various domestic judgments where the State had been held responsible. Nevertheless, they acknowledged that the circumstances of those cases were different to those of the present case. Moreover, citing Zavoloka v. Latvia (no.", "58447/00, § 40, 7 July 2009) the Government submitted that the Convention did not give a general right for the award of compensation for non-pecuniary damage, known as “moral damage” in the domestic context. In any event, although it was true that such damage was not expressly provided for under Maltese law (except in limited circumstances), a civil action could cover loss of opportunity, which in their view was a type of “moral damage” i.e. non-pecuniary damage as understood by the Convention case-law. 43. Furthermore, the Government submitted that the applicant had failed to institute constitutional redress proceedings, where the relevant courts have wide ranging powers to ensure redress, including being able to award compensation for non-pecuniary damage.", "The applicant could have requested the proceedings to be heard with urgency (such requests were upheld where urgency was merited) in order to reduce the time span drastically. The Government cited the following cases as examples of where such requests were accepted: (i) in the context of the enforcement of a return order of a child following wrongful removal, where the case was decided by two levels of jurisdiction over approximately a month and a half (from 6 July 2012 to 24 August 2012); (ii) in a case in the same context, brought on 2 August and decided on 14 August 2012 (where no appeal was lodged); and (iii) Kenneth Gafa v. The Attorney General (no 22. of 2012) concerning repeated bail refusals under Article 5 § 3, which was brought on 10 April 2012 and decided on appeal on 23 November 2012. The Government submitted that such remedies could have directly remedied the state of affairs of which the applicant complained. 44. The applicant submitted that a civil action for damages could not improve material conditions of detention, which included the adequacy of medical assistance.", "Moreover, Article 1045 of the Civil Code limited what damages could be claimed and excluded non-pecuniary damage, and in addition, usually applied only to cases concerning private individuals. 45. Furthermore, as already held by the Court (see for example, Kadem v. Malta (no. 55263/00, 9 January 2003), constitutional redress proceedings were cumbersome and could not be considered expeditious. The applicant submitted that the Government’s examples had referred to very specific sets of circumstances and cited another case, Kolakovic v. The Attorney General no.", "50/11, regarding, inter alia, medical conditions, instituted before the constitutional jurisdictions on 12 August 2011 and concluded on appeal on 12 November 2012. (b) The Court’s assessment 46. In the context of complaints about inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention, and compensation for the damage or loss sustained on account of such conditions (see Roman Karasev v. Russia, no. 30251/03, § 79, 25 November 2010, and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007).", "If an applicant has been held in conditions in breach of Article 3, a domestic remedy capable of putting an end to the on-going violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she has endured the inadequate conditions, what remains relevant is that he or she should have an enforceable right to compensation for the violation that has already occurred. Where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to this provision requires, in the Court’s view, the States parties to establish, over and above a compensatory remedy, an effective mechanism in order to put an end to such treatment rapidly (see Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, §§ 98-99, 10 January 2012 and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 50, 8 January 2013). The need, however, to have both of these remedies does not imply that they should be available in the same judicial proceedings. Further, in the context of complaints that there was a lack of adequate care for prisoners suffering from serious illnesses the Court has held that a preventive remedy ought to have the potential to bring direct and timely relief (see Goginashvili v. Georgia, no.47729/08, § 49, 4 October 2011, Makharadze and Sikharulidze v. Georgia, no.35254/07, § 52, 22 November 2011 and Čuprakovs v. Latvia, no. 8543/04, § 50, 18 December 2012).", "47. It is incumbent on the Government claiming non-exhaustion of domestic remedies to satisfy the Court that a remedy was effective and available, both in theory and in practice at the relevant time (see Menteş and Others v. Turkey, 28 November 1997, Reports of Judgments and Decisions 1997-VIII, § 57). 48. The Court notes that the case of Zavoloka (cited above) has been misinterpreted by the Government, as it is not comparable to the present case where the applicant, as a detainee, was under the responsibility of the authorities. Contrary to what was submitted by the Government, according to the Court’s case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v. the United Kingdom [GC], no.", "29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2001-III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 97-98, ECHR 2002-II). In Keenan, for example, the Court found that there had been significant defects in the medical care provided to a mentally-ill person known to be at risk of suicide, which amounted to a violation of Article 3. The Court concluded that the applicant should have been able to apply under Article 13 for compensation for her non-pecuniary damage and the damage suffered by her son before his death.", "49. The Court notes that, as partly acknowledged by the Government, the law of tort did not provide for compensation for non-pecuniary damage, which it notes, is different to a loss of opportunity which is considered as pecuniary damage in Convention case-law. It follows that an action in tort may not give rise to compensation for the non-pecuniary damage suffered (see, conversely, Nocha v Poland, (dec.) no. 21116/09, 27 September 2011). Neither is it a preventive remedy which could put an end to such treatment rapidly (see Čuprakovs, cited above, § 55).", "In consequence it cannot be considered an effective remedy under Article 3 for the purposes of a complaint of conditions of detention and lack of adequate medical treatment. 50. As to the remedy provided by the constitutional courts, the Court considers that, as appears from the cases brought before it, such an action provides a forum that guarantees due process of law and effective participation for the aggrieved individual. In such proceedings, courts can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. Such courts can also make an award of compensation for non-pecuniary damage and there is no limit on the amount which can be granted to an applicant for such a violation (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no.", "26771/07, § 69, 5 April 2011, in relation to Article 1 of Protocol No. 1, and Zarb v. Malta, no. 16631/04, § 51, 4 July 2006, in relation to Article 6). The ensuing judicial decision will be binding on the defaulting authority and enforceable against it. The Court is therefore satisfied that the existing legal framework renders this remedy capable, at least in theory, of affording appropriate redress.", "The question that arises is whether it can be said that the proceedings are conducted speedily (see, by implication, Ananyev and Others, cited above, § 109). The Court observes that the speed of the procedure for remedial action may also be relevant to whether it is practically effective in the particular circumstances of a given case for the purposes of Article 35 § 1 (see, mutatis mutandis, McFarlane v. Ireland [GC], no. 31333/06, § 123, ECHR 2010). 51. The Court notes that the two cases cited by the Government as having been treated in a timely manner both concerned return orders of children following wrongful removal.", "The only other case they cited concerned a complaint under Article 5 § 3 which took more than seven months to be decided. The only case regarding inadequate medical assistance was provided by the applicant. The Court observes that it took the constitutional courts exactly a year and three months to determine it. The Court considers that such a delay is of concern in the context of complaints about conditions of detention and, particularly, in respect of those concerning inadequate medical treatment, where irreparable damage may be caused over time. 52.", "The Court considers that the Government should normally be able to illustrate the practical effectiveness of a remedy with examples of domestic case-law (see Ananyev and Others, cited above, § 109), but it is ready to accept that this may be more difficult in smaller jurisdictions where the number of cases of a specific kind may be fewer than in the larger jurisdictions. Nevertheless, it is not irrelevant that the only case comparable to the present one which has been brought to the Court’s attention illustrates the ineffectiveness of this remedy, in so far as it could not put an end to the treatment complained of rapidly. 53. Thus, while the Court cannot rule out that constitutional redress proceedings dealt with as urgent, may in another case be considered an effective remedy for the purposes of complaints of conditions of detention and lack of adequate medical treatment under Article 3, the state of domestic case-law as shown in the present case does not allow the Court to find that the applicant was required to have recourse to such a remedy. 54.", "It follows that the Government’s objection is dismissed. 55. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits (a) The parties’ submissions 56. The applicant complained that he had not received prompt or adequate medical assistance while in detention. Although he acknowledged that inmates underwent examinations upon arrival at the facility, he complained that his referral to a hospital had not been without difficulty and took months, while inmates had often been required to pay for treatment themselves, as in his case. He submitted that he had been referred to hospital in January 2010 following complaints that he had been suffering from headaches, but had only obtained an appointment for 8 March 2011, more than a year later, which could not be considered prompt medical attention.", "57. The applicant submitted that the reports filed by the Government were of a dubious nature. Referring to his Lithuanian medical certificate, the applicant noted that the documents submitted by the Government showed that, in any event, no attention had been given to the precarious situation of his cerebral blood vessel and that periodic screening, as had been recommended by his Lithuanian doctor, had not taken place. 58. The applicant further complained about the conditions of his detention.", "He alleged that he had not been provided with hot water or a heater, and that none of the inmates had been allowed to have their own heater, despite the cells being damp. The applicant acknowledged that hot water could be stored in small flasks, which had been available for purchase from the prison authorities. However, the amount of hot water they held would have been insufficient for personal hygiene purposes. Moreover, he submitted that there had been no drinking water supply to his cell, as the tap water had been of a rusty diluted colour. He stated that even the buildings of the national courts had warnings that tap water was undrinkable.", "59. The Government submitted that the prison had a clinic manned by qualified nurses on fourteen-hour shifts. In-house doctors treated inmates on a daily basis. A psychiatrist and a psychologist were also available. On admission to the prison, the applicant had undergone a medical examination.", "During his pre-trial detention he had undergone further examinations and had been referred to Mater Dei Hospital when necessary, including for dental treatment. He had also been assessed by an in-house psychologist, but had refused to attend any follow-up sessions. Similarly, he had failed to attend one of his hospital appointments. In conclusion, they submitted that the applicant had been given adequate medical treatment for the purposes of Article 3. They made reference to the medical report dated 9 August 2011 (see paragraph 12 above) and the further documents submitted (see paragraph 14 above).", "The Government further noted that the applicant had not been requested to pay for any of his treatment, and that no evidence to the contrary had been submitted. 60. The Government submitted that while in custody, the applicant had been allocated a single-person cell in Division 3, measuring 3.6 x 2.5 m (9 sq.m.) equipped with its own sanitary facilities (a toilet and a handbasin). His cell had a window and electric lighting, enabling him to read.", "He had been provided with the necessary blankets and warm clothing during winter (when temperatures at night had been around 6oC) and with two hot meals and breakfast daily. Only cold water had been supplied to his cell for security reasons i.e. to prevent officers being scalded with hot water, which had been purified by means of a reverse osmosis filtration system. Each division had been provided with a hot water dispenser for hot drinks, and inmates had been allowed to keep a thermos flask of hot water in their cells overnight for the same purposes. Division 3 had also been equipped with a four-cubicle hot and cold shower room, to which inmates had daily unrestricted access.", "Cells were unlocked at 7.30 a.m. by prison guards distributing hot drinks to prisoners and were left open until 12.30 p.m. They were unlocked again at 2 p.m. and locked at 8.30 p.m., during which time the inmates were free to move around and access the exercise yard. Other available amenities included a library, a gym, a church, a school, workshops and occasional cultural events. 61. Lastly, the Government submitted that there was no evidence to suggest that the applicant’s health had been affected.", "(b) The Court’s assessment 62. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). In examining allegations of inadequate medical care in prison, one must consider how ill the detained person is, what medical treatment he receives, and whether his condition allows detention (see Telecki v. Poland (dec.), no. 56552/00, 3 July 2003, and Farbtuhs v. Latvia, no.", "4672/02, § 57, 2 December 2004). 63. On the whole, the Court takes a flexible approach 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).", "The “adequacy” of medical care in this respect remains the most difficult element to determine. The mere fact that a detainee is 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 ensure that a comprehensive record is kept of the detainee’s state of health and his 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 (see Hummatov, cited above, §§ 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).", "Failure to provide proper medical aid to a detainee would not fall under Article 3 unless there was an actual detriment to his physical or mental condition, or avoidable suffering of a certain intensity, or an immediate risk of such detriment or suffering (see Lebedev v. Russia (dec.), no.13772/05, § 176, 27 May 2010). 64. More generally, 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). Quite apart from the necessity of having sufficient personal space, other aspects of material conditions of detention are relevant for the assessment of whether they comply with Article 3.", "Such elements include access to outdoor exercise, natural light or air, the availability of ventilation, the adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Ananyev and Others, cited above, § 149 et seq., and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011). The length of time a person is detained in particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, 8 November 2005).", "65. In the present case, the Court has therefore to establish whether the applicant’s state of health called for any specialist treatment, whether that treatment was provided, and, if not, whether that situation, alone or in combination with the general conditions of detention, caused detriment to his physical and mental condition, or avoidable suffering or risk thereof, constituting a breach of Article 3. 66. The Court firstly notes that there appears to be no reason to doubt the reports made available by the Government. It notes that the applicant had a pre-existing medical condition at the time of his arrest and would naturally have suffered from its symptoms while in detention.", "In fact, he repeatedly suffered from headaches, and was taking some kind of medication in the form of paracetamol and later another type of analgesic, while stronger medication was later made available to him for purchase. However, despite the applicant’s condition and his recurring headaches being brought to the authorities’ attention at no point were the recommended brain scans carried out. The only action taken by the authorities during the two year period was to fix an appointment at the Neurology Department for March 2011, despite the fact that the applicant started complaining of headaches as early as January 2010, that is to say more than a year earlier. 67. In so far as the applicant referred to the lack of access to a psychologist, the Court notes that documents show that he had been informed that he could seek such help if he so wished.", "Although the applicant claimed that when he sought such help it was not forthcoming, he was unable to provide any record of his requests or refusals. In the light of this, some relevance must be attributed to the fact that the medical reports produced by the Government show that the applicant was reluctant to receive medical care from the prison doctors (see also Lebedev (dec.) cited above; contrast Sarban, cited above, § 90). 68. As to whether the conditions of the applicant’s detention exacerbated his health condition, the Court notes that while the Government failed to provide any evidence to substantiate their description of the prison conditions, the applicant did not contest most of those statements. The parties in fact disagreed only as to the amount of light in his cell, the quality of the drinking water provided free of charge and the need for appropriate heating.", "The Court considers that, even assuming that the tap water was undrinkable, the applicant could have made use of the hot potable water available nearly all day long or alternatively purchased his own bottled water (to which he had access) if he so wished. Moreover, the fact that only cold water was available in each cell cannot be considered treatment contrary to Article 3 (see Tellissi v. Italy, (dec.) no. 15434/11, 5 March 2013). As to the amount of light, while no dimensions of the window were put forward by either of the parties, the Court notes that the applicant had free access to an external yard nearly all day long. Lastly, as to heating, the Court is uneasy about the fact that no heating whatsoever was available in the prison.", "Even acknowledging that Malta is graced with warm temperatures, the applicant’s cell environment was very humid, as can be seen from photos submitted by him, showing rising damp on both walls adjacent to his bed. Nevertheless, while this situation was not addressed by the authorities, the Court notes that the applicant has not claimed that he was refused extra blankets or warm clothing. 69. As unfortunate as certain elements of the prison setting may have been, the Court notes that the applicant has not proved that there was an actual detriment to his physical or mental condition, or avoidable suffering of a certain degree of intensity, or an immediate risk of such detriment or suffering. The Court takes note of the Lithuanian doctor’s certificate of 2008, which anticipated possible complications and recommended annual scans.", "However, the applicant did not produce any evidence showing that such complications had indeed occurred, or that the conditions of detention exacerbated those risks. In fact, he did not even show what course of action he had taken to seek medical treatment once he had been released on bail. Furthermore, in his application the applicant admitted that he failed to attend the appointment fixed for him at the Neurology department of the hospital, preferring to wait and seek treatment once released, indicating that he was not particularly concerned about the urgency of his condition. 70. Having regard to the above, the Court is not convinced that the overall conditions of detention, coupled with the medical treatment he received in prison and at the general hospital, subjected the applicant to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, his health and well-being were not adequately protected.", "71. It follows that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 72. The applicant complained of a violation of Article 5 § 4 of the Convention, in so far as he did not have an effective remedy to contest the lawfulness of his detention arising from the repeated refusals to grant him bail and high financial guarantees eventually imposed for bail.", "The provision reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 73. Although the applicant invoked Article 13, the Court considers that since Article 5 § 4 constitutes a lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II), this complaint should be analysed exclusively under Article 5 § 4. A. Admissibility 1. The Government’s objection of non-exhaustion of domestic remedies 74.", "The Government submitted that the applicant had not exhausted domestic remedies. 75. The applicant submitted that none of the available remedies satisfied the requirements of Article 5 § 4. 76. The Court considers that this objection is closely linked to the substance of the applicant’s complaint and that its examination should therefore be joined to the merits.", "77. It notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 78. The applicant submitted that he did not have an effective remedy to challenge the lawfulness of his detention. 79. He noted that, although the law had changed following the judgments in Aquilina v. Malta ([GC], no.", "25642/94, ECHR 1999‑III) and T.W. v. Malta ([GC], no. 25644/94, 29 April 1999), the Criminal Code provided for the legality of a person’s arrest to be determined in its initial stages, but that procedure was not repeated during the months and years during which the person was kept in detention. While it is true that under Article 401(1) of the Criminal Code an accused had to be brought before the court at least once every fifteen days, this has been taken to refer to the original period of one month during which the Court of Magistrates heard evidence and decided whether a person was to be committed for trial or not. In practice, it did not apply during the following periods of further extension of the inquiry provided for by Article 401 (rinviji).", "80. The applicant further submitted that Article 409A of the Criminal Code, cited by the Government, did not apply to his case as it concerned unlawful detention not in connection with any offence with which a person is charged or accused before a court. 81. The applicant further submitted that Article 412B, also cited by the Government, and particularly its subarticle 2, referred back to bail applications. The facts of the case demonstrated that the applicant had used that remedy over and over again, but to no avail.", "82. Lastly, as to constitutional proceedings, the applicant cited Kadem v. Malta (no. 55263/00, 9 January 2003), reiterating that the listing of such an application could take up to a month. He cited as an example a recent complaint under Article 5 § 3 (Kenneth Gatt v. Attorney General, no. 22 of 2012), where proceedings were instituted on 10 April 2012, listed a month later and decided another month and a half later at first-instance.", "They were decided on appeal on 23 November 2012, and therefore clearly could not be considered speedy for the purposes of Article 5 § 4. 83. Moreover, the applicant emphasised that none of these remedies, save for the last, which failed the test for speediness, could enter into the question of whether his detention was Convention compatible. (b) The Government 84. The Government submitted that following the judgments of Aquilina and T. W. v. Malta (both cited above), the Criminal Code was amended to enable the Court of Magistrates to examine all the grounds of the lawfulness of a person’s detention with a prompt and automatic review which could enable release.", "The Government stated that this had been confirmed by the Court in Stephens v. Malta (no. 2) (no. 33740/06, 21 April 2009). The Government further cited Article 574A(1), (5) and (6), noting that as soon as a person in custody was arraigned, the Court of Magistrates had to examine whether the arrest was founded on a provision of Maltese law, thereby examining the lawfulness of the detention. Moreover Article 574A(7) provided a time-limit beyond which a person could not be refused bail.", "The Government further submitted that following arraignment and remand in custody, Article 401(1) came into play, which provided that an accused had to be brought before a court every fifteen days for the court to decide whether he or she should again be remanded in custody. 85. The Government further submitted that the applicant could have brought summary proceedings under Article 409A. 86. Another remedy available to the applicant was by virtue of Article 412B of the Criminal Code read in conjunction with Article 525(2A), where following the stage covered by Article 574A, a person could challenge the lawfulness of detention and demand release.", "Such an application was separate and distinct from a bail application. 87. A further remedy was available through the courts of constitutional competence by way of a request for referral. The Government noted that the case cited by the applicant had not arisen from a referral, and that an example of such a case was The Police v. Alexei Kostin, which was referred on 21 July 2011 and finally decided on 14 November 2011 as no appeal was lodged. The case concerned a referral to the constitutional courts to determine whether the extradition of Kostin to Estonia would be tantamount to a breach of Article 3 of the European Convention on account of his prison conditions.", "88. The Government submitted that all the above were effective procedures through which the applicant could have challenged the lawfulness of his detention. 2. The Court’s assessment (a) General principles 89. Under Article 5 § 4, an arrested or detained person is entitled to bring proceedings for a review by a court bearing upon the procedural and substantive conditions which are essential for the “lawfulness” of his or her detention (see Jecius v. Lithuania, no.", "34578/97, § 100, 31 July 2000, ECHR 2000). In particular, the competent court should examine not only compliance with the procedural requirements set out in domestic law, but also the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001 and Bochev v. Bulgaria, no. 73481/01, § 64, 13 November 2008). The review, being intended to establish whether the deprivation of the individual’s liberty is justified, must be sufficiently wide to encompass the various circumstances militating for or against detention (see Kadem v. Malta, no.", "55263/00, § 42, 9 January 2003). The notion of “lawfulness” under Article 5 § 4 of the Convention has the same meaning as in Article 5 § 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention not only in the light of the requirements of domestic law, but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181 and Louled Massoud v. Malta, no. 24340/08, § 39, 27 July 2010). 90.", "According to the Court’s case-law, Article 5 § 4 refers to domestic remedies that are sufficiently certain, otherwise the requirements of accessibility and effectiveness are not fulfilled. The remedies must be made available during a person’s detention with a view to that person obtaining a speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Kadem, cited above, § 41 and Sadaykov v. Bulgaria, no. 75157/01, § 32, 22 May 2008). In fact, Article 5 § 4, also proclaims the right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of that detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).", "(b) Application to the present case 91. The Court notes that the parties disagreed as to the effectiveness of the remedies invoked. It will therefore consider each remedy on the basis of the information available and the parties’ submissions. Reiterating that the Government’s objection has been linked to the merits, the Court points out that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that a remedy was effective and available, both in theory and in practice at the relevant time (see Menteş and Others, cited above, § 57). Nevertheless, the Court notes that, save for citing the constitutional case of The Police v. Alexei Kostin, the Maltese Government have not submitted a single domestic judgment in support of any of the remedies they claim to be effective for the purposes of Article 5 § 4.", "92. As to Article 401 of the Criminal Code, the Court has no reason to doubt that following the legislative amendments, the relevant courts are now competent to order release. Nevertheless, no information or examples have been submitted in relation to the scope of such a review, in particular in respect of whether it could look into Convention compatibility. The Government limited their observations to noting that the Court of Magistrates could examine all the grounds of lawfulness as accepted by the Court in Stephens (No. 2), cited above.", "However, the Court notes that in Stephens (No. 2) the Court solely found, in the specific circumstances of that case, namely after the Constitutional Court had already found a violation of Article 5 § 4 (precisely because of the Court of Magistrates’ failure to assess the lawfulness of the applicant’s detention) and had remitted the case back to the Court of Magistrates for a fresh assessment, that the latter had speedily examined the lawfulness of the applicant’s detention (based on a plea of lack of jurisdiction). Moreover, besides the uncertainty in relation to the scope of that review, the respondent Government in the present case have not denied the applicant’s submission that, in practice, the bringing of an accused before a court every fifteen days pursuant to Article 401(1) applied to the initial month during which an inquiry was meant to be concluded only, and not to any subsequent monthly extensions. In the light of this, the Court is not convinced that the remedy referred to under Article 401 of the Criminal Code could cover cases where the examination of lawfulness related to continued detention falling foul of Article 5 § 3 because of repeated refusals to grant bail or to make it accessible and effective. 93.", "Secondly, the Government relied on Article 574A of the Criminal Code. The Court notes that it is undisputed that the initial subarticles of the provision relate to bail applications, which cannot be considered an adequate remedy for the purposes of the present case. However, Article 574A(6) makes reference to an examination of lawfulness, failing which the person is to be unconditionally released. Nevertheless, the Court observes that, as is clear from the wording of that provision, such an assessment is limited to ascertaining whether the continued detention is founded on any provision of law. It follows that the said remedy cannot be considered to be effective for the purposes of Article 5 § 4 in relation to the complaint in the present case, where an assessment was required of the decisions regarding bail under Article 5 § 3, and where his detention was in fact founded on a provision of the law.", "94. Thirdly, the Government relied on Article 409A. The Court notes that, as pointed out by the applicant, the provision provides a remedy for persons in detention “not in connection with any offence with which he is charged or accused”. It follows that the remedy provided for by the said provision does not apply in the applicant’s case. Moreover, the Court has already held that the remedy under Article 409A did not provide a review of the “lawfulness” of detention not only in the light of the requirements of domestic law, but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1 (see Louled Massoud, cited above, § 43).", "95. As to the Government’s claim that another remedy available to the applicant was afforded by Article 412B of the Criminal Code read in conjunction with Article 525(2A), there seems to be no doubt that this remedy was applicable and available to the applicant, who was a person “charged or accused before the Court of Magistrates”. Moreover, it also appears that such applications must be listed for hearing with urgency therefore it is also possible that such a remedy could satisfy the speediness requirement. However, even accepting that this remedy was separate and distinct from bail applications, it remains to be determined whether the scope of the remedy was such as to satisfy the requirements of Article 5 § 4, for only in that case could this course of action be a potentially effective remedy capable of satisfying the said requirements. 96.", "The Court notes that the relevant provision referred to applications for release from custody where it was claimed that continued detention was “not in accordance with the law”. Reiterating that “lawfulness” of detention must be examined not only in the light of the requirements of domestic law, but also of the Convention, the Court reiterates that for the remedy invoked to be considered effective, it is crucial that the scope of the examination it provides covers also Convention compatibility. The Court observes that under Article 409A, cited by the Government as an available remedy (but which the Court found to be inapplicable to the applicant’s case), the relevant courts entrusted with hearing applications under that Article had previously held that they were not competent to look into other circumstances which could render a person’s detention unlawful, such as an incompatibility with the rights guaranteed by the Constitution or the Convention when there was a clear law authorising continued detention (see Louled Massoud, cited above, § 43). It follows that the Court cannot ignore that the same interpretation may also have been adopted by the Court of Magistrates in relation to applications under Article 412B. Bearing in mind that the Court must assess the effectiveness of remedies not only in theory but also in practice (see Zunic v. Slovenia, (dec.) no.", "24342/04, 18 October 2007), in the absence of any submissions in this regard by the Government, or any examples of the courts’ interpretation and use of this provision to contradict the applicant’s claim as to the limited scope of this remedy, the Court cannot, for the purposes of the present case, consider it a suitable course by which the lawfulness of the applicant’s detention could be determined in the light of the Convention. 97. Lastly, the Government referred to constitutional redress proceedings. The Court starts by noting that it has not been proven that there is a difference in the length of such proceedings depending on whether they were made by way of a referral by another court or brought directly by an individual. Moreover, while it is clear that, unlike the above-mentioned remedies, such jurisdictions would be competent to look at the lawfulness of the applicant’s detention in the light of Article 5 § 3, the Court notes that it has held on numerous occasions that constitutional proceedings in Malta are rather cumbersome for Article 5 § 4 purposes, and that lodging a constitutional application could not ensure a speedy review of the lawfulness of an applicant’s detention (see Sabeur Ben Ali v. Malta, no.", "35892/97, § 40, 29 June 2000; Kadem, cited above § 53; Stephens (No. 2), cited above, § 90; and Louled Massoud, cited above § 45). Where an individual’s personal liberty is at stake, the Court has strict standards concerning the State’s compliance with the requirement of a speedy review of the lawfulness of detention (see, for example, Kadem, cited above,§§ 44‑45; Rehbock v. Slovenia, no. 29462/95, § 82-86, ECHR 2000‑XII, where the Court considered periods of seventeen and twenty-six days excessive for deciding on the lawfulness of the applicant’s detention; and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement).", "The Court notes that the only case submitted by the Government, quite apart from the fact that it dealt with a different subject matter, took more than three-and-a-half months to be decided. Thus, the Government have not submitted any information or case-law capable of casting a new light on the matter. In these circumstances, the Court remains of the view that pursuing a constitutional application would not have provided the applicant with a speedy review of the lawfulness of his detention. 98. The foregoing considerations are sufficient to enable the Court to conclude that it has not been shown that the applicant had at his disposal an effective and speedy remedy under domestic law for challenging the lawfulness of his detention.", "99. The Government’s objection of non-exhaustion of domestic remedies (see paragraph 74 above) must accordingly be rejected. The Court therefore concludes that Article 5 § 4 of the Convention has been violated. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 100.", "The applicant further complained under Article 5 §§ 1 and 3 that he had been arrested on reasonable suspicion of having committed the offences, but that the repeated refusals of the courts to grant him bail, coupled with the fact that there was no time-limit under domestic law for keeping him in custody, had made his detention unlawful. Moreover, when he was eventually granted bail, the financial guarantees imposed were so high that his actual release on bail had been impossible. 101. The Court notes that the applicant’s complaint under Article 5 § 1 overlaps to a large extent with his complaint under Article 5 § 3 regarding, inter alia, the authorities’ failure to adduce relevant and sufficient reasons justifying the extension of his detention pending trial. Indeed, Article 5 § 1 (c) is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, whereas Article 5 § 3 deals with the possible justification for the continuation of such detention.", "The Court therefore considers it to be more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011) 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.” A. Admissibility 1. The Government’s objection of non-exhaustion of domestic remedies (a) The parties’ submissions 102. The Government submitted that the applicant had failed to exhaust domestic remedies, without submitting any details on the matter.", "103. Relying on Kadem (cited above), the applicant submitted that constitutional redress proceedings were not an appropriate remedy for the purposes of his complaint. Moreover, with respect to his complaint regarding the high financial guarantees imposed, he noted that the Constitutional Court’s practice when upholding such complaints was to remit the case to the same court which had imposed the bail conditions (Richard Grech v. the Attorney General, judgment of the Constitutional Court of 28 May 2010; and Maximilian Ciantar v. the Attorney General, judgment of the Constitutional Court of 7 January 2011). (b) The Court’s assessment 104. An action for damages cannot be seen as an effective remedy in respect of complaints under Article 5 § 3 about the excessive length of time spent on remand.", "Where the person concerned is still in custody, the only remedy which may be considered sufficient and adequate is one which is capable of leading to a binding decision for his or her release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008). In fact, the Court has already considered, at least by implication, that the remedy under Article 5 § 4 of the Convention is the remedy required for a violation of Article 5 § 3, in that where an applicant complained of having no effective remedy to challenge the lawfulness of the length of his pre-trial detention, the complaint would be examined under Article 5 § 4 (see, inter alia, Cahit Demirel v. Turkey, no. 18623/03, § 20-34, 7 July 2009, and Ulu and Others v. Turkey, nos. 29545/06, 15306/07, 30671/07, 31267/07, 21014/08 and 62007/08, § 8, 7 December 2010).", "Moreover, the Court has clearly held that where an accused remains in custody despite an order for his or her release on bail, the question as to whether or not the bail amount is justified is an issue concerning the lawfulness of the continued detention, and must be subject to review by a court, in accordance with Article 5 § 4 (see Staykov v. Bulgaria, no. 49438/99, §§ 100-101, 12 October 2006). 105. In light of the above, given that the applicant was in custody at the time of the introduction of his complaint and having already found that he did not have a remedy under Article 5 § 4 (paragraph 98 above), the Government’s objection is dismissed. B.", "Merits 1. The parties’ submissions (a) The applicant 106. The applicant complained that he had been repeatedly refused bail by means of stereotyped decisions, as also admitted by the Government in their observations. He noted that two of the other individuals charged had been immediately granted bail, as there had been no objection on the part of the prosecution because they had admitted the offences. It followed that the granting of bail had become only a reward for helping the police.", "107. The applicant further submitted that the principal witnesses in his case had been the police, as his accomplices had refused to give evidence. The risk of interfering with evidence had therefore been low. 108. Moreover, the prosecution had dragged its feet, in that proceedings before the Court of Magistrates had still been on-going and no bill of indictment had been issued.", "This delay had not been because key witnesses had to be heard. On the contrary, a lot of time had been wasted trying to obtain evidence, the relevance of which had been debatable. More importantly, on 26 January 2010 the Court of Magistrates had ordered the prosecution to produce the remaining evidence by the next hearing. Nevertheless, nearly four years later the prosecution was still calling witnesses who had either refused to testify or who had already testified. It followed that the authorities had not shown the required diligence.", "Furthermore, despite the time that had passed after the preliminary hearings, no assessment had been made as to whether reasonable suspicion had still existed. 109. Furthermore, the applicant submitted that the high financial conditions imposed had denied him the benefit of bail. He noted that after various requests, the EUR 50,000 deposit was reduced to EUR 30,000, but the personal guarantee was raised from EUR 15,000 to EUR 60,000. The applicant argued that both sums were of relevance, citing the case of Gatt v. Malta (no.", "28221/08, ECHR 2010), in which it was held that the forfeiture of both sums would occur when a court in the exercise of its discretion considered that there was a breach of bail conditions, even if it was not related to appearance at trial. He further submitted that although he was an accountant by profession, he had not been practising while in Malta. Lastly, he highlighted that the unreasonableness of the amounts was evident, given the length of time he had remained in detention because of his inability to pay. (b) The Government 110. The Government submitted that Article 5 § 3 did not place an obligation on the authorities to release a detainee on account of ill-health.", "They submitted that whether an applicant’s condition was compatible with detention was largely a matter for the domestic courts to decide. Under Maltese law, the courts were free to grant or deny bail depending on the circumstances of a case, and no presumptions existed, unlike other cases examined by the Court such as Ilijkov v. Bulgaria (no. 33977/96, § 77, 26 July 2001). 111. They noted that the pre-trial detention in the applicant’s case lasted ten months and thereafter bail was granted, despite the fact that it had only become effective after twenty-one months of detention (following a substantial reduction of the bail deposit).", "The Government submitted that the decisions refusing bail had contained reasons justifying the refusals. On 17 December 2009 bail had initially been refused, on the grounds that the applicant might abscond as he had no ties with Malta. On 24 December 2009, bail had been refused on account of (i) the international ramifications of the crime; (ii) the seriousness of the offences; (iii) the applicant’s lack of ties with Malta; (iv) the serious risk that the proceedings could be thwarted; and (v) that the possibility of issuing a European arrest warrant was not determinative. These same reasons were given in the subsequent decisions refusing bail. 112.", "The Government submitted that while the applicant was being denied bail, key witnesses, among the various individuals involved in the offences, were being heard. When there was no longer any risk that the accused would interfere with the course of justice, bail was granted subject to conditions. Those bail refusals had been given after hearing the applicant and following a meticulous examination of the circumstances of the case, including the seriousness of the offences and the fact that he had posed a flight risk. Moreover, in the conduct of the proceedings the domestic courts had displayed special diligence. 113.", "The Government submitted that the law relevant to the granting of bail, namely Article 576 of the Criminal Code, reflected the Court’s case-law. They noted the difficulty faced by the domestic courts in assessing the actual wealth of a foreign accused and it was therefore, in their view, reasonable that the amount of bail initially fixed had not been low, to prevent the deterrent effect of such guarantees being avoided. The Government noted that the only evidence provided by the applicant to support his bail application of 3 November 2009 had been documents showing that he had financial support from his mother, sister and a friend. Evidence from the Lithuanian counsel and a third party had been heard a month later, on 17 December 2009. More information had been provided at intervals (December 2010, January 2011 and April 2011).", "Thus, in the Government’s view, there had been insufficient details about the applicant’s financial and personal circumstances before 28 April 2011 to enable the court to assess the reasonableness of the financial assurances imposed. 114. The Government further submitted that the courts in the present case had abided by the law, as they had fixed the amount of bail after hearing and evaluating evidence. Furthermore, the courts had reviewed the situation regularly and had amended the bail conditions from time to time. The Government submitted that personal guarantees were not subject to forfeiture unless bail conditions were breached; it was only the deposit that needed to be paid, and that had been reduced from EUR 50,000 to EUR 15,000, which was an insignificant amount compared to the nature and the quality of the offences and the term of punishment to which they were liable.", "The sum had to be considered as low, considering that the applicant was an accountant by profession and therefore could not be regarded as being of average means. Thus, the courts had struck a fair balance between the sum established and the protection of the applicant’s rights in conformity with Article 5 § 3. 2. The Court’s assessment (a) General principles 115. According to the Court’s case-law, the presumption under Article 5 is in favour of release (see Bykov v. Russia [GC], no.", "4378/02, § 61, 10 March 2009). It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and Labita v. Italy [GC], no.", "26772/95, § 152, ECHR 2000-IV). 116. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Yankov v. Bulgaria, no.", "39084/97, § 55, ECHR 2003‑XII (extracts), Filipov v. Bulgaria, no. 40495/04, § 22, 10 June 2010 and Ilijkov, cited above, § 77). 117. The burden of proof in these matters should not be reversed by making it incumbent on the detained person to demonstrate the existence of reasons warranting his release (ibid, § 85 and). Justification for any period of detention, no matter how short, must be demonstrated by the authorities convincingly (see Sarban, cited above §§ 95 and 97, and Castravet v. Moldova, no.", "23393/05, §§ 32-33, 13 March 2007). Quasi-automatic prolongation of detention contravenes the guarantees set forth in Article 5 § 3 (see Kalashnikov v. Russia, no. 47095/99, §§ 116‑118, ECHR 2002‑VI and Tase v. Romania, no. 29761/02, § 40, 10 June 2008). 118.", "Where the only remaining reasons for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance (see Wemhoff v. Germany, 27 June 1968, § 15, Series A no. 7 and Letellier v. France, 26 June 1991, § 46, Series A no. 207). 119. According to the Court’s case‑law, the guarantee provided for by Article 5 § 3 of the Convention is designed to ensure the presence of the accused at the hearing (see Mangouras v. Spain [GC], no.", "12050/04, § 78, ECHR 2010). Therefore, the amount of bail must be set by reference to the detainees’ assets, and with due regard to the extent to which the prospect of its loss will be a sufficient deterrent to dispel any wish on their part to abscond (see Neumeister v. Austria, 27 June 1968, § 14, Series A no. 8). Since the issue at stake is the fundamental right to liberty guaranteed by Article 5, the authorities must take as much care in fixing appropriate bail as in deciding whether or not continued detention is indispensable. Furthermore, the amount set for bail must be duly justified in the decision fixing bail and must take into account the accused’s means (see Mangouras, cited above, § 79).", "The domestic courts’ failure to assess the applicant’s capacity to pay the sum required may lead the Court to find a violation. However, the accused whom the judicial authorities declare themselves prepared to release on bail must faithfully submit sufficient information, that can be checked if need be, about the amount of bail to be fixed (see Toshev v. Bulgaria, no. 56308/00, § 68, 10 August 2006). (b) Application to the present case 120. Turning to the instant case, the Court observes that the applicant spent ten-and-a-half months in detention before he was, in theory, granted bail.", "During this period, the courts examined his application for release at least six times. After the first three months of detention, the applicant’s applications were refused by two decisions in December 2009 which the Court considers had given relevant and sufficient reasons justifying his detention, at least at those initial stages of the proceedings. However, despite the Criminal Court’s warning of 28 December 2009 that its decision would be subject to review at a later date and its instruction that the proceedings should be continued with speed and diligence (see paragraph 16 above), the subsequent decisions over the following seven months refused the applicant’s applications using the same formula. They each referred to the previous decisions refusing bail and failed to give details either of the grounds for the decision in view of the developing situation or of whether the original grounds remained valid despite the passage of time. 121.", "Moreover, the original decisions were based on the risk of the applicant absconding and potentially obstructing the course of justice by interfering with witnesses. The Court, however, observes that the flight risk posed by an accused necessarily decreases with the passage of time spent in detention (Neumeister, cited above, § 10). Similarly, the risk of pressure being brought to bear on witnesses can be accepted at the initial stages of the proceedings (see Jarzyński v. Poland, no. 15479/02, § 43, 4 October 2005). In the long term, however, the requirements of the investigation do not suffice to justify the detention of a suspect, as in the normal course of events the risks alleged diminish over time as inquiries are effected, statements are taken and verifications are carried out (see Clooth v. Belgium, 12 December 1991, § 44, Series A no.", "225.) Moreover, the risk of the accused hindering the proper conduct of the proceedings cannot be relied upon in abstracto; it has to be supported by factual evidence (see Becciev v. Moldova, no. 9190/03, § 59, 4 October 2005). In the present case, neither the domestic courts nor the Government have substantiated any such risk. It follows that the repeated extension of the applicant’s detention pending trial cannot be said to have been based on relevant and sufficient reasons.", "122. Following those decisions, on 16 July 2010 the applicant was granted bail subject to conditions, including a deposit of EUR 50,000 and a personal guarantee of EUR 15,000. Following two unsuccessful requests to have these sums lowered, upon his third request, on 22 February 2011 the deposit was reduced to EUR 40,000, but the personal guarantee increased to EUR 60,000. It took another two months (April 2011) for the deposit to be reduced to EUR 30,000 and the personal guarantee to EUR 15,000. The applicant finally managed to satisfy that condition and was eventually released only on 7 July 2011.", "The Court considers the fact that the applicant remained in custody for another twelve months after being granted bail as a strong indication that the domestic courts had not taken the necessary care in fixing appropriate bail. The Court, moreover, observes that none of the domestic courts’ judgments refer to an inability to make a balanced decision on account of a lack of documentation. 123. Lastly, the Court finds it useful to highlight that had the applicant’s pre-trial detention been based on relevant and sufficient reasons, the authorities would still have been required to display “special diligence” in the conduct of the proceedings. The Court observes that after three and a half years of inquiry, two of which he spent in detention, the bill of indictment in respect of the applicant has not yet been filed, despite the warnings by the domestic courts to the prosecution to proceed with speed and diligence (see paragraphs 16 and 17 above).", "This has to be seen against the background of the domestic system, which provides that an inquiry shall be concluded within a month, and that such a period can be extended for two further periods of one month, upon good cause being shown. The time‑line of the proceedings (at paragraph 28 above) reveals repeated hearings where only one witness was heard and repeated adjournments. It thus transpires that in the present case the authorities also failed to conduct the proceedings with the requisite diligence. 124. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 3 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 125. The applicant further complained under Article 5 § 2 Article 6 §§ 1-3, and Articles 7, 8, 10, 14, and 17 of the Convention. 126. The Court notes that the applicant did not institute constitutional redress proceedings, an acceptable remedy under Maltese domestic law for Convention complaints generally (see, for example, Zarb v. Malta, no.", "16631/04, 4 July 2006 in relation to Article 6; and, by implication, Camilleri v. Malta, no. 42931/10, 22 January 2013 in relation to Article 7; Zammit Maempel v. Malta, no. 24202/10, 22 November 2011 in relation to Article 8; Aquilina and Others v. Malta, no. 28040/08, 14 June 2011 in relation to Article 10; and Genovese v. Malta, no. 53124/09, 11 October 2011 in relation to Article 14).", "127. Although the applicant claimed that he did not avail himself of that remedy because such proceedings are costly, he has not argued that he had not been able to apply for legal aid or that he made a request for legal aid which was refused. Consequently his complaints under Articles 6 §§ 1-3, 7, 8, 10, 14, and 17 must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. 128. Moreover, in relation to his complaint under Article 5 § 2, even assuming there was no other reason for finding the complaint inadmissible, the Court notes that the applicant was questioned immediately after his arrest and arraigned in court charged with the relevant offences two days later, in proceedings held in English, a language he is very familiar with as is clear from his application form to the Court which he completed himself.", "129. 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 130. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 131. The applicant claimed 33,000 euros (EUR) in respect of pecuniary damage representing his actual loss of earnings (EUR 1,500 per month for eighteen months (sic. )), and EUR 10,000 in non-pecuniary damage in view of the disruption caused to his life. 132. The Government submitted that the applicant had not substantiated his claim that he had been earning EUR 1,500 a month.", "Moreover, there was no causal link between the violation found and the pecuniary damage requested. As to his claim for non-pecuniary damage, the Government considered it unsubstantiated. However, they submitted that a declaration of a violation would suffice as just satisfaction and that, in any event, an award for compensation for non-pecuniary damage should not exceed EUR 1,000. 133. The Court finds the applicant’s claims in respect of pecuniary damage hypothetical and unsubstantiated in so far as he did not provide any documents or evidence to show that he had been employed immediately prior to his detention.", "Any possibility of being employed while in Malta, cannot be seen as being more than a proposal of intent in respect of employment, one that was subject to uncertainties in the light of which the Court is unable to find that there existed the necessary 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 and deciding on an equitable basis, it awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 134.", "The applicant also claimed EUR 2,500 for the costs and expenses incurred before the Court, bearing in mind the various questions asked by the Court for the purposes of observations and more specifically the complaint in relation to Article 3, which had required an examination of conditions in prison. 135. The Government submitted that the applicant had only requested the services of a lawyer for the purposes of filing his observations and therefore the sum to be awarded should not exceed EUR 1,000. 136. 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, in particular the fact that the services of a lawyer were only engaged for the purposes of observations and that the Court has found a violation under Article 5 of the Convention only, it considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court. C. Default interest 137. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s preliminary objection of non‑exhaustion of domestic remedies in respect of the complaint under Article 5 § 4 of the Convention and declares the complaints concerning Articles 3, 5 §§ 3 and 4 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention and dismisses in consequence the Government’s above-mentioned objection; 4. Holds that there has been a violation of Article 5 § 3 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 (i) EUR 4,000 (four 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; (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 23 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıIneta ZiemeleDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF VRZIĆ v. CROATIA (Application no. 43777/13) JUDGMENT STRASBOURG 12 July 2016 FINAL 12/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vrzić v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 21 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43777/13) 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 two Croatian nationals, Mr Nikola Vrzić and Ms Mila Vrzić (“the applicants”), on 10 June 2013. 2. The applicants were represented by Ms L. Kušan, a lawyer practising in Ivanić Grad and Ms N. Owens, a lawyer practicing in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicants alleged, in particular, that their right to respect for their home had been violated. 4. On 24 March 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1955 and live in Poreč. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 5 February 2009 the applicants and their company, M.N., entered into an agreement with M.G.", "and his company, E. By virtue of that agreement the applicants acknowledged their debt of 580,000 Croatian kunas (HRK) to M.G. and their company’s debt of HRK 180,000 to company E. In order to secure the overall loan, the applicants used their house as collateral, allowing M.G. to register a charge on it. It was stipulated that unless the applicants and their company paid their outstanding debts by 1 May 2009, the creditors were entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house. 8.", "On 20 October 2009 M.G. and his company E. instituted enforcement proceedings against the applicants before the Poreč Municipal Court (Općinski sud u Poreču), seeking the judicial sale of the house. They argued that the applicants had failed to pay their debt to M.G., while the company M.N. had managed to pay only part of its debt to the company E. The applicants’ outstanding debt amounted to HRK 703,643.05. 9.", "On 17 November 2009 the Poreč Municipal Court granted that request and issued an enforcement order against the applicants. The applicants did not appeal and the enforcement order became final on 17 December 2009. 10. On 11 December 2009 the Poreč Municipal Court registered the enforcement order on the applicants’ house in the land register. 11.", "A hearing to assess the value of the property was held before the Poreč Municipal Court on 4 May 2010. Both applicants were properly summoned, but only the first applicant appeared. He undertook to submit an expert valuation of the house within two days. The creditor asked the Municipal Court to commission an expert for that purpose. The first applicant did not comply with his undertaking.", "12. On 16 June 2010 the valuation of the house was carried out on site by a civil engineer and a surveyor, in the presence of the first applicant. 13. The civil engineer submitted his report on 20 August 2010, stating that the value of the house was HRK 2,463,092.48 (approximately 323,860 euros). The applicants made no objections to the valuation.", "14. On 7 October 2010 another set of enforcement proceedings against the applicants was joined to the proceedings at issue. In the former proceedings an enforcement order had been issued against the applicants at the request of the Poreč Municipality on 12 May 2010, in respect of a claim of HRK 24,352.94 (approximately 3,200 euros). Since the applicants had not lodged an appeal, the enforcement order had become final on 12 June 2010. 15.", "On 25 October 2010 the Municipal Court set the value of the applicants’ house at HRK 2,463,092.48. 16. On 25 January 2011 a first public auction was held. However, there were no interested buyers. The applicants, though properly summoned, did not appear.", "17. A further set of enforcement proceedings against the applicants was joined to the proceedings at issue on 13 May 2011. In those proceedings, an enforcement order had been issued against the applicants at the request of Bank P. on 24 January 2011, in respect of an unpaid loan of 14 February 2006 in the amount of 159,688.87 Swiss Francs. Since the applicants had not lodged an appeal, the enforcement order had become final on 31 March 2011. 18.", "A second public auction for the sale of the applicants’ house was postponed several times at the request of the creditors. 19. The second public auction was eventually held on 30 March 2012 and the applicants’ house was sold to M.G. for HRK 821,040 (approximately 109,000 euros). The applicants, though properly summoned, did not appear.", "20. On 2 April 2012 the Poreč Municipal Court granted M.G. title to the applicants’ house, on condition that he paid HRK 821,040 as the purchase price. 21. On 23 April 2012 the applicants lodged an appeal against that decision, arguing that the judicial sale had been disproportionate since the true value of their house had been about 700,000 euros (EUR).", "They also argued that the Municipal Court had failed to comply with the provisions of the Enforcement Act, which stated that courts should respect the dignity of debtors subject to enforcement and should make the enforcement process as humane as possible. 22. On 8 May 2012 the applicants submitted a statement that the value of their house was EUR 640,000. 23. On 28 December 2012 the Pula County Court (Županijski sud u Puli) dismissed the applicants’ appeal.", "It found that the applicants’ house had been sold at a second public auction for more than one-third of its value, that the first public auction had been unsuccessful, and that M.G. had been the only bidder. Furthermore, the value of the house had been set by the Poreč Municipal Court on 25 October 2010 and the applicants had not objected to it. In the County Court’s view, the sale of the applicants’ house was in accordance with the Enforcement Act. 24.", "On 31 January 2013 the Poreč Municipal Court entered M.G.’s title to the applicants’ house in the land register. 25. On 20 February 2013 the applicants lodged an appeal on points of law against the decision of the Pula County Court, relying on section 382(2) of the Civil Procedure Act. They argued that the actual value of their house was around EUR 700,000, and that their house should have been exempted from enforcement as it was “meeting their basic human needs”. 26.", "On the same day, the applicants applied to the Poreč Municipal Court for a stay of enforcement. 27. On 22 February 2013 the Poreč Municipal Court declared the applicants’ appeal on points of law inadmissible on the grounds that such an appeal was allowed in enforcement proceedings only if based on section 382(2) of the Civil Procedure Act, which was not the case. The applicants lodged an appeal. 28.", "On the same day the Poreč Municipal Court declared the applicants’ request for a stay of enforcement inadmissible, finding that they had failed to meet the statutory conditions for such a request. The applicants lodged an appeal. 29. On 8 March 2013 the Croatian Electricity Company (Hrvatska Elektroprivreda, hereinafter “HEP”) cut off the applicants’ electricity at M.G.’s request. The applicants immediately applied to the Poreč Municipal Court for an interim measure prohibiting M.G.", "from having the electricity and water cut off and from making alterations to the house, ordering HEP to reconnect the electricity, and authorising them to keep the house until the enforcement proceedings were complete. On the same day the Poreč Municipal Court issued the interim measure, prohibited M.G. from having the electricity and water cut off and ordered HEP to reconnect the electricity. That decision was quashed by the Pula County Court on 21 May 2013 and the applicants’ request for an interim measure was denied. 30.", "On 19 June 2013 the Municipal Court decided to transfer ownership of the house at issue to M.G. The applicants lodged an appeal, which was declared inadmissible by the Municipal Court on 10 July 2013. 31. On 26 July 2013 the Poreč Municipal Court held a hearing on the division of the proceeds (dioba kupovnine) from the sale of the house. The applicants, though properly summoned, did not appear.", "32. On 17 September 2013 the Poreč Municipal Court ordered the eviction of the applicants. The applicants lodged an appeal, arguing that enforcement should not have been carried out by the sale of their house, which served to “satisfy their basic needs”: they lived there with their family and it also served as their business premises. 33. On 21 October 2013 the Municipal Court scheduled the eviction of the applicants for 13 December 2013, ordering the court bailiff to carry out the eviction.", "However, the eviction was postponed for three months. 34. On 19 November 2013 the applicants applied for an interim measure prohibiting the sale of their house and their eviction. 35. On 20 December 2013 the Poreč Municipal Court decided to conclude the enforcement proceedings for the payment of monetary debts.", "36. On 20 January 2014 the Pula County Court dismissed the applicants’ appeal against the decision of 17 September 2013 (see paragraph 32 above), finding that the Municipal Court had acted in accordance with the law, namely the provisions of the Enforcement Act. The enforcement proceedings were about to be concluded since the sale of the applicants’ house had been completed. 37. On 23 January 2014 the Pula County Court accepted the applicants’ appeal against the decision of 22 February 2013 (see paragraph 27 above) and remitted the applicants’ appeal on points of law to the Municipal Court.", "38. On the same day the Pula County Court, in a different decision, dismissed the applicants’ appeal against the decision of 22 February 2013 by which their request for a stay of the enforcement proceedings had been dismissed (see paragraph 28 above). 39. On 12 March 2014 the applicants withdrew their appeal on points of law referred to in paragraphs 25 and 37 above. 40.", "On 13 March and 28 April 2014 M.G. sought the applicants’ eviction. 41. The applicants have not yet been evicted. II.", "RELEVANT DOMESTIC LAW A. Enforcement legislation 1. Enforcement Act of 1996 with subsequent amendments 42. The relevant provisions of the 1996 Enforcement Act, which was in force at the material time (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005 and 67/2008), provided as follows: Legal remediesSection 11 “(1) Where this Act does not prescribe otherwise, an appeal is allowed against a ruling (rješenje) adopted by a first-instance court.", "... (3) Where this Act does not prescribe otherwise, an appeal is to be lodged within eight days of the service of the first-instance ruling. (4) Where this Act does not prescribe otherwise, the lodging of an appeal does not stay the enforcement proceedings. (5) There is no remedy against a court instruction (zaključak). ...” Section 12 “(1) In enforcement proceedings ... only an appeal on points of law under section 382(2) of the Civil Procedure Act is allowed ...” Section 46 “(1) The debtor may lodge an appeal against the enforcement order: ... 7. if the creditor is not authorised to seek enforcement on the basis of the enforcement title or is not authorised to seek enforcement against a particular debtor. ... 9. if the claim has ceased to exist on the basis of a fact that occurred when the debtor could no longer have presented it in the proceedings in which the enforcement title was adopted, or after a court-assisted friendly settlement has been concluded or after a notary deed has been drafted, approved or authorised (ovjeren).", "10. if the settling of the claim has been adjourned (even temporarily), disallowed, altered or prevented owing to a fact that occurred when the debtor could no longer have presented it in the proceedings in which the enforcement title was adopted, or after a court-assisted friendly settlement has been concluded or after a notary deed has been drafted, approved or authorised (ovjeren). 11. if the claim has become statute-barred.” Section 48 provides that if a creditor opposes allegations in a debtor’s appeal lodged under section 46(1) subparagraphs 7 and 9 to 11, the court conducting the proceedings will instruct the debtor to bring a civil action seeking to have the enforcement declared inadmissible. Valuation of real estateValuation assessment methodSection 87 “(1) A court [conducting enforcement proceedings] shall assess the value of real estate and issue a court instruction after holding a hearing at which the parties shall have an opportunity to present their arguments and submit written evidence. The court may seek information on the real-estate market from the tax authorities if necessary. ... (3) When the parties set the value of real estate in an agreement ... by which that real estate is used as collateral ... for securing a claim which is to be enforced, that value will be relevant unless the parties agree otherwise in [enforcement] proceedings before a court ... ...” Section 97 “(1) At the first public auction the real estate cannot be sold for less than two-thirds of its assessed value (section 87).", "(2) At the second public auction the real estate cannot be sold for less than one-third of its assessed value. ...” Section 120 “On the sale of the real estate, the enforcement debtor loses his or her title to the property and must deliver it to the buyer promptly after the service of the decision on delivering the property to the buyer, if not otherwise provided for by law or by an agreement with the buyer.” 2. Enforcement Act of 2012 with subsequent amendments 43. A new Enforcement Act entered into force on 15 October 2012. 44.", "Section 102 provides that real estate cannot be sold for less than two-thirds of its assessed value at a first public auction and half of its assessed value at a second public auction. 45. Section 369(1) provides that ongoing enforcement proceedings must be concluded under the previous enforcement legislation. B. Civil Procedure Act 46.", "The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, 57/2011, 148/2011 and 25/2013), as in force at the material time, provided as follows: Section 382 “(2) ... parties to proceedings may lodge an appeal on points of law against a second-instance judgment where the outcome of a dispute depends on the assessment of a substantive or procedural issue which is of importance in guaranteeing a consistent application of the law and the equality of citizens ...” 47. The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011) read as follows: NullitySection 322 “(1) A contract that is contrary to the Constitution, mandatory rules or morals shall be declared null and void (ništetan) unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise.", "(2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.” Voidable contractsSection 330 “A contract is voidable (pobojan) if a party to it had no legal capacity or entered into the contract under duress (mane volje) at the time when it was concluded or where the contract is voidable under this Act or another statute.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. The applicants complained that their right to respect for their home had been violated. They relied on Article 8 of the Convention, which, in so far as relevant, reads: “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.” A. Admissibility 1. Submissions of the parties 49. The Government argued that the applicants had not exhausted all available domestic remedies. In the first place, they could have brought a civil action to declare the agreement at issue null and void. In such proceedings they could have argued that the agreement was contrary to the Constitution, which guaranteed the “inviolability of one’s home”.", "They could also have brought a civil action claiming that the enforcement order on their house was not admissible. In such proceedings they could have put forward all of the arguments concerning their right to respect for their home. 50. The applicants argued that a civil action could not have altered the rules for enforcement proceedings prescribed by the Enforcement Act. Also, an action seeking to have the loan agreement declared null and void would not have addressed the issue of the protection of their right to respect for their home in the enforcement proceedings.", "2. The Court’s assessment 51. In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter 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 violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015; Hentrich v. France, 22 September 1994, § 33, Series A no.", "296-A; and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). Thus, a complaint submitted to the Court should 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 (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). To hold otherwise would not be compatible with the subsidiary character of the Convention system (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008).", "Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Vučković and Others, cited above, § 73; 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). 52. In the present case the Government argued that the applicants had at their disposal two remedies they had failed to exhaust (see paragraph 49 above).", "53. As to a civil action claiming that the enforcement order on their house was not admissible, the Court notes that such an action is allowed only for the reasons specified in section 46(1) subparagraphs 7 and 9 to 11 of the Enforcement Act (see paragraph 42 above) and that the applicants have not argued that any of those circumstances applied in their case. None of the circumstances specified in those provisions concerns the applicants’ arguments under Article 8 of the Convention. Therefore, the Government’s objection, in so far as it concerns a civil action claiming that the enforcement order on the applicants’ house was not admissible, must be rejected. 54.", "As to a civil action seeking to have the contract at issue declared null and void, the Court considers that the arguments submitted by the parties in that respect concern the merits of the case. The Court will therefore examine them in that context. 55. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Submissions of the parties 56. The applicants argued that the order for their eviction issued by the Poreč Municipal Court had amounted to an interference with their right to respect for their home, notwithstanding the fact that they had not yet been evicted.", "They accepted that the interference in question was in accordance with the law, but argued that it was not necessary in a democratic society. They maintained that their house should have been exempted from the enforcement proceedings since it had been satisfying their basic housing needs. 57. The applicants also argued that the procedural safeguards required under Article 8 of the Convention had not been provided, since the rules governing the enforcement proceedings did not allow the courts to carry out a proportionality test in the enforcement proceedings. 58.", "The Government argued that the grounds for interference with the applicants’ right to respect for their home were set out in the Enforcement Act. The interference pursued the legitimate aim of protecting the interests of others, namely, the applicants’ creditors. They maintained that, by using their house as collateral for their loan, the applicants had agreed to the sale of their house if they failed to comply with their contractual obligations. 2. The Court’s assessment (a) Whether there has been an interference with the applicants’ right to respect for their home 59.", "The Court has previously held that the judicial sale of an applicant’s home and his or her eviction were to be seen as an interference with the right to respect for his or her home (see Zehentner v. Austria, no. 20082/02, § 54, 16 July 2009). In the present case, the applicants’ house was sold in enforcement proceedings and their eviction was ordered in the context of those proceedings. Even though the applicants have not yet been evicted, an eviction order has been issued and may be enforced at any time. The Court reiterates that the obligation on an applicant to vacate a house in which he or she lives amounts to an interference with his right to respect for his home (see Ćosić v. Croatia, no.", "28261/06, § 18, 15 January 2009). (b) Whether the interference was prescribed by law and pursued a legitimate aim 60. The national courts ordered the applicants to vacate their house. Under Croatian law regulating enforcement proceedings, a buyer of property at a public auction becomes the owner of that property (see section 120 of the Enforcement Act, paragraph 42 above). 61.", "The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply the domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle issues arising in this connection (see, mutatis mutandis, Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33). The Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see, for example, Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997‑VIII). 62. The decision on transferring title to the house to M.G.", "was issued by the national courts under Croatian laws regulating the sale of real property in enforcement proceedings. Those laws provide that when a court awards the property to the buyer, the enforcement debtor loses his title to it. The national courts’ decision to order the applicant’s eviction was based on section 120 of the Enforcement Act. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (No. 1), 25 October 1989, § 57, Series A no.", "163), is thus satisfied that the national courts’ decisions ordering the applicants’ eviction were in accordance with domestic law (see Ćosić, cited above, § 19). The interference in question therefore pursued the legitimate aim of protecting the buyer’s lawful title to the applicants’ house. (c) Whether the interference was “necessary in a democratic society” 63. The central question in this case is, therefore, whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”. 64.", "The Court has also held that any person at risk of interference with the right to respect for his or her home should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end (see McCann v. the United Kingdom, no. 19009/04, § 50, ECHR 2008). 65. In several cases against Croatia the Court has found a violation of the applicants’ right to respect for their home on the grounds that the national courts had not carried out the proportionality test when eviction orders had been issued (see, for example, Ćosić, cited above; Paulić v. Croatia, no. 3572/06, 22 October 2009; Orlić v. Croatia, no.", "48833/07, 21 June 2011; Bjedov v. Croatia, no. 42150/09, 29 May 2012; and Brežec v. Croatia, no. 7177/10, 18 July 2013). 66. In all those cases, as well as in the above-cited case of McCann, the applicants were living in State-owned or socially-owned flats and an important aspect of finding a violation was the fact that there was no other private interest at stake.", "Furthermore, the applicants in those cases had not signed any form of agreement whereby they risked losing their home. 67. The situation in the present case is different inasmuch as the other parties in the enforcement proceedings were either a private person, namely M.G., or private enterprises, namely a bank and a company. The case-law of the Convention organs suggests that the approach in such cases is somewhat different and that a measure prescribed by law with the purpose of protecting the rights of others may be seen as necessary in a democratic society (see J.P. v. France, Commission decision, no. 26215/95, 6 September 1995, and D.P.", "v. the United Kingdom, no. 11949/86, 1 December 1986). 68. Unlike the situations addressed in the cases mentioned in paragraphs 64 and 65 above, the applicants in the present case complain that the payment of their debts was enforced by the sale of their home. The Court notes at the outset that the applicants voluntarily used their home as collateral for their loan.", "The applicants specifically agreed that if they and their company failed to pay their outstanding debts by 1 May 2009, the creditors were entitled to seek enforcement of the repayment through the sale of their house (see paragraph 1 above). 69. The debt was substantial, namely some EUR 250,320. The risk inherent in borrowing such a high sum is that the debtor might not be able to repay it. The applicants expressly agreed to take such a risk.", "70. The applicants did not challenge any of the loan agreements before the national courts in appropriate proceedings. For example, they could have instituted proceedings seeking to have the contract declared null and void (ništav) or voidable (pobojan) (see sections 322 and 330 of the Obligations Act, paragraph 47 above). This implies that the applicants freely entered into those agreements and freely stipulated that the loans could be secured using their house as collateral. The applicants must therefore have been aware that their house would be sold to secure the payment of any outstanding debts after the time-limit set for the repayment of the loan had expired.", "When the enforcement order for the sale of their house was issued, the applicants did not challenge that order by means of an appeal, as provided for under section 11 of the Enforcement Act (see paragraph 42 above). By not objecting to the enforcement order, which specifically concerned the sale of their house, the applicants tacitly agreed to its sale in the enforcement proceedings. 71. The sale of the applicants’ house in the enforcement proceedings was a consequence of the applicants’ failure to meet their contractual obligations. Moreover, it was a consequence to which the applicants had expressly agreed.", "72. It can therefore be concluded that the applicants agreed and accepted that the payment of their outstanding debts would be enforced through the sale of their house. 73. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 8 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 74. The applicants complained that their right to peaceful enjoyment of their possessions had been violated. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Submissions of the parties 75. The Government argued that the applicants had not exhausted the relevant domestic remedies. In the first place, they had not lodged an appeal against the enforcement order and had thus agreed to the sale of their house in the enforcement proceedings.", "Had they lodged an appeal against the enforcement order, they could have further lodged a constitutional complaint whereby they could have put forward all the complaints they had submitted before the Court. 76. Furthermore, the applicants had not objected to the valuation of their house as prescribed by the Enforcement Act. They had had until the conclusion of the first public auction to do so. Instead, they had objected to the valuation of their house for the first time in their appeal against the decision to grant M.G.", "title to their house. At that stage of the proceedings such an objection was no longer admissible. 77. The applicants maintained that by signing the contract with their creditors they had not agreed to the rules of the enforcement procedure, since those rules were prescribed by the Enforcement Act and a party to a contract could not agree or disagree with the provisions of an Act. Thus, a civil action concerning the contract could not have affected the application of the Enforcement Act.", "78. The applicants argued that a constitutional complaint would not have been admissible in their case. 79. The applicants further stressed that they had appealed against the decision ordering the sale of their property and their eviction, but to no avail. 2.", "The Court’s assessment 80. The Court considers that the arguments of the parties concerning the exhaustion of domestic remedies concern the merits of the applicants’ complaint under Article 1 of Protocol No. 1, and in particular its procedural aspect, and will examine them accordingly. 81. 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 of the parties 82.", "The applicants put forward the following arguments in support of their complaint under Article 1 of Protocol No. 1. 83. The applicants maintained that the enforcement measures had not been accompanied by procedural safeguards. Most of their appeals in the enforcement proceedings had been declared inadmissible.", "The appeal against the sale of their house for a disproportionate price, namely one-third of its value, had been dismissed as unfounded. 84. The applicants also complained that their house had been sold for only a third of its value following a valuation by a court-appointed expert and that the value of their house had been much higher than the expert’s valuation. 85. The applicants submitted that the Enforcement Act, which had entered into force on 15 October 2012 when the enforcement proceedings against them had still been pending, had not been applied in their case.", "The application of the Act would have benefited them since it provided that real estate could not be sold at public auction for less than half of its assessed value. 86. The applicants argued that their house had been sold to one of their creditors, M.G., and that he had thus become the owner of the property, the value of which far exceeded the price for which he had bought it. In such circumstances, the applicants’ debt to M.G. should have been reduced in line with the value he had obtained, that is to say, the full value of the house at issue.", "87. The Government submitted that, by entering into loan agreements, the applicants had themselves defined the details of their legal obligations in respect of their creditors. They had agreed to the sale of their house in the event that they were unable to meet their contractual obligations. The decisions adopted by the State authorities had not amounted to an interference with the applicants’ right to peaceful enjoyment of their possessions but had merely served as a tool for the enforcement of the will of the parties to the loan agreements. 88.", "The manner in which the enforcement proceedings at issue were conducted was prescribed by the Enforcement Act, as was the manner in which the applicants’ house was valued. 89. The sale of the applicants’ house in the context of the enforcement proceedings had pursued the legitimate aims of protecting the interests of the applicants’ creditors, and of ensuring legal certainty and the economic well-being of the country. The right of the applicants’ creditors to secure the repayment of the loan was of no lesser value than the applicants’ right to peaceful enjoyment of their possessions. 90.", "The applicants had expressly agreed to the sale of their house, and that sale had been necessary to secure the payment of their outstanding debts. 91. As regards the price for which the applicants’ house had been sold, the Government submitted that the various Contracting States to the Convention had legislated in different ways in that respect. Whereas some of them had not set a minimum price, others had set the minimum at various percentages, with solutions similar to those provided for in the Croatian system. The Government conceded that some member States provided better protection for debtors, but pointed out that the differences in legislative approaches and practices among member States showed that they should enjoy a wide margin of appreciation in that connection.", "92. The Government pointed out that the applicants had remained inactive as regards the valuation of their house in the context of the enforcement proceedings. They did not submit any evidence as regards the value of their house for over two years, nor did they put forward timely objections to the expert valuation. 2. The Court’s assessment (a) Whether there has been an interference with the applicants’ right to peaceful enjoyment of their possessions 93.", "The ownership of the applicants’ home was transferred to another person in the context of enforcement proceedings brought with a view to obtaining sums of money which the domestic courts had earlier ordered to be paid to the applicants’ creditors. Even though the interference in question did not involve expropriation by the State, the contested measure resulted in depriving the applicants of their property. 94. The Court has already examined various situations of the forced sale of applicants’ homes under Article 1 of Protocol No. 1 and concluded that such sale amounted to interference with the applicants’ right to peaceful enjoyment of their possessions (see, for example, Hagman v. Finland (dec.), no.", "41765/98, 14 January 2003; Zehentner, cited above, Kanala v. Slovakia, no. 57239/00, 10 July 2007; and Rousk v. Sweden, no. 27183/04, 25 July 2013). The Court sees no reason to depart from such a conclusion in the present case. 95.", "The Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007‑III; Jokela v. Finland, no.", "28856/95, § 44, ECHR 2002‑IV; and Zehentner, cited above, § 70). 96. In line with that case-law, the Court considers that the judicial sale of the applicants’ property falls to be considered under the so-called third rule, relating to the State’s right “to enforce such laws as it deems necessary to control of the use of property in accordance with the general interest”, set out in the second paragraph of Article 1 of Protocol No. 1 (see, for example, Zehentner, cited above, § 71). (b) Whether the interference was prescribed by law and pursued a legitimate aim 97.", "The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone’s possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). 98. Any interference with a right of property, irrespective of the rule under which it falls, can be justified only if it serves a legitimate public (or general) interest.", "The Court reiterates that, because of their direct knowledge of their society and its needs, national authorities are in principle better placed than any international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make a preliminary assessment as to the existence of a problem of public concern warranting measures that interfere with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and Elia S.r.l. v. Italy, no.", "37710/97, § 77, ECHR 2001-IX). 99. The Court notes that the interference with the applicants’ right to peaceful enjoyment of their possessions was based on the relevant provisions of the Enforcement Act and served the legitimate aims of protecting the creditors and the purchaser of the house (see paragraph 62 above for similar considerations in respect of Article 8). (c) Whether the interference was proportionate to the legitimate aim pursued 100. It remains to be determined whether the measures complained of were proportionate to the aim pursued.", "According to the Court’s well-established case-law, the second paragraph of Article 1 of Protocol No.1 is to be read in the light of the principle enunciated in the first sentence. Consequently, any interference must achieve a “fair balance” between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights. The search for this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In each case involving an alleged violation of Article 1 of Protocol No.", "1, the Court must ascertain whether by reason of the State’s interference, the person concerned had to bear a disproportionate and excessive burden (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98, and Amato Gauci v. Malta, no. 47045/06, § 57, 15 September 2009). In determining whether this requirement has been met, the Court recognises 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; Immobiliare Saffi v. Italy [GC], no.", "22774/93, § 49, ECHR 1999‑V; and Luordo v. Italy, no. 32190/96, § 69, ECHR 2003‑IX;). 101. The Court is mindful of the fact that the present case concerns proceedings between private parties, namely the applicants and their creditors on the one hand and the applicants and the purchaser of their house on the other hand. However, even in cases involving private litigation, the State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law (see Anheuser-Busch Inc. v. Portugal [GC], no.", "73049/01, § 83, ECHR 2007‑I; J.A. Pye, cited above, § 57; and Zagrebačka banka d.d. v. Croatia, no. 39544/05, §§ 250 and 251, 12 December 2013). 102.", "The Court notes that the applicants’ complaints under Article 1 of Protocol No. 1 are based on two main arguments: firstly, that their house was sold at a price far below its market value and contrary to the law in force at that time (see paragraph 85 above); and, secondly, that the enforcement measures were not accompanied by procedural safeguards. They complained that the remedies they had pursued in the proceedings had been unsuccessful. 103. As regards the applicants’ conduct, the Court notes as follows.", "The applicants borrowed a considerable amount of money, a measure which, by its very nature, involved an element of risk. When entering into the loan agreement, the applicants could have stipulated the value of their house which they used as collateral. Under Croatian law, that would have provided them with a considerable degree of security, as under section 87(3) of the Enforcement Act a court conducting enforcement proceedings is in principle obliged to accept that value when ordering the sale of the real property concerned (see paragraph 42 above). 104. In addition, in order to avoid having their house sold at a public auction and the inherent risks, such as the possibility that the property might be sold for only a third of its assessed value, when the applicants realised that they could not comply with their contractual obligations, knowing that those obligations had been secured by their house, they could have sold the house themselves, outside the enforcement proceedings.", "They could thus have attempted to obtain the full market value for it. 105. In so far as the applicants complain that their house was sold for only a third of its assessed value, the Court considers that the rules providing that real property may be sold at a public auction, in the context of enforcement proceedings, for one-third of its assessed value falls within the State’s margin of appreciation and does not appear manifestly arbitrary or unreasonable. Also, it could only be sold for a third of the value after an initial auction had failed to obtain half the value. 106.", "Having regard to the margin of appreciation enjoyed by the national authorities under Article 1 of Protocol No. 1, the Court therefore considers that the price received by the applicants can be considered to have been reasonably related to the value of the property. 107. The Court also notes the applicants’ argument that the Enforcement Act, which entered into force on 15 October 2012 when the enforcement proceedings against them were still pending, was not applied in their case. The application of the Act would have benefited them, since it provided that real property could not be sold at public auction for less than half of its assessed value (see paragraph 44 above).", "The Court notes that when new legislation is introduced, the new procedural rules may apply only to future cases or to all pending proceedings. In this instance, the Croatian legislator provided that all pending enforcement proceedings would be conducted under the old rules (see paragraph 45 above). In the Court’s view, this is just one example among others of the variety of legal systems existing in Europe, and it is not the Court’s task to standardise them. A State’s choice of a particular system of procedural rules is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention (see, mutatis mutandis, Achour v. France [GC], no. 67335/01, § 51, ECHR 2006-IV; and Taxquet v. Belgium [GC], no.", "926/05, § 83, ECHR 2010). 108. As to the applicants’ argument that the person who bought their house was one of their creditors, M.G. (see paragraph 86 above), the Court sees no issue in the fact that a creditor who buys real property at public auction is treated in the same manner as any other buyer. 109.", "In sum, and particularly in view of the risks deliberately taken by the applicants when they borrowed approximately EUR 247,000 and used their house as collateral, the applicants have not been made to bear an individual and excessive burden in this case. 110. As to the part of the applicants’ complaint relating to the procedural aspect of Article 1 of Protocol No. 1, the Court reiterates that although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision.", "In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see, for instance, Jokela, cited above, § 45). 111. The Court notes that under Croatian law, a court conducting enforcement proceedings fixes the price of real property to be sold by a court instruction (zaključak) which is not amenable to appeal (see sections 11(5) and 87(1) of the Enforcement Act, paragraph 42 above). However, in proceedings originating in an individual application the Court has to confine itself, as far as possible, to an examination of the concrete case before it (see J.B. v. Switzerland, no. 31827/96, § 63, ECHR 2001‑III).", "It is therefore not called upon to review the legislation at issue in the abstract, namely the relevant provisions of the Enforcement Act on the judicial sale of property, but will examine the specific circumstances of the applicants’ case. 112. The Court notes that on 4 May 2010 the Poreč Municipal Court held a hearing to assess the value of the property at issue. Only the first applicant appeared at that hearing, even though both applicants had been properly summoned (see paragraph 11 above). The purpose of the hearing was to give the parties a possibility to advance their arguments concerning the price of the property to be sold and to submit evidence in support of their arguments (see section 87(1) of the Enforcement Act, paragraph 42 above).", "The first applicant, however, did not advance any arguments or submit any evidence. Even though he had promised to submit an expert valuation of the house within two days, he failed to do so. An expert commissioned by the Municipal Court submitted his valuation report on 20 August 2010. The applicants did not submit any objections to that report. Indeed, they challenged the valuation of their house for the first time in their appeal against the decision granting M.G.", "title to the house, at a stage of the proceedings when further arguments concerning the value of the house were no longer admissible. 113. By not using the opportunity provided to them at the hearing held to assess the value of their house, the applicants placed themselves in a disadvantageous position. The remedies the applicants sought to use at a later stage of the proceedings were not provided for by the Enforcement Act. Thus, all the consequences of the applicants’ behaviour, such as the fact that they could not challenge the valuation of the house as assessed by the court conducting the enforcement proceedings and the failure of the remedies they pursued, are attributable to the applicants themselves.", "114. Given that the applicants did not actively participate in the assessment of the value of their house at the relevant stage of the enforcement proceedings, even though they had an opportunity to do so at a hearing held for exactly that purpose and by submitting timely objections to the expert’s valuation report, the Court cannot accept their arguments concerning deficiencies in the rules of the enforcement proceedings. 115. In view of the above, the Court concludes that there has been no violation of Article 1 of Protocol No. 1.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 8 of the Convention; 3. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.", "Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident" ]
[ "THIRD SECTION CASE OF BAŞKAN v. TURKEY (Application no. 66995/01) 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 Başkan 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. 66995/01) 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 two Turkish nationals, Mr Salih Başkan and Mr Bahri Başkan (“the applicants”) on 30 October 2000. 2. The applicants were represented by Mr Ahmet Elvan Tetik, a lawyer practising in Antalya.", "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 applicants were born in 1926 and 1943 respectively, and live in Antalya. 5. On 17 December 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot and the relevant amount was paid to them when the expropriation took place.", "6. Following the applicants' request for increased compensation, on 20 March 1998 the Antalya Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court's decision. 7. On 9 June 1998 the Court of Cassation quashed the judgment of the Antalya Civil Court of First-instance. 8.", "On 28 September 1998 the Court of Cassation rejected the applicants' request for rectification of the judgment of 9 June 1998. 9. On 20 December 1999 the Antalya Civil Court of First-instance awarded the applicants additional compensation of 33,318,109,000 Turkish liras (TRL) plus interest at the statutory rate running from 17 December 1997, the date on which the title deed to the land had been transferred to the General Directorate of National Airports in the land registry. 10. On 29 February 2000 the Court of Cassation upheld the judgment of the Antalya Civil Court of First-instance.", "11. On 8 May 2000 the Court of Cassation rejected the applicants' request for rectification. 12. On 7 June 2000 the General Directorate of National Airports paid the applicants an overall amount of TRL 77,103,800,000. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 13. 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 14. The applicants complained that the additional compensation for expropriation, which they had obtained from the authorities after two years and five months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. They 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 15. The Government averred that the applicants had not exhausted domestic remedies as required by Article 35 of the Convention, since they had failed to make proper use of the remedy available to them under Article 105 of the Code of Obligations. Under that provision, they would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation had they established that the losses exceeded the amount of default interest. The Government further claimed that the damage allegedly suffered by the applicants had been caused by the legal interest rates. They argued that before the domestic courts, the applicants had agreed to the application of the legal interest rates to their case and that, therefore, they could not be said to have raised their Convention grievances before the domestic authorities.", "16. The applicants contested these claims. 17. As to the first limb of the Government's submissions, the Court observes that it dismissed a similar preliminary objection in the case of Aka v. Turkey (cited above, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government's objection.", "18. As to the second limb of the Government's submissions, the Court notes that the legal interest rates applied to State debts are prescribed by law. Thus, it is obvious that even if the applicants had filed a petition with the domestic authorities concerning the legal interest rates, they would not have been compensated (see Çiloğlu and Others v. Turkey, no. 50967/99, 28 October 2004, § 19). 19.", "It finds that, in the light of the principles it has established in its case-law (see, among other authorities, the aforementioned Aka judgment) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible. B. Merits 20. 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, §§ 50-51).", "21. 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 to 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 applicants have 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. 22.", "Consequently, there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicants further complained under Article 6 § 1 of the Convention that because of the high inflation rates and the delay in payment, they had received an insufficient amount of additional compensation.", "A. Admissibility 24. 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. B. Merits 25.", "The Court notes that this complaint is a repetition of the applicants' complaint under Article 1 of Protocol No. 1 and that it has already been examined under the aforementioned heading. 26. In the light of its findings with regard to Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 6 § 1 is necessary.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28. The applicants sought compensation for pecuniary damage in the sum of 22,788 United States dollars (USD).", "They also claimed compensation for non-pecuniary damage in the amount of USD 40,000. 29. The Government contested their claim. 30. Using the same method of calculation as in the Aka judgment (cited above, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicants the amount claimed in full for pecuniary damage.", "31. 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 applicants. B. Costs and expenses 32.", "The applicants also claimed USD 2,000 for the costs and expenses incurred before the Court. The applicants did not produce any supporting documents. 33. The Government did not comment on the applicants' claim. 34.", "Making its own estimate based on the information available, the Court considers it reasonable to award the applicants a global sum of EUR 500 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 application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds that it is unnecessary to examine the complaint under Article 6 § 1 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage; 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 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 17,765 (seventeen thousand seven hundred and sixty-five euros) in respect of pecuniary damage; (ii) 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; 6.", "Dismisses the remainder of the applicants' 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" ]
[ "FIFTH SECTION CASE OF BOCHEV v. BULGARIA (Application no. 73481/01) JUDGMENT STRASBOURG 13 November 2008 FINAL 13/02/2009 This judgment may be subject to editorial revision. In the case of Bochev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Mark Villiger,Isabelle Berro‑Lefèvre,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 October 2008, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1. The case originated in an application (no. 73481/01) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Konstantin Bochev Bochev, born in 1964 and presently serving a sentence in Sofia Prison (“the applicant”), on 24 February 2001.", "2. The applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The applicant alleged, in particular, that his pre-trial detention had been unwarranted and excessively lengthy, that the proceedings whereby he had tried to obtain his release had been defective, and that he had not had an effective right to compensation in respect of these matters.", "He also alleged that the criminal proceedings against him had lasted too long and that his correspondence in detention had been unlawfully and unnecessarily intercepted by the authorities. 4. On 20 March 2007 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the length of the applicant’s pre-trial detention, the scope and the fairness of its judicial review, the availability of an enforceable right to compensation in respect of these matters, the length of the criminal proceedings against the applicant and the monitoring of his correspondence. 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. At about 5 a.m. on 9 May 1998 the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building. They had previously drilled the hole over the course of several nights, and in this way had attracted the attention of the building’s inhabitants. 6. On the morning of 9 May 1998 the applicant and his accomplice were heavily armed.", "The applicant opened fire and shot a police officer dead. Later he detonated a hand grenade. In the ensuing exchange of gunfire his accomplice was injured and died. The special anti‑terrorism squad intervened later in the morning. The applicant gave himself up and was arrested at about 8.30 a.m., after negotiations with the police, a psychologist and a public prosecutor.", "A. The criminal proceedings against the applicant 7. On the same day, 9 May 1998, the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder, and placed in pre‑trial detention. 8. The charges against him were later amended to include the unlawful possession of firearms, ammunition and explosives in large quantities, the murder of a police officer, and attempted murder of six police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder.", "The maximum penalty on conviction for those offences was life imprisonment, with or without parole. 9. After the Sofia City Prosecutor’s Office referred the case back to the investigator on three occasions for additional investigation, on 13 August 1999 the investigator finished his work on the case, recommending that the applicant be committed for trial. 10. On 29 December 1999 the Sofia City Prosecutor’s Office filed an indictment against the applicant with the Sofia City Court.", "11. On 21 February 2000 the judge‑rapporteur to whom the case was assigned set it down for hearing on 8 and 9 June 2000. As required by Article 241 § 2 (4) of the 1974 Code of Criminal Procedure, as in force at that time, he examined of his own motion whether the applicant’s pre‑trial detention should be replaced with a more lenient measure, and confirmed it without giving reasons. 12. The trial against the applicant began in June 2000, but had to re‑start in October 2001, as in May 2001 the judge-rapporteur was appointed as the Minister of Justice and the formation examining the case did not include a reserve judge.", "13. Over the course of the next few years numerous hearings were adjourned for various reasons. On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones, who needed time to acquaint themselves with the case file. 14. In a judgment of 14 October 2005 the Sofia City Court found the applicant guilty of murdering a police officer, attempting to murder another police officer and unlawfully possessing firearms and explosives.", "Although under the relevant provisions of the 1968 Criminal Code it could have imposed a sentence of life imprisonment, it opted for a lesser penalty and sentenced the applicant to thirty years’ imprisonment, citing his clean criminal record, and the facts that he had a family and had not been fully discredited morally and socially. 15. Both the applicant and the prosecution appealed. The prosecution requested that the applicant’s sentence be increased to life imprisonment. 16.", "On 2 October 2007 the Sofia Court of Appeal upheld the Sofia City Court’s judgment. When considering the appropriateness of the applicant’s sentence, it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty. It also found that the Sofia City Court had failed to take into account certain aggravating circumstances, such as the victim’s good moral character. In its judgment, the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were, overall, of such weight and intensity as to rule out a penalty showing any degree of lenience. However, it went on to say, by express reference to Article 6 § 1 of the Convention, that the criminal charges against the applicant had not been determined within a reasonable time, with all the negative repercussions which this had had on him.", "It found that the excessive length of the proceedings was not attributable to the applicant’s conduct, although he had at times failed to organise his defence efficiently. In the court’s view, the undue delay amounted in itself to a mitigating circumstance, which obviated the need to imprison the applicant for life, in line with the former Commission’s and the Court’s case‑law that the excessive length of criminal proceedings could be remedied by a reduction in sentence. 17. The applicant and the prosecution appealed on points of law. The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment.", "18. In a judgment of 5 March 2008 the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment, endorsing its reasoning. B. The applicant’s pre‑trial detention and his requests for release 19. The applicant was arrested on 9 May 1998 and detained by an investigator’s order of the same day.", "The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond. On the same day the investigator’s order was approved by a prosecutor. 20. The applicant made his first request for release on 2 October 1998, when the proceedings against him were at the preliminary investigation stage. The request was dismissed by the Sofia City Court at a public hearing held on 13 October 1998.", "The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty, and that no special circumstances warranting his release existed. This decision was not subject to appeal. Nevertheless, on 13 December 2000, when the proceedings against him had already progressed to the trial stage, the applicant appealed against it to the Sofia Court of Appeal. In a decision made in private on 15 January 2001 the Sofia Court of Appeal, finding that the applicant’s legal challenge was actually not an appeal but a fresh request for release, sent it to the Sofia City Court for a ruling. On 1 February 2001 the applicant appealed against this decision to the Supreme Court of Cassation.", "On 21 February 2001 the Sofia Court of Appeal returned the appeal, informing the applicant that its decision was not subject to appeal on points of law. It seems that the Sofia City Court did not examine the request. 21. On 26 February 2001 the applicant appealed against the decision of the judge‑rapporteur to confirm his detention of his own motion following receipt of the indictment (see paragraph 11 above). On 9 March 2001 the Sofia Court of Appeal, sitting in private, declared the appeal inadmissible.", "22. The applicant made further requests for release at several trial hearings, held on 9 April and 29 November 2001, and 18 March and 9 May 2002. They were all turned down by the Sofia City Court at the respective hearings. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 4 May 2001, 7 January, 15 April and an unknown later date in 2002. 23.", "In their reasoning the Sofia City Court and the Sofia Court of Appeal stressed, with various degrees of detail, the following points: (i) the applicant stood accused of several very serious offences, which in itself justified the conclusion that he was a dangerous individual who could abscond or re‑offend, (ii) there were no fresh circumstances warranting his release, and (iii) no unwarranted delays had taken place in the criminal proceedings, as the case was factually and legally complex. 24. In its decision of 4 May 2001 the Sofia Court of Appeal stated that the presumption under Article 152 § 2 (3) of the 1974 Code of Criminal Procedure, in the 1 January 2000 version, about the existence of a risk that the detainee might abscond or re‑offend (see paragraph 32 below) applied to the applicant’s case. In two other decisions – those of 7 January and 15 April 2001 – that court expressed the view that the applicant’s lack of a criminal record, known identity and permanent place of abode were not enough to rebut this presumption. 25.", "On at least two occasions, in April and May 2002, the applicant’s appeals against the decisions of the Sofia City Court were sent to the competent public prosecutors, who commented on them in writing. These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private, without holding a hearing, with the result that the applicant did not have the opportunity of replying to these comments. 26. In October 2002 and April and December 2003 the applicant made three further requests for release in writing. They were turned down by the Sofia City Court in decisions made in private on 18 October 2002 and 14 April and 29 December 2003.", "On appeal, these decisions were upheld by the Sofia Court of Appeal in decisions also made in private on 11 November 2002, 23 May 2003 and 12 January 2004. 27. The applicant later lodged four more requests for release. They were all rejected by the Sofia City Court at public hearings held on 27 January, 4 May, 8 September and 23 November 2004. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 19 February, 7 June, 21 September and 20 December 2004.", "The Sofia City Court declined to examine a further request for release made by the applicant during the trial hearing on 13 January 2005, on the grounds that his counsel was absent and it could not proceed with the case. 28. In turning down the requests for release made between October 2002 and November 2004 the courts relied on the seriousness of the charges against the applicant, the lack of change in the circumstances save for the passage of time, the complexity of the case and the diligent conduct of the proceedings. In their decisions of 4 May 2004 and 8 September and 23 November 2004 the Sofia Court of Appeal and the Sofia City Court expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant. 29.", "In its decisions of 4 May, 8 September and 23 November 2004 the Sofia City Court stated that under the newly added Article 268a of the 1974 Code of Criminal Procedure (see paragraph 36 below), when ruling on requests for release made during the trial, it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant. In its view, to do so would mean to prejudge the merits of the criminal case against the applicant. It was true that under Article 5 § 1 (c) of the Convention the court had to examine whether a reasonable suspicion existed, but that applied only to rulings made at the pre‑trial stage. This view was endorsed by the Sofia Court of Appeal in its decision of 21 September 2004. For this reason, the courts declined to delve into the applicant’s arguments concerning this point.", "30. On 14 October 2005 the Sofia City Court convicted the applicant (see paragraph 14 above). In a separate decision it confirmed his detention. C. The legal challenge to Regulation no. 2 governing the legal regime of pre‑trial detainees 31.", "On 17 June 2002 the applicant asked the Supreme Administrative Court to annul certain provisions of Regulation no. 2 governing the legal regime of pre‑trial detainees (see paragraph 42 below), which, in his view, violated, inter alia, his freedom of correspondence. In a final judgment of 19 July 2002 the Supreme Administrative Court rejected his application. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Pre‑trial detention 1.", "Grounds for detention 32. The relevant provisions of the 1974 Code of Criminal Procedure 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)).", "On 1 January 2000 the legal framework of pre‑trial detention was amended with the aim of ensuring the compliance of Bulgarian law with the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). The 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). 33. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure, which reproduced all the provisions brought in with the January 2000 reform. 2.", "Requests for release during the trial 34. By Article 304 § 1 of the 1974 Code, during the trial the detainees’ requests for release were examined by the trial court (the same is currently provided for by Article 270 of the 2005 Code). It followed from Article 304 §§ 1 and 2 of the 1974 Code that these requests could be examined in private or at an oral hearing (under Article 270 § 2 of the 2005 Code, these requests must be examined at an oral hearing). The law did not – and still does not – require the court to decide within a particular time‑limit. 35.", "The trial court’s decision was subject to appeal to the higher court (Article 344 § 3 of the 1974 Code; superseded by Article 270 § 4 of the 2005 Code). The higher court could examine the appeal in private or, if it considered it necessary, at an oral hearing (Article 348 § 1 of the 1974 Code, reproduced in Article 354 § 1 of the 2005 Code). 36. A new Article 268a was added to the 1974 Code in May 2003. By paragraph 1 of that Article (presently reproduced in Article 270 § 1 of the 2005 Code), a fresh request for release at the same level of court could be made only if there had been a change in circumstances.", "Paragraph 2 in fine of this Article (presently reproduced in Article 270 § 2 in fine of the 2005 Code) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee. 3. Compensation for unlawful detention 37. Section 2 of the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA” – Закон за отговорността на държавата за вреди, причинени на граждани – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, Закон за отговорността на държавата и общините за вреди), provides as follows: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pre‑trial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds; 2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...” 38. In a binding interpretative decision (тълк.", "реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК) made on 22 April 2004 the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In line with the courts’ earlier case-law, in point 13 of the decision it held that pre‑trial detention was unlawful when it did not comply with the requirements of the Code of Criminal Procedure and that the State was liable under section 2(1) of the SRDA when such detention had already been set aside as unlawful. 39.", "Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС, ІV г.о.). B. Correspondence of the pre‑trial detainees 1.", "Relevant constitutional provisions 40. Articles 30, 32 § 1 and 34 of the 1991 Constitution read, as relevant: Article 30 § 5 “Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.” Article 32 § 1 “The private life of citizens shall be inviolable. Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour, dignity and reputation.” Article 34 “1. The freedom and secrecy of correspondence and other communications shall be inviolable.", "2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.” 2. Relevant statutes and statutory instruments 41. Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court. 42.", "Between 1993 and 2000 the legal regime of pre‑trial detainees, including their correspondence, was the subject of two successive regulations issued by the Minister of Justice: Regulation no. 12 of 15 April 1993, superseded by Regulation no. 2 of 19 April 1999. 43. Under section 18(5) of Regulation no.", "12, detainees had the right to send and receive an unlimited number of letters. Section 19(2) of the Regulation provided that letters (except those to and from the detainees’ counsel), which contained advice about the criminal proceedings against them, were not allowed to be passed on, but instead had to be made available to the competent prosecutor or court. 44. Section 25(1) of Regulation no. 2 provided that “the correspondence of the accused and of the indicted [was] subject to inspection by the [detention facilities] administration”.", "45. In a decision of 22 December 2000 (реш. № 7982 от 22 декември 2000 г. по адм.д. № 3351/2000 г., ВАС, петчленен състав, обн., ДВ, бр. 4 от 12 януари 2001 г.)", "the Supreme Administrative Court annulled this provision, holding that it was contrary to Articles 30 § 5, 32 and 34 of the 1991 Constitution (see paragraph 40 above), Article 8 of the Convention and section 18(2) of the 1991 Bar Act (see paragraph 41 above), as it provided for systematic monitoring of the entirety of the detainees’ correspondence. 46. In June 2002 the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), which is the statute regulating, along with other matters, the manner of serving custodial sentences, was amended and now incorporates, in the newly added sections 128‑132h, special rules relating to pre‑trial detainees. As a result, Regulation no. 2 ceased to apply; it was however expressly repealed only on 1 September 2006, when the Minister of Justice amended the Regulations relating to the application of the Act (see paragraph 49 below).", "47. The new section 132d(3) of the 1969 Act provided that “[t]he correspondence of the accused and of the indicted [was] subject to inspection by the [prison] administration”. 48. In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по к.д.", "№ 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by the Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making reference to, among others, the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998‑VII), it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution (see paragraph 40 above).", "49. Following the Constitutional Court’s decision, on 1 September 2006 the Regulations for application of the 1969 Execution of Punishments Act were amended. Under the new section 178(1), pre‑trial detainees are entitled to unlimited correspondence which is not subject to monitoring. Envelopes have to be sealed and opened in the presence of members of staff, in a manner allowing those members to make sure that they do not contain money or other prohibited items (section 178(2) of the Regulations). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 50. The applicant alleged that his pre-trial detention had been unwarranted and excessively lengthy. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The parties’ submissions 51.", "The Government argued that the authorities had been justified in placing the applicant in pre‑trial detention. Their decisions had been based on a reasonable suspicion of his having committed a very serious offence and the existence of the other prerequisites for remanding him in custody. In all their decisions rejecting his requests for release they had had regard to the continuing risk that he would flee, hinder the investigation or commit an offence. They had also acted with the utmost speed possible under the circumstances. 52.", "The applicant described in detail the reasons given by the national courts for rejecting his requests for release between 1998 and 2005. In his view, these reasons had been very laconic and formal, and had been neither pertinent nor sufficient to warrant his remaining in custody. On most occasions the courts had been content to cite the gravity of the charges and to repeat that no fresh developments had taken place. Moreover, the authorities had not acted diligently in the criminal proceedings against him. There had been substantial intervals between the hearings and the trial had had to start afresh after the judge‑rapporteur had been appointed as Minister of Justice in 2001, as no arrangements had been made to prevent such an eventuality.", "B. The Court’s assessment 53. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. 54.", "Turning to the merits of the complaint, the Court observes that the period to be taken into consideration started on 9 May 1998, when the applicant was taken into custody (see paragraph 19 above), and ended on 14 October 2005, when the Sofia City Court convicted him (see paragraph 30 above). It therefore lasted seven years, five months and five days. 55. According to the Court’s settled case‑law, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the authorities continued to justify the deprivation of liberty.", "Where such grounds were relevant and sufficient, the Court must also ascertain whether the competent authorities displayed special diligence in the conduct of the proceedings (see, among many other authorities, Ilijkov, § 77, and Yankov, § 169, both cited above). 56. In the present case, the applicant was arrested at the scene of a crime, after considerable efforts by the police (see paragraphs 5 and 6 above). There is therefore little doubt that his arrest and subsequent detention were based on a reasonable suspicion of his having committed an offence. 57.", "However, the reasons given by the domestic courts for prolonging the applicant’s detention for almost seven and a half years do not appear to be relevant and sufficient. In spite of the legislative reform of 1 January 2000, which was intended to bring the 1974 Code of Criminal Procedure in line with the requirements of the Convention (see paragraph 32 above), the Sofia City Court and the Sofia Court of Appeals continued to rely, throughout the entire period under consideration, chiefly on the gravity of the charges against the applicant, on the presumption that due to the seriousness of the offences of which he stood accused he automatically presented a risk of absconding and would commit offences if released, and on the lack of any change in the relevant circumstances (see paragraphs 23 and 28 above and Petar Vasilev v. Bulgaria, no. 62544/00, § 37, 21 December 2006). This approach was due to these courts’ expansive interpretation of the shift of the burden of proof under Article 152 § 2 (3) of the 1974 Code in its version after 1 January 2000 (see paragraphs 24 and 32 above). On this point, the Court reiterates that the gravity of the charges cannot by itself serve to justify long periods of pre-trial detention and that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.", "Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of concrete facts outweighing the rule of respect for individual liberty must nevertheless be convincingly demonstrated (see Ilijkov, cited above, §§ 81 and 84, with further references). Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (ibid., § 85). It can hardly be presumed, without more information, that the risk presented by the applicant did not recede over a period of almost seven and a half years. However, no concrete facts and arguments were invoked by the national courts to convincingly demonstrate the need for his remand in custody for such a long time. 58.", "There has therefore been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 59. The applicant alleged that the scope of the courts’ review of his requests for release from pre‑trial detention had been too narrow, that the proceedings had not been adversarial, as he had not had the opportunity of replying to the public prosecutors’ comments, and that the courts had failed to rule on some of his requests. He relied on Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.", "The parties’ submissions 60. In the Government’s submission, the courts had considered all issues relevant to the lawfulness of the applicant’s deprivation of liberty. They had examined his requests for release speedily and had given full reasons for their decisions. The reform of the CCP of 1 January 2000 had introduced significant safeguards to ensure both equality of arms between the parties and the adversarial character of the proceedings. 61.", "The applicant submitted that a number of decisions given pursuant to his requests for release and his ensuing appeals had been made by the courts in private, without hearing the parties or allowing them to adduce evidence and raise additional arguments. Moreover, his appeals had been sent for comment to the competent public prosecutors and their comments had not been communicated to him, in breach of the principle of equality of arms. Another problematic aspect of the proceedings had been the limited scope of review. The courts had focused on the gravity of the charges against him, had expected him to shoulder the burden of proving the existence of facts militating for his release, and had treated important factors as irrelevant. Furthermore, some of his requests for release had not been examined speedily.", "Finally, the applicant found fault with the Sofia Court of Appeals’ refusal to examine his appeal against the decision of the judge‑rapporteur to confirm his detention and the Sofia City Court’s failure to rule on his request for release of December 2000, as well as with several other instances on which the courts had failed to rule on his requests for release. B. The Court’s assessment 62. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.", "1. Scope of the complaint 63. The Court observes at the outset that it is competent to examine only the proceedings instituted pursuant to the applicant’s requests for release after August 2000. His complaints in respect of earlier requests were declared inadmissible in the partial decision in the present case (see Bochev v. Bulgaria (dec.), no. 73481/01, 20 March 2007).", "The grievance relating to the Sofia Court of Appeal’s refusal to examine the appeal against the decision of the judge‑rapporteur to confirm the applicant’s detention was likewise declared inadmissible (ibid.). 2. Scope of the judicial review of the applicant’s detention 64. According to the Court’s settled case‑law, arrested or detained persons are entitled to a review relating to 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, as a recent authority, Petar Vasilev, cited above, § 33, with further references).", "While Article 5 § 4 does not enjoin a court examining a request for release to address every argument contained in detainees’ submissions, its guarantees would be deprived of their substance if that court could treat as irrelevant, or disregard, particular facts invoked by detainees which could cast doubt on the existence of the conditions essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty (see, among many other authorities, Nikolova, § 61; and Ilijkov, § 94, both cited above; as well as I.I. v. Bulgaria, no. 44082/98, § 103, 9 June 2005). 65. Turning to the present case, the Court observes that despite the legislative reform of 1 January 2000 (see paragraph 32 above), the Sofia City Court and the Sofia Court of Appeal continued to rely chiefly on the gravity of the charges against the applicant to justify his pre‑trial detention and were content to repeat, for a considerable period of time, that, since he stood accused of several very serious offences of violence, he automatically presented a risk of absconding and would commit further offences if released.", "They also consistently invoked the lack of any change in the relevant circumstances (see paragraphs 23 and 28 above). This approach was due to the expansive manner in which they construed the shift of the burden of proof under Article 152 § 2 (3) of the 1974 Code of Criminal Procedure in its version after 1 January 2000 (see paragraph 32 above). However, by relying on this presumption the courts disregarded as irrelevant or plainly insufficient a number of concrete facts and arguments adduced by the applicant. As noted in paragraph 57 above, where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of concrete facts outweighing the rule of respect for individual liberty must nevertheless be convincingly demonstrated. The persistent application of this presumption in the instant case was particularly disquieting, considering the fact that the applicant’s detention lasted almost seven and a half years.", "The time elapsed and the stage of the proceedings are in themselves factors which reflect upon and might negate the need for the continued detention of an accused (see Petar Vasilev, cited above, § 36). 66. The Court also observes that following the introduction in May 2003 of the new Article 268a § 2 in fine of the 1974 Code of Criminal Procedure, presently reproduced in Article 270 § 2 in fine of the 2005 Code of Criminal Procedure, trial courts, which were the ones competent to examine requests for release made during the trial, were barred from inquiring into the existence or otherwise of a reasonable suspicion against the accused (see paragraph 36 above). The rationale for this proscription was that if they did so, they would be impermissibly prejudging the merits of the criminal case (see paragraphs 29 above). The Court has already had occasion to criticise such circumscription of the scope of judicial review of pre‑trial detention.", "In Ilijkov it found, after examining the matter in considerable detail, that the Bulgarian authorities’ concern to provide effective protection for the principle of impartiality was based on a misconception and could not justify the limitation imposed on the Article 5 § 4 rights of pre‑trial detainees (see Ilijkov, cited above, §§ 94‑100, with further references). It reaffirmed this ruling in several later cases (see, for example, Hristov v. Bulgaria, no. 35436/97, § 117, 31 July 2003; and I.I., cited above, §§ 104 and 105). In any event, is incumbent on the respondent State to devise appropriate procedural means to secure the enjoyment of all Convention rights, including that under Article 5 § 4 to judicial review of all aspects of the lawfulness of detention (see Ilijkov, cited above, § 96). 3.", "The guarantees of adversarial procedure 67. According to the Court’s settled case‑law, a court examining a request for release must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among many other authorities, Petar Vasilev, cited above, § 33, with further references). The same guarantees must be provided on appeal (see Ilijkov, cited above, § 103).", "68. By contrast, on some occasions the Sofia City Court examined the applicant’s requests for release in private and the Sofia Court of Appeal invariably examined the appeals against the lower court’s decisions in private (see paragraphs 22, 22, 26 and 27 above). 69. The applicant’s grievance about the lack of equality of arms in the proceedings before the Sofia Court of Appeal is the same as those in several cases against Bulgaria in which the Court found breaches of Article 5 § 4 (see Nikolova, cited above, §§ 54, 58, 62 and 63; Ilijkov, cited above, §§ 101‑04; Mihov v. Bulgaria, no. 35519/97, §§ 99‑104, 31 July 2003; Hristov, cited above, § 118; Kuibishev v. Bulgaria, no.", "39271/98, § 76, 30 September 2004; E.M.K., cited above, § 132; and Kolev v. Bulgaria, no. 50326/99, § 79, 28 April 2005). The situation in the present case was identical. On at least two occasions, in April and May 2002, the applicant’s appeals against the refusals of the Sofia City Court to release him were communicated to the competent public prosecutors, who were able to comment on them in writing. These comments were not made available to the applicant and the Sofia Court of Appeal later examined the appeals without holding oral hearings, although it had discretion as to whether or not to do so (see paragraphs 25 and 35 above).", "As a result, the prosecution authorities had the privilege of addressing the judges with arguments which could not be countered by the applicant. The proceedings were therefore not truly adversarial and did not ensure equality of arms between the parties. 4. Failure to rule on certain requests for release 70. According to the Court’s case‑law, Article 5 § 4 enshrines, as does Article 6 § 1, a right of access to a court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria, no.", "38822/97, §§ 82‑90, ECHR 2003‑I (extracts)). However, when on 15 January 2001 the Sofia Court of Appeal sent the applicant’s request for release of December 2000 to the Sofia City Court with instructions to examine it, the latter failed to do so (see paragraph 20 above and Radoslav Popov v. Bulgaria, no. 58971/00, § 49, 2 November 2006). Also, at the hearing held on 13 January 2005 the Sofia City Court declined to consider the applicant’s request for release on the grounds that his counsel was absent (see paragraph 27 above), which can hardly be seen as a valid ground for this refusal. Even if in the absence of counsel the court was unable to proceed with the trial, there was nothing to prevent it from ruling on the applicant’s request.", "5. The Court’s conclusion 71. The foregoing considerations are sufficient to enable the Court to conclude that the applicant did not benefit from the guarantees enshrined in Article 5 § 4 of the Convention. It does not therefore find it necessary to additionally enquire whether or not the applicant’s requests for release were examined speedily (see Ilijkov, cited above, § 106). III.", "ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 72. The applicant complained that Bulgarian law did not guarantee a right to compensation for the breaches of Article 5 §§ 3 and 4 of the Convention found in his case. He relied on Article 5 § 5, which provides: “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.” 73. The Government made no submissions in relation to this complaint. 74.", "The applicant argued that Bulgarian law did not ensure effective compensation for detention effected in breach of Article 5 of the Convention. Section 2 of the SRDA gave a right to compensation only to persons who had been acquitted, which was not his case. 75. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.", "76. Turning to the merits of the complaint, the Court observes that, according to its case‑law, Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see, among many other authorities, Vachev v. Bulgaria, no. 42987/98, § 78, ECHR 2004‑VIII (extracts)). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. In the present case, the Court found that the applicant’s pre‑trial detention infringed his rights under paragraphs 3 and 4 of Article 5 (see paragraphs 58 and 71 above).", "He was therefore entitled to compensation under this provision. 77. An individual remanded in custody may claim damages under section 2(1) of the SRDA only if his detention “has been set aside for lack of lawful grounds”. This expression apparently refers to unlawfulness under domestic law (see paragraphs 37 and 38 above). However, in the instant case the applicant’s detention was considered by the courts as being in full compliance with the requirements of Bulgarian law (see paragraphs 20‑29 above).", "It thus seems that he had no right to compensation under section 2(1) of the SRDA. Nor does section 2(2) of the SRDA apply, as the proceedings against the applicant resulted in his conviction (see paragraphs 14 and 37 above). It follows that in the applicant’s case the SRDA does not provide for an enforceable right to compensation. Nor does it appear that such a right is secured under any other provision of Bulgarian law (see paragraph 39 above). 78.", "There has therefore been a violation Article 5 § 5 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 79. The applicant alleged that the criminal proceedings against him had been excessively lengthy. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 80.", "The Court observes at the outset that in its judgment of 2 October 2007 the Sofia Court of Appeal turned down the prosecution’s request to increase the applicant’s penalty to life imprisonment, citing the unreasonable length of the criminal proceedings against him (see paragraph 16 above). The question thus arises whether he may still claim to be a victim of a violation of his right to a trial within a reasonable time. 81. According to the Court’s case-law, the reduction of a sentence on the grounds of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim. However, this rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable‑time requirement of Article 6 § 1 and have afforded redress by reducing the sentence in an express and measurable manner (see, as recent authorities, Morby v. Luxembourg (dec.), no.", "27156/02, ECHR 2003‑XI; Mladenov v. Bulgaria, no. 58775/00, § 31, 12 October 2006; Sheremetov v. Bulgaria, no. 16880/02, § 33, 22 May 2008; and Menelaou v. Cyprus (dec.), no. 32071/04, 12 June 2008). 82.", "In the instant case, the Court is satisfied that the ruling of the Sofia Court of Appeal did amount to such an acknowledgement (see Beck v. Norway, no. 26390/95, § 28, 26 June 2001; and Kovács v. Hungary (dec.), no. 22661/02, 24 January 2006). That court analysed the matter in some detail and found, by express reference to Article 6 § 1, that the charges against the applicant had not been determined within a reasonable time and that this failure was not attributable to his conduct (see paragraph 16 above and, by contrast, Mladenov, § 32, and Sheremetov, § 34, both cited above). It thus remains to be determined whether the court’s refusal to increase the applicant’s sentence amounted to sufficient redress therefor.", "83. On this point, the Court observes that the offences committed by the applicant carried a maximum sentence of life imprisonment, with or without parole (see paragraphs 7 and 14 above). The Sofia Court of Appeal found that the mitigating circumstances relied on by the Sofia City Court were not of themselves significant enough to warrant the lesser penalty – thirty years’ imprisonment – for which that court had opted. It was therefore inclined to allow the prosecution’s request to increase the sentence to life imprisonment. The crucial factor for its eventual decision not to do so was its understanding that the unreasonable length of the criminal proceedings in itself amounted to a mitigating circumstance warranting a lesser sentence than the maximum penalty.", "In these circumstances, the Court is satisfied that the Sofia Court of Appeal’s finding concerning the effect of the excessive length of the proceedings had a decisive and measurable impact on the applicant’s sentence (see, mutatis mutandis, Beck, cited above, § 28 in fine). It therefore amounted to sufficient redress for the excessive length of the criminal proceedings against him. 84. In view of the foregoing, the Court considers that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention. 85.", "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. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 86. The applicant complained that his correspondence in custody, including that with his legal counsel, had been monitored by the prison administration. He relied on Article 8 of the Convention, which provides, in so far as relevant: “1. Everyone has the right to respect for his private ... life ... and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 87. The Government made no submissions in relation to this complaint. 88.", "The applicant described in detail the relevant legal framework and on this basis alleged that the entirety of his mail whilst in detention, including that with his lawyers, had been monitored, not only before December 2000 and April 2006, but also after that. The legal basis for the interference until April 2006 had been defective and had been set aside by the national courts. The ensuing legal framework had remained unclear and was thus insufficient for the purposes of the Convention. Furthermore, the interference had not been necessary in a democratic society, as correspondence with lawyers was as a rule privileged. B.", "The Court’s assessment 1. Admissibility 89. The Court must first determine whether the fact that the provisions which served as a basis for the interception of the applicant’s correspondence were set aside by the Bulgarian courts (see paragraphs 45 and 48 above) deprived him of the status of victim within the meaning of Article 34 of the Convention. 90. As already noted (see paragraph 81 above), decisions or measures favourable to applicants are not in principle sufficient to deprive them of their status as victims unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see also Lebedev v. Russia, no.", "4493/04, § 44, 25 October 2007). 91. In the instant case, it is open to doubt whether the Supreme Administrative Court’s and the Constitutional Court’s decisions can be regarded as an acknowledgment of a violation of the applicant’s rights. These courts did not examine his individual situation as such but gave an interpretation of the law (ibid., § 45) and changed it for the future. Furthermore, the decisions by themselves, while apparently putting an end to the interference with the applicant’s rights, did not provide him any relief in respect of the monitoring of his correspondence up until that point.", "In this connection, the Court also observes that the applicant’s legal challenge to Regulation no. 2 governing the legal regime of pre‑trial detainees was rejected by the Supreme Administrative Court (see paragraphs 31 and 42 above). 92. The Court thus concludes that the applicant may still claim to be a victim within the meaning of Article 34 of the Convention. 93.", "The Court further considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 94. The Court observes that the applicant has not produced evidence that his letters in custody were being opened and inspected.", "However, it also notes that it is clear from the terms of section 19(2) of Regulation no. 12 of 1993, which applied between the moment when the applicant was taken into custody and April 1999, that all of the pre-trial detainees’ letters, except for those to and from their lawyers, were subject to opening and inspection (see paragraph 43 above). Later, between April 1999 and December 2000, and between June 2002 and April 2006, the entirety of the applicant’s incoming and outgoing correspondence, including the letters to and from his lawyers, was subject to inspection under the express terms of section 25(1) of Regulation no. 2 of 1999 and section 132d(3) of the 1969 Execution of Punishments Act (see paragraphs 44 and 47 above). In these circumstances, the Court concludes that there has been an interference with the applicant’s right to respect for correspondence (see Campbell, cited above, p. 16, § 33; and Petrov v. Bulgaria, no.", "15197/02, § 39, 22 May 2008), at least between the time when he was taken into custody and December 2000, as well as between June 2002 and April 2006. However, in the present case the Court finds no basis to assume that such interference existed following the adoption in September 2006 of the new section 178 of the Regulations for application of the 1969 Execution of Punishments Act (see paragraph 49 above). 95. An interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to achieve those aims. 96.", "Concerning the first of these requirements, the Court observes that both section 25(1) of Regulation no. 2 of 1999 and section 132d(3) of the 1969 Execution of Punishments Act were set aside by the Bulgarian courts as being contrary to the 1991 Constitution. The former was also found to run counter to section 18(2) of the 1991 Bar Act (see paragraphs 40, 41, 45 and 48 above). The Court also notes that the monitoring envisaged by these provisions was not based on a judicial decision, as expressly required under Article 34 § 2 of the Constitution (see paragraph 40 above). Against this background, it finds that between April 1999 and December 2000 and between June 2002 and April 2006 the interference with the exercise of the applicant’s right to freedom of correspondence was not “in accordance with the law”, in breach of paragraph 2 of Article 8 of the Convention.", "97. As regards the period before April 1999, when the interference was based on section 19(2) of Regulation no. 12 (see paragraph 43 above), the Court first observes that it is questionable whether this provision was compatible with Article 34 § 2 of the Constitution, which subjects the interception of correspondence to judicial authorisation (see paragraph 40 above). Furthermore, while agreeing that some measure of control over the correspondence of those in custody is called for and is not of itself incompatible with the Convention, the Court notes that the Government have not explained what was the legitimate aim pursued by the systematic interception of the entirety of the pre-trial detainees’ non‑legal correspondence. Nor have they sought to adduce any arguments showing why it was to be considered “necessary in a democratic society” for its attainment (see Petrov, cited above, §§ 43 and 44, with further references).", "On the contrary, the Supreme Administrative Court and the Constitutional Court both voiced their concerns in this regard (see paragraphs 45 and 48 above). 98. There has therefore been a violation of Article 8 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. The applicant claimed 50,000 euros (EUR) in respect of the non‑pecuniary damage suffered as a result of the breach of Article 5 § 3. He submitted that the extraordinary amount of time which he had spent in pre‑trial detention, often in appalling conditions, and the national courts’ formalistic approach to this matter caused him to feel desperate and helpless. He further claimed EUR 30,000 in respect of the non-pecuniary damage flowing from the breach of Article 5 § 4.", "He said that the formalistic and unfair manner in which the courts reviewed his numerous requests for release had caused him despair and distress. He also claimed EUR 10,000 in respect of the damage engendered by the breach of Article 5 § 5 and EUR 10,000 for the breach of Article 6 § 1. Finally, he claimed EUR 10,000 in respect of the breach of Article 8, saying that the systematic interception of his letters, which had been his principal means of communication with the outside world and his lawyers, had caused him emotional trauma. 101. The Government did not comment on the applicant’s claims.", "102. The Court considers that the violations of the Convention found in the present case have undoubtedly caused the applicant non-pecuniary damage in the form of stress, despair and frustration arising from the lack of sufficient justification for his pre-trial detention, the deficient examination of his requests for release, and the monitoring of his correspondence. Ruling on an equitable basis, as required under Article 41 of the Convention, it awards him EUR 6,000, plus any tax that may be chargeable. B. Costs and expenses 103.", "The applicant sought the reimbursement of EUR 5,040 incurred in lawyers’ fees for the proceedings before the Court. He further claimed EUR 130 for postage and copying expenses and EUR 200 for translation expenses. He requested that any award made by the Court under this head be made payable to his lawyers, Ms S. Stefanova and Mr M. Ekimdzhiev. 104. The Government did not comment on the applicant’s claims.", "105. According to the Court’s case‑law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, and noting that part of the application was declared inadmissible, the Court considers it reasonable to award the sum of EUR 1,500, plus any tax that may be chargeable to the applicant. This sum is to be paid into the bank account of the applicant’s representatives, Ms S. Stefanova and Mr M. Ekimdzhiev. C. Default interest 106.", "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 (a) the justification for the applicant’s pre‑trial detention, (b) the judicial review of this detention, (c) the alleged lack of an enforceable right to compensation in respect of these matters, and (d) the interception of the applicant’s correspondence in custody admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4.", "Holds that there has been a violation of Article 5 § 5 of the Convention; 5. Holds that there has been a violation of Article 8 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be into the bank account of the applicant’s representatives, Ms S. Stefanova and Mr M. Ekimdzhiev; (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 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekRait MarusteRegistrarPresident" ]
[ " In the case of Putz v. Austria (1), The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\") and the relevant provisions of Rules of Court B (2), as a Chamber composed of the following judges: Mr R. Ryssdal, President, Mr R. Bernhardt, Mr F. Gölcüklü, Mr F. Matscher, Mr J. De Meyer, Mr A.N. Loizou, Mr D. Gotchev, Mr K. Jungwiert, Mr P. Kuris, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 26 October 1995 and 26 January 1996, Delivers the following judgment, which was adopted on the last-mentioned date: _______________ Notes by the Registrar 1.", "The case is numbered 57/1994/504/586. 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 B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No.", "9 (P9). _______________ PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 8 December 1994 and by Mr Wilhelm Putz (\"the applicant\"), an Austrian national, on 23 December 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art.", "47) of the Convention. It originated in an application (no. 18892/91) against the Republic of Austria lodged with the Commission under Article 25 (art. 25) by Mr Putz on 23 September 1991. The Commission's request referred to Articles 44 and 48 (art.", "44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the applicant's application referred to Article 48 as amended by Protocol No. 9 (P9) as regards Austria. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 paras.", "1 and 3 (art. 6-1, art. 6-3) of the Convention. 2. On 16 January 1995 the President gave the applicant's lawyer leave to use the German language in both the written and the oral proceedings (Rule 28 para.", "3 of Rules of Court B). 3. The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).", "On 27 January 1995, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr R. Bernhardt, Mr F. Gölcüklü, Mr J.De Meyer, Mr A.N. Loizou, Mr D. Gotchev, Mr K. Jungwiert and Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4.", "As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Austrian Government (\"the Government\"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 18 August 1995 and the applicant's memorial on 22 August. On 28 August the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.", "On 25 August 1995 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions. 5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 October 1995. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr W. Okresek, Head of the International Affairs Division, Constitutional Department, Federal Chancellery, Agent, Mrs I. Gartner, State Counsel, Federal Ministry of Justice, Mrs E. Bertagnoli, International Law Department, Federal Ministry of Foreign Affairs, Advisers; (b) for the Commission Mr A. Weitzel, Delegate; (c) for the applicant Mr C.J.", "Schwab, Rechtsanwalt, Counsel. The Court heard addresses by Mr Weitzel, Mr Schwab, Mr Okresek and Mrs Gartner. AS TO THE FACTS I. The circumstances of the case 6. Mr Wilhelm Putz, an Austrian national born in 1936, lives at Bad Goisern (Upper Austria).", "A. Background to the case 7. In 1985 criminal proceedings in respect of, among other things, bankruptcy (fahrlässige Krida) were instituted against the applicant, who was the manager of several commercial companies. During the proceedings the Wels Regional Court (Kreisgericht) imposed several pecuniary penalties (Ordnungsstrafen) on him for disrupting court proceedings. B.", "Decisions of the Wels Regional Court 1. The first fine 8. On 2 April 1991 the Wels Regional Court sentenced Mr Putz to a fine of 5,000 Austrian schillings (ATS) under Article 235 of the Code of Criminal Procedure (Strafprozeßordnung - see paragraph 19 below). It added that by Article 237 para. 1 of the same Code (see paragraph 19 below), no appeal lay against the decision.", "In its reasons the Regional Court pointed out that during the criminal proceedings against the applicant it had warned him on several occasions that he was liable to disciplinary penalties, as provided in Article 235 of the Code of Criminal Procedure, if he persisted in his behaviour and his repeated outbursts, in particular against the court's presiding judge. It added that during the hearing on the merits on 2 April 1991 Mr Putz had reiterated some of these criticisms (in particular, the assertion that the presiding judge had not complied with the law during the committal proceedings (Zwischenverfahren) and had taken part in the instant proceedings whereas he had allegedly withdrawn earlier), although the Linz Court of Appeal (Oberlandesgericht) had several times attempted to explain to him that those accusations were baseless. The applicant had also accused the presiding judge of having broken his oath, of continuing to infringe the law and of having brought pressure to bear on officials in order to \"deprive him of all his defence rights by means of deception, untruths and lies\". The Regional Court held that this last accusation, which referred to an alleged refusal to communicate the record of the trial, was completely baseless and unfounded, particularly when regard was had to the presiding judge's statements on the matter; it was consequently necessary to take a suitable disciplinary measure against the applicant. On 16 April 1991 the Wels Regional Court served that decision on Mr Putz.", "9. On 21 April 1991 it made an order sentencing the applicant to pay the fine in question and subsequently converted it into a three-day prison sentence for failure to pay. On 3 December 1991 the Wels Regional Court ordered the applicant to serve the prison sentence, whereupon he paid the fine. 2. The second fine 10.", "On 8 April 1991 the Wels Regional Court again sentenced Mr Putz to a fine of ATS 7,500 under Article 235 of the Code of Criminal Procedure (see paragraph 19 below). It stated that by Article 237 para. 1 of the same Code (see paragraph 19 below) no appeal lay against the decision. In its reasons the Regional Court referred to its decision of 2 April 1991, whereby it had already imposed a pecuniary penalty on the applicant on the basis of the same Article (see paragraph 8 above). It pointed out that during the trial on 8 April 1991 the applicant had again made unjustified criticisms of the presiding judge, in which he had accused him of breaking his oath, deliberately contravening the law and conducting an unfair criminal trial in order, among other things, to further his own career, and having already decided on the verdict before the end of the trial.", "The Regional Court held that a suitable pecuniary penalty therefore had to be imposed on Mr Putz. 11. On 17 April 1991 the Wels Regional Court made an order sentencing the applicant to pay the fine in question and subsequently converted it into a five-day prison sentence for failure to pay. On 3 December 1991 it ordered the applicant to serve the prison sentence, whereupon he paid the fine. C. Decisions of the Linz Court of Appeal 1.", "The decision of 24 May 1991 12. On 21 April 1991 the applicant lodged a disciplinary appeal (Aufsichtsbeschwerde) with the Linz Court of Appeal against the Wels Regional Court's decisions of 2 and 8 April 1991. 13. On 24 May 1991 the Court of Appeal, giving its ruling in private after hearing the prosecution, declared the appeal inadmissible as, under Article 237 para. 1 of the Code of Criminal Procedure, no appeal lay against the imposition of pecuniary penalties.", "It held: \"Quite apart ... from the fact that the legislature has expressly provided that such pecuniary penalties are to be unappealable (unanfechtbar), there is no reason to suppose that there was any denial of justice (Rechtsverweigerung) or deliberate departure from the law (Rechtsbeugung) on the part of the court below. The applicant in fact insulted the presiding judge of the court below like a criminal ... It was within the court's powers under Article 235 of the Code of Criminal Procedure to impose a fine of its own motion in order to punish those manifestly unfounded accusations.\" 2. The third fine 14.", "On 20 June 1991 the applicant sent observations to the Linz Court of Appeal. 15. On 17 July 1991 that court sentenced Mr Putz to a fine of ATS 10,000 under sections 85 (1) and 97 of the Courts Act (Gerichtsorganisationsgesetz - see paragraph 22 below) taken together with Article 220 para. 1 of the Code of Civil Procedure (Zivilprozeßordnung - see paragraph 23 below). It added that no appeal lay against the decision.", "The Court of Appeal criticised the applicant for having made the following accusations against the presiding judge of the court below in his pleadings: \"Judge Sturm [the presiding judge] thus prevents truth being discovered. The method he applies during the hearing is typical of the one employed under the Nazi regime and the regimes in the Eastern bloc ... The hearing is thus reduced to a sham trial designed to confirm a preconceived judgment ... A certain Jörg Haider is being prosecuted for reviving Nazi ideas while violations of the law take place every day, just as they did under Hitler or Stalin, at the Wels Regional Court, yet no similar proceedings have been brought to date against the judges and prosecutors concerned.\" In its reasons the Court of Appeal recapitulated the statutory provisions applicable where offensive remarks in writing have been made about judges during criminal proceedings. It then summarised as follows the criteria for determining whether written submissions were offensive: \"To recapitulate, it may be pointed out here that the question whether a document contains offensive remarks is not for the court to decide at its discretion but has to be determined as an issue of law.", "It is not necessary that the remarks in question should amount to a criminal offence; the only requirement is that they should be offensive. It is similarly of no importance whether or not there was an intention to be offensive. It suffices that the impugned remarks are objectively offensive, that is to say that they breach the duty of propriety towards the authority. Nor can the fact that the defendant believed that his criticism was well-founded justify the offensive remarks. It may be said that remarks are offensive where an application is drafted in such a way that it constitutes unseemly conduct towards the authority.", "This is the case where an application lacks the moderation that, out of respect for the authority, should be observed in dealings with it. Anyone who finds that an authority or one of its bodies has exceeded or misused its powers may make a complaint in the manner prescribed by law, but he does not have the right to injure the authority's (or body's) reputation by means of subjective remarks which disregard the duty of propriety.\" It held that Mr Putz had overstepped the bounds of objectivity and decency in comparing the judicial methods in the proceedings in question to those characteristic of Nazi trials and trials in the Eastern bloc, and in referring to criminal violation of the law like that under Hitler or Stalin. It therefore considered a pecuniary penalty of ATS 10,000 to be appropriate. 16.", "On 18 March 1992 the Linz Court of Appeal made an order sentencing the applicant to pay the fine in question, and on 26 March 1992 the applicant paid it. D. The judgment of the Supreme Court 17. On 25 February 1992 an appeal brought by the applicant against the Linz Court of Appeal's decision of 17 July 1991 was declared inadmissible by the Supreme Court (Oberster Gerichtshof). II. Relevant domestic law 18.", "Austrian law provides that offensive remarks or unfounded accusations made in the context of criminal proceedings are punishable by a pecuniary penalty (Ordnungsstrafe). If the remarks or accusations in question have been made during a hearing, the provisions of the Code of Criminal Procedure (Strafprozeßordnung) apply. If, on the other hand, they have been made in writing, the applicable provisions are those of the Courts Act (Gerichtsorganisationsgesetz) taken together with those of the Code of Civil Procedure (Zivilprozeßordnung). In both cases the appeal procedure is governed by the Code of Criminal Procedure. A.", "Code of Criminal Procedure 1. Keeping order in oral proceedings 19. Article 233 \"1. The presiding judge shall be responsible for ensuring peace and order in the courtroom and the propriety of behaviour appropriate to the dignity of the court. 2.", "... 3. Displays of approval or disapproval shall be prohibited. The presiding judge shall have the right to call to order anyone who disturbs the proceedings by such displays or otherwise and, if need be, to order that the courtroom be cleared or that individual members of the public be removed. If there is any resistance or if the disturbances are repeated, he may impose on the person refusing to comply a pecuniary penalty not exceeding ten thousand schillings or, if essential for maintaining order, commit him to prison for a period not exceeding eight days.\" Article 235 \"The presiding judge must ensure that no insults or manifestly unfounded or irrelevant accusations are made against anyone.", "If the accused, a private prosecutor (Privatankläger), a civil party to the proceedings (Privatbeteiligter), a witness or an expert has taken the liberty of making such remarks, the court may, at the request of the person against whom the remarks were directed or the public prosecutor, or of its own motion, impose a pecuniary penalty not exceeding ten thousand schillings or, where essential for maintaining order, commit him to prison for a period not exceeding eight days.\" Article 237 para. 1 \"Decisions taken under Articles 233 to 235 ... shall be enforceable immediately. No appeal shall lie against them.\" 2.", "Criminal offences 20. Article 237 para. 2 \"If the conduct referred to in the aforementioned Articles amounts to a criminal offence, the provisions of Article 278 shall be applied.\" Article 278 para. 1 \"If a criminal offence is committed in the courtroom during the trial and the offender is caught in the act, the court may, on an application by the competent prosecutor and after hearing the accused and any witnesses present, deal with the matter either immediately by adjourning or at the end of the trial.", "Appeals against decisions so taken shall not have a suspensive effect.\" Article 67 \"No judge or registrar may perform any judicial functions in criminal proceedings if he is himself the victim of the offence ...\" 3. Conversion of fines 21. Article 7 \"1. Where a fine imposed under the Code of Criminal Procedure proves to be wholly or partly irrecoverable, the court must, in cases deserving of consideration, adjust the amount of the fine, but otherwise convert it into a period of imprisonment not exceeding eight days.", "2. The provisions of the Act on the enforcement of custodial sentences not exceeding three months shall be applicable, in accordance with the purpose of the Act (dem Sinne nach), to the enforcement of the aforesaid sentences of imprisonment in default, the enforcement of the custodial sentences provided for in the Code of Criminal Procedure and the enforcement of coercive imprisonment. 3. ...\" Under Article 114 para. 1 of the same Code, an appeal lies against decisions to convert a fine into a sentence of imprisonment in default.", "B. Courts Act Preserving propriety in written proceedings 22. Section 85 (1) \"[Pecuniary penalties; responsibility for keeping order in the courtroom] Without prejudice to any criminal proceedings, the court may impose a pecuniary penalty (Article 220 of the Code of Civil Procedure) on parties who in written applications in non-contentious matters show disrespect for the court by making offensive attacks or insult the opposing party, a representative, authorised agents, witnesses or experts.\" Section 97 \"[Application to criminal proceedings] The provisions of this Act shall apply to criminal matters in so far as they are apt for that purpose and no special rules have been made in provisions governing criminal procedure.\" C. Code of Civil Procedure Conversion of fines 23.", "Article 220 \"1. A pecuniary penalty (Ordnungsstrafe) may not exceed 20,000 schillings ... 2. ... 3. In the event of inability to pay, a fine (Geldstrafe) shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days.", "4. ...\" D. Criminal Code 24. The Criminal Code contains the following rules: Article 18 \"1. ... 2. A fixed-term custodial sentence may not be for less than one day or more than twenty years.\"", "Article 19 \"1. Fines (Geldstrafen) shall be expressed as day-fines. They shall not amount to less than two day-fines. 2. Day-fines shall be fixed according to the offender's means and personal circumstances at the time of the judgment at first instance.", "However, they shall not amount to less than 30 schillings or more than 4,500 schillings. 3. If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day's imprisonment in default shall correspond to two day-fines. 4.", "...\" PROCEEDINGS BEFORE THE COMMISSION 25. Mr Putz applied to the Commission on 23 September 1991. Relying on Article 6 paras. 1 and 3 and Article 13 (art. 6-1, art.", "6-3, art. 13) of the Convention, he complained that he had had neither a fair hearing by an impartial tribunal nor any effective remedy in respect of the decisions of the Austrian courts whereby pecuniary penalties had been imposed on him for disrupting court proceedings. He also alleged violations of Articles 3, 7, 9, 10 and 17 (art. 3, art. 7, art.", "9, art. 10, art. 17) of the Convention. 26. On 3 December 1993 the Commission declared the first two complaints admissible as regards the Wels Regional Court's decisions of 2 and 8 April 1991 and the Linz Court of Appeal's decision of 17 July 1991, and declared the remainder of the application (no.", "18892/91) inadmissible. In its report of 11 October 1994 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 6 paras. 1 and 3 (art. 6-1, art.", "6-3) (ten votes to six) and that it was unnecessary to consider the applicant's complaint under Article 13 (art. 13) (unanimously). The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment (1). _______________ Note by the Registrar 1. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1996), but a copy of the Commission's report is obtainable from the registry.", "_______________ FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT 27. In their memorial the Government asked the Court to hold \"1. that Article 6 para. 1 (art. 6-1) of the Convention did not apply to the proceedings in question, or alternatively, 2. that there has been no violation of Article 6 paras. 1 and 3 (art.", "6-1, art. 6-3) of the Convention in these proceedings\". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION 28.", "The applicant relied on Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention, which provide: \"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... ... 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; ...\" In his submission, pecuniary penalties for disrupting court proceedings were \"criminal\" in nature and had to be imposed in a manner that satisfied the requirements of Article 6 (art. 6). 29. The Government disputed the applicability of that provision to the penalties in issue, which, in their view, were not \"criminal\" but disciplinary. At all events, the decisions of the Austrian courts had not breached Article 6 (art.", "6). 30. The Commission concluded that the offences of which the applicant had been accused were to be classified as \"criminal\" within the meaning of the Convention and considered that the applicant had not had a fair hearing enabling him to exercise his defence rights as guaranteed in Article 6 paras. 1 and 3 (art. 6-1, art.", "6-3). 31. In order to determine whether Article 6 (art. 6) was applicable under its \"criminal\" head, the Court will have regard to the three alternative criteria laid down in its case-law (see the following judgments: Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, p. 35, para.", "82; Weber v. Switzerland, 22 May 1990, Series A no. 177, pp. 17-18, paras. 31-34; Demicoli v. Malta, 27 August 1991, Series A no. 210, pp.", "15-17, paras. 30-35; Ravnsborg v. Sweden, 23 March 1994, Series A no. 283-B, p. 28, para. 30; and, as the most recent authority, Schmautzer v. Austria, 23 October 1995, Series A no. 328-A, p. 13, para.", "27). A. Legal classification of the offence in Austrian law 32. It must first be ascertained whether the provisions defining the offence in issue belong, according to the domestic legal system, to criminal law. In the instant case the pecuniary penalties imposed on Mr Putz were based, firstly, on Article 235 of the Code of Criminal Procedure and, secondly, on sections 85 (1) and 97 of the Courts Act taken together with Article 220 of the Code of Criminal Procedure, and not on provisions of the Criminal Code (see paragraphs 19 and 22-23 above).", "The relevant provisions confer powers on the presiding judge of the court to maintain order during court proceedings, both oral and written. In the case of offences classified as criminal in the Criminal Code, Articles 237 para. 2 and 278 of the Code of Criminal Procedure provide for a separate procedure (see paragraph 20 above). The pecuniary penalties in question are not entered in the criminal record and their amount does not depend on income as in criminal law (see paragraph 24 above). These features tend to show that Austrian law does not regard them as criminal penalties.", "The Court accordingly considers, like the Government and the Commission, that there is nothing to show that in the national legal system the provisions covering disruptions of court proceedings belong to criminal law. B. Nature of the offence 33. The Court notes that in Austrian law unfounded accusations or offensive remarks made at a hearing are punishable under Article 235 of the Code of Criminal Procedure, whereas if such accusations or remarks have been made in writing, the applicable provisions are sections 85 (1) and 97 of the Courts Act taken together with Article 220 of the Code of Civil Procedure. In both cases punishment is laid down for behaviour judged to be disruptive.", "In this respect, the situation is similar to the one in the Ravnsborg case. Rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of the legal systems of most of the Contracting States. Such rules and sanctions derive from the inherent power of a court to ensure the proper and orderly conduct of its own proceedings. Measures ordered by courts under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence (see the Ravnsborg judgment previously cited, p. 30, para. 34).", "The Court consequently considers, like the Government and the Commission, that the kind of proscribed conduct for which the applicant was fined in principle falls outside the ambit of Article 6 (art. 6). The courts may need to respond to such conduct even if it is neither necessary nor practicable to bring a criminal charge against the person concerned (ibid.). C. Nature and degree of severity of the penalty 34. Notwithstanding the non-criminal nature of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring - the third criterion - may bring the matter into the \"criminal\" sphere (loc.", "cit., pp. 30-31, para. 35). 35. The applicant drew attention to the large amount of the pecuniary penalties imposed on him; such fines could be larger than those imposed for a criminal offence.", "Furthermore, as the amount of the latter was fixed according to income and he had been bankrupt, they would even have been smaller in his case. 36. The Commission was of the opinion that the penalties imposed in the case were large enough to warrant classifying the offences as \"criminal\" under the Convention. 37. The Court notes that Article 235 of the Code of Criminal Procedure concerning responsibility for keeping order at hearings provides for the imposition of a fine not exceeding ATS 10,000 or, where essential for maintaining order, a custodial sentence not exceeding eight days.", "If the fine proves to be irrecoverable, the custodial sentence will be for a term of at most eight days (Article 7 of the Code of Criminal Procedure - see paragraph 21 above). As regards written proceedings, Article 220 of the Code of Civil Procedure provides for the imposition of a fine not exceeding ATS 20,000 and, in the event of inability to pay, a custodial sentence not exceeding ten days. In the instant case the Austrian courts sentenced Mr Putz to pay fines of ATS 5,000, 7,500 and 10,000 (see paragraphs 8, 10 and 15 above). Two of them were converted into prison sentences, but after payment the applicant did not have to serve these (see paragraphs 9 and 11 above). In this respect, the Court notes a number of dissimilarities between the instant case and the Ravnsborg case, in which the amount of the fines could not exceed 1,000 Swedish kronor and the decision to convert them into custodial sentences required a prior hearing of the person concerned.", "This finding, however, is qualified by three features of the instant case: firstly, as in the Ravnsborg case, the fines are not entered in the criminal record; secondly, the court can only convert them into prison sentences if they are unpaid, and an appeal lies against such decisions (see paragraph 21 above), as it does against custodial sentences imposed straight away at the hearing where that course was essential for maintaining order; lastly, whereas in the Ravnsborg case the term of imprisonment into which a fine could be converted ranged from fourteen days to three months, in the instant case it cannot exceed ten days. However real they may be, the dissimilarities, which reflect the characteristics of the two national legal systems, therefore do not appear to be decisive. In both cases the penalties are designed to enable the courts to ensure the proper conduct of court proceedings (see paragraph 33 above). Having regard to all these factors the Court considers, like the Government, that what was at stake for the applicant was not sufficiently important to warrant classifying the offences as \"criminal\". D. Conclusion 38.", "In sum, Article 6 (art. 6) did not apply to the matters complained of and there has therefore been no breach of it. II. ALLEGED VIOLATION OF Article 13 (art. 13) OF THE CONVENTION 39.", "Mr Putz also maintained that the lack of an effective remedy against the Wels Regional Court's decisions of 2 and 8 April 1991 and the Linz Court of Appeal's decision of 17 July 1991 had infringed Article 13 (art. 13) of the Convention, which provides: \"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\" 40. In its report the Commission, having expressed the opinion that there had been a breach of Article 6 (art. 6), considered it unnecessary to examine this complaint.", "41. The Court points out that Article 13 (art. 13) guarantees the availability of a remedy at national level to allege non-compliance with the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).", "In the instant case, however, it has held that there was no \"criminal charge\" and, accordingly, that Article 6 (art. 6) did not apply. The applicant therefore cannot claim to be the victim of a breach of rights protected by that provision. Consequently, his complaint lies outside the ambit of Article 13 (art. 13).", "FOR THESE REASONS, THE COURT 1. Holds by seven votes to two that Article 6 (art. 6) of the Convention did not apply to the pecuniary penalties imposed on the applicant and that there has accordingly been no breach of it; 2. Holds by seven votes to two that Article 13 (art. 13) of the Convention did not apply in the instant case and that there has accordingly been no breach of it.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 February 1996. Signed: Rolv RYSSDAL President Signed: Herbert PETZOLD Registrar In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 55 para. 2 of Rules of Court B, the following separate opinions are annexed to this judgment: (a) dissenting opinion of Mr De Meyer; (b) dissenting opinion of Mr Jungwiert.", "Initialled: R. R. Initialled: H. P. DISSENTING OPINION OF JUDGE DE MEYER (Translation) 1. This case concerns someone who, during criminal proceedings against him, had fines imposed on him, with prison sentences in default of payment, for having made accusations against the court on various occasions both at hearings and in his pleadings. The Court has held that Article 6 (art. 6) of the Convention does not apply to such penalties. I cannot approve of such a narrow interpretation.", "2. The instant case is not the first one in which the Court has had to deal with the maintenance of order in court proceedings. There have already been the Weber case, which concerned a fine imposed by the President of the Criminal Cassation Division of the Canton of Vaud on a complainant who had breached the confidentiality of a judicial investigation (1), and the Ravnsborg case, which concerned three fines imposed by the Göteborg District Court and by the Court of Appeal for Western Sweden on a litigant who had made improper remarks in his written observations (2). _______________ 1. Weber v. Switzerland judgment of 22 May 1990, Series A no.", "177 2. Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B _______________ Both these cases were decided by the Court in the light of the three criteria it laid down nearly twenty years ago for distinguishing criminal law from other sanction systems, in particular from disciplinary provisions, namely: the classification in the law of the State concerned, the nature of the offence and the degree of severity of the penalty (3). _______________ 3. Engel and Others v. the Netherlands judgment of 23 November 1976, Series A no.", "22, pp. 34-35, para. 82 _______________ The Court has adopted the same approach in deciding the instant case. Experience appears to show that these criteria are not very satisfactory. 3.", "The Court recognised at the outset, in the Engel judgment, that the \"indications\" afforded by the first criterion, the classification in national law, \"have only a formal and relative value\" (4). _______________ 4. Ibid., p. 35, para. 82 _______________ This criterion does indeed give too much scope to the differences between States' legal systems. And in fact it does not appear ever to have served to influence the Court in one direction or the other.", "The Court barely touches on this aspect of the question in the Weber judgment (5). In the Ravnsborg case it resigned itself to noting that the \"formal classification under Swedish law [was] open to differing interpretations\" (6). _______________ 5. Weber judgment previously cited, pp. 17-18, para.", "31 6. Ravnsborg judgment previously cited, p. 30, para. 33 _______________ In the present case it notes that various features \"tend to show that Austrian law does not regard [the fines in question] as criminal penalties\" and that \"there is nothing to show that in the national legal system the provisions covering disruptions of court proceedings belong to criminal law\" (7). _______________ 7. Paragraph 32 of the present judgment _______________ What are those features and what is their persuasive weight?", "How is it relevant that \"the pecuniary penalties imposed on Mr Putz were based\" not on the Criminal Code but on the Code of Criminal Procedure, the Courts Act and the Code of Civil Procedure? In other cases the Court has held that \"the character of the legislation which governs how the matter is to be determined\" is of little consequence for determining whether there is a \"contestation (dispute) over civil rights and obligations\" (8) and that \"whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned\" (9). Why should matters be any different when it comes to determining what falls within the criminal sphere? _______________ 8. Ringeisen v. Austria judgment of 16 July 1971, Series A no.", "13, p. 39, para. 94. See also the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-30, paras.", "88-89, and the Baraona v. Portugal judgment of 8 July 1987, Series A no. 122, pp. 17-18, paras. 42 and 43 9. König judgment previously cited, p. 30, para.", "89 _______________ Furthermore, what does it matter that the procedure laid down for imposing the fines is different from the one laid down for \"offences classified as criminal in the Criminal Code\", that the fines are not entered in the criminal record or that their amount does not depend on income? None of those can justify an exemption from the obligation to comply with the principles of a fair trial. That would be too easy. 4. The second criterion, the nature of the offence, is, according to what the Court said in the Engel judgment, \"a factor of greater import\" (10).", "_______________ 10. Engel judgment previously cited, loc. cit. See also the Weber judgment previously cited, p. 18, para. 32 _______________ The Court spelled out its significance from the point of view of distinguishing criminal law from disciplinary provisions in the Weber judgment, when it said that \"disciplinary sanctions are generally designed to ensure that the members of particular groups comply with the specific rules governing their conduct\" (11).", "_______________ 11. Weber judgment previously cited, p. 18, para. 33 _______________ As regards court proceedings, it said in the same judgment that \"the parties ... only take part in the proceedings as people subject to the jurisdiction of the courts\" and that \"they therefore do not come within the disciplinary sphere of the judicial system\". Noting that Article 185 of the Vaud Code of Criminal Procedure, under which a fine had been imposed on Mr Weber because he had breached the confidentiality of a judicial investigation, affected \"potentially ... the whole population\", it found that the \"offence\" it defined and to which it attached a \"punitive sanction\" was \"a `criminal' one for the purposes of the second criterion\" (12). _______________ 12.", "Ibid., loc. cit. _______________ It is difficult to see in what respect, in this connection, the Ravnsborg and Putz cases, to which, in the Court's view, Article 6 (art. 6) did not apply as the measures ordered against the two applicants were \"more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence\" (13), could differ from the Weber case. Just like Mr Weber, Mr Putz and Mr Ravnsborg did no more than \"take part in the proceedings as people subject to the jurisdiction of the courts\" and the provisions that were applied to them, like those that were applied to Mr Weber, affected \"potentially ... the whole population\".", "_______________ 13. Ravnsborg judgment previously cited, p. 30, para. 34, and paragraph 33 of the present judgment _______________ Is disruptive or disorderly conduct in proceedings before a court (14) of a different \"nature\", as an offence, from disruptive or disorderly conduct elsewhere or from other forms of contempt of court (15), such as breaching the confidentiality of a judicial investigation? _______________ 14. Paragraph 33 of the present judgment 15.", "In English law contempt in the face of the court and contempt out of court are merely two facets of the single offence of contempt of court. See the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, pp. 14-16, para. 18 _______________ What objective and reasonable justification can there be for a difference of treatment such that, by stating that this kind of conduct \"falls outside the ambit of Article 6 (art.", "6)\" (16), one deprives the person guilty of it of the safeguards of a fair trial? _______________ 16. Paragraph 33 of the present judgment _______________ Does the \"nature of the offence\" allow of such a distinction? 5. The third criterion, according to the Engel judgment, must be \"the degree of severity of the penalty that the person concerned risks incurring\" (17).", "_______________ 17. Engel judgment previously cited, loc. cit. _______________ Applying this criterion leads to odd results. The fine imposed on Mr Weber was 300 Swiss francs, the maximum allowed by the law being 500 francs; in default of payment, it was convertible into days of imprisonment, at the rate of one day's imprisonment for every thirty francs of fine, which amounted to ten days in the applicant's case, the maximum being sixteen days.", "The Court held in that case that \"what was at stake was thus sufficiently important to warrant classifying the offence with which the applicant was charged as a criminal one under the Convention\" (18). Currently, 300 and 500 Swiss francs are equivalent to nearly 1,300 and a little over 2,100 French francs respectively. _______________ 18. Weber judgment previously cited, p. 18, para. 34 _______________ In contrast, in the cases of Mr Ravnsborg and Mr Putz the Court held that \"what was at stake for the applicant was not sufficiently important to warrant classifying the offences as `criminal'\" (19).", "_______________ 19. Ravnsborg judgment previously cited, p. 31, para. 35, and paragraph 37 of the present judgment _______________ The three fines imposed on Mr Ravnsborg were each of 1,000 Swedish kronor, the maximum provided; in default of payment, they could be converted into sentences of fourteen days' to three months' imprisonment. Currently, 1,000 Swedish kronor are worth a little under 750 French francs, which gives a total of a little over 2,200 francs for the three fines together. In the instant case the fines imposed on Mr Putz were of 5,000 and 7,500 Austrian schillings, converted into three and five days' imprisonment respectively, as regards the incidents at the hearings, and of 10,000 schillings as regards the written accusations; the maximum was 10,000 schillings or eight days in respect of the former offences and 20,000 schillings or ten days in respect of the latter (20).", "Currently 5,000 Austrian schillings are worth more than 2,500 French francs, 7,500 schillings are worth a little under 3,700 francs, 10,000 a little under 4,900 francs, and 20,000 nearly 9,800 francs. _______________ 20. Paragraphs 8-11, 15 and 19-24 of the present judgment _______________ A comparison of these various amounts (21) and of the lengths of the corresponding prison terms in default clearly shows the inadequacy of the third criterion. _______________ 21. It may also be remembered that in the Öztürk v. Germany case, which the Court held to be criminal in nature, the fine in issue was of 60 German marks, the maximum being 1,000 marks (judgment of 21 February 1984, Series A no.", "73, p. 9, para. 11, and p. 10, para. 18); those amounts are currently equivalent to a little less than 210 French francs and a little under 3,500 francs. _______________ But that is not all. Does it really have to be accepted that a person does not have the right to be tried properly where only a small fine or a short term of imprisonment is at stake?", "And if so, where does the threshold of severity lie that triggers entitlement to that right? What amount? How many days' imprisonment? The severity of a penalty may be taken into consideration in order to ascertain that it was fair, in particular in the light of the proportionality principle, or to examine more closely the way in which it was imposed, or again, to determine if it requires there to be a remedy (22), but it is unsuitable as a criterion for the applicability of the guarantees in Article 6 (art. 6) of the Convention.", "_______________ 22. As to the need for a remedy, Article 2 of Protocol No. 7 (P7-2) merely makes explicit what is already implicit in the very concept of a fair trial _______________ 6. I think it would be more in accordance with the object, aim and spirit of the Convention (23) to adopt a simpler, more common-sense method of reasoning. _______________ 23.", "Here too it is necessary to \"seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties\" (Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, para. 8) _______________ To begin with, as regards disciplinary provisions, rather than contrast these with criminal law, it should be recognised that they are part of it and that they constitute a special branch of it in that they make up the criminal law peculiar to a specific body or group. If there is a distinction to be made, it can only be between this special criminal law, applicable exclusively to members of the body or group, and the general criminal law, applicable to everyone. The same is true of any other sanction system that might be regarded as akin to disciplinary provisions (24) or as distinct, on whatever ground, from the general criminal law.", "_______________ 24. Paragraph 33 of the present judgment. Ravnsborg judgment previously cited, p. 30, para. 34 _______________ It seems to me that whatever names may be given to things, any sanction imposed on someone on account of conduct considered reprehensible is a \"penalty\" (25) and accordingly, by its very \"nature\", comes within the criminal sphere. This must certainly be true of any pecuniary or custodial sanction.", "Such sanctions can only, in my opinion, be imposed on someone by, or under the supervision of, a judicial authority that affords the person concerned the safeguards laid down more or less perfectly in Article 6 (art. 6) of the Convention. _______________ 25. Lawyer's jargon must not diverge too widely from everyday language. Above all, it must not serve to restrict fundamental rights _______________ It is for the States to ensure this, under the supervision of the Court.", "7. The distinction made hitherto between criminal and \"other\" proceedings, such as disciplinary proceedings, may be explained in part by the fear of having to apply those safeguards to these proceedings too. It is indeed all too true that what goes on in these \"other\" proceedings often leaves much to be desired in this respect. That is not, in my view, a sufficient reason for washing our hands of them. On the contrary, it would be appropriate to bring some order into them, albeit while taking due account of the special features of the situations governed by these other sanction systems.", "Thus where, for example, discipline within the armed forces or a code of conduct within a professional association is involved, the judicial nature, independence and impartiality of the authority imposing the sanction do not necessarily have to be assessed in the same way as where a case is being tried under the ordinary criminal law. When exercising disciplinary powers, a hierarchical superior or a professional disciplinary council does not have to be regarded a priori as being a tribunal less independent or less impartial than an \"ordinary\" court or jury in relation to an offence under the ordinary law (26). _______________ 26. See, as regards professional disciplinary bodies, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, pp.", "34-35, paras. 50-52 _______________ But at all events, in the fields covered by special sanction systems as well as under the general criminal law, the trial must be a fair one. In order for it to be so, it is necessary, among other things, that the sanction should be reasonably proportionate to the offence and that an adequate appeal against it should lie if it exceeds a certain threshold of severity. 8. In the Ravnsborg case it was scarcely in doubt that the applicant had no cause to complain of a breach of his fundamental rights.", "In three pleadings, he had insulted - without making any specific charges - the Board of the Principal Guardian, the other boards and councils of the municipality of Göteborg, the Swedish Supreme Court and several members of the Göteborg District Court (27). _______________ 27. Ravnsborg judgment previously cited, p. 23, para. 10, p. 24, para. 12, and p. 25, para.", "16 _______________ I think it was obvious that these flagrant actions could be punished summarily, without further formalities and, in particular, without any hearing, by moderate fines, as they were in the first case by the Göteborg District Court and in the second and third cases by the Court of Appeal for Western Sweden. This was all the more permissible as the applicant's intemperate language had not been directed against the courts themselves and these would have had discretion to convert the fines into prison sentences only on an application by the public prosecutor and after summoning the prosecution and the person concerned to a hearing (28). _______________ 28. Ibid., p. 27, para. 24 _______________ In the interests of the proper, undisturbed administration of justice, the courts must be able to punish in this way those who indulge in such lapses of behaviour.", "9. The instant case resembles the Ravnsborg case in that the third fine was imposed on Mr Putz by the Linz Court of Appeal on account of accusations he had made in written observations submitted to that court against the presiding judge of the Wels Regional Court and, more vaguely, against the \"judges and prosecutors concerned\" at that court (29). _______________ 29. Paragraph 15 of the present judgment _______________ The situation was slightly different as regards the first two fines, which were imposed on Mr Putz by the Wels Regional Court on account of accusations he had made out of court against the presiding judge of the court (30). _______________ 30.", "Paragraphs 8 and 10 of the present judgment _______________ In itself, despite appearances, this did not necessarily entail a breach of Mr Putz's right to a fair trial. A court must be able to enforce respect for its authority (31). _______________ 31. Insulting a court or making accusations against it is not sufficient to entitle someone to claim that on that account it is no longer an \"independent and impartial tribunal established by law\" or that it can no longer give the case a \"fair\" hearing. _______________ On the other hand, each of the three fines imposed on Mr Putz was appreciably heavier than each of those incurred by Mr Ravnsborg.", "This severity could raise questions on the basis of the proportionality principle; above all, it required there to be a remedy which would have made it possible to review both compliance with that principle and the merits of the punishment. But that is not all. It was not simply a question of insults, as in Mr Ravnsborg's case; Mr Putz's main allegation was that his judges at Wels had behaved unlawfully and unfairly towards him. In this connection, his counsel, Mr Schwab, pointed out to the Court at the hearing on 23 October last, without being contradicted by the representatives of the respondent Government, that no incident of that kind had occurred when the applicant's case was heard by the Innsbruck and Vienna courts. The case therefore, it seems, came not so much within the field of maintaining order in proceedings as within that of challenging a judge, bringing an action against a judge for misuse of his authority or disqualification on the ground of reasonable suspicion of bias.", "This aspect of the case, taken together with the fact that the applicant had no remedy against the decisions in issue (32), leads me to think that he did not have a fair trial. _______________ 32. Paragraphs 8, 10, 15 and 19 of the present judgment _______________ 10. Because there were no remedies, there has also been, in my opinion, a breach of Article 13 (art. 13) of the Convention.", "DISSENTING OPINION OF JUDGE JUNGWIERT (Translation) Unlike the majority of the Chamber, I have reached the conclusion that there have been breaches of Article 6 and Article 13 (art. 6, art. 13) in the instant case. The majority note certain dissimilarities between this case and the Ravnsborg case but do not regard them as decisive. In their opinion, what was at stake for the applicant was not sufficiently important to warrant classifying the offences as \"criminal\".", "What appears to me to be decisive is the degree of severity of the pecuniary penalties and their convertibility into prison sentences. It is important to note that the penalties in this case are much more severe than in the Ravnsborg case. The fact that the applicant did not have to serve the prison sentences does not alter that. I consider that the nature and degree of severity of the penalties are important not only in this particular case but in Austrian law in general. The nature and severity of the penalties are further reinforced by the nature of the proceedings (criminal and civil).", "A pecuniary penalty of ATS 10,000 (and which could be as high as ATS 20,000) is at the level of a criminal punishment. The criminal nature of the penalty is much more apparent still if account is taken of its possible conversion into a prison sentence. I find it difficult to describe as disciplinary a custodial penalty of up to \"only\" eight or ten days. Furthermore, if the applicant did not have to serve the prison sentences of three and five days, it was solely because he had earlier paid the fines. I consider that the penalties in issue were sufficiently important for them to be described as \"criminal\" within the meaning of the Convention.", "I have accordingly reached the conclusion that Article 6 (art. 6) of the Convention applies in the instant case and that there has been a breach of it. As regards the submissions on compliance with Article 6 (art. 6), I moreover entirely agree with the Commission's opinion as expressed in paragraphs 57-70 of its report. In the proceedings the applicant did not have an effective remedy.", "Having found that there has been a breach of the applicant's rights under Article 6 (art. 6) of the Convention, I do not consider it necessary to examine in detail the issue of the applicability of, and compliance with, Article 13 (art. 13) of the Convention, which, in my opinion, has also been breached." ]
[ "SECOND SECTION CASE OF BAKONYI v. HUNGARY (Application no. 45311/05) JUDGMENT STRASBOURG 3 May 2007 FINAL 12/11/2007 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 Bakonyi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrI. Cabral Barreto,MrV. Zagrebelsky,MrsA. Mularoni,MsD. Jočienė,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45311/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Mihály Bakonyi (“the applicant”), on 21 June 2004. 2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.", "3. On 13 March 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 4. The applicant was born in 1952 and lives in Szeged.", "5. In September 1997 the applicant was dismissed from work. On 12 November 1997 he challenged the employer's decision in court. 6. After a hearing on 30 April 1998 before the Budapest Labour Court, on 4 June 1998 the case was transferred to the Pest Central District Court.", "This court discontinued the proceedings on 21 October 1999, because the applicant, although properly summoned, failed to appear. At his request, the case was continued on 22 February 2000 but was immediately stayed, again at his request. He demanded the continuation of the proceedings on 4 August 2000. 7. After a hearing on 26 April 2001, on 2 May 2002 the District Court found that it had no jurisdiction in the case and requested the appropriate designation by the Supreme Court.", "On 22 May 2002 the Budapest Labour Court was appointed to hear the case. 8. After a hearing on 21 January 2003, on 6 May 2003 the Budapest Labour Court found for the applicant, established that his dismissal had been unlawful and awarded him compensation. 9. On appeal, on 28 November 2003 the Budapest Regional Court upheld in essence the first instance decision, increased the award, but dismissed the remainder of the applicant's compensation claims.", "10. On 23 March 2004 the applicant filed a petition for review. On 26 January 2005 the Supreme Court dismissed the petition. This decision was served on the applicant on 7 March 2005. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11. The applicant complained that the length of the proceedings was 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...” 12. The Government contested that argument. 13. The period to be taken into consideration began on 12 November 1997 and ended on 7 March 2005.", "It thus lasted almost seven years and four months for three levels of jurisdiction. A. Admissibility 14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 15. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no.", "230-D, p. 39, § 17).] 16. 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). 17. 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 18. The applicant also complained about the outcome of the proceedings.", "In this connection, he relied on Articles 5, 6, 8, 9 10 and 11 of the Convention. 19. In so far as the applicant's complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no.", "30544/96, § 28, ECHR 1999‑I). 20. In the present case, the Court observes that there is nothing in the case file indicating that the domestic courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary. Moreover, the applicant's submissions do not disclose any appearance of a violation of his other Convention rights. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 22. The applicant claimed 100 million euros (EUR) in respect of pecuniary and non-pecuniary damage.", "23. The Government contested the claim. 24. 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 – whilst having regard to what was at stake for the applicant, but also to the delay imputable to him – it awards him EUR 3,000 under that head. B. Costs and expenses 25. The applicant made no claim under this head. C. Default interest 26.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 3,000 (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 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. TulkensRegistrarPresident" ]
[ "THIRD SECTION CASE OF AKÇAY AND OTHERS v. RUSSIA (Application no. 66729/16) JUDGMENT STRASBOURG 11 December 2018 This judgment is final but it may be subject to editorial revision In the case of Akçay and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 20 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application no. 66729/16 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 Turkish national, Mr Omer Akcay, and by Russian nationals, Ms Svetlana Akchay and Mr Deniz Akchay (“the applicants”), on 5 November 2016. 2.", "The applicants were represented by a lawyer, Mr V. Zubkov, and by a human-rights defender, Mr E. Mezak, both practising in Syktyvkar, and a lawyer, Mr A. Laptev, residing in Strasbourg. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 18 September 2017 the Government were given notice of the complaints concerning Articles 8 and 13 of the Convention, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicants are a family. The first applicant, Mr Omer Akçay (also spelt Emer and Emir Akchay), who was born in 1960, is a Turkish national. The second and third applicants are his wife, Ms Svetlana Akchay, who was born in 1975, and his son, Mr Deniz Akchay, who was born in 2000. Both of them are Russian nationals.", "The first applicant’s surname is spelt as it would be in Turkish. The second and third applicants’ surname is the same as that of the first applicant, but it has been transliterated into Russian and has a different spelling. Background information 5. The first applicant has been residing in Turkey since April 2016. Prior to that, from 1999 to 2016, he resided with his family in Syktyvkar, in the Komi Republic, Russia.", "The second and third applicants still reside there. 6. At some point prior to December 1999 the first applicant moved from Turkey to Russia and started living with the second applicant in Syktyvkar. He resided in Russia on the basis of regularly extended residence permits. 7.", "In January 2000 the third applicant was born and the first applicant was registered on his birth certificate as his father. The third applicant goes to school in Syktyvkar. 8. In 2007 the first applicant was officially registered as a business owner; he had a cattle farm, where he employed five Russian nationals. 9.", "On 27 January 2015 the Komi Department of the Federal Migration Service (“the Komi FMS”) granted the first applicant yet another renewal of his five-year residence permit, valid until 3 February 2020. 1. Annulment of the first applicant’s residence permit 10. On 2 December 2015 (in the documents submitted the date was also referred to as 27 November and 4 December 2015) the Komi Department of the Federal Security Service (“the Komi FSB”) issued a letter requesting that the FMS annul (revoke) the first applicant’s residence permit. The text of the document stated as follows: “... on 13 October 2005 the Komi FMS issued Mr E. Akchay – a Turkish national who was born on 1 January 1960 in Malazgirt, Turkey – with residence permit 82 no.", "0013753 (by FMS decision no. 015777 of 13 October 2005). According to the department’s information, this person’s actions mean that he poses a threat to the national security of the Russian Federation, which, in accordance with section 9(1)(1) of the Foreign Nationals Act, provides grounds for annulling a foreigner’s residence permit in the Russian Federation. Given the above, we ask you to annul the residence permit of the Turkish national Mr Emer Akchay, in accordance with the Russian legislation.” 11. The above request by the Komi FSB specified neither the grounds for the measure nor the nature of the alleged threat.", "12. On 8 December 2015 the Komi FMS annulled the first applicant’s residence permit with reference to section 9(1)(1) of the Foreign Nationals Act, which provided for the revocation of the residence permits of foreign nationals who posed a threat to the national security of the Russian Federation or its citizens. 13. On 29 December 2015 the first applicant was invited to the Komi FMS, where he was made aware of the annulment decision and his residence permit was confiscated. He was warned that he was supposed to leave Russia within two weeks, or he would be deported.", "The first applicant was not informed of the grounds for the annulment. 14. On 26 January 2016 the applicants’ farm was inspected by the Russian Service for Veterinary and Phytosanitary Surveillance, which fined the first applicant 3,000 Russian roubles (RUB) for failing to comply with a number of relevant regulations – for example, for not having pet passports for three of the farm dogs and for piling up manure within less than sixty metres of the cattle barn. 15. On 17 February 2016 the Komi FMS issued a decision ordering the first applicant to leave Russia within five days of receiving the decision, under the threat of deportation, and banning his re-entry into the Russian Federation until 19 September 2018.", "The first applicant was informed of that decision on 7 April 2016. 16. On an unspecified date in April 2016 the first applicant was again invited to the Komi FSB and reminded to leave Russia on his own initiative, as otherwise he would be detained and then deported. He was given an exit visa valid until 20 April 2016. 17.", "On 20 April 2016 the first applicant left Russia. The second and third applicants remained in Syktyvkar to take care of the farm and continue attending school. 18. On 13 July 2016 (in the documents submitted, the date was also referred to as 21 June 2016) the first and second applicants officially registered their marriage in Turkey. 2.", "Court appeals against the annulment of the residence permit 19. On 31 December 2015 the first applicant appealed to the Syktyvkar Town Court (“the Town Court”) against the annulment of his residence permit, stating that the Komi FSB’s request of 2 December 2015 to annul his residence permit had been made on national security grounds which were unknown to him, and that the subsequent decision of the Komi FMS complying with that request and annulling his residence permit was unlawful and disproportionate. He stated that he had a family in Russia, was a business owner, had no criminal record or record of administrative offences, and that the annulment of his residence permit would deprive him of grounds for staying in Russia and disrupt his family and private life. 20. On 24 February 2016 the Town Court examined the first applicant’s appeal.", "At the hearing, representatives of the Komi FSB informed the court that the first applicant had received eleven (in the documents submitted the number was also referred to as twelve) administrative fines for speeding, for which six tickets had been issued in 2015, three tickets in 2014 and two tickets in 2013. In addition, in 2015 the first applicant had been fined for other traffic violations, such as driving a vehicle with a defect, on three occasions. He had also received two administrative fines for violating the terms of foreigners’ residence in Russia (failing to register within the prescribed time-limit, in 2013 and then in 2015). In addition, on one occasion in January 2016 he had been fined for failing to comply with veterinary regulations at the cattle farm. 21.", "The first applicant’s representative stated at the hearing that the first applicant had a farm in Russia, diligently paid taxes, employed several Russian nationals, and had a wife and a fourteen-year-old son. After the Russian military aircraft had been brought down in Turkey, the traffic police had started stopping the first applicant “at every turn”. When the first applicant’s representative asked the Komi FSB’s representative why, despite all of the alleged administrative infractions, the first applicant’s permanent residence permit had been extended yet again in February 2015 without any problems, the Komi FSB’s representative replied as follows: “the international situation is complicated, therefore the attitude in Russia towards violations by foreign nationals has become stricter”. The first applicant’s representative invited the applicants’ neighbour, Ms Ch., to the hearing, who testified that she had known the first applicant for twenty years, that he was a well-respected man who helped local orphans, that he worked for the good of the local community, and that he had a wife and son and was the breadwinner of the family. 22.", "At the hearing the first applicant also asserted that he had not been made aware of the detailed information concerning his administrative infractions which had been presented to the court by the Komi FSB prior to the hearing. He stressed that he was still unaware of the nature of the threat he allegedly posed to Russia’s national security, and that he had family in Russia, including a son who was a minor. He also had a farm which required constant attention. He admitted that he had had speeding tickets, but stressed that such infractions were very common and were of a minor nature, and that throughout the time he had been living in Russia he had never had a traffic accident. In his opinion, the impugned decision to exclude him from Russia had been taken in view of the strained relations between Russia and Turkey after the incident with the Russian military aircraft.", "23. On the same date, 24 February 2016, the Town Court upheld the annulment of the first applicant’s residence permit. In its decision, the court referred to his record of administrative violations as submitted by the Komi FSB at the hearing. The court did not make any references to the nature of the threat posed by the first applicant to national security, other than stating that his record of administrative offences for the last three years had provided the necessary basis for the Komi FSB’s request to annul his residence permit. The Komi FSB did not provide any other documents substantiating its request for the first applicant to be excluded on national security grounds.", "The court did not examine the first applicant’s complaints concerning the disruptive effect of the exclusion on his family life. 24. On 17 March 2016 the first applicant appealed to the Komi Supreme Court against the judgment of 24 February 2016, stating, amongst other things, that he had been residing in Russia since 1999, and that since 2005 he had been living there on the basis of regularly extended five-year residence permits. The last extension had been granted in February 2015, which demonstrated that he was a long-term migrant of good standing who complied with the relevant regulations. The first applicant further stated that he had always paid the taxes relating to his farm business and that he provided jobs for five Russian nationals.", "Referring to Article 8 of the Convention, he submitted that the annulment violated his and his family members’ right to respect for their family life, and that it was a disproportionate measure that did not pursue a legitimate aim. Lastly, the first applicant stressed that he was still unaware of the nature of the threat he allegedly posed to the national security of the Russian Federation. 25. On 15 and 28 April 2016 the Komi FSB lodged its objections to the first applicant’s appeal with the Komi Supreme Court, demanding that the court find against him. Amongst other things, its submissions of 15 April 2016 stated the following: “... State security bodies, in particular the Federal Security Service, have the right to evaluate the activities of foreign citizens and stateless persons as [people] representing a threat to defence, the security of the State, public order or health, and the court has no right to interfere with that authority.", "The use of those preventive measures in respect of national security is left to the discretion of the Federal Security Service. Issues relating to national security are specific, and their evaluation is carried out by designated bodies on the basis of information obtained from sources, including those outside of judicial control. Therefore, the Federal Security Service is not supposed to provide the court with documents substantiating the grounds for its decisions concerning the undesirability of the residence of a foreign citizen in the Russian Federation, as such documents contain State secrets, and the court does not have authority to request those documents ...” 26. Amongst other things, the FSB’s further submissions to the court of 15 April 2016 stated the following: “... the information concerning the annulment of the residence permit was provided to the Federal Migration Service by the Federal Security Service on the basis of classified decision no. 18577c of 27 November 2015 concerning the applicant’s actions posing a threat to the national security of the Russian Federation and its citizens, [actions] which serve as the basis for the annulment of the residence permit, in accordance with section 9(1) of The Foreign Nationals Act ...", "The [Komi] FSB provided the court of first instance with [only] information whose disclosure was not limited ...” 27. On 5 May 2016 the Komi Supreme Court examined the appeal and upheld the annulment. In its decision, the court referred to the first applicant’s record of administrative violations committed between 2013 and 2016 and some undisclosed information provided by the FSB, without specifying what the nature of that information was. The court stated that the decision to annul the residence permit had been taken by the FSB within its executive authority, and that the information obtained from classified sources was not subject to judicial control, stating as follows: “... the court takes into account that in accordance with Federal Law no. 40- ФЗ on the Federal Security Service of 3 April 1995, the right to assess the activities of foreign nationals as [people] representing a threat to the State’s defence capacity or national security, or public order or health, is within the competence of the Russian FSB and lies within the discretion of the security service.", "Within administrative proceedings, the court does not have the right to assess the [information relating to] factors threatening national security which has been obtained in respect of a foreign national ...” As for the first applicant’s allegations regarding the adverse effect of the measure on his right to respect for family life, the court stated as follows: “the annulment did not represent an inadmissible interference by the authorities with the right to respect for family life”. 28. On 28 October 2016 the first applicant lodged a cassation appeal with the Presidium of the Komi Supreme Court, and on 25 November 2016 the court rejected it without examining his allegations concerning the violation of his right to respect for family life. 29. On 13 February 2017 the Administrative Cases Chamber of the Supreme Court of the Russian Federation refused to examine a further cassation appeal lodged by the first applicant.", "3. Court appeals against the entry ban of 17 February 2016 30. On 17 February 2016 the Komi FMS issued a decision banning the first applicant from re-entering the Russian Federation until 19 September 2018 (the entry ban) and ordering him to leave Russia within five days of receiving the decision, under the threat of deportation. The first applicant was informed of that decision on 7 April 2016 (see paragraph 15 above). 31.", "On 18 April 2016 the first applicant appealed to the Town Court against the above entry ban. He stated, in particular, that the decision referred to his record of administrative infractions for speeding and failing to comply with minor immigration regulations and sanitary rules at the farm, but the ban imposed had been issued on national security grounds which he still did not know about. The first applicant further stated the ban was a disproportionate punishment, as he was a law-abiding resident of good standing who paid all his taxes and employed Russian nationals. The first applicant stressed that when imposing the sanction, the authorities had failed to balance the public interests with his right to respect for his family life with his son and wife. 32.", "On 19 July 2016 the Town Court rejected the first applicant’s appeal, referring to his administrative infractions and stating that “the impugned decision had been taken in accordance with the law and within the authority of the Komi FMS”. 33. On 30 March 2017 the Komi Supreme Court upheld the above decision and on 22 August 2017 it rejected a cassation appeal by the first applicant. II. RELEVANT DOMESTIC LAW 34.", "For the relevant domestic law and practice, see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011. III. RELEVANT COUNCIL OF EUROPE MATERIAL 35.", "For the relevant Council of Europe material, see Gablishvili v. Russia, no. 39428/12, § 37, 26 June 2014. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicants complained under Article 8 of the Convention that the annulment of the first applicant’s residence permit based on undisclosed information had violated their right to respect for family life.", "Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 37. 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 38.", "The Government acknowledged in general terms that there had been interference with the applicants’ right to respect for family life under Article 8 of the Convention. They submitted that the lawfulness and necessity of the decision to annul the first applicant’s residence permit had been duly examined by the domestic courts. The numerous administrative infractions by the first applicant had provided grounds for his exclusion. The domestic courts had found that he “had not demonstrated loyalty to Russian law and order, had violated Russian laws, and had systematically and intentionally committed administrative violations, including those representing danger to third persons; [such behaviour] had shown that the decision to annul the residence permit had been justified, fair, proportionate and had not contradicted the case-law of the European Court”. The first applicant had committed eighteen administrative infractions during the last three years that he had been living in Russia.", "The Government stressed that the procedural guarantees under Article 8 of the Convention had been complied with, which had been “verified by [an] independent court”. 39. The Government further stated that the first applicant, in spite of his lengthy stay in Russia, had not taken steps to apply for Russian nationality. The fact that he owned property in Russia did not absolve him from complying with immigration regulations. As for his allegations that the annulment of his residence permit had been connected to the worsening of relations between Russia and Turkey owing to the military aircraft incident, on 24 February 2016 the Town Court had heard both the first applicant’s allegations and the FSB’s position concerning those allegations, and had made appropriate conclusions (see paragraph 21 above).", "In addition, the first applicant was neither a long-term nor settled migrant, as he had arrived in Russia at a mature age; his first five-year residence permit had been granted to him in 2005, when he was forty-five years old. 40. Lastly, referring to the case of Samsonnikov v. Estonia, no. 52178/10, 3 July 2012 (where the applicant was banned from re‑entering Estonia for three years after a number of convictions for criminal offences, including aggravated drug trafficking, and the Court did not find the length of his three-year exclusion excessive), the Government stated that the first applicant’s ban of only two and half years did not appear to be “too long”. (b) The applicants 41.", "The applicants alleged that the annulment of the first applicant’s residence permit and subsequent imposition of an re-entry ban had adversely affected their right to respect for family life, as the first applicant had to leave Russia, his wife and minor son staying to reside there. The first applicant stated that the real reason for his exclusion was the deterioration of relations between Russia and Turkey owing to the military aircraft incident, which was illustrated by the fact that the traffic violations he had allegedly committed had been registered after that incident (see paragraph 20 above), as well as the inspection of his farm which had led to his administrative punishment (see paragraph 14 above). Moreover, actual proof of that connection had clearly been confirmed by the representative of the Komi FSB at the court hearing on 24 February 2016 when he had stated “the international situation is complicated, therefore the attitude in Russia towards violations by foreign nationals has become stricter” (see paragraph 21 above). However, despite the first applicant requesting that the courts verify his allegation that his exclusion had been caused by the deterioration of the political relationship between Russia and Turkey, the courts had not done so. The first applicant further pointed out that the copy of the Komi FSB’s letter of 2 December 2015 requesting that his residence permit be annulled did not provide any information concerning either the factual basis or motives for the sanction against him.", "The Government had failed to provide the Court with the Komi FSB’s decision of 27 November 2015 which had served as the basis for its request of 2 December 2015 to annul his residence permit (see paragraph 26 above). Given that no explanations for such a failure had been given, the first applicant, referring to Nolan and K. v. Russia, no. 2512/04, §§ 51-57, 12 February 2009, invited the Court to draw inferences from the Government’s failure to furnish all necessary facilities to the Court in its task of establishing the facts. 42. The applicants further submitted that the judicial review of the annulment of the first applicant’s residence permit by the domestic courts had not been attended by adequate procedural safeguards.", "The courts had failed to request and examine its actual basis, that is scrutinise the evidence proving that he represented threat to national security; moreover, the courts had directly stated that they could not subject the FSB’s submissions to judicial scrutiny (see paragraph 27 above), and had limited themselves to assessing whether the decision had been issued within the FSB’s administrative competence and in compliance with the relevant procedure. 43. Moreover, the courts had failed to conduct a meaningful balancing exercise between the national security interests claimed and the applicants’ right to respect for family life. In particular, they had disregarded the fact that the first applicant was a long-term migrant with very close ties to Russia, given that his family and business were there. The second and third applicants’ moving to Turkey to join the first applicant would cause them hardship, as the second applicant did not speak Turkish and the third applicant had to continue to attend school in Russia.", "2. The Court’s assessment (a) General considerations 44. It is not disputed by the parties that the first applicant’s residence permit was annulled on the basis of the Komi FSB’s request of 2 December 2015 which stated that he represented a threat to national security (see paragraph 10 above). It is neither disputed by the parties that this measure, and the subsequent imposition of a re-entry ban, interfered with the applicants’ right to respect for their family life. 45.", "Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that provision as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned. (b) Principles concerning procedural guarantees relating to challenging the executive’s assertion of a national security risk in court 46. For a summary of the relevant principles, see Gaspar v. Russia, no. 123038/15, §§ 38-39 and §§ 41-44, 12 June 2018. 47.", "From these relevant principles it follows that the Court in cases such as the present one must examine whether the domestic proceedings were attended by sufficient procedural guarantees. It is reiterated in this connection that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (see, mutatis mutandis, Regner, cited above, §§ 151 and 161). The individual must be able to challenge the executive’s assertion that national security is at stake. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Nolan and K. v. Russia, no. 2512/04, § 71, 12 February 2009, and Al-Nashif v. Bulgaria, no.", "50963/99, §§ 123 and 124, 20 June 2002). (c) Application of the principles to the present case 48. Turning to present case, the Court observes that the content of the Komi FSB’s decision of 27 November 2015, which served as the basis for the annulment of the residence permit, has not been revealed to it (see paragraph 26 above). The documents submitted indicate that the first applicant’s record of administrative infraction might have to some extent facilitated the FSB’s decisions (see paragraphs 23 and 27 above), but the actual grounds of his alleged threat to national security referred to by the executive in the request of 2 December 2015, based on the Komi FSB’s decision of 27 November 2015, were never disclosed to him. 49.", "Moreover, the domestic judgments contained no indication of why the applicant was considered a danger to national security. Those judgments neither mentioned any facts on the basis of which that finding had been made, nor provided even a generalised description of the acts ascribed to the applicant. 50. In their submissions to the Court, the Government neither gave a general outline of the possible basis for the security services’ allegations against the first applicant. 51.", "Irrespective of the nature of the acts attributed to the applicant and the alleged danger he posed to national security, the Court notes that the national courts confined the scope of their examination to ascertaining that the FSB’s recommendation had been issued within its administrative competence, without carrying out an independent review of whether their conclusion had a reasonable basis in fact. As can be seen from the Town Court’s judgment of 24 February 2016, the court did not examine any of the FSB’s documents substantiating its request for the annulment of the first applicant’s residence permit on national security grounds (see paragraph 23 above). On appeal, the Komi Supreme Court endorsed the findings of the Town Court and refused to examine the basis for the FSB’s assertion that the first applicant was a national security threat, stating that the information obtained by the FSB from classified sources was not subject to judicial control (see paragraph 27 above). The national courts thus failed to examine a critical aspect of the case, namely whether the FSB was able to demonstrate the existence of facts serving as a basis for its assessment that the applicant presented a national security risk (see, by contrast, Regner, cited above, § 154). Confining their scope of review to a purely formal examination of authorities’ decisions, renders it impossible to duly balance the interests at stake, taking into account the general principles established by the Court (see paragraphs 37-38, above) and applying standards in conformity with Article 8 of the Convention (for a similar situation, see Gaspar, cited above, § 48, and Zezev v. Russia, no.", "147781/10, § 41, 12 June 2018). The allegations against the applicant remained of an undisclosed nature, making it impossible for him to challenge the security service’s assertions by providing exonerating evidence, such as an alibi or an alternative explanation for his actions, if any (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 220-24, ECHR 2009). 52. Therefore, the Court finds that the domestic court proceedings concerning the examination of the annulment of first applicant’s residence permit and the subsequent re-entry ban and its effect on the applicants’ family life were not attended by sufficient procedural guarantees.", "53. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54. The applicants complained that the judicial review proceedings had failed to examine the actual basis of the Komi FSB’s allegations that the first applicant posed a threat to national security and provide him with the opportunity to refute them.", "The applicants 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.” 55. The Court notes that, in the present case, the complaint under Article 13 of the Convention largely overlaps with the procedural aspects of Article 8 of the Convention. Given that the complaint under Article 13 relates to the same issues as those examined under Article 8, it should be declared admissible. However, having regard to its conclusion above under Article 8 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see Kamenov, cited above, § 45, and Dzhurayev and Shalkova v. Russia, no. 1056/15, § 47, 25 October 2016).", "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 applicants claimed 11,502 euros (EUR) in respect of pecuniary damage.", "They stated that the first applicant was the head of their farm, and in his absence the farm had lost the regular average income of 30,000 Russian roubles (RUB) per month which it had generated when he was running it. Given that the entry ban had been imposed on the first applicant for twenty-nine months, the amount of lost profit was RUB 870,000 (about EUR 11,502). 58. The Government submitted that the applicants’ claim should be rejected as unsubstantiated and speculative, as the applicants had neither submitted any documents showing the loss of profit nor put forward any explanation as to how the amount claimed had been calculated. 59.", "Having regard to the parties’ submissions and the lack of documents substantiating the claim, the Court rejects the applicants’ claim in respect of pecuniary damage. 60. As for non-pecuniary damage, the applicants stated that their family life had been disrupted for twenty-nine months owing to the first applicant’s exclusion. Given the length of that disruption, as well as the psychological suffering which they had suffered as a result of the authorities’ attitude, they claimed EUR 20,000 each in respect of non-pecuniary damage. 61.", "The Government submitted that the claim was excessive and unsubstantiated, and that in any event no compensation should be granted as there had been no violation of the applicants’ rights. 62. Regard being had to the documents in its possession and its findings in the present case, and making its assessment on an equitable basis, the Court finds it reasonable to award the applicants EUR 12,000 jointly in respect of non-pecuniary damage, plus any tax which may be chargeable, to be paid to the second applicant’s bank account in Russia. B. Costs and expenses 63.", "The applicants claimed EUR 39,809 in total for the costs and expenses incurred before the domestic courts and the proceedings before the Court. The amounts claimed were as follows: - EUR 20 for the domestic courts’ fees; - EUR 39 for the certification of documents by a notary and translation of the first applicant’s identity documents from Turkish to Russian; - EUR 6,500 for twenty-six hours of Mr V. Zubkov’s services for representation before the domestic courts at a rate of EUR 250 per hour; - EUR 8,250 for thirty-three hours of Mr E. Mezak’s services for representation before the domestic courts and submissions to the Court at a rate of EUR 250 per hour; - EUR 25,000 for thirty-six hours of Mr A. Laptev’s services for preparation of the application and the applicants’ observations before the Court, and sixty-four hours for translation of the observations from Russian into English at a rate of EUR 250 per hour. 64. The Government submitted that the amount of EUR 59 claimed for expenses incurred at domestic level was not relevant to the proceedings before the Court and should therefore be rejected. In addition, the applicants had failed to substantiate their claim by enclosing documents showing that the expenses had actually been incurred.", "The Government further pointed out that, given that the applicants’ payment for their representation before the Court was conditional upon the Court rendering a judgment in their favour, the actual fees had not been incurred. 65. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, 19 February 2013). In the present case, the Court notes that that the applicants submitted an agreement with their representatives of 13 April 2016 concerning the representatives’ fees in the event that the Court delivered a judgment in the applicants’ favour.", "Such an agreement is comparable to a contingency fee agreement and, if legally enforceable, may show that the sums claimed are actually payable by the applicant. However, agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred, but also to whether they have been reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI, and Stergiopoulos v. Greece, no. 29049/12, § 63, 7 December 2017). 66.", "Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,000 each to the applicants’ representatives Mr V. Zubkov and Mr E. Mezak, and EUR 1,300 to the applicants’ representative Mr A. Laptev, plus any tax that may be chargeable to the applicants. The amounts are to be paid directly into each representative’s bank account, as indicated by the applicants. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints concerning Articles 8 and 13 of the Convention admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay, 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, except for the payment to the first applicant which is to be made in euros: (i) EUR 12,000 to the applicants jointly, plus any tax that may be chargeable to them, in respect of non‑pecuniary damage, to be paid to the account of the second applicant in Russia; (ii) EUR 1,000 (one thousand euros) to Mr V. Zubkov, plus any tax that may be chargeable to the applicants, in respect of costs and expenses. This amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement and is to be paid directly into the representative’s account, as indicated by the applicants.", "(iii) EUR 1,000 (one thousand euros) to Mr E. Mezak, plus any tax that may be chargeable to the applicants, in respect of costs and expenses. This amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement and is to be paid directly into the representative’s account, as indicated by the applicants. (iv) EUR 1,300 (one thousand three hundred euros) to Mr A. Laptev, plus any tax that may be chargeable to the applicants, in respect of costs and expenses. This amount is to be paid directly into the representative’s account, 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; 5.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 11 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAlena Poláčková Deputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF ANATOLIY RUDENKO v. UKRAINE (Application no. 50264/08) JUDGMENT This version was rectified on 3 August and 3 September 2014 under Rule 81 of the Rules of Court STRASBOURG 17 April 2014 FINAL 17/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Anatoliy Rudenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 25 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "50264/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Anatoliy Petrovych Rudenko (“the applicant”), on 2 October 2008. 2. The applicant, who had been granted legal aid, was represented by Mr M. A. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy. 3.", "The applicant complained, in particular, under Article 5 §§ 1, 3 and 4 of the Convention in respect of his pre-trial detention and Article 5 § 1 (e), as well as Article 8, in respect of his psychiatric internment. 4. On 4 February 2013 those complaints were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1955 and lives in Kryvyy Rig. 6. In 2005-2006 the applicant created a local non-governmental organisation, as well as several newspapers. 7. On 16 November 2006 the Kryvyy Rig Transport Prosecutor’s Office instituted criminal proceedings against him on suspicion of interfering with gas pipeline repairs in July 2006.", "8. On 17 May 2007 the Kryvyy Rig City Prosecutor’s Office opened another criminal case in respect of the applicant, on suspicion of extortion from a local politician, Ms B. As noted in the ruling, on 4 January 2006 the applicant had sent a letter to Ms B., demanding 20,000 Ukrainian hryvnias (the equivalent of about 3,000 euros) under the threat of dissemination of some discrediting information about her. He had also threatened her with physical violence in the presence of several witnesses. 9.", "The two aforementioned criminal cases were joined. 10. On 4 June 2007 the applicant was detained. 11. On 6 June 2007 the Dzerzhynskyy District Court of Kryvyy Rig (“the Dzerzhynskyy Court”) ordered that he remain in pre-trial detention.", "It referred to complaints by the victim, as well as her representative, about numerous telephone calls from the applicant during which he had made threats of violence. The court also noted that the applicant had refused to comply with the investigator’s summonses and had stated that he was considering absconding. 12. On 11 June 2007 an outpatient forensic psychiatric expert examination of the applicant was carried out in the Kryvyy Rig Psychoneurological Dispensary. The expert discerned indications of a paranoid personality disorder with a tendency towards “forming fixed ideas”.", "An inpatient examination was recommended for a more precise diagnosis. 13. On 14 June 2007 the Dzerzhynskyy Court ordered an inpatient forensic psychiatric examination of the applicant at Dnipropetrovsk Psychoneurological Centre with a view to establishing his ability to stand trial in the extortion case. The court referred to the expert’s recommendation of 11 June 2007. It also noted that the applicant had been showing “inadequate behaviour”.", "Furthermore, the case file contained copies of threats and clearly slanderous statements he had made to the victim and certain third parties. 14. On 15 June 2007 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against the detention order of 6 June 2007. 15. On 20 June 2007 another case was opened against him on suspicion of extortion.", "This time the applicant was suspected of having threatened Mr S. and his family and of having extorted 3,000 US dollars from Mr S. in May 2007. 16. On 27 June 2007 the applicant was taken to the Dnipropetrovsk Regional Psychiatric Hospital for an inpatient forensic psychiatric examination in the framework of the criminal case regarding the charge of extortion from Ms B. 17. On 25 July 2007 the investigator in charge applied to the Dzerzhynskyy Court for an extension of the applicant’s pre-trial detention (which was to expire on 4 August 2007) till 17 August 2007, because more time was required to complete the investigation.", "In particular, the following investigative measures were still to be carried out: completion of the applicant’s forensic psychiatric examination, a confrontation between the applicant and Mr S., and the questioning of a number of witnesses. 18. On the same date the Dzerzhynskyy Court granted the aforementioned application and endorsed its reasoning. 19. On 26 July 2007 the inpatient forensic psychiatric examination of the applicant (see paragraph 16 above) was completed.", "The experts examined, in particular, the applicant’s personal history and the case-file materials, including the wording of his alleged threats to Ms B. They also carried out a psychological and psychiatric evaluation. The commission worded its conclusions as follows: “Mr Rudenko has never suffered, and is not suffering now, from any chronic psychiatric illness. He has showed in the past, and presently shows, a paranoid personality disorder. This conclusion is confirmed by his medical history, the materials of the criminal case file, and the results of the present clinical psychiatric examination which discloses that throughout his life the applicant has manifested such personality traits as egocentrism, extremely high self-esteem, tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, subjectivism, rigidity of opinions and emotions, a tendency to be tendentious and contrived in forming judgments, and tenacity in the defence and implementation of his ideas.", "The aforementioned personality characteristics are not manifested to a large degree, are not accompanied by serious abnormalities of memory, thinking, critical abilities or psychotic symptoms and would not have undermined his ability to be aware of and to control his actions at the time of the offence he has been charged with. [...] The present psychiatric condition of [the applicant] is such that he is aware of and can control his actions (or inactivity). He does not require involuntary medical treatment.” 20. On 9 August 2007 the investigator declared the pre-trial investigation complete and provided the applicant with access to the case file. 21.", "On 14 August 2007 the case was referred to the court for trial. 22. On 9 September 2007 the applicant requested the Dzerzhynskyy Court to replace his detention with release on bail in the amount of 20,000 Ukrainian hryvnias (at the time, equivalent to about 2,900 euros). He submitted that he had no criminal record, was well integrated socially and that remanding him in custody had been an unjustified preventive measure. 23.", "On 17 September 2007 the court held a preparatory hearing for the trial. It rejected the aforementioned request and decided to keep the preventive measure in respect of the applicant unchanged. The court noted that the considerations advanced by him had already been duly examined prior to his remand in custody. Furthermore, given the fact that the victim, Ms B., was a well-known local politician, the court decided to conduct the hearings in camera. 24.", "On 25 December 2008 the Dzerzhynskyy Court ordered another in-patient forensic psychiatric examination of the applicant, with a view to establishing his ability to stand trial in the criminal cases regarding the charges of extortion from Mr S. and the interference with the gas pipeline repairs (see paragraphs 7 and 15 above). 25. From 30 January to 26 February 2009 the applicant underwent an examination in the Dnipropetrovsk Regional Psychiatric Hospital. 26. On 26 February 2009 a commission of six experts (with the involvement of the three experts who had prepared the previous report of 26 July 2007) delivered its report on the basis of a psychological and psychiatric evaluation of the applicant and the case-file materials.", "The experts also heard several witnesses. In particular, they questioned a person who had worked with the applicant in the 1990s and who described him as an intelligent but impulsive person who had some strange ideas and liked to be the centre of attention. The applicant’s former wife gave a similar description, having also noted that he was a kind person despite his difficult character. The applicant’s current wife refused to be questioned. A general practitioner who had treated the applicant for some unspecified condition in 2007 submitted that he remembered the applicant for his emotionally-expressed nationalist ideas.", "A lawyer who had often encountered the applicant in court when acting as a representative described him as a bold and provocative person with a tendency to insult others. A circuit police officer, who had inspected the gas pipeline repairs site, submitted that he remembered the applicant on account of certain “hysterical outbursts” and that he had had the impression that the applicant had some mental issues. The general conclusions of the commission were worded as follows: “At the time of the events [...] Mr Rudenko was suffering, and is suffering presently, from a chronic psychiatric illness in the form of a paranoid personality disorder with delusional inclusions (“параноидное расстройство личности с бредовыми включениями”). This conclusion is confirmed by the anamnestic data, the materials of the criminal case file, the results of the present clinical psychiatric and experimental-psychological evaluation, which has disclosed that throughout his life the applicant has manifested such personality characteristics as egocentrism, rigidity in his attitudes, extremely high self-esteem, arrogance and extreme self-confidence, irrational feelings of injustice, a tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, rigidity of opinions and emotions, bluntness, a tendency to be tendentious and contrived in forming judgments, tenacity in the defence and implementation of his ideas coupled with a tendency towards inertia and philosophising, and, as a result of all the aforementioned and against the background of what he perceives as the difficult and unfavourable development of the criminal investigation and trial, he has formed some fixed and delusional ideas about being persecuted. The aforementioned personality characteristics of [the applicant] manifest themselves to such a high degree that they can be considered to have undermined his ability to be aware of and to control his actions at the time of the offences he has been charged with.", "[...] The present psychiatric condition of [the applicant] does not enable him to be aware of his actions (or inactivity) or to control them. He requires involuntary medical treatment by way of admission to a psychiatric hospital with ordinary supervision. As to the [similar] questions regarding [the charge of extortion from Ms B. ], they were already resolved in the report of 26 July 2007.” 27. On 3 June 2009 the Dzerzhynskyy Court found the applicant guilty of extortion from Ms B.", "As to the charge of extortion from Mr S., the court held that there was insufficient evidence of the applicant’s guilt. It also established that the applicant had impeded the gas pipeline repairs. The court noted that the applicant could not be held accountable for the criminal offences in question and required involuntary medical treatment in a mental facility. It stated, in particular: “It has been established that, at the time the offences were committed, Mr Rudenko behaved in a bold manner and without respect for the victims and others involved, that he made threats to the health and lives of the victims, and that he took deliberate steps to impede the gas pipeline repairs, thus endangering the health and lives of the public. Although Mr Rudenko has not made a direct attempt on anybody’s life, his present mental condition warrants his involuntary admission to a psychiatric hospital, because he is a dangerous person ...” 28.", "On 23 December 2009 the Court of Appeal quashed the decision of the first-instance court of 3 June 2009 as it had been delivered in the applicant’s absence. It stated that his presence had been obligatory unless he had expressly refused to attend or had been prevented from attending by the nature of his illness. The appellate court also noted that although the Dzerzhynskyy Court had found that the applicant’s guilt had not been proven in respect of the charge of extortion from Mr S., no decision had been taken as regards the termination of that part of the proceedings. The case was therefore remitted to the first-instance court for fresh examination. The appellate court also decided to keep the preventive measure in respect of the applicant (detention) unchanged, without explanation.", "29. On 29 June 2010 the Dzerzhynskyy Court allowed the applicant’s waiver of the services of several lawyers who had been representing him. Instead, it appointed a lawyer from the local bar association to represent his interests in the proceedings. 30. On 11 October 2010 the Dzerzhynskyy Court, at a hearing attended by the applicant and his appointed lawyer, ordered another forensic psychiatric examination of the applicant, with a view to answering the following questions: (1) whether the applicant was suffering from any mental illnesses at the time; (2) whether he was aware of and able to control his actions; and (3) whether the nature of his illness could be regarded as an impediment to his participation in court hearings.", "The applicant did not object in principle to such an examination, as long as it was carried out by an independent expert. 31. From 19 November to 16 December 2010 an examination was carried out at the Dnipropetrovsk Regional Psychiatric Hospital. According to the ensuing report, the applicant was suffering, at the time of the examination, from a “chronic paranoid personality disorder with delusional inclusions”. His psychiatric condition was deemed to prevent him from participating effectively in court hearings.", "As noted in the part of the report entitled “Psychological examination”, the applicant behaved in a free and friendly manner, demonstrating an advanced intellect and good memory and analytical skills, but also demonstrating a certain superiority and rigidity in his opinions. The overall findings of the report were practically identical to those of 26 February 2009. 32. On 5 April 2011 the prosecutor dropped the charges against the applicant as regards the interference with the gas pipeline repairs and the extortion from Mr S. 33. On 8 April 2011 the Dzerzhynskyy Court discontinued the proceedings against the applicant in so far as the aforementioned charges were concerned.", "34. On the same date the court, following a hearing at which the lawyer earlier appointed for the applicant, but not the applicant himself, had been present, found the applicant guilty of extortion from Ms B. Relying on the medical reports concerning the applicant’s mental health, the Dzerzhynskyy Court held that, although the applicant had been aware of his actions when he had committed the offence in question, his mental health had subsequently deteriorated to an extent warranting involuntary medical treatment. The court therefore ordered that the applicant be admitted to a psychiatric hospital for treatment under ordinary supervision. The proceedings were stayed until the applicant’s recovery. 35.", "The applicant’s son (who had joined the proceedings as his representative) appealed. He complained, in particular, that the applicant had wrongly been denied his right to participate in the hearing. He also complained that the applicant’s right to be presumed to be of sound mind had been violated. He noted in this regard that the experts had reached opposite conclusions about the applicant’s mental health, without any explanation for such a change in their position. Furthermore, the applicant’s son submitted that neither the applicant nor his family had agreed to the appointed lawyer representing the applicant and that the lawyer had been acting contrary to the applicant’s interests.", "36. On 16 August 2011 the Court of Appeal upheld the decision on the involuntary medical treatment of the applicant. It noted that, as the medical experts had found, the nature of his illness had been an impediment to his participation in the court hearings. The appellate court also held that the application of the chosen measures in respect of the applicant was justified by the fact that he had committed a “socially dangerous” crime and that he was suffering from a mental illness. 37.", "On 14 September 2011 the applicant was transferred from the SIZO to the Geykivska Psychoneurological Hospital in the Dnipropetrovsk region (“the Geykivska Hospital”). 38. On 4 October 2011 the applicant was examined by a panel of three doctors from the Geykivska hospital who concluded that his condition had stabilised and that he was not in need of any involuntary inpatient treatment. More specifically, the doctors observed that despite his chronic paranoid personality disorder with “delusional inclusions”, the applicant had been demonstrating orderly behaviour and a stable mood, with no aggressive tendencies. He regretted his earlier behaviour and had submitted that he understood that it had been wrong.", "The panel therefore sought the lifting of the involuntary medical treatment order imposed by the court, and an order for outpatient psychiatric treatment to replace it. 39. On 14 October 2011 the Kryvyy Rig Court allowed the application of the Geykivska Hospital specialists. 40. On 19 October 2011 the same panel of the Geykivska Hospital specialists issued another report, in which they noted a drastic deterioration in the applicant’s mood and behaviour: he had become irritated, angry and aggressive and had conflicts with other patients.", "Accordingly, the doctors retracted their earlier conclusion of 4 October 2011 as premature and asked the court to order that the applicant continue to be treated on an involuntary basis. 41. On 29 November 2011 the Court of Appeal quashed the decision of the Kryvyy Rig Court of 14 October 2011, with reference to the medical report of 19 October 2011. 42. On 20 December 2011 the Kryvyy Rig Court decided that the involuntary medical treatment of the applicant ordered on 8 April 2011 should be continued.", "43. On 22 March 2012 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal (submitted via his son) against the lower courts’ decisions of 8 April and 16 August 2011. 44. On 26 April 2012 the applicant was examined again by a panel of three specialists from the Geykivska Hospital (one member had been replaced). They noted that he was well oriented and gave adequate replies to questions, was brief and monotonic, expressed some delusional ideas about being persecuted by criminals, and remained self-confident and categorical in his judgments.", "As a result, they considered that the applicant’s involuntary medical treatment should be continued. 45. On 11 May 2012 the Kryvyy Rig Court ruled accordingly. Although the applicant, who was present at the court hearing, objected to that decision and submitted that he was in perfect health, the court considered, on the basis of the aforementioned medical report, that he was not able to critically assess his condition. 46.", "On 14 September 2012 the panel of doctors from Geykivska Hospital (in the same composition as on 26 April 2012) examined the applicant again. Their conclusions were similar to those set out in the report of 4 October 2011 (see paragraph 38 above). 47. On 8 October 2012 the Kryvyy Rig Court granted the specialists’ request and lifted the order for involuntary medical treatment in respect of the applicant. 48.", "On 26 October 2012 the applicant was discharged from the hospital. There is no information in the case file on the resumption of or any developments in the proceedings that had been stayed earlier (see paragraph 34 above). 49. On 25 April 2013 he was examined by the Kharkiv Regional Bureau of Forensic Medical Examinations at his own request. 50.", "On 20 May 2013 the Bureau issued its report. It noted that the only condition the applicant had been diagnosed with in the course of his previous forensic psychiatric examinations was a paranoid personality disorder. Such a diagnosis could not be regarded as fully grounded as it did not comply with the diagnostics criteria of the international statistical classification of illnesses. In particular, while that diagnosis implied a lack of social integration, the applicant had always been well adapted socially and had run a successful business. The wording “delusional inclusions” also raised questions as to its clinical accuracy.", "The applicant’s excessive personal involvement in various situations, as well as the fact that he had been overly emotional and made peculiar statements, did not imply delusion. 51. Generally, it was concluded that there was nothing in the case file to show that the applicant had suffered from any serious psychiatric disorder rendering him unaccountable for his actions. Even if, presumably, the applicant’s behaviour in the stressful situation of his criminal prosecution and detention had disclosed some peculiarities, the report concluded that, given his sufficient social adaptation prior to the criminal proceedings and the absence of a record of any psychiatric issues in the past, the applicant had not suffered from a psychiatric disorder between January 2006 and July 2007 and between August 2007 and November 2012 which would have warranted his involuntary treatment and prevented him from participating in court hearings. 52.", "Furthermore, the Bureau expert criticised the report of 19 October[1] 2011 as having reversed the earlier conclusion of 4 October 2011 that the applicant had not been in need of involuntary psychiatric treatment without any persuasive grounds. This reversal had been made even though the description of the applicant’s psychiatric condition had remained the same. 53. On 13 June 2013, following a request by the applicant’s lawyer, an independent forensic psychiatric expert with thirteen years of work experience issued a report regarding the applicant’s examinations of 26 July 2007, 26 February 2009 and 16 December 2010 (see paragraphs 19, 26 and 31 above). The expert considered only the first-mentioned report to be scientifically grounded.", "He criticised the other two for their incompliance with the rules of diagnostics and the absence of any explanation as to why the same behaviour of the applicant, which had earlier been regarded as normal, had later been considered as disclosing a psychiatric disorder. The expert also concluded that the applicant’s right to attend court hearings in person had been restricted without any valid medical reason. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code 2001 54.", "The relevant provisions read as follows: Article 19 Mental capacity to stand trial “1. A person shall be considered mentally fit to stand trial if at the time of the committal of the crime he was aware of and able to control his actions (or inactivity). 2. A person shall not be held criminally liable if, at the time of the committal of a socially dangerous act as laid down by this Code, he was in a state of insanity, meaning that he was not able to understand or control his actions as a result of a chronic psychiatric illness, temporary psychiatric disorder, dementia or other psychiatric condition. Involuntary medical treatment can be ordered in such cases by a court ...” Article 92 The definition and purpose of involuntary medical treatment “Involuntary medical treatment includes: outpatient psychiatric treatment; placement of a person who has committed a socially dangerous act falling under the Special Part of this Code in a special medical establishment with a view to his involuntary treatment; and measures taken to prevent a person committing a socially dangerous act.” Article 93 Persons to whom involuntary medical treatment is applicable “A court may order involuntary medical treatment in respect of persons who have 1) committed a socially dangerous act while being mentally unfit to stand trial (у стані неосудності); 2) committed a crime while having partial mental capacity to stand trial (у стані обмеженої неосудності); 3) committed a crime while being mentally fit to stand trial, but who have become mentally ill prior to the pronouncement of the verdict or during the enforcement of the sentence.” Article 94 Types of involuntary medical treatment “1.", "Depending on the nature and seriousness of the mentally ill person’s condition and the seriousness of the offence committed, and having regard to his dangerousness to himself and others, the court may order the following types of involuntary medical treatment: (1) involuntary outpatient psychiatric treatment; (2) admission to a psychiatric hospital with ordinary supervision; (3) admission to a psychiatric hospital with reinforced supervision; and (4) admission to a psychiatric hospital with strict supervision. 2. The court may order involuntary outpatient psychiatric treatment in respect of a person suffering from a psychiatric disorder who has committed a socially dangerous act if the mental health of that person does not warrant his placement in a psychiatric hospital. 3. The court may order a person’s admission to a psychiatric hospital with ordinary supervision if his mental health and the nature of the socially dangerous act he has committed warrant his placement and involuntary treatment in a psychiatric hospital.", "4. The court may order admission to a psychiatric hospital with reinforced supervision in respect of a person who has committed a socially dangerous act which did not involve an attempt on the life of another and who does not present a danger to society given his mental condition, but who is in need of psychiatric confinement and treatment under reinforced supervision. 5. The court may order admission to a psychiatric hospital with strict supervision in respect of a person who has committed a socially dangerous act which involved an attempt on the life of another and who presents a particular danger to society given his mental condition, and who is in need of psychiatric confinement and treatment in conditions of strict supervision. 6.", "If the application of [such] measures in respect of a mentally ill person is not considered necessary, or after the termination of the application of such measures, the court may entrust his guardianship to his relatives or guardians with mandatory medical monitoring.” B. Code of Criminal Procedure 1960 (repealed on 20 November 2012 with the entry into force of the new Code of Criminal Procedure of 13 April 2012) 55. Article 156 limits the initial pre-trial detention term to two months and provides for the possibility of its extension up to eighteen months. It also stipulates that the term of a person’s inpatient psychiatric examination is to be included in his or her pre-trial detention. 56.", "Article 416 provides that enforced medical treatment shall be ordered only in respect of persons who are considered socially dangerous. 57. Under Article 419, the participation of a person in the judicial proceedings regarding his or her case must be ensured if it is not precluded by the nature of his or her illness. C. Psychiatric Assistance Act 2000 58. Article 3 of the Act provides that every person must be considered as being of sound mind unless the existence of a psychiatric disorder is established on the grounds laid down by law and in compliance with the established procedures.", "59. Pursuant to Article 7 a diagnosis of a psychiatric disorder must be established in compliance with the generally recognised international standards of diagnostics and the international statistical classification of illnesses. This provision further states that a psychiatric disorder diagnosis cannot be based on a person’s disagreement with the political, moral, legal, religious or cultural values existing in the society or on any other grounds directly unrelated to his or her psychiatric health. 60. Article 19 stipulates that involuntary medical treatment may be ordered by a court in compliance with the legally established procedure.", "The measures applied may be continued, changed or lifted by a court upon an application by the mental health facility in which the person is being treated, based on the conclusion of a panel of psychiatrists. Persons to whom such measures have been applied must undergo periodic examinations by a commission of psychiatrists at least every six months with a view to verifying whether the measures remain justified. 61. Under Article 25, persons receiving psychiatric assistance retain all the rights and freedoms enshrined in the Constitution and laws of Ukraine. Their rights and freedoms may be restricted only in cases provided for by the Constitution of Ukraine in compliance with the applicable legislation.", "D. Resolution of the Plenary Supreme Court of Ukraine no. 7 of 3 June 2005 62. The relevant parts read as follows: “In order to ensure correct and uniform application by the courts of the legislation on involuntary medical treatment and to eliminate shortcomings in the judicial practice, the Plenary Supreme Court resolves as follows: ... 3. ... involuntary medical treatment may be ordered only if the case file contains a reasoned conclusion by psychiatric experts that the person in question is suffering from a mental illness or disorder rendering him or her mentally unfit, or partially unfit, to stand trial, and which warrants the application of such measures ... Courts must be critical in their assessment of the above-mentioned conclusions as to whether they are scientifically grounded, convincing and well-reasoned. ... Those conclusions may be used as evidence in a case without any pre-established validity and are not binding for the court.", "However, any disagreement with them shall be reasoned in the ruling, verdict or resolution of the court. Where expert conclusions are incomplete or insufficiently clear, or where there is a need to clarify additional issues, the court must summon the [expert] to the hearing ... or order an additional or repeated expert assessment. ... 10. Having regard to the provisions of Article 419 of the Code of Criminal Procedure, Articles 3 and 25 of the [Psychiatric Assistance Act], as well as paragraph 5 of Principle 18 of the Annex to Resolution of the UN General Assembly no. 46/119 of 18 February 1992 ‘The protection of persons with mental illness and the improvement of mental health care’..., which provide that the patient and his representative shall be entitled to attend, participate in and be heard in person at any hearing, the courts must ensure that the person in respect of whom involuntary medical treatment is being considered (except when the nature of his condition prevents it) and his representative participate in the hearings, [if it has not received] a written waiver from that person of his right to attend ...” III.", "RELEVANT INTERNATIONAL MATERIAL 63. The relevant extracts of the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care adopted by General Assembly resolution 46/119 of 17 December 1991 read as follows: Principle 4. Determination of mental illness. “1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.", "2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership in a cultural, racial or religious group, or for any other reason not directly relevant to mental health status. 3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person’s community, shall never be a determining factor in the diagnosis of mental illness. 4.", "A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness. 5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.” Principle 15 Admission principles “1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission. ...” Principle 16 Involuntary admission.", "“1. A person may be admitted involuntarily to a mental health facility as a patient or, having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with principle 4 above, that that person has a mental illness and considers: (a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or (b) That, in the case of a person whose mental illness is severe and whose judgment is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative. In the case referred to in subparagraph (b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs. 2.", "Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient’s personal representative, if any, and, unless the patient objects, to the patient’s family. ...” Principle 17 Review body “1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.", "2. The initial review of the review body, as required by paragraph 2 of principle 16 above, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law. 3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law. 4.", "An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law. 5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of principle 16 above are still satisfied, and, if not, the patient shall be discharged as an involuntary patient. 6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.", "7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility. ...” Principle 18 Procedural safeguards “... 5. the patient and the patient’s personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing. ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S PRE-TRIAL DETENTION 64.", "The applicant complained that his detention from 17 August to 17 September 2007 was in breach of Article 5 §§ 1 and 4 of the Convention. He also complained under Article 5 § 3 about the length of the entire period of his pre-trial detention. The relevant parts of the provisions relied on 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; ... 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. 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 65.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "Lawfulness of the applicant’s detention from 17 August to 17 September 2007 (Article 5 § 1) 66. The applicant complained that his detention during the above-mentioned period had not been covered by any judicial decision and had therefore been unlawful. He referred in that connection to the judgment in the case of Kharchenko v. Ukraine, in which the Court noted that it had already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been submitted to the trial court (no. 40107/02, § 71, 10 February 2011). 67.", "The Government maintained that the applicant’s detention was in compliance with the domestic legislation and that there were no reasons to consider it unlawful within the meaning of Article 5 of the Convention. 68. The Court observes on the facts of the case that the last extension of the applicant’s detention during the pre-trial investigation expired on 17 August 2007. A few days earlier, the investigation had been officially closed, the applicant had been provided with access to the case file and the case had been sent to the court for trial. On 17 September 2007 the Dzerzhynskyy Court held a preparatory hearing for the trial, at which it decided to keep the applicant in detention as a preventive measure (see paragraphs 17-18 and 20-23 above).", "69. Indeed, as pointed out by the applicant, the Court has previously examined a similar situation in other cases against Ukraine and found it to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 48‑51, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, §§ 70-73, 27 November 2008; and Kondratyev v. Ukraine, no. 5203/09, §§ 110-112, 15 December 2011).", "Moreover, in Kharchenko (cited above, §§ 98 and 101), the Court held that such a situation, where continued detention before or during trial was not covered by any judicial decision, stemmed from a legal lacuna and was a recurrent structural problem in Ukraine. There are no arguments in this case capable of persuading the Court to reach a different conclusion. 70. Accordingly, the Court concludes that the applicant’s detention from 17 August to 17 September 2007 was unlawful. 71.", "There has accordingly been a violation of Article 5 § 1 of the Convention in this respect. 2. Length of the applicant’s pre-trial detention (Article 5 § 3) 72. The applicant contended that his pre-trial detention had been excessively long and had not been based on sufficient grounds. 73.", "The Government argued that, given the applicant’s behaviour, in particular, the numerous threats he made to the victim, Ms B., and his failure to comply with the investigator’s summonses, his pre-trial detention had been a justified preventive measure. They also considered its length reasonable. 74. The Court notes that the applicant was detained within the meaning of Article 5 § 1 (c) of the Convention from 4 June 2007 to 3 June 2009 and from 23 December 2009 to 8 April 2011. His pre-trial detention therefore lasted for three years and three and a half months.", "75. The Court does not consider this period short in absolute terms (see and compare with Doronin v. Ukraine, no. 16505/02, § 61, 19 February 2009). 76. It accepts that the applicant’s initial arrest may have been warranted by his alleged threats to the victim and his lack of cooperation with the police (see paragraph 11 above).", "However, after a certain lapse of time the judicial authorities were obliged to reassess his personal situation and to give express grounds for his continued detention (see, among many other authorities, Tretyakov v. Ukraine, no. 16698/05, § 59, 29 September 2011). 77. In the meantime, the applicant’s detention was extended on the sole ground that additional time was required for the investigation to be completed (see paragraph 17 above). Furthermore, on 17 September 2007 his request for release on bail was rejected without any explanation as to why that less intrusive preventive measure was deemed inappropriate (see paragraphs 22-23 above).", "Likewise, on 23 December 2009 the appellate court failed to advance any reasons for keeping the applicant in pre-trial detention as a preventive measure (see paragraph 28 above). 78. The Court therefore considers that the domestic authorities failed to duly justify the applicant’s continued pre-trial detention for three years and three and a half months (see Pleshkov v. Ukraine, no. 37789/05, §§ 36-37, 10 February 2011). 79.", "It follows that there has been a violation of Article 5 § 3 of the Convention. 3. Judicial review of the applicant’s detention from 17 August to 17 September 2007 (Article 5 § 4) 80. The applicant additionally complained that, in the absence of any decision validating his detention during the above-mentioned period or any clear procedure for challenging it, he had not been able to obtain judicial review of the lawfulness of that detention. 81.", "The Government contested that view. They noted that the applicant had requested to be released on bail on 9 September 2007 and that his request had been examined by the court on 17 September 2007 (see paragraphs 22-23 above). Accordingly, the Government considered that the applicant had obtained an effective judicial review of the lawfulness of his pre-trial detention. 82. The Court notes that it has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of a pre-trial investigation that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, no.", "2161/02, § 108, 28 October 2010; Pleshkov, cited above, § 42; Kharchenko, cited above, § 100; Tsygoniy v. Ukraine, no. 19213/04, § 78, 24 November 2011; and Taran v. Ukraine, no. 31898/06, §§ 81-82, 17 October 2013). Namely, trial courts were not required to give reasons for their decisions authorising detention or to fix the term of such detention. Furthermore, the speed with which requests for release could be examined depended on the date set for a hearing.", "83. The aforementioned problems have manifested themselves in the present case too. 84. The Court therefore holds that there has been a violation of Article 5 § 4 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S CONFINEMENT IN A PSYCHIATRIC HOSPITAL 85. The applicant further complained, without referring to any provision of the Convention, that his confinement in a psychiatric hospital had been an arbitrary and unnecessary measure. The Court considers it appropriate to examine this complaint under Article 5 § 1 (e) of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...” A. Admissibility 86.", "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 87. The applicant argued that his confinement in a psychiatric hospital had been ordered by the authorities to punish him for his public activities and active political stance. 88. He submitted that instead of having been based on a psychiatric evaluation, the forensic psychiatric examination reports finding him to be suffering from a mental illness warranting involuntary inpatient psychiatric treatment had been based on a selective analysis of the facts and relied on some unverified witness statements. 89.", "Furthermore, the applicant noted that no explanation had ever been given for the drastic change in the position of the experts, who had first assessed his behaviour as normal, but later decided that the same behaviour was indicative of a mental illness. 90. He also submitted that all his forensic psychiatric examinations had been conducted with the involvement of the same experts (employees of the Dnipropetrovsk Regional Psychiatric Hospital). 91. Relying on the reports of the independent experts of 20 May and 13 June 2013 (see paragraphs 50-53 above), the applicant pointed to inconsistencies and inaccuracies in the forensic psychiatric reports which had provided the basis for his psychiatric internment.", "He insisted that there had been insufficient evidence to suggest that he was suffering from a mental disorder requiring his involuntary treatment in a psychiatric facility. 92. The applicant also submitted that the courts had failed to make the necessary effort to review his diagnosis or the need for his inpatient psychiatric treatment. 93. Lastly, he complained that he had been denied his right to attend and participate in the court hearings without any valid reason.", "94. The Government contended that the applicant’s involuntary confinement in a psychiatric hospital had been based on objective medical reports and on the courts’ assessment of his behaviour at hearings. 95. Furthermore, the Government pointed out that the criminal offences he was charged with were “socially dangerous”. 96.", "The Government interpreted his complaint as concerning only the fact of his admission to the psychiatric hospital, but not his further retention therein. 97. The applicant disagreed with that interpretation, submitting that he had complained to the Court about the entire period of his confinement in the psychiatric hospital. 2. The Court’s assessment (a) General case-law principles 98.", "The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual and as such its importance in a democratic society is paramount (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X, and Storck v. Germany, no. 61603/00, § 102, ECHR 2005‑V). 99. The detention of a person considered to be of unsound mind must be in conformity with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion, and with the aim of the restriction contained in sub-paragraph (e).", "In this latter respect the Court reiterates that, according to its established case-law, an individual cannot be considered to be of “unsound mind” and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown by objective medical expertise to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33). 100. The Court has held on numerous occasions that it gives certain deference to the national authorities in deciding whether an individual should be detained as a “person of unsound mind”. It will not substitute the decisions of States on how to apply the Convention rights to concrete factual circumstances.", "It is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Luberti v. Italy, 23 February 1984, § 27, Series A no. 75). It is not the Court’s task to reassess various medical opinions, which would fall primarily within the competence of national courts; however, it must ascertain for itself whether the domestic courts, when taking the contested decision, had at their disposal sufficient evidence to justify the detention (see Herz v. Germany, no. 44672/98, § 51, 12 June 2003). 101.", "In order to defer to the judgment of domestic authorities, who are indeed better placed to assess the facts of a given case, the Court must be satisfied that they have assessed and scrutinised the pertinent issues thoroughly. These principles are fully applicable to situations of deprivation of liberty, given the fundamental importance of this right in a democratic society. Domestic courts must subject deprivations of liberty to thorough scrutiny so that the detained persons enjoy effective procedural safeguards against arbitrary detention in practice (see Ťupa v. the Czech Republic, no. 39822/07, § 51, 26 May 2011). 102.", "The Court has observed in its case-law that the meaning of the term “persons of unsound mind” is continually evolving as research in psychiatry progresses and increasing flexibility in treatment is developing. Nevertheless, sub-paragraph (e) of Article 5 § 1 cannot be taken as permitting the detention of a person simply because his or her views or behaviour deviate from the norms prevailing in society. To hold otherwise would not be reconcilable with the text of Article 5 § 1, which sets out an exhaustive list of exceptions calling for a narrow interpretation (see, as a classical reference, Winterwerp, cited above, § 37). 103. The Court further notes that the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.", "That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the particular circumstances (see, for the application of these principles in the context of Article 5 § 1 (e), Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III, and Stanev v. Bulgaria [GC], no. 36760/06, § 143, ECHR 2012). 104. Lastly, in order to comply with Article 5 § 1 (e) of the Convention, the proceedings leading to the involuntary placement of an individual in a psychiatric facility must necessarily provide clearly effective guarantees against arbitrariness given the vulnerability of individuals suffering from mental disorders and the need to adduce very weighty reasons to justify any restriction of their rights (see Zagidulina v. Russia, no.", "11737/06, § 53, 2 May 2013). (b) Application of the above general principles to the present case 105. It has not been disputed by the parties in the present case that the applicant’s psychiatric internment amounted to a deprivation of his liberty within the meaning of Article 5 § 1 (e) of the Convention. The Court sees no reasons to hold otherwise (see Stanev, cited above, §§ 121-132, ECHR 2012). 106.", "Contrary to the Government’s argument (see paragraph 96 above), the Court considers that the applicant’s complaint concerns both his admission to the Geykivska Hospital for involuntary psychiatric treatment and his subsequent retention there. (i) The applicant’s admission to the Geykivska Hospital for involuntary psychiatric treatment 107. The Court notes that the applicant’s psychiatric confinement was based on several collective expert opinions. While this factor can be viewed as an indication that the measure was not applied arbitrarily, it is not sufficient in itself to render further analysis unnecessary (see M. v. Ukraine, no. 2452/04, §§ 59-67, 19 April 2012).", "108. More specifically, the Court observes that prior to his admission to the psychiatric facility the applicant was examined by specialists from the Dnipropetrovsk Regional Psychiatric Hospital on three occasions: - In their report of 26 July 2007 they held that he had been aware of his actions in January 2006 (when the episode with Ms B. occurred) and that he did not require involuntary psychiatric treatment at the time of the examination (see paragraph 19 above). - In the later report of 26 February 2009 doctors from the same hospital concluded that the applicant had not been aware of his actions in July 2006 (when the episode with the gas pipeline repairs had occurred) and in May 2007 (when the episode with Mr S. took place), and that he required involuntary psychiatric treatment as of the time of his examination given the deterioration of his mental health against the background of the criminal proceedings against him (see paragraph 26 above). - In yet another report of 16 December 2010 the same hospital specialists reiterated their conclusions of 26 February 2009 and stated that the applicant could not effectively participate in the court hearings given his psychiatric condition (see paragraph 31 above). 109.", "Furthermore, the Court does not lose sight of the findings of the other psychiatric experts of 20 May and 13 June 2013 criticising the earlier reports (of 26 February 2009 and 16 December 2010), in particular on account of the inaccuracy of the diagnosis (see paragraphs 50-53 above). 110. It is not for the Court to reassess the above-mentioned reports, which were drawn up by professional psychiatric experts and which contained opposite conclusions, and to decide which of them was right and which was wrong. It is, however, its task to verify whether the domestic courts scrutinised the respective reports with the requisite diligence and provided adequate reasoning for their decision to order the applicant’s psychiatric internment (see also Raudevs v. Latvia, no. 24086/03, § 71, 17 December 2013, not yet final).", "111. The Court notes that the thorough scrutiny requirement was emphasised by the Plenary Supreme Court of Ukraine in its Resolution no. 7 of 3 June 2005, in which the courts were instructed to base their decisions regarding involuntary medical treatment only on reasoned conclusions by psychiatric experts (see paragraph 62 above). Moreover, pursuant to the Resolution, the courts had to be critical in their assessment of those conclusions and to summon the respective experts in case of any incompleteness or ambiguity. 112.", "There is no indication in the present case, however, that the domestic courts undertook any such critical assessment of the expert reports on the applicant’s mental condition and need for involuntary psychiatric treatment. They did not seek any explanation as to why the same behavioural patterns consistently manifested by the applicant (egocentrism, overly high self-esteem, tendency to make categorical judgments, extreme sensibility to failure, and so on – see paragraphs 19, 26 and 31 above) had been assessed as not disclosing any psychiatric illness on one occasion and as disclosing such an illness on another occasion. Thus, while the applicant’s behaviour, as described in the respective forensic psychiatric examination reports, remained the same, the dynamics of his mental health according to those reports were as follows: in January 2006 he was in good mental health; in July 2006 and in May 2007 he was mentally ill and could not be held accountable for his actions; in July 2007 he did not suffer from any mental illness and was aware of and able to control his actions; and in February 2009 and in December 2010 he was considered mentally ill again. The drastic changes in the experts’ conclusions remained without any reasoning, even though that had been one of the arguments raised in the appeal of the applicant’s son acting as his representative (see paragraph 35 above). 113.", "The Court further notes that all the forensic psychiatric reports leading to the involuntary medical treatment of the applicant were drawn up by specialists from the same hospital, without a second, independent opinion being sought. 114. Lastly, the Court notes that, despite the importance of the issue at stake for the applicant, he was not heard in person and was not granted an opportunity to comment on the experts’ findings at the court hearing which resulted in the delivery of the decision on his involuntary psychiatric confinement (see, for a converse example, Klouten v. Germany (dec.), no. 48057/10, § 53, 19 March 2013). There appear to be no valid reasons justifying his exclusion from the proceedings.", "Thus, the experts who described the applicant’s behaviour as “free and friendly [...], disclosing an advanced intellect and good memory and analytical skills, [while] demonstrating a certain superiority and rigidity in his opinions” gave no explanation as to why his psychiatric condition was considered to preclude his effective participation in court hearings (see paragraph 31 above). (ii) The applicant’s detention in the Geykivska Hospital 115. The Court notes that the applicant was detained in the Geykivska Hospital from 14 September 2011 to 26 October 2012, that is, for one year one month and twelve days. During that period he was examined by a panel of specialists from the hospital on three occasions with a view to verifying the necessity of his continued involuntary psychiatric confinement: twenty days following his admission (on 4 October 2011); fifteen days later (on 19 October 2011); and again six months and seven days later (on 26 April 2012). 116.", "Accordingly, after the compulsory admission of the applicant on the basis of the court decisions, the practitioners of the Geykivska Hospital assumed effective control of his liberty and treatment for the whole period of his hospitalisation. There is no indication that, following his admission to the hospital, the applicant was subject to any assessment by an outside authority. 117. The Court finds the opportunity of patients to benefit from a second, independent psychiatric opinion, a principle also included in the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (see paragraph 63 above), to be an important safeguard against possible arbitrariness in decision-making where the continuation of confinement in involuntary care is concerned (see X v. Finland, no. 34806/04, § 169, ECHR 2012, and M. v. Ukraine, cited above, § 66).", "118. The Court also notes that the initiative to launch proceedings in which the issue of whether the conditions for the applicant’s confinement for involuntary treatment were still met laid solely with the authorities. As the Court has held in its case-law, such a system cannot be regarded as providing sufficient safeguards against arbitrariness (see X v. Finland, cited above, § 170). (iii) Conclusion 119. In the light of all the foregoing, the Court considers that the domestic authorities failed to establish in a conclusive manner and with the requisite procedural safeguards against arbitrariness the existence and persistence of a genuine mental disorder whose nature or extent was such as to justify the applicant’s admission to the Geykivska Hospital and his detention there.", "There has therefore been a violation of Article 5 § 1 (e) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 120. The applicant further complained that his diagnosis with a mental illness and his involuntary admission to a psychiatric facility constituted a violation of his right to respect for his private life under Article 8 of the Convention, which 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.” 121. The Court notes that this complaint is closely linked to that under Article 5 § 1 (e) and must therefore likewise be declared admissible. 122. However, having regard to the reasons which led the Court to find a violation of Article 5 § 1 (e) of the Convention, the Court considers that the present complaint does not give rise to any separate issue. 123.", "Consequently, the Court holds that it is not necessary to examine the complaint under Article 8 of the Convention separately. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. The applicant also complained under Article 3 of the Convention that he had suffered ill-treatment by other detainees in the Kryvyy Rig SIZO and that his complaints in that regard had not been duly examined. He further raised the following complaints: under Article 7 about his allegedly unfair criminal prosecution; under Article 8 about the alleged secret surveillance of him and his family by the security services for many years; under Article 9 about the fact that the investigator in charge of his case was a Muslim, which he considered to be unacceptable given his orthodox Christian faith; under Article 10 about the criminal cases against him having allegedly been related to his activities as a journalist; under Article 11 about the negative impact of his detention and psychiatric confinement on the NGO he headed; with reference to Article 12, about his complaints to various authorities having been without success; and under Article 2 of Protocol No.", "7 about being limited in his ability to lodge appeals. 125. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 126.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 127. The applicant claimed 386,455 euros (EUR) on account of loss of earnings during his pre-trial detention and psychiatric confinement. He also claimed EUR 40,000 in respect of non-pecuniary damage. 128.", "The Government considered the applicant’s claims excessive, unfounded and unsubstantiated. 129. 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 undoubtedly suffered non-pecuniary damage as a result of the violations found and decides to award him EUR 18,000 under this head. B.", "Costs and expenses 130. The applicant also claimed EUR 5,880 for the costs and expenses incurred before the Court, to be paid into his lawyer’s account directly. In substantiation, he submitted a legal assistance contract signed by him and Mr Tarakhkalo on 5 April 2013. It stipulated an hourly charge-out rate of EUR 150. According to the contract, that payment would be made after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in costs and expenses.", "The applicant also submitted a report of 26 July 2013 on the work completed under the aforementioned contract. It specified that Mr Tarakhkalo had worked on the case for thirty-five hours (EUR 5,250) and that he had incurred administrative and postal costs in the amounts of EUR 420 and EUR 210 respectively. 131. The Government contested the claim as exorbitant and unsubstantiated. 132.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that only the applicant is contractually bound to pay fees vis-à-vis Mr Tarakhkalo. Having regard to the documents submitted, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009). 133.", "However, the Court considers that the claim is excessive and awards it in part, in the amount of EUR 2,150 (which is equal to EUR 3,000 less EUR 850, the sum received by way of legal aid), plus any value-added tax that may be chargeable to the applicant. The net award is to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116‑117, 7 November 2013). C. Default interest 134. 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 5 §§ 1 (c), 3 and 4 of the Convention in respect of the applicant’s pre-trial detention, as well as his complaints under Article 5 § 1 (e) and Article 8 in respect of his psychiatric internment, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 (c) of the Convention; 3. Holds that there has been a violation of Article 5 § 1 (e) of the Convention on account of the applicant’s admission to the Geykivska Hospital and his detention there; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5.", "Holds, that there has been a violation of Article 5 § 4 of the Convention; 6. Holds that there is no need to examine the complaint under Article 8 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement: (i) EUR 18,000 (eighteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and (ii) EUR 2,150 (two thousand one hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses (the net award to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo);[2] (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekMark VilligerRegistrarPresident [1]. Rectified on 3 September 2014: the text was “19 November 2011” [2] Rectified on 3 August 2014: the text was “plus any tax that may be chargeable to the applicant, in respect of costs and expenses”" ]
[ "FOURTH SECTION CASE OF TABOR v. POLAND (Application no. 12825/02) JUDGMENT STRASBOURG 27 June 2006 FINAL 27/09/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tabor v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrM. Pellonpää,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 8 June 2006, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 12825/02) 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 Józef Tabor (“the applicant”), on 11 January 2001. 2. The applicant, who had been granted legal aid, was represented by Mr Zbigniew Cichoń, a lawyer practising in Kraków.", "The Polish Government (“the Government”) were represented by their Agents, Mr Krzysztof Drzewicki and, subsequently, by Mr Jakub Wołąsiewicz. 3. The applicant alleged that the court’s refusal to grant him legal assistance in connection with the preparation of a cassation appeal to the Supreme Court infringed his right to a fair hearing. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 6.", "By a decision of 24 January 2006 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. In July 1993 the applicant was employed at the refinery “T.” as director of a department. From 1993 to 1997 the conditions of his contract of employment were changed several times.", "On 30 September 1997 the refinery gave notice to terminate the applicant’s contract. 8. On 7 October 1997 the applicant lodged with the Katowice Regional Court a compensation claim against the refinery, in the amount of PLN 19,273, for unlawful termination of his contract. He also claimed reinstatement. By a decision of 3 December of 1997 the Katowice Regional Court considered that it was not competent to examine his case and transmitted it to the Katowice District Labour Court.", "9. By a judgment of 4 December 1998 the Katowice District Labour Court ordered the refinery to pay the applicant compensation of PLN 5,008.74 for unlawful termination of the employment contract. The compensation corresponded to 3 months’ remuneration. The court dismissed the remaining claims. 10.", "Both parties to the proceedings appealed against the first-instance judgment. By a judgment of 18 November 1999 the Katowice Regional Court dismissed their appeals. 11. On 26 November 1999 the applicant requested the Katowice Regional Court to grant legal aid for the purpose of instituting cassation proceedings. He referred to his difficult financial situation and to the fact that he had been unemployed from November 1997 to May 1999 due to the termination of his employment contract by the defendant company.", "He also submitted that from May 1999 he had been receiving a net salary of PLN 750 and submitted documents to show the period of his unemployment and his earnings. In December 1999 the applicant, having received no response from the Katowice Regional Court, lodged a cassation appeal himself. 12. By a decision of 17 January 2000 the Katowice Regional Court dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for its decision. 13.", "On the same day, the Katowice Regional Court rejected the applicant’s cassation appeal on the ground that it had not been lodged by a lawyer, as required by the law. 14. The applicant lodged an appeal against these decisions with the Supreme Court. He also requested the grant of retrospective leave to lodge a cassation appeal out of time. He further asked that court to appoint a lawyer for him in order to assist him in the preparation of his appeal.", "The applicant argued that the Regional Court had failed to deal within the time-limit with his request for legal aid. This had forced the applicant to lodge the cassation appeal himself. The fact that the cassation appeal had been rejected, combined with the unmotivated refusal of legal aid, had made it impossible to have his interests protected and his arguments properly presented to the cassation court. 15. By a decision of 25 May 2000 the Supreme Court dismissed his appeal against the decision rejecting the cassation appeal.", "The court observed that the applicable law clearly provided that a cassation appeal could only be lodged by a lawyer. The Supreme Court further refused to entertain the appeal in so far as it was related to the refusal of legal aid, observing that under the applicable legal provisions an appeal to the Supreme Court against an interlocutory decision of the Court of Appeal was only available against a decision to reject a cassation appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A.Legal aid 16. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living.", "17. Pursuant to Articles 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case. 18. The Polish Code of Civil Procedure lays down the principle of mandatory assistance of an advocate in cassation proceedings.", "Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser. 19. Under Article 3934 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected. B.Appeals against interlocutory decisions 20.", "Article 394 of the Code of Civil Procedure guarantees to a party to the proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fee and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court. 21. The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court.", "It observed that a decision on legal aid was expressly mentioned in a list of interlocutory decisions against which an appeal was specifically provided for under Article 394 of the Code of Civil Procedure, but only when they were given by the first-instance court. Furthermore, under this provision an appeal was available against decisions which terminated the proceedings in the case. However, the court noted that a refusal of legal aid could not be regarded as “terminating the proceedings in the case” within the meaning of this provision because this notion had to be reserved for decisions containing a certain element of assessment of the merits of a given claim. The decisions on legal aid issues did not contain such elements. As they did not fall into either of the two principal categories listed in Article 394, the only possible conclusion was that no appeal was available against them (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No.", "9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120). C.Written grounds for interlocutory decisions 22. Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision. D.Leave to appeal out of time 23.", "Pursuant to Article 169 of the Code, a party to the proceedings may ask for retrospective leave to appeal outside the prescribed time-limit; the appeal shall be submitted simultaneously with the lodging of such a request. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. The applicant complains that the court’s refusal to grant him legal assistance in connection with the preparation of a cassation appeal to the Supreme Court infringed his right to a fair hearing, guaranteed by Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS 25.", "In their letter of 4 April 2006, the Government submitted that the applicant had failed to exhaust relevant domestic remedies. 26. They argued that it had been open to him to lodge an appeal with an appellate court against the Regional Court’s refusal of legal aid. They argued that under Article 394 of the Code of Civil Procedure a refusal of legal aid was subject to an appeal to a second-instance court as it was expressly listed among interlocutory decisions in respect of which an appeal to a higher court was available. The applicant had brought such an appeal, but he had erred in lodging it with the Supreme Court.", "By lodging this appeal with a court which was not competent to examine it, he had failed to show requisite diligence in dealing with his case. 27. The applicant challenged the Government’s arguments. 28. The Court recalls that, according 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 submitted under Rules 51 or 54, as the case may be (see K. et T. v. Finland [GC], no.", "25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). In the present case, in their written observations at the admissibility stage, submitted on 4 September 2002, the Government submitted that “[by] reference to the criterion of exhaustion of available domestic remedies, the Government of Poland submit that the applicant appears to have exhausted all the remedies provided for by Polish law”. In its decision on the admissibility of 24 January 2006, the Court declared the case admissible having regard, inter alia, to this submission of the Government. 29.", "The Court notes that the plea of inadmissibility based on the alleged non-exhaustion of domestic remedies put forward in their letter of 4 April 2006 was not made by the Government in their written submissions before the adoption of the decision of 24 January 2006. There are no exceptional circumstances which would have absolved the Government from the obligation to raise all their preliminary objections before the Court’s decision as to the admissibility of the application (see Prokopovich v. Russia, no. 58255/00, § 29, 18 November 2004). 30. Consequently, the Court considers that the Government are estopped from raising the preliminary objections contained in their observations of 4 April 2006 at the present stage of the proceedings.", "The Government’s objection must therefore be dismissed. A. The parties’ submissions 1. The Government’s submissions 31. The Government stressed that the requirements of fairness were not necessarily the same in cases concerning the determination of civil rights and obligations as in cases concerning the determination of a criminal charge (Dombo Beheer B.V. v. Netherlands judgment of 27 October 1993, § 32).", "Article 6 § 1 provided a guarantee for persons seeking legal assistance for the purposes of civil proceedings before the national courts, although a less extensive one than in criminal cases. The question of legal assistance should however be seen as an element of the right of access to a court, rather than the right to a fair hearing. In this context, the means by which a State ensured effective access to civil courts fell within its margin of appreciation (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26). 32.", "Further, the Government argued that legal aid was required to ensure the right of access to a court in civil cases only in situations in which a person could not plead his case effectively by himself or when the law made legal representation compulsory. But even in such cases legal aid was not required in connection with all kinds of civil proceedings. For this reason, the right enunciated in the Court’s judgments concerning civil cases could not be comparable in scope to that guaranteed under Article 6 § 3 (c). This also followed from the fact that the rights guaranteed by Article 6 § 1 had to be determined by reference to the particular facts and circumstances of an individual case. In consequence, the Government asserted that the problems involved in the present case, concerning a claim for reinstatement at work and compensation for unlawful termination of a contract, required to be distinguished from other, more complex cases, for example, regulating civil status and family relationships.", "33. Thus, in the opinion of the Government, the applicant’s argument that the refusal to grant him legal aid in the cassation proceedings did not comply with the requirements of a fair trial within the meaning of Article 6 § 1 of the Convention was ill-founded. Unlike Article 6 § 3 (c) of the Convention, which expressly provides for legal aid in criminal cases, the Convention does not guarantee such a right in civil cases. In consequence, the State is not obliged to ensure legal assistance in every civil case (R.D. v. Poland, nos.", "29692/96 and 34612/97, § 44, 18 December 2001). 34. The Government admitted that Polish law made legal representation in cassation proceedings compulsory. The courts considering each case had a right to assess whether legal aid was really necessary, having regard to the circumstances of the case. In the present case, the refusal had not prevented the applicant from lodging a cassation appeal because he could have appointed a lawyer of his choice and could have had such an appeal “filed and signed by an advocate”, as required by law.", "The fact that the applicant had not seized that opportunity could not, in the Government’s view, be held against the national authorities. 2. The applicant’s submissions 35. The applicant disagreed. He stressed that under domestic law a cassation appeal had been available in his case and that he had intended to pursue all legal remedies that were open to him.", "He admitted that he had not appointed a lawyer of his choice but explained that he had not had sufficient means to pay legal fees. It was because of his lack of financial resources that he had requested the Katowice Regional Court to grant him legal aid for the purpose of pursuing the cassation proceedings. In his motion to the court which he had submitted on 26 November 1999 he had explained in detail his financial situation and drawn particular attention to the fact that he had been unemployed from November 1997 to May 1999. 36. The applicant further argued that the Katowice Regional Court had refused to grant him legal aid for the purpose of the cassation proceedings without invoking any reasons for its decision; in particular it had not shown that the applicant was capable of bearing the costs of legal representation.", "The applicant argued that this decision had therefore been arbitrary. 37. The applicant further averred that the Regional Court’s decision had been issued on 17 January 2000, a month after the prescribed time-limit for lodging a cassation appeal had expired. That had left him without any chance to seek legal assistance of his choice so as to allow him to lodge a cassation appeal in time. 38.", "In conclusion, the applicant submitted that the conduct of the Regional Court lacked diligence, which was all the more intolerable as the cassation procedure had been set up to remedy procedural shortcomings committed by lower courts. B. The Court’s assessment 39. The Court points out at the outset that there is no obligation under the Convention to make legal aid available for disputes (contestations) in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (Del Sol v. France, no. 46800/99, § 20, ECHR 2002‑II).", "However, the Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 24). It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court (ibid. ; see also among other examples Steel and Morris v. the United Kingdom, no.", "68416/01, § 59, ECHR 2005‑...). 40. The right of access to court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (Steel and Morris v. the United Kingdom, cited above, § 62). In addition, the compatibility of the limitations permitted under domestic law with the right of access to a court set forth in Article 6 § 1 of the Convention depends on the special features of the proceedings in issue, and it is necessary to take into account the whole of the trial conducted according to the rules of the domestic legal system and the role played in that trial by the highest court, since the conditions of admissibility of an appeal on points of law may be more rigorous than those for an ordinary appeal (Delcourt v. Belgium, judgment of 17 January 1970, Series A no.", "11, p. 15, § 26). It is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention. 41. In this connection, the Court observes, firstly, that the Polish law of civil procedure requires that a party to civil proceedings be assisted by an advocate or legal counsel in the preparation of his or her cassation appeal against a judgment given by a second-instance court, and that an appeal drawn up by the party, without legal representation, will be rejected by the court (see §§ 20 – 21 above).", "42. The Court is of the view that the requirement that an appellant be represented by a qualified lawyer before the court of cassation cannot in itself be seen as contrary to Article 6, such a requirement being clearly compatible with the characteristics of the Supreme Court as a highest court examining appeals on points of law. This requirement cannot be regarded as imposing on the domestic courts an unqualified obligation to grant free legal assistance to a person wishing to institute cassation proceedings. However, while the manner in which Article 6 is to be applied to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees of fair hearing contained in that Article (see, for instance, Vacher v. France, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2148-49, §§ 24 and 28).", "43. In discharging that obligation, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (R.D. v. Poland, nos. 29692/96 and 34612/97, § 44, 18 December 2001). 44.", "The Court notes in this connection that in the present case the Katowice Regional Court refused to grant legal assistance to the applicant for the purposes of legal representation in the cassation proceedings without invoking any reasons for it. The Court is aware that that under the applicable provisions of procedural law the court was not obliged to give any reasons for such a refusal. 45. However, in the absence of written grounds for this decision, it is difficult for the Court to understand the reasons for which the Regional Court considered that the grant of legal aid was not justified in the circumstances of the case. It further notes that a decision on legal aid is, under the applicable domestic law, dependent on the financial situation of the party and its ability to pay the costs of litigation (see § 16 above).", "It observes in this connection that the case concerned the applicant’s compensation claim against his former employer for the unlawful termination of his employment. The applicant also claimed reinstatement in his employment. The applicant argued before the Regional Court in support of his requests that he had been unemployed from November 1997 until May 1999. The Court considers that the principle of fairness required the court to give reasons for rejecting the applicant’s request. 46.", "Lastly, the Court observes that the Katowice Regional Court’s decision refusing the applicant legal aid was issued on 17 January 2000. The Court emphasises that this was one month after the prescribed time-limit for lodging a cassation appeal had expired. That left the applicant, for obvious reasons, without any realistic opportunity of seeking legal assistance of his choice for the lodging of a cassation appeal, it being recalled that professional legal representation was obligatory, and of bringing his case to the Supreme Court. The Court is therefore of the view that the manner in which the relevant court handled the applicant’s request for legal aid was not compatible with the requirement of diligence. 47.", "Accordingly, having regard to the circumstances of the case seen as a whole, the Court is of the view that there has been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49.", "The applicant sought compensation for pecuniary and non-pecuniary damage in the amount of PLN 956,728. 50. The Government submitted that in so far as the applicant’s claims related to alleged pecuniary damage, he had failed to adduce any evidence to show that he had suffered any actual loss. As to non-pecuniary damage, the Government submitted that the amount claimed by the applicant was excessive. 51.", "The Court is of the view that the applicant’s claim for pecuniary damage has not been duly substantiated. However, the Court accepts that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 2,000 under this head. B. Costs and expenses 52.", "The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, sought PLN 20,000 for costs and expenses incurred in the proceedings before the Court. 53. The Government considered that the sum was excessive. They asked the Court to make an award, if any, only in so far as the costs and expenses concerned had been actually and necessarily incurred and were reasonable as to quantum. 54.", "The Court considers it reasonable to award the applicant EUR 1,000 for costs and expenses involved in the proceedings before it, less EUR 685 received by way of legal aid from the Council of Europe. C. Default interest 55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses, less EUR 685 (six hundred and eighty-five euros) received by way of legal aid from the Council of Europe; (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; 3. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]
[ "FIFTH SECTION CASE OF KRASNYAKOVY AND OTHERS v. UKRAINE (Application no. 3011/06 and 10 others - see appended list) JUDGMENT STRASBOURG 14 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Krasnyakovy and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Síofra O’Leary,Mārtiņš Mits, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 23 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.", "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 MR SERGEY VIKTOROVICH SAMISHCHENKO 6.", "As concerns the complaints raised by the applicant in application no. 60072/08, the Court notes that the applicant died on 6 November 2014, while the case was pending before the Court. The applicant’s son, Mr Sergey Viktorovich Samishchenko, has requested to pursue the application on his father’s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007, and Horváthová v. Slovakia, no.", "74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 7. The applicants complained principally that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection.", "They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 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.” 8. The Court notes that in application no. 52865/08 the period to be taken into consideration in relation to the “reasonable time” complaint must be calculated from 11 September 1997, the date when Ukraine’s recognition of the right of individual petition before the Court took effect. Therefore, in so far as the complaint relates to the proceedings prior to 11 September 1997, it must be declared inadmissible as being beyond the Court’s jurisdiction ratione temporis (see Agrokompleks v. Ukraine, no. 23465/03, § 101, 6 October 2011).", "The Court therefore declares this part of application no. 52865/08 inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 9. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "10. In the leading case of Krasnoshapka v. Ukraine, (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case. 11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 12. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 13. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.", "III. REMAINING COMPLAINTS 14. In applications nos. 52865/08 and 60072/08, the applicants also raised other complaints under various Articles of the Convention. 15.", "The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 17.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Krasnoshapka v. Ukraine, no. 23786/02, §§ 61 and 66, 30 November 2006), the Court considers it reasonable to award the sums indicated in the appended table. 18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints raised by the applicant in application no. 52865/08, concerning the proceedings prior to 11 September 1997, inadmissible; 3. Declares the other complaints concerning the excessive length of civil proceedings and the lack of any effective remedy in domestic law admissible, and the remainder of applications nos. 52865/08 and 60072/08 inadmissible; 4.", "Holds that these complaints disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAndré Potocki Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of civil proceedings and lack of any effective remedy in domestic law) No. Application no.", "Date of introduction Applicant name Date of birth Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant /household (in euros)[1] 3011/06 17/12/2005 Household Natalya Grigoryevna Krasnyakova 19/04/1951 Leonid Ivanovich Krasnyakov 30/09/1949 Nikolay Zakharovich Pashkov, Donetsk 11/05/1999 13/03/2014 14 years, 10 months and 3 days 3 levels of jurisdiction 7,000 42733/08 20/08/2008 Irina Viktorovna Tatarnikova 01/08/1955 01/10/2001 21/02/2008 6 years, 4 months and 21 days 3 levels of jurisdiction 500 52865/08 18/10/2008 Tatyana Anatolyevna Davydova 15/01/1949 11/09/1997 28/05/2008 10 years, 8 months and 18 days 3 levels of jurisdiction 3,000 60072/08 23/11/2008 Viktor Petrovich Samishchenko 29/10/1949 The applicant died on 6 November 2014. Mr Sergey Viktorovich Samishchenko, the applicant’s son, has the quality of heir. 24/10/2001 15/10/2008 6 years, 11 months and 22 days 3 levels of jurisdiction 900 675/11 14/12/2010 Sergiy Vitaliyovych Martynenko 26/12/1971 05/10/2004 05/07/2005 12/06/2007 27/08/2010 23/06/2005 02/09/2011 08/06/2010 19/09/2014 8 months and 19 days 3 levels of jurisdiction 6 years, 1 months and 29 days 3 levels of jurisdiction 2 years, 11 months and 28 days 3 levels of jurisdiction 4 years and 24 days 3 levels of jurisdiction 900 1494/11 27/12/2010 Lyudmila Alekseyevna Novoseltseva 17/07/1947 10/08/2001 08/10/2010 9 years,1 month and 29 days 3 levels of jurisdiction 1,800 52523/12 02/08/2012 Household Lyudmila Petrovna Kotman 17/10/1960 Vladislav Sergeyevich Kotman 04/10/1989 13/07/2000 30/03/2012 11 years, 8 months and 18 days 3 levels of jurisdiction 4,700 60181/13 12/09/2013 Nataliya Alekseyevna Yerofeyeva 01/11/1961 04/12/2002 19/04/2004 20/11/2012 12/03/2003 18/11/2010 13/03/2013 3 months and 9 days 3 levels of jurisdiction 6 years and 7 months 3 levels of jurisdiction 3 months and 22 days 3 levels of jurisdiction 900 61941/13 11/09/2013 Roman Vasylyovych Nedashkovskyy 18/06/1974 22/03/2004 12/03/2013 8 years, 11 months and 19 days 3 levels of jurisdiction 2,300 22755/14 05/03/2014 Lidiya Filippovna Khodykina 02/08/1950 29/09/2004 06/09/2013 8 years, 11 months and 9 days 3 levels of jurisdiction 1,800 38340/16 21/06/2016 Lidiya Borysivna Dovga 17/06/1950 Dmytro Anatoliyovych Gudyma Lviv 11/04/2006 23/02/2009 10/09/2008 18/11/2015 2 years and 5 months 3 levels of jurisdiction 6 years, 8 months and 27 days 3 levels of jurisdiction 1,800 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF PREMININY v. RUSSIA (Application no. 44973/04) JUDGMENT STRASBOURG 10 February 2011 FINAL 20/06/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Premininy 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 18 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44973/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Nikolay Anatolyevich Preminin and Mr Anatoliy Nikolayevich Preminin (“the applicants”), on 7 November 2004. 2. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 9 July 2007 the President of the First Section decided to give notice of the application to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1981 and 1953 respectively and live in the town of Surgut in the Tyumen Region. They are son and father. A.", "Criminal proceedings against the first applicant 5. On 19 January 2002 criminal proceedings were instituted against the first applicant. He was suspected of having broken into the online security system of an American bank, Green Point Bank (hereafter – the Bank), and having stolen the Bank’s client database. According to the prosecution, in November 2001 the first applicant contacted the Bank using a fake name. He demanded money in exchange for a promise not to publish the Bank’s database on the Internet.", "The Bank agreed to pay and the first applicant provided it with his real name and address. At the same time he published a part of the Bank’s database on the Internet. The Bank transferred 10,000 United States dollars to the first applicant. 6. At the beginning of April 2002 the first applicant was charged with aggravated extortion.", "He gave a written undertaking not to leave the town. 1. Arrest of the first applicant 7. On 23 April 2002 a deputy prosecutor general of the Russian Federation authorised the first applicant’s placement in custody on the ground that he had been charged with a serious criminal offence and was liable to pervert the course of justice, reoffend or abscond. 8.", "The first applicant was arrested on 7 May 2002 and placed in a detention ward at Surgut police station. On the following day he lodged a complaint with the Surgut Town Court challenging the grounds for his placement in custody. His lawyer submitted a separate complaint. On 9 May 2002 the first applicant was transferred to a detention facility in Tyumen. 9.", "On 24 May 2002 the Surgut Town Court declined to examine the first applicant’s and his lawyer’s complaints, noting that it did not have territorial jurisdiction over the matter. The Town Court advised the first applicant and his lawyer to lodge complaints with a court in Yekaterinburg. 2. Further complaints concerning the unlawfulness of detention (a) Request for release of 11 July 2002 10. On 11 July 2002 the first applicant’s counsel, Mr Ch., lodged a complaint with the Surgut Town Court arguing that the first applicant’s arrest and detention were unlawful.", "11. On 17 July 2002 the Surgut Town Court declined to examine the complaint giving the same reasons as those cited in its decision of 24 May 2002. On 20 August 2002 the Khanty-Mansi Regional Court upheld the Town Court’s findings. (b) Complaint of 22 July 2002 12. On 22 July 2002 Mr Ch.", "complained to the Surgut Town Court that the first applicant’s arrest and subsequent detention were unlawful and asked for his release. 13. Three days later the Surgut Town Court declined to examine the complaint, once again relying on a lack of territorial jurisdiction. On 20 August 2002 the Khanty-Mansi Regional Court, acting in its appellate jurisdiction, confirmed the lawfulness of the Town Court’s decision. 3.", "Proceedings for application of compulsory measures of a medical nature to the first applicant 14. On 25 July 2002 the Sverdlovsk Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and issued an expert report. The relevant part of the report read as follows: “... the psychiatric examination concludes that [the first applicant] is showing signs of brief reactive psychosis. The examinee reports that the illness emerged after the offence, during his stay in the temporary detention facility where he developed strong feelings of fear and hopelessness accompanied by psychologically understandable feelings of depression as a result of additional traumatic experiences, systematic ill-treatment, and physical and psychological abuse inflicted on him by his fellow inmates. There is no information in the medical record concerning [the first applicant’s] mental health during his stay in the hospital of the temporary detention facility with concussion and broken ribs.", "... [The first applicant] cannot take part in any investigative or judicial activities. [The first applicant] needs to be placed in a psychiatric hospital for compulsory treatment ... until his recovery from the psychosis ...” 15. On 28 September 2002 a deputy prosecutor of Surgut sent the case to the Surgut Town Court for trial. He noted that the first applicant was mentally ill, presented a danger to public safety and was liable to cause substantial damage. The deputy prosecutor argued that compulsory measures of a medical nature ought to be applied to the first applicant.", "16. On 18 October 2002 the Surgut Town Court fixed the first hearing for 4 November 2002. It also examined a request from the second applicant seeking his son’s release or, alternatively, his transfer to a psychiatric hospital. The Town Court decided that the first applicant was to remain in custody because he had been charged with a serious criminal offence. However, he was to be transferred to the Tyumen Regional Psychiatric Hospital in view of the state of his mental health.", "The first applicant was placed in that hospital on 4 December 2002. 4. Re-examination of the detention order of 24 May 2002 and the trial proceedings 17. On 22 November 2002 the Presidium of the Khanty-Mansi Regional Court considered, by way of supervisory review, that on 24 May 2002 the Surgut Town Court had incorrectly applied the law and had wrongfully concluded that it had not had territorial jurisdiction over the matter of the first applicant’s detention. The Presidium quashed the decision of 24 May 2002 and sent the case to the Town Court for fresh examination.", "18. In the meantime, on 3 December 2002 the Surgut Town Court found that the first applicant had committed aggravated extortion but absolved him of criminal responsibility finding that he was mentally incapacitated. The Town Court ordered that compulsory measures of a medical nature should be applied to the first applicant and that he should be placed in a psychiatric hospital for general care. The judgment was not appealed against and became final. 19.", "On 10 December 2002 the Surgut Town Court declined to re-examine the complaints of the first applicant and his lawyer that his arrest and detention were unlawful. The Town Court held that on 3 December 2002 it had examined the criminal case, found that the first applicant had committed aggravated extortion and ordered that he be placed in a psychiatric hospital. It had no competence to examine the subject of the applicant’s detention after the criminal case had been decided on its merits. 5. Re-examination of the detention order of 25 July 2002 20.", "On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review and giving the same reasons as it had given on 22 November 2002, quashed the decisions of 25 July and 20 August 2002 by which the lawyer’s request of 22 July 2002 for the first applicant’s release had been refused. The Presidium ordered an examination of the detention on its merits. 21. On 5 February 2004 the Surgut Town Court, having re-examined the lawyer’s complaint concerning the lawfulness of the first applicant’s detention, dismissed it finding that the criminal case had already been closed, the first applicant was being detained by virtue of the final judgment and the Town Court could no longer examine the matter. 22.", "On 30 March 2004 the Khanty-Mansi Regional Court quashed the decision of 5 February 2004 and ordered a fresh examination of the applicant’s detention. The relevant part of the decision read as follows: “By virtue of Article 123 of the Russian Code of Criminal Procedure, parties to criminal proceedings and other persons, in so far as their interests have been affected by procedural actions and decisions, can appeal against [the] actions and decisions of a pre-trial investigation body, an investigator, an interviewing officer, a prosecutor or court in accordance with the procedure established by the present Code. Article 125 of the Russian Code of Criminal Procedure sets forth the judicial procedure for an examination of such complaints. Examination of the presented materials shows that the [town] court did not in fact examine the grounds for [the first applicant’s complaints] or check the lawfulness of the actions and decisions of the indicated persons. The record of the court hearing does not show which materials were examined by the court.", "The [town] court’s conclusion that the subject of the complaint no longer existed was not based on law; the fact that a court has given a judgment in a criminal case cannot serve as a ground for declining to examine the lawfulness of procedural actions and procedural decisions taken in the course of that criminal case and affecting the [first applicant’s] interests, [and cannot serve as a ground] for declining to examine the [first applicant’s] complaints. Moreover, that complaint was lodged with the court long before the examination of the criminal case by the court.” 23. On 19 May 2004 the Surgut Town Court found that the first applicant’s arrest and subsequent detention had been lawful. The first applicant’s lawyer attended the hearing. However, the second applicant, despite having been properly summonsed, defaulted and did not notify the Town Court of the reasons for his absence.", "24. On 21 July 2004 the Khanty-Mansi Regional Court upheld the decision on appeal. 6. Proceedings concerning the first applicant’s release from hospital 25. On 17 June 2003 Lebedyovskaya Psychiatric Hospital examined the first applicant and recommended that he be released from hospital because he no longer presented a danger to himself or the public.", "On 30 June 2003 the Director of Lebedyovskaya Psychiatric Hospital applied to the Surgut Town Court seeking the release of the first applicant. 26. On 4 July 2003 the Surgut Town Court sent the request to the Zavudkovskiy District Court, finding that the latter had territorial jurisdiction over the matter. 27. On 8 October 2003 the Zavudkovskiy District Court returned the case file to the Surgut Town Court noting that the matter should be examined in Surgut.", "28. On 12 March 2004 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review, quashed the decision of 4 July 2003 and ordered the Surgut Town Court to examine the request for the first applicant’s release. 29. On 13 July 2004 Tyumen Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and considered that the conclusions reached by Lebedyovskaya Psychiatric Hospital on 17 June 2003 had been incorrect and that the first applicant should remain in a psychiatric hospital for further compulsory medical treatment. 30.", "On 2 September 2004 the Surgut Town Court dismissed the request for the release of the first applicant on the ground that the expert report of 17 June 2003 had been inconclusive, that on 13 July 2004 it had been found that the first applicant was still suffering from schizophrenia and had been considered in need of further compulsory psychiatric treatment. The decision was not appealed against and became final. 31. On 2 February 2005, following a new psychiatric examination of the first applicant and a request from Tyumen Regional Psychiatric Hospital, the Surgut Town Court authorised his release from hospital. B. Ill-treatment of the first applicant in the temporary detention facility 1.", "Events of 10 June 2002 32. At the end of May 2002 the first applicant was transferred to Yekaterinburg no. 1 temporary detention facility and placed in cell no. 131. The cell housed four inmates.", "According to the first applicant, he was systematically humiliated and ill-treated by warders and detainees alike. On 10 June 2002 his cellmates, acting upon an order of the administration of the detention facility, severely beat him up with long wooden sticks which they had received from the warders. 33. The Government disputed the first applicant’s version of events, arguing that on the night of 9 June 2002 the first applicant had initiated a conflict with one of his cellmates, calling him names. A fight broke out and the first applicant received injuries.", "The Government insisted that the first applicant’s allegations of the authorities’ instigating role in the dispute were not supported by any evidence. 34. The Government submitted medical certificate no. 226 drawn up in the detention facility on 10 June 2002 following an examination of the first applicant by a prison doctor. It appears from the certificate that the prison doctor diagnosed the first applicant with concussion and numerous abrasions to his arms, legs, back, shoulders, face and ears and prescribed him bed rest.", "The doctor also noted that the first applicant had received those injuries over a period of a week in cell no. 131. The first applicant was transferred to the medical unit of the detention facility on the afternoon of 10 June 2002. 35. According to a copy of the facility’s logbook produced by the Government, on the morning of 10 June 2002 an officer on duty made an entry in the log of an incident involving the first applicant and listed his injuries.", "36. On 11 June 2002 the acting director of detention facility no. 1, having examined the information about a possible offence committed against the first applicant, refused to institute criminal proceedings. He found that on 10 June 2002 the first applicant had had a heated argument with one of his cellmates, Mr K. The latter had kicked the first applicant once in the stomach, as a result of which the first applicant had fallen, having hit his head and back against a wall. The first applicant had got back to his feet and attempted to strike back, but was stopped by two other cellmates who broke up the fight.", "The director of the facility also noted that, when questioned about the incident, the first applicant had confirmed that he had verbally assaulted Mr K. and asked that criminal proceedings against the latter not be instituted. The two remaining cellmates gave similar descriptions of the incident. A copy of the director’s decision of 11 June 2002 was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor’s Office to verify that the domestic law had been properly applied in the case. 37. In April 2004 the second applicant was appointed the legal guardian of the first applicant.", "On 21 April 2004 he complained to the Sverdlovsk Regional Prosecutor’s Office about the decision of 11 June 2002. 38. On 16 August 2004 the Sverdlovsk Regional Prosecutor quashed the decision of 11 June 2002 finding that it had been issued “prematurely” and ordered an additional investigation into the first applicant’s complaints. The prosecutor also noted that the first applicant suffered from a serious mental illness impairing his legal capacity and that in those circumstances his alleged request that no proceedings be instituted against cellmate K. should not have had any legal implications. 39.", "On 18 August 2004 the administration of the temporary detention facility refused to institute criminal proceedings in respect of the first applicant’s complaint of ill-treatment on the ground that the statutory limitation period had expired. That decision was quashed on 14 December 2004 and an additional investigation was authorised. 40. On 24 December 2004 an assistant to the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against Mr K. because the statutory limitation period of two years had expired on 10 June 2004 and Mr K. could no longer bear criminal responsibility. In his decision the assistant also listed statements by warders who had insisted that the first applicant had had a dispute with Mr K. The latter had beaten up the first applicant.", "The fight had been stopped by the two other cellmates. The warders had not asked the cellmates to threaten the first applicant or to beat him up. At the same time, Mr K. retracted his previous statements and claimed that he had not beaten up the first applicant. The other two inmates were not questioned because their whereabouts were unknown. A copy of the decision of 24 December 2004 was served on the second applicant.", "41. The Government submitted that on 29 August 2007 the decision of 24 December 2004 had been quashed by a higher-ranking prosecutor and the investigation was now pending. 2. Events of 14 June 2002 42. The first applicant complained that he had been systematically beaten up by warders.", "He claimed that on 14 June 2002 the warders had broken three of his ribs. 43. The Government argued that on the night of 14 June 2002 the first applicant had fallen over on his way to the lavatory, breaking two ribs. 44. As can be seen from a copy of the first applicant’s medical record drawn up in detention facility no.", "1 and submitted by the Government, on 14 June 2002 the first applicant was examined by a neurologist and the head of the detention facility’s medical unit. They noted an injury to the first applicant’s chest and authorised a chest X-ray. The X-ray was taken on 18 June 2002 and showed that the first applicant had two broken ribs on his right side. Four days later the first applicant was again examined by the facility doctors, who noted his anxious state. The doctors recorded that the first applicant had refused to remain in his cell, had been disorientated and inert, and had not given proper responses to their questions.", "Following a further medical examination on 24 June 2002 the doctors noted that the first applicant had had difficulty formulating sentences and concentrating, that his reactions had been slow and that he had constantly stared straight ahead. A psychiatric examination of the first applicant was recommended. 45. On 21 June 2002 the director of the facility closed an investigation into the cause of the first applicant’s injury, finding that he had broken his ribs when falling over in a cell on 14 June 2002. The decision was based on statements by the first applicant’s three cellmates who had insisted that no force had been used against him.", "The director also noted that it had been impossible to interview the first applicant as his behaviour had been strange and he had not answered the questions put to him owing to the poor state of his mental health. A copy of the director’s decision was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor for verification. 46. On 21 April 2004 a deputy to the Sverdlovsk Regional Prosecutor quashed the decision of 21 June 2002 and ordered an additional investigation, having found that it was necessary to carry out a forensic medical examination of the first applicant and to question his cellmates and the warders. The deputy prosecutor stated that his decision was a response to information received on 21 June 2002 from the director of detention facility no.", "1 about a possible criminal offence. 47. On 30 April 2004 a senior inspector, having concluded that on 14 June 2002 the first applicant had slipped, fallen to the floor and injured himself, found that the complaint was unsubstantiated. The decision was based on evidence collected during the internal investigation carried out by the administration of the detention facility in June 2002. In addition, the senior investigator relied on a report by forensic medical experts who had studied the first applicant’s medical documents in April 2004 and concluded that there was insufficient evidence to confirm that the first applicant had had broken ribs.", "48. On 14 December 2004 the decision of 30 April 2004 was quashed and an additional investigation was ordered. 49. On 24 December 2004 an assistant of the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against the warders, finding no prima facie case of ill-treatment. The assistant’s decision was based on the statements of one of the first applicant’s cellmates, a warder and a medical assistant who had examined the first applicant on 22 June 2002.", "The first applicant’s cellmate stated that he had fallen over. He had had no visible injuries, but had complained of being in pain. The warder, while noting that conflicts among detainees had been very frequent and that it was impossible to remember each and every one of them, insisted that no force had been used against the first applicant on any occasion. The medical assistant stated that prior to his placement in the detention facility’s medical unit on 22 June 2002 the first applicant had acted aggressively towards other inmates and provoked, in turn, aggressive actions towards himself. The assistant was unable to locate and question the first applicant’s other cellmates.", "50. It appears from the Government’s submissions that the decision of 24 December 2004 was quashed on 29 August 2007. A fresh investigation appears to be pending now. II. RELEVANT DOMESTIC LAW A.", "Investigation into criminal offences 51. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities’ own initiative where there are reasons to believe that a crime has been committed (Articles 146 and 147). The prosecutor is responsible for the overall supervision of the investigation (Article 37). He or she can order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds upon which to initiate a criminal investigation, the prosecutor or investigator shall give a reasoned decision to that effect, which must be brought to the attention of the interested party.", "The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions given by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court. B. Authorities’ response to alleged instances of ill-treatment in detention facilities 52. Russian law sets out detailed guidelines for the detention of individuals in temporary detention facilities. These guidelines are found in Ministry of Justice Decree no.", "189 on Internal Regulations of Temporary Detention Facilities (“the Decree”), enacted on 14 October 2005. In particular, Section II of the Decree provides that an investigation should be carried out into the circumstances in which a detainee has sustained injuries. Case-file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor’s office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of the Russian Code of Criminal Procedure (paragraph 16 of Section II). C. Supervision by prosecution authorities in detention facilities 53. Chapter III of the Prosecutor’s Offices Act (Federal Law no.", "2202-I of 17 January 1992) identifies the jurisdiction and powers of prosecution authorities in the field of prosecution supervision. In particular, if information about a possible violation of Russian law is received, prosecution authorities should carry out their supervisory function. Prosecutors are authorised to monitor the enforcement of the Russian Constitution and laws by various federal and local authorities and their officials, including the administrations of detention facilities (section 21). They should also ensure that the rights and freedoms of detained individuals are respected in places of detention. In performing their task prosecutors should respond to information about possible violations of human rights and freedoms and take measures to prevent or eliminate such violations, bringing those responsible to justice, which can include instituting administrative or criminal proceedings and awarding damages (sections 26, 27 and 32).", "While supervising the work of the administration of a detention facility, prosecutors are to demand that the administration creates conditions in which the rights and freedoms of detained individuals are fully respected, to check that the administration’s decisions comply with domestic legal norms and to receive additional explanations from officials of the detention facility if needed (section 33). III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS 54. The complexity and importance of prevention of violence in detention facilities, specificity of procedures to be employed by facility administration addressing inter-prison violence and necessity of special care, including psychiatric care, of detainees was discussed by the European Committee for the Prevention of Torture in its General Reports. The following are the extracts from the Reports: A.", "2nd General Report of the European Committee for the Prevention of Torture [CPT/Inf (92) 3] “54. Effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment’s premises.", "Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general. 55. It is also in the interests of both prisoners and prison staff that clear disciplinary procedures be both formally established and applied in practice; any grey zones in this area involve the risk of seeing unofficial (and uncontrolled) systems developing. Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences it is alleged they have committed, and to appeal to a higher authority against any sanctions imposed. Other procedures often exist, alongside the formal disciplinary procedure, under which a prisoner may be involuntarily separated from other inmates for discipline-related/security reasons (eg.", "in the interests of \"good order\" within an establishment). These procedures should also be accompanied by effective safeguards. The prisoner should be informed of the reasons for the measure taken against him, unless security requirements dictate otherwise1, be given an opportunity to present his views on the matter, and be able to contest the measure before an appropriate authority.” B. 3rd General Report [CPT/Inf (93) 12] “ii) psychiatric care 41. In comparison with the general population, there is a high incidence of psychiatric symptoms among prisoners.", "Consequently, a doctor qualified in psychiatry should be attached to the health care service of each prison, and some of the nurses employed there should have had training in this field. The provision of medical and nursing staff, as well as the layout of prisons, should be such as to enable regular pharmacological, psychotherapeutic and occupational therapy programmes to be carried out. 42. The CPT wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment (eg. depression, reactive state, etc.", "), with a view to enabling appropriate adjustments to be made to their environment. This activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff.” C. 11th General Report [CPT/Inf (2001) 16] “Staff-prisoner relations 26. The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job. Building positive relations with prisoners should be recognised as a key feature of that vocation. Regrettably, the CPT often finds that relations between staff and prisoners are of a formal and distant nature, with staff adopting a regimented attitude towards prisoners and regarding verbal communication with them as a marginal aspect of their work.", "The following practices frequently witnessed by the CPT are symptomatic of such an approach: obliging prisoners to stand facing a wall whilst waiting for prison staff to attend to them or for visitors to pass by; requiring prisoners to bow their heads and keep their hands clasped behind their back when moving within the establishment; custodial staff carrying their truncheons in a visible and even provocative manner. Such practices are unnecessary from a security standpoint and will do nothing to promote positive relations between staff and prisoners. The real professionalism of prison staff requires that they should be able to deal with prisoners in a decent and humane manner while paying attention to matters of security and good order. In this regard prison management should encourage staff to have a reasonable sense of trust and expectation that prisoners are willing to behave themselves properly. The development of constructive and positive relations between prison staff and prisoners will not only reduce the risk of ill-treatment but also enhance control and security.", "In turn, it will render the work of prison staff far more rewarding. Ensuring positive staff-inmate relations will also depend greatly on having an adequate number of staff present at any given time in detention areas and in facilities used by prisoners for activities. CPT delegations often find that this is not the case. An overall low staff complement and/or specific staff attendance systems which diminish the possibilities of direct contact with prisoners, will certainly impede the development of positive relations; more generally, they will generate an insecure environment for both staff and prisoners. It should also be noted that, where staff complements are inadequate, significant amounts of overtime can prove necessary in order to maintain a basic level of security and regime delivery in the establishment.", "This state of affairs can easily result in high levels of stress in staff and their premature burnout, a situation which is likely to exacerbate the tension inherent in any prison environment. Inter-prisoner violence 27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks. Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner.", "Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE BEATINGS BY INMATES 55. The applicants complained that the first applicant had been systematically humiliated and beaten up by his cellmates, the most serious incident having occurred on 10 June 2002, and that there had not been an effective investigation into the events. The Court will examine this complaint from the standpoint of the State’s obligations flowing from Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 56. The Government first submitted that the second applicant could not be regarded as a victim of the alleged violations as he had not been personally affected by the situation. They insisted that his complaints should therefore be dismissed as being incompatible ratione personae within the meaning of Article 35 § 3 of the Convention.", "The Government further argued that the first applicant’s complaints were also inadmissible. In the Government’s opinion the first applicant’s failure, prior to his being pronounced legally incompetent, to complain to a prosecution authority or court that he was being beaten up, as well as the second applicant’s reluctance for two years to appeal against the decision of 10 June 2002, should be interpreted by the Court as a failure to exhaust domestic remedies contrary to the requirements of Article 35 § 1 of the Convention. 57. In addressing the merits of the applicants’ complaints, the Government stressed that the first applicant’s injuries had been caused by a private individual for whom the State did not bear any responsibility. They maintained that there was no evidence that the fight between the first applicant and his cellmate had been initiated or in any way provoked by the administration of the detention facility.", "At the same time the facility administration had taken all possible steps to ensure detainees’ safety. In particular, the facility lights were not turned off at night and warders occasionally checked that order was maintained in the cells. They submitted, however, that conflicts among detainees occurred quite often and could not be entirely prevented by any system of control or security, no matter how efficient. The Government concluded by stating that the administration of the detention facility had carried out an investigation into the events of 10 June 2002, having questioned the warders and the first applicant’s cellmates and having examined medical documents. There was no evidence that the decision of the facility administration not to institute criminal proceedings had been manifestly ill-founded or unlawful.", "58. The applicants disputed the Government’s description of the circumstances in which the first applicant had sustained his injuries. In particular, relying on medical certificate no. 226 drawn up on 10 June 2002, they argued that the medical personnel who had examined the first applicant on the morning of 10 June 2002 had considered his version of systematic beatings by his cellmates to be a plausible one and had recorded this in the first applicant’s medical notes. Furthermore, forensic medical experts, while assessing the state of the first applicant’s mental health in July 2002, also accepted that systematic ill-treatment of the first applicant in the detention facility had been the underlying cause of the deterioration of his mental health.", "The applicants submitted that the first applicant’s poor mental health should be taken into account when assessing the issue of exhaustion of domestic remedies. They further noted that once the second applicant had learned of the first applicant’s ill-treatment in 2004 he had immediately complained to the domestic authorities. B. The Court’s assessment 1. Admissibility 59.", "The Court notes that the Government raised two major objections against the admissibility of the applicants’ complaint. In particular, they argued that the second applicant did not have standing in the proceedings before the Court as he was personally unaffected by the events under examination. They further submitted that the applicants had failed to exhaust domestic remedies as the first applicant had never raised an issue of ill-treatment before any domestic authorities and the second applicant had not appealed against the decision of 10 June 2002 until more than two years later. (a) Victim status 60. As to the question whether both applicants can be regarded as “victims” within the meaning of Article 34 of the Convention, the Court reiterates that there must be a sufficiently direct link between an applicant and the damage which he or she claims to have sustained as a result of the alleged violation in order for that applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols (see Smits and Others v. the Netherlands (dec.), nos.", "39032/97, 39343/98, etc., 3 May 2001). 61. The Court observes that the second applicant was not directly affected by the matters complained of. He was neither present at or affected by the events of June 2002 nor a direct party to the investigation carried out by the domestic authorities into the events in question. Furthermore, he never argued that he himself had sustained any damage as a result of his son’s situation.", "The Court notes that the complaints before it concern the allegation that the first applicant had been ill-treated in the detention facility and that there had been no effective investigation into the matter, in breach of Article 3 guarantees. In these circumstances the Court does not consider that the second applicant can claim to be a victim of violations of that Convention provision in the sense of Article 34 of the Convention (see O’Reilly and Others v. Ireland (dec.), no. 54725/00, 4 September 2003). It follows that his complaint under Article 3 of the Convention in respect of the events of June 2002 is thus incompatible ratione personae with the Convention’s provisions and must be dismissed pursuant to Article 35 § 4 of the Convention. (b) Exhaustion of domestic remedies (i) General principles 62.", "The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against a State before the Court to use first the remedies provided by the national legal system. Consequently, 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. The rule is based on the assumption, reflected in Article 13 of the Convention (with which it has close affinity), that there is an effective remedy available in respect of the alleged breach in the domestic system, whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).", "63. Under Article 35 of the Convention, an applicant should normally have recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112).", "Article 35 also requires that complaints made 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 (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). 64. Furthermore, in the area of exhaustion of domestic remedies, there is 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, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.", "However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate or ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. 65. The Court emphasises that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot, cited above, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no.", "40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-68, Reports of Judgments and Decisions 1996‑IV). (ii) Application of the general principles to the present case 66. The Court notes that the Government’s objection is twofold. They argued that the first applicant had not complained of ill-treatment even when he had still been legally competent to do so.", "In addition, they submitted that the second applicant, being the legal representative of the first applicant, had waited for two years before raising the issue of ill‑treatment before the prosecutor’s office. 67. Turning to the circumstances of the present case, the Court observes that on 11 June 2002 the director of the detention facility gave a decision refusing to open a criminal investigation into the beatings of the first applicant. The decision was served on the first applicant and then sent to the Sverdlovsk Regional Prosecutor’s Office for supervision (see paragraph 36 above). It was not until 16 August 2004, that is, more than two years after the events in question, that the Regional Prosecutor quashed the decision of 11 June 2002 and authorised an additional investigation into the events (see paragraph 38 above).", "The Court accepts the Government’s argument that there is no evidence that the first applicant has ever raised a complaint of ill‑treatment before any domestic authority. However, it does not find this situation surprising given the manner in which the ensuing events developed. In particular, the Court observes that merely days after the decision of 11 June 2002 the medical personnel of the detention facility made a record of the first applicant’s strange behaviour, noting his anxious state, disorientation and inertness, as well as his inability to concentrate, respond to questions or formulate sentences in an organised manner (see paragraph 44 above). Similar comments regarding the first applicant’s ability to express his opinion were made by the director of the detention facility when he had attempted to question the first applicant about the events of 14 June 2002 (see paragraph 45 above). Following a psychiatric examination of the first applicant on 25 July 2002, which diagnosed a serious mental disorder, the first applicant was declared legally incompetent.", "The Court attributes particular weight to the fact that the psychiatrists considered the first applicant to be mentally incapable of taking part in investigative or judicial activities (see paragraph 14 above). In these circumstances the Court is convinced that there exists clear and conclusive evidence that the first applicant’s state of mental health hindered his ability to steer his way through the complaints procedure and prevented him from applying to the competent domestic authorities with a complaint of ill-treatment (see, by contrast, Peters v. Germany, no. 25435/94, Commission decision of 20 February 1995). Having found that the first applicant could not have been reasonably expected to exhaust the national channels of redress, the Court dismisses this part of the Government’s objection. 68.", "The Court further notes the Government’s argument that, even if the first applicant’s mental health had precluded him from applying to the domestic authorities, it was for the second applicant, the legal guardian of the first applicant, to step in and promptly challenge the decision of 11 June 2002, thus notifying the domestic authorities of a possible violation of his son’s rights. In this connection the Court observes that, as it can be seen from the parties’ submissions, the second applicant applied to the prosecutor’s office with a complaint of ill-treatment as soon as he had acquired legal status as the first applicant’s representative, received access to the case file and had grounds to make a complaint (see paragraph 37 above). As a result, the decision of 11 June 2002 is no longer in force, having been quashed on 16 August 2004 by a decision of the Sverdlovsk Regional Prosecutor’s Office which authorised a fresh investigation. That investigation is still pending, having been closed and reopened on a number of occasions following the second applicant’s successful complaints to higher-ranking prosecutors. The domestic authorities were therefore afforded ample opportunity to remedy the alleged violation of the first applicant’s rights.", "In these circumstances the Court is unable to accept the Government’s objection that the second applicant’s alleged failure to appeal for two years against the decision of 11 June 2002 rendered the first applicant’s Article 3 complaint inadmissible (see, for similar reasoning, Samoylov v. Russia, no. 64398/01, § 45, 2 October 2008). (c) The Court’s decision on the admissibility of the complaint 69. The Court notes that this complaint of the first applicant is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) General principles 70. The Court observes that the first applicant drew his complaint in two directions, laying blame on the authorities of the respondent State for the incitement of ill-treatment and humiliation to which he was allegedly subjected by his cellmates while at the same time suggesting that, even if this systematic ill-treatment had not been organised by State agents, the authorities knew or ought to have known that he had been at risk of physical violence at the hands of his cellmates and failed to take appropriate measures to protect him against that risk. In this connection, the Court notes that there is no evidence in the file capable of founding an “arguable claim” of any direct involvement of State agents in the first applicant’s beatings. There is no indication that violence against the first applicant was, in any way, permitted by the facility administration.", "71. However, the absence of any direct State involvement in acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from its obligations under this provision. The Court reiterates that the engagement undertaken by a Contracting State under Article 1 of the Convention is confined to “securing” the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). 72.", "It is true that, taken together, Articles 1 and 3 place a number of positive obligations on the High Contracting Parties, designed to prevent and provide redress for torture and other forms of ill-treatment. Thus, in A. v. the United Kingdom (23 September 1998, § 22, Reports 1998-VI) the Court held that, by virtue of these two provisions, States are required to take certain measures to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see, for similar reasoning, Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, § 98, ECHR 2005-VII (extracts), and M.C. v. Bulgaria, no.", "39272/98, § 149, ECHR 2003-XII). In Aksoy v. Turkey (18 December 1996, § 98, Reports 1996-VI) it was established that Article 13 in conjunction with Article 3 imposes an obligation on States to carry out a thorough and effective investigation of incidents of torture and, in Assenov and Others v. Bulgaria (28 October 1998, § 102, Reports 1998‑VIII), the Court held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such a positive obligation cannot be considered to be limited solely to cases of ill-treatment by State agents (see Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). 73.", "Admittedly, it goes without saying that the obligation on States under Article 1 of the Convention cannot be interpreted as requiring a State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or, if it has been, that criminal proceedings should necessarily lead to a particular punishment. However, it has been the Court’s constant approach that Article 3 imposes on States a duty to protect the physical well-being of persons who find themselves in a vulnerable position by virtue of being within the control of the authorities, such as, for instance, detainees or conscripted servicemen (see Chember v. Russia, no. 7188/03, § 50, 3 July 2008; Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006-IX; and Mouisel v. France, no.", "67263/01, § 40, ECHR 2002-IX). 74. Article 3 also requires that authorities conduct an effective official investigation into any alleged ill-treatment even if such treatment has been inflicted by private individuals (see Ay v. Turkey, no. 30951/96, § 60, 22 March 2005, and M.C. v. Bulgaria, cited above, § 151).", "Even though the scope of a State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals (see Beganović v. Croatia, no. 46423/06, § 69, ECHR 2009‑... (extracts)), the requirements for an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. Authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on.", "Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many other authorities, Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII). In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000‑IV). Consideration has been given to the opening of investigations, delays in taking statements (see Timurtaş v. Turkey, no.", "23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports 1998-IV) and to the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). (b) Application of the above-mentioned principles to the circumstances of the present case 75. The Court observes that the present complaint which the first applicant raised under Article 3 of the Convention in fact poses two separate but interconnected questions: the credibility of his version of events and the gravity of the ill-treatment to which he was allegedly subjected, and the State’s accountability for that treatment. (i) Obligation of the State to prevent ill-treatment or mitigate its harm (α) Establishment of the facts and assessment of the severity of the ill-treatment 76.", "The Court notes that the facts were disputed by the parties. In particular, the first applicant argued that for at least a week prior to the culmination of the events on 10 June 2002 he had been systematically humiliated and assaulted by his cellmates in cell no. 131. On 10 June 2002 he had been brutally attacked by his cellmates, sustaining concussion and numerous injuries to his body. The Government averred that the first applicant’s injuries had resulted from a one-off fight between the first applicant and his cellmate K., in which the latter had kicked the first applicant in the stomach.", "77. The Court reiterates that for the treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. The assessment of this minimum is, by nature, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, amongst many other authorities, Soering, cited above, § 100). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see T. v. the United Kingdom [GC], no. 24724/94, § 69, 16 December 1999).", "78. The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 79. Turning to the circumstances of the present case, the Court observes that on the morning of 10 June 2002 the first applicant was examined by a prison doctor who recorded numerous injuries to his arms, legs, back, shoulders, face and ears and also diagnosed him with concussion.", "The doctor’s conclusion was that the injuries resulted not from a sporadic occurrence but were evidence of systematic beatings sustained within the week preceding the medical examination. The first applicant was recommended bed rest (see paragraph 34 above). The parties do not dispute that those injuries as recorded in medical certificate no. 226 were sustained by the first applicant during his detention, that is, when he was under the full control of the administration of Yekaterinburg no.1 detention facility. 80.", "The Court is not convinced by the Government’s argument that the first applicant’s injuries resulted from a one-off fight with his cellmate K. It observes that the first applicant alleged that he had suffered physical and psychological abuse at the hands of his cellmates in cell no. 131 for over a week. It appears that attacks on the first applicant were initiated almost immediately after his transfer to that cell (see paragraph 32 above). The Court notes that the Government contested the first applicant’s allegations and argued that they were false and unsubstantiated. They submitted that the first applicant’s injuries as recorded in medical certificate no.", "226 had resulted from a blow to the stomach he had received from cellmate K. and the subsequent fall he had taken after hitting his head and back against a wall. The Court considers that the Government’s explanation sits ill with the nature and location of the first applicant’s injuries. It does not lose sight of the prison doctor’s finding that the first applicant had numerous injuries covering a substantial surface of his body, although no injuries to his stomach were recorded (see paragraph 34 above). The Court finds, and this finding is also supported by the prison doctor’s opinion (see paragraph 34 above), that the description of the first applicant’s injuries corresponds to physical sequelae from systematic beatings rather than to injuries sustained as a result of a single blow and the subsequent collision of the first applicant with a concrete wall. The Court further observes that a forensic psychiatric examination of the first applicant carried out on 25 July 2002 revealed a strong link between the deterioration of his mental health and a psychologically traumatic experience encountered by the first applicant through systematic ill-treatment and physical and psychological abuse in detention.", "The Court is therefore bound to conclude that the first applicant was a victim of systematic ill-treatment at the hands of his cellmates which lasted for at least a week. 81. The Court further finds that all the injuries recorded in the medical certificate and the first applicant’s statements regarding the ill-treatment to which he had been subjected in detention establish the existence of physical and undoubtedly mental pain and suffering. The acts complained of were such as to arouse in the first applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and emotional resistance. This conclusion is supported by the experts’ finding that physical and psychological abuse led to the first applicant feeling afraid, depressed and hopeless (see paragraph 14 above).", "An important element to be taken into consideration is also the long-term consequences of the ill-treatment on the first applicant’s mental health (see paragraphs 14 and 16 above). The Court also attaches great importance to the first applicant’s young age at the time of the events, which made him particularly vulnerable at the hands of his aggressors. Having regard to the nature and degree of the ill-treatment and its effect on the first applicant’s mental health, the Court finds that there are elements which are sufficiently serious to render such treatment inhuman and degrading contrary to the guarantees of Article 3 of the Convention. It therefore remains to determine whether the State authorities can be held accountable for the ill-treatment of which the first applicant was a victim. (β) State responsibility: supervision and control system in detention 82.", "The Court notes that the Government refused to take any responsibility for the ill-treatment in question, arguing that there had been no failing or omission on the part of the detention facility administration. They submitted that the State could neither be implicated in instigating a conflict between the inmates nor accused of failing to take all necessary steps to prevent the occurrence of such a conflict. In the Government’s opinion, violence was an inevitable element of prison life and its existence was not related to the efficiency of the system of supervision and control existing in a detention facility. 83. In this connection, the Court firstly reiterates that Article 3 enshrines one of the most fundamental values of democratic societies and, in accordance with this notion, prohibits in absolute terms torture and inhuman or degrading treatment or punishment (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V).", "It imposes an obligation on the Contracting States not only to refrain from provoking ill-treatment, but also to take the necessary preventive measures to preserve the physical and psychological integrity and well-being of persons deprived of their liberty (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX, and Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001‑III). At the same time the Court has consistently interpreted that obligation in such a manner as not to impose an impossible or disproportionate burden on the authorities (see Pantea v. Romania, no. 33343/96, § 189, ECHR 2003‑VI (extracts)).", "The Court has also stated that the scope of the State’s positive obligation under Article 3 must be compatible with the other rights and freedoms under the Convention (see Keenan, cited above, §§ 89-91). 84. Having regard to the absolute character of the protection guaranteed by Article 3 of the Convention and given its fundamental importance in the Convention system, the Court has developed a test for cases concerning a State’s positive obligation under that Convention provision. In particular, it has held that to successfully argue a violation of his Article 3 right it would be sufficient for an applicant to demonstrate that the authorities had not taken all steps which could have been reasonably expected of them to prevent real and immediate risks to the applicant’s physical integrity, of which the authorities had or ought to have had knowledge. The test does not, however, require it to be shown that “but for” the failing or omission of the public authority the ill-treatment would not have occurred.", "The answer to the question whether the authorities fulfilled their positive obligation under Article 3 will depend on all the circumstances of the case under examination (see Pantea, cited above, §§ 191-96). The Court also reiterates that State responsibility is engaged by a failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm to the applicant (see E. and Others v. the United Kingdom, no. 33218/96, §§ 89-101, 26 November 2002). The Court therefore has to establish whether, in the circumstances of the present case, the authorities knew or ought to have known that the first applicant was suffering or at risk of being subjected to ill-treatment at the hands of his cellmates, and if so, whether the administration of the detention facility, within the limits of their official powers, took reasonable steps to eliminate those risks and to protect the first applicant from that abuse. 85.", "The Court notes the Government’s argument that the authorities could not have foreseen a sporadic fight breaking out between the first applicant and his cellmate K. They stressed that conflicts among detainees were not rare and therefore there existed no means of eliminating them entirely. In this connection, the Court notes that it is the State’s utmost responsibility to prevent and address violence among inmates in prisons in accordance with its obligation to respect, protect and fulfil the right of individuals not to be subjected to torture or to inhuman or degrading treatment or punishment. 86. Furthermore, the Court has already made a finding on the materials before it, which are uncontroverted, that the first applicant suffered systematic abuse at the hands of his cellmates. The acts of violence against the first applicant continued for at least a week (see paragraph 80 above).", "The materials before the Court also disclose the authorities’ knowledge of the situation. In particular, as can be seen from the decision of 24 December 2004 given by the assistant prosecutor of the Sverdlovsk Region, the administration of the detention facility was aware of the acts of violence against the first applicant, which they considered to be a response to his own aggressive behaviour (see paragraph 49 above). Irrespective of the cause of the abuse which the first applicant suffered, the Court is of the opinion that the authorities, apprised of the first applicant’s allegedly provocative behaviour, could have reasonably foreseen that such behaviour rendered him more vulnerable than an average detainee. The authorities should have enquired into the first applicant’s psychological state, having considered that, in view of his relatively young age, background and no previous experience of the criminal justice system, the detention could have exacerbated his feeling of distress, already inherent in any measure of deprivation of liberty, making him more prone to episodes of anger and irascibility, which he allegedly manifested against other inmates (see, for similar reasoning, Pantea, cited above, § 192). Moreover, apart from a general knowledge that the first applicant was at risk of violence as a consequence of his unconventional behaviour, the administration of the detention facility could not but have noticed actual signs of abuse, as it was not disputed by the parties that at least part of the first applicant’s injuries were visible.", "In this situation the Court takes the view that even if the facility administration was not immediately aware of the first attack inflicted on the first applicant, within a few days they should have been alerted to the fact that the first applicant had been subjected to ill-treatment and that there was cause to introduce specific security and surveillance measures to prevent him being the subject of continual verbal and physical aggression. 87. The Court notes that responding to prison violence requires prompt action by facility staff, including ensuring that the victim is protected from further abuse and can access the necessary medical and mental health services. Such response should include the coordination of security staff, forensic, medical, and mental health practitioners and facility management. However, in the present case, notwithstanding the existence of a serious risk to the first applicant’s well-being, no specific and prompt security or surveillance measures were introduced at the detention facility.", "In particular, there is no evidence in the materials submitted by the parties that the administration of the detention facility had ever considered the specific details of the first applicant’s personal situation in their choice of co-detainees to place in his cell (see, for similar reasoning, Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 71, 27 May 2008). In fact, it appears that the management of the detention facility lacked a clear policy on the classification and housing of detainees, key to promoting internal prison security and preventing prison violence. The Court reiterates that a proper classification system which includes screening for the risk of victimisation and abusiveness, consideration of the traits known to place someone at risk and of an individual’s own perception of vulnerability is critical to ensuring that potential predators and potential victims are not housed together (see, also for guidance, paragraph 54 above). 88.", "Furthermore, there is no indication that the facility administration attempted to monitor, on a regular basis, the conduct of inmates prone to being violent or those who were at risk of being subjected to violence. Nor is there evidence that disciplinary measures were taken against the offenders. As to the monitoring, the Court is not satisfied that keeping the lights on at night and having cells occasionally checked on by warders were sufficient measures to enhance inmate security, and, in particular, to protect the first applicant from continual abuse. The Government, however, did not suggest any other protective measures which could have prevented further attacks on the first applicant. In respect of the disciplinary action, the Court is not convinced that the facility administration adhered to a standardised policy of punishments for inmates who perpetrated abuse.", "The absence of such a policy shows that prison violence was not taken as seriously as other crimes and that the facility administration allowed detainees to act with impunity to the detriment of the rights of other inmates, including the right guaranteed by Article 3 of the Convention. 89. At the same time, what is more striking is that it was not until the incident of 10 June 2002, which the first applicant described as the culmination of the ill-treatment, that he was removed from the cell where he had been subjected to systematic assault. The Court attributes particular weight to this fact in view of the absence of any other mechanisms for promoting inmates’ security in the detention facility. The Court also finds it regrettable that the facility administration did not make any meaningful attempts to provide the first applicant with psychological rehabilitation in the aftermath of the events.", "90. In sum, the facility administration did not maintain a safe environment for the first applicant, having failed to detect, prevent or monitor, and respond promptly, diligently and effectively to the systematic inhuman and degrading treatment to which he had been subjected by his cellmates. The Court therefore concludes that the authorities did not fulfil their positive obligation to adequately secure the physical and psychological integrity and well-being of the first applicant. 91. Accordingly, there has been a violation of Article 3 of the Convention in this respect.", "(ii) Obligation to investigate 92. The Court holds that medical evidence of serious damage to the first applicant’s health, together with his allegation of being subjected to systematic beatings by his cellmates, amounted to an “arguable claim” of ill-treatment. Accordingly, the authorities had an obligation to carry out an effective investigation into the events. For the purposes of its further analysis, the Court refers to the requirements as to the effectiveness of an investigation set out in paragraph 74 above. 93.", "The Court notes that the first applicant was entirely reliant on the prosecuting authorities to assemble the evidence necessary to corroborate his allegation of ill-treatment. The prosecutor had the legal powers to interview the warders and inmates, visit the scene of the incident, collect forensic evidence and take all other crucial steps for the purpose of establishing the veracity of the first applicant’s account. The prosecutor’s role was critical not only to the pursuit of criminal proceedings against the perpetrators of the offence but also to the pursuit by the first applicant of other remedies to redress the harm he had suffered (see paragraph 51 above). 94. The Court observes, firstly, that the competent prosecution authorities were particularly slow in opening a criminal investigation into the alleged ill-treatment.", "The situation was initially addressed by the acting director of the detention facility who on 11 June 2002, the day following the most serious incident of ill-treatment, gave a decision finding no cause to take any action. In this connection the Court has serious doubts as to the ability of the facility’s administration to carry out an independent investigation as required by Article 3. The initial one-day investigation was closed on the basis of the unreasonable finding that the first applicant had had a sporadic fight with his cellmate K. and that the first applicant had had no intention of pressing charges. That decision was sent to the Sverdlovsk Regional Prosecutor’s Office in compliance with the established procedure. It was more than two years later that the prosecution authorities responded, having quashed the decision of 11 June 2002 as premature.", "An additional investigation into the events of June 2002 was authorised. However, the initial delay in opening the investigation resulted in a loss of precious time and made it impossible to secure evidence of the incident. That failure also made it impossible to bring the perpetrators to justice owing to the expiry of the statutory limitation period. 95. The Court notes the Government’s argument that it was the second applicant’s failure to appeal against the decision of 11 June 2002 that had led to the prosecution’s futile attempts to investigate the events.", "In this respect, the Court does not lose sight of the fact that Russian law entrusts prosecution authorities with a function of supervision over decisions of the management of detention facilities, particularly those which concern instances of alleged ill-treatment of detainees. The authorities must act of their own motion, once the matter has come to their attention, and they cannot leave it to the initiative of the victims or their relatives (see paragraphs 52 and 53 above). It appears that by not linking the obligation to investigate to the presence of a complaint, that legal provision has been designed to protect the interests of detainees, individuals in a vulnerable situation who, owing to intimidation and fear of reprisal, are not inclined to complain of unlawful actions committed against them in detention. The fact that the investigation was only initiated after the second applicant’s complaint that the decision of 11 June 2002 was unlawful is evidence of a manifest breach of the applicable procedures by the prosecution authorities in the present case. 96.", "The Court is also not convinced that, once instituted, the proceedings were conducted in a diligent manner. The responsibility for the investigation was transferred from the prosecution authorities to the facility administration and back to the prosecution authorities. Within a period of four months two decisions not to institute criminal proceedings were given, only to be subsequently quashed by supervising prosecutors. The decisions ordering the reopening of the proceedings consistently referred to the need for further and more thorough investigation. However, this direction was not followed by the investigators in charge of the case, and the decisions to discontinue the proceedings were based on identical evidence and reasoning.", "It appears that the authorities took no meaningful steps to ensure, as far as possible, that all the facts were established, that culpable conduct was exposed and that those responsible were held accountable. The scope of the investigation has not evolved over time to include verification of new versions of events, such as the one that the first applicant was systematically beaten up in cell no. 131 and that a number of his co-detainees had been involved. The Court also notes that the investigation is currently pending without any evidence of progress being made. 97.", "In the light of the very serious shortcomings identified above, the Court concludes that the investigation was not prompt, expeditious or sufficiently thorough. The Court accordingly holds that there has been a violation of Article 3 of the Convention under its procedural limb in that the investigation into the first applicant’s allegations of systematic ill-treatment by inmates in detention facility no. 1 in Yekaterinburg was not effective. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF EVENTS OF 14 JUNE 2002 98.", "The first applicant, relying on Article 3 of the Convention, complained that he had been severely beaten up by warders on 14 June 2002 and that the investigation had not led to the punishment of those responsible. A. Submissions by the parties 99. The Government again argued that the complaint of the first applicant should be dismissed for failure to exhaust domestic remedies, as neither he nor the second applicant had made use of the avenues available to them under the Russian law. In particular, the Government once again stressed that the first applicant had never raised his grievances before any domestic authority and the second applicant had delayed his appeal against the decision of 21 June 2002. 100.", "In the alternative, they submitted that the complaint was manifestly ill-founded as no evidence of ill-treatment of the first applicant on account of the events of 14 June 2002 had been established by the domestic investigating authorities. The only injuries discovered during the medical examination of the first applicant were two broken ribs which, as it was unequivocally found by the investigating authorities, had been the result of the fall the first applicant had taken when, feeling unwell and dizzy owing to concussion, he had slipped and fallen to the concrete floor. The first applicant had, therefore, failed to prove “beyond reasonable doubt” that he had been subjected to ill-treatment. Having addressed the quality of the investigation, the Government noted that it had been effective and efficient. They stressed that, being questioned on 14 June 2002 the first applicant had acted “strangely”, refused to answer the warders’ questions and failed to exercise his rights, to complain about the ill-treatment and to assist the investigators in establishing the exact circumstances leading to his injury.", "101. The first applicant maintained his complaints. B. The Court’s assessment 1. Admissibility 102.", "The Court reiterates that in dealing with the allegations of the first applicant’s ill-treatment by his cellmates it has addressed the Government’s non-exhaustion argument which was built along the same lines. The Court has dismissed the objection, having found that the state of the first applicant’s mental health precluded him from effectively raising his grievances before the competent domestic authorities. It has also not escaped the Court’s attention that the investigation, reopened at the second applicant’s request as soon as he had acquired the legal authority to complain, is still pending, thus rendering the Government’s non-exhaustion argument devoid of substance (see paragraphs 66-68 above). 103. The Court sees no reason to depart from the above-mentioned finding.", "It observes that the same considerations which led it to the decision to dismiss the Government’s non-exhaustion argument raised in respect of the admissibility of the applicants’ complaint of ill-treatment by his cellmates govern its decision to reject the similar objection within the examination of the admissibility of the present complaint. 104. The Court further notes 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. It must therefore be declared admissible. 2.", "Merits (a) Alleged ill-treatment by warders 105. Having examined the parties’ submissions and all the material presented by them, the Court finds it established that on 14 June 2002 the first applicant, detained in the medical unit of the detention facility, was examined by a neurologist and the head of the medical unit. Having recorded an injury to the first applicant’s chest, the doctors prescribed a chest X-ray which, taken four days later, revealed that the first applicant had two broken ribs on his right side (see paragraph 44 above). 106. The Court notes that the Government, relying on the findings of the domestic investigating authorities, argued that the first applicant’s injury had been caused by a fall.", "They explained that the fall had been purely accidental and occurred when the first applicant had slipped over in a cell. The first applicant did not provide any description of the events on 14 June 2002 save for a general statement that the injury had been caused by warders in the detention facility. The Court observes that the medical evidence before it does not allow either version of events to be excluded. It is particularly mindful of the expert findings in April 2004 which called into question the nature of the first applicant’s chest injury (see paragraph 47 above). While noting the inconclusive character of the first applicant’s injury, the Court further observes that there was no other evidence of ill-treatment, such as testimony by an independent witness, which could have provided support to the applicant’s version of events on 14 June 2002.", "At the same time the Court attributes particular weight to the fact that the Government’s submissions were corroborated by statements by the three inmates detained together with the applicant in the facility medical unit (see paragraph 45 above). 107. It follows that the material in the case file does not provide an evidential basis sufficient to enable the Court to find “beyond reasonable doubt” that the first applicant was subjected to the alleged ill-treatment on 14 June 2002 (see, for similar reasoning, Gusev v. Russia (dec.), no. 67542/01, 9 November 2006; Toporkov v. Russia, no. 66688/01, §§ 43‑45, 1 October 2009; and, most recently, Maksimov v. Russia, no.", "43233/02, §§ 97-99, 18 March 2010). Accordingly, the Court cannot but conclude that there has been no violation of Article 3 of the Convention under its substantive limb. (b) Alleged inadequacy of the investigation 108. The Court considers that the medical evidence, the first applicant’s complaint of ill-treatment, and the fact that he had already alleged being assaulted in detention together raise a reasonable suspicion that his chest injury may not have been self-inflicted. The first applicant’s complaint in this regard is therefore “arguable”.", "The authorities thus had an obligation to carry out an effective investigation into the circumstances in which the first applicant sustained that injury (see Krastanov v. Bulgaria, no. 50222/99, § 58, 30 September 2004). 109. The Court notes that the investigation into the events of 14 June 2002 was riddled with the same defects as those which the Court identified in the investigation into the first applicant’s allegations of systematic ill‑treatment by his cellmates (see paragraphs 93-97 above). In particular, it observes that following the refusal of the facility director to initiate criminal proceedings on 21 June 2002, the prosecution authorities launched the investigation almost two years later when the chance of collecting any evidence of alleged ill-treatment was almost illusory.", "As to the very fact of internal investigation by the management of the detention facility, the Court acknowledges the need for internal investigation with a view to possible disciplinary action in cases of abuse by warders. However, it finds it striking that in the present case the initial investigative steps, which usually prove to be crucial for establishing the truth in cases of brutality committed by State officials, were conducted by the same State authority whose employees were allegedly implicated in the events which were to be investigated (see, for similar reasoning, Vladimir Fedorov v. Russia, no. 19223/04, § 69, 30 July 2009, and Maksimov v. Russia, no. 43233/02, § 87, 18 March 2010). In this connection the Court reiterates its finding made on a number of occasions that the investigation should be carried out by competent, qualified and impartial experts who are independent of the suspected perpetrators and the agency they serve (see Ramsahai and Others v. the Netherlands [GC], no.", "52391/99, § 325, ECHR 2007-..., and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). Furthermore, the Court would like to stress at this juncture that it is struck by the fact that, despite relying on the warders’ and inmates’ statements in the decision of 30 April 2004, the investigator did not hear evidence from them in person and merely recounted the witnesses’ statements made during the internal investigation. The Court, however, is mindful of the important role which investigative interviews play in obtaining accurate and reliable information from suspects, witnesses and victims and, in the end, the discovery of the truth of the matter under investigation. Observing the suspects’, witnesses’ and victims’ demeanour during questioning and assessing the probative value of their testimony forms a substantial part of the investigative process.", "110. The Court is also struck by the fact that it was not until December 2004 that the investigator questioned one of the first applicant’s cellmates. The excerpts from the cellmate’s testimony were included for the first time in the decision of 24 December 2004. Owing to the significant length of the investigation the authorities could no longer locate other former inmates who had been detained with the first applicant in the medical unit of the detention facility. The Court also finds it inexplicable that in disregard of direct orders from the Sverdlovsk Regional Prosecutor the investigator did not make any attempt to question the warders, save for one, who could have witnessed the events of 14 June 2002.", "In this connection, the Court notes that while the investigating authorities may not have been provided with the names of individuals who could have witnessed the first applicant’s alleged beatings or provided other valuable information, they were expected to take steps on their own initiative to identify possible eyewitnesses. 111. In addition, no attempt was ever made to promptly conduct a forensic medical examination of the first applicant. The Court reiterates in this connection that proper medical examinations are an essential safeguard against ill-treatment. The forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and have a mandate which is broad in scope (see Akkoç v. Turkey, nos.", "22947/93 and 22948/93, § 55 and § 118, ECHR 2000‑X). When a doctor writes a report after examining a person who has alleged ill-treatment, it is extremely important that the doctor states the degree of consistency with the allegations of ill-treatment. A conclusion indicating the degree of support for the allegations of ill-treatment should be based on a discussion of different possible diagnoses (injuries not relating to ill-treatment including self-inflicted injuries and diseases) (see Barabanshchikov v. Russia, no. 36220/02, § 59, 8 January 2009). The forensic medical examination performed in April 2004 did not comply with the above-mentioned requirements.", "The experts only studied medical evidence drawn up in the aftermath of the events of 14 June 2002 and made conclusions without observing the first applicant. In this connection, the Court has doubts that an expert examination carried out almost two years after the events in question could have provided valid and valuable findings as to the origin and nature of the first applicant’s injuries. The indecisive character of the experts’ conclusions supports this finding by the Court. 112. The Court is thus of the view that the investigator’s inertness and reluctance to look for corroborating evidence precluded the creation of an accurate, reliable and precise record of the events of 14 June 2002.", "113. The Court further observes that, having been opened almost two years after the alleged incident of ill-treatment, the investigation became very lengthy. The Court finds it striking that for a period of almost three years between December 2004 and August 2007 there were no further developments. The investigation is still pending, having been reopened in August 2007. The Government did not indicate what progress had been made since August 2007 and also failed to provide any explanation for the length of the criminal proceedings.", "114. In such circumstances the Court is bound to conclude that the authorities failed to comply with the requirements of promptness, thoroughness and effectiveness (see Kişmir v. Turkey, no. 27306/95, § 117, 31 May 2005; Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, ECHR 2007-IX; and Vladimir Fedorov, cited above, § 70). Accordingly, it holds that there has been a violation of Article 3 of the Convention under its procedural limb.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 115. The first applicant complained that he had been denied effective judicial review of his application for release of 22 July 2002 as it had not been examined speedily by the domestic courts. The Court considers that the present complaint falls to be examined under Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Submissions by the parties 116. The Government stressed that the Russian courts had lawfully declined to examine the lawyer’s application for release as the first applicant had been transferred to a detention facility in another town and the courts no longer had jurisdiction over the case.", "117. The first applicant averred that the Presidium of the Khanty-Mansi Regional Court had declared the lower courts’ interpretation of the jurisdictional issue to be incorrect and had quashed their decisions. The Presidium’s decision led to the re-examination of the first applicant’s detention. The proceedings therefore lasted for almost a year. B.", "The Court’s assessment 1. Admissibility 118. The Court observes 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. It must therefore be declared admissible. 2.", "Merits (a) General principles 119. The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273-B, and Toth v. Austria, 12 December 1991, § 84, Series A no. 224).", "The requirement that a decision be given “speedily” is undeniably one such guarantee and Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001). (b) Application of the general principles to the present case 120.", "The Court observes that on 20 August 2002 the Khanty-Mansi Regional Court upheld the decision of the Surgut Town Court dismissing the lawyer’s complaint of 22 July 2002 by which the latter petitioned for the release of the first applicant. On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, having found that the reasoning by the lower instances was erroneous, quashed both decisions by way of supervisory review and authorised the detention to be re-examined. On 21 July 2004 the Regional Court, ruling at final instance, confirmed the lawfulness of the first applicant’s arrest and subsequent detention. 121. The Court therefore finds that the domestic proceedings in issue were pending from 22 July to 20 August 2002 (see paragraphs 12-13. above) and from 24 October 2003 to 21 July 2004 (see paragraphs 20-24 above) (see, mutatis mutandis, Chevkin v. Russia, no.", "4171/03, §§ 32-34, 15 June 2006). It thus took the domestic courts almost ten months to examine the request for release. Nothing suggests that the first applicant or his lawyer caused delays in the examination of the request. The Court considers that the period under examination cannot be considered compatible with the “speediness” requirement of Article 5 § 4, especially taking into account that its entire duration was attributable to the authorities (see, for example, Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov, cited above, §§ 198 and 203; and Rehbock v. Slovenia, no.", "29462/95, §§ 85-86, ECHR 2000-XII, where review proceedings which lasted twenty-three days were not “speedy”). 122. Furthermore, the Court cannot overlook the fact that the final decision was taken on 21 July 2004, that is, almost twenty months after the trial court had determined the merits of the criminal case against the first applicant. The Court finds that the issue of the speediness of review in the present case overlaps with the issue of its effectiveness. The Court considers that in the circumstances of the case the authorities’ failure to review without delay the lawfulness of the first applicant’s detention deprived, in principle, the review of the requisite effectiveness (see Sabeur Ben Ali v. Malta, no.", "35892/97, § 40, 29 June 2000; Galliani v. Romania, no. 69273/01, §§ 61-62, 10 June 2008; and, most recently, Eminbeyli v. Russia, no. 42443/02, § 57, 26 February 2009). 123. The Court therefore finds that there has been a violation of Article 5 § 4 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. The Court has examined the other complaints submitted by the applicants. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 126. The first applicant claimed 300,000 euros (EUR) in respect of non‑pecuniary damage. 127.", "The Government submitted that the claim was unsubstantiated, excessive and manifestly ill-founded. 128. The Court reiterates, firstly, that the first applicant cannot be required to furnish any proof of the non-pecuniary damage he sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). The Court further observes that it has found particularly grievous violations in the present case.", "The Court accepts that the first applicant suffered humiliation and distress on account of the ill-treatment inflicted on him by his cellmates. In addition, he did not benefit from an adequate and effective investigation into his complaints of ill-treatment. In these circumstances, it considers that the first applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the first applicant EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 129. The first applicant did not claim any amount for the costs and expenses incurred before the domestic courts or before the Court. Consequently, the Court does not make any award under this head. C. Default interest 130.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the first applicant’s complaints concerning his ill-treatment by inmates and warders in the first half of June 2002, the ineffectiveness of the investigations into both incidents and absence of effective judicial review of the application for his release lodged on 22 July 2002 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to fulfil their positive obligation to adequately secure the physical and psychological integrity and well-being of the first applicant in detention facility no. 1 in Yekaterinburg; 3.", "Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to investigate effectively the incidents of the first applicant’s ill-treatment by his cellmates in detention facility no. 1 in Yekaterinburg; 4. Holds that there has been no violation of Article 3 of the Convention on account of the first applicant’s allegations of ill-treatment by warders on 14 June 2002; 5. Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to investigate effectively the first applicant’s complaint of ill-treatment by warders; 6. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the domestic courts’ failure to examine speedily and effectively the application for release lodged on 22 July 2002; 7.", "Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 40,000 (forty thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable on that amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the first applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "SECOND SECTION CASE OF İPEK AND OTHERS v. TURKEY (Applications nos. 17019/02 and 30070/02) JUDGMENT STRASBOURG 3 February 2009 FINAL 03/05/2009 This judgment may be subject to editorial revision. In the case of İpek and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 13 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 17019/02 and 30070/02) 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 Çetin İpek, Mr Murat Özpamuk and Mr Seyithan Demirel (“the applicants”), on 9 February 2002 and 30 April 2002 respectively.", "2. The applicants were represented by Mr M.S. Tanrıkulu, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 17 October 2006 the Court joined the cases, declared them partly inadmissible and decided to communicate the applicants’ complaints under Article 5 §§ 1, 3, 4 and 5 to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1985 and live in Diyarbakır.", "At the time of the events they were sixteen years old. 5. According to the official documents, in connection with an ongoing investigation against an illegal armed organisation, namely the PKK (the Workers’ Party of Kurdistan), the police received information that the second applicant, a suspected member of that organisation, had arrived from the rural area in order to conduct activities in cities on behalf of the organisation. Having established the second applicant’s address in Diyarbakır, the police conducted a search of the premises, on 1 December 2001 at 1.20 a.m., and arrested the second applicant. The other applicants, who were also present during the house during the search, were similarly arrested and taken into police custody in order to establish any link they might have had with the organisation.", "The police did not find anything illegal or incriminating during the search. 6. On the same night, at around 2.15 a.m., the applicants were taken for a medical examination at the Diyarbakır State Hospital. 7. According to the custody records, the police informed the fathers’ of first and the third applicant and the second applicant’s mother of their arrest and detention.", "8. On 2 December 2001 the police searched the house of the first applicant but did not find anything illegal or incriminating. 9. Upon the request of the police, the Diyarbakır public prosecutor (hereinafter the prosecutor) extended the applicants’ detention for two days on 3 December 2001. 10.", "On the same day, the applicants were questioned by the police. Since they were accused of offences falling within the jurisdiction of the State Security Courts, they could not benefit from the assistance of a lawyer despite their age. 11. The custody records noted the end of the applicants’ custody at 10.40 a.m. on 4 December 2001. 12.", "Later the same day, the applicants were taken for a medical examination at the Bağlar Medical Clinic. 13. Afterwards, the applicants were first brought before the prosecutor and then to the Diyarbakır State Security Court (hereinafter the SSC). The latter, after having heard them, ordered their remand in custody. 14.", "On 5 December 2001 the prosecutor, relying mainly on the basis of the applicants’ statements obtained during the pre-trial investigation, filed a bill of indictment with the SCC accusing the second applicant of membership of an illegal organisation and the other applicants of aiding and abetting that organisation. The charges were brought under Articles 168 and 169 of the Turkish Criminal Code respectively. 15. At the first hearing held before the SSC, on 5 February 2002, the applicants were released pending trial. 16.", "No further documentation has been submitted by the parties regarding these proceedings before the SSC. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law and practice 17. A description of the relevant domestic law at the material time can be found in the Ahmet Mete v. Turkey judgment, no.", "77649/01, §§ 17-18, 25 April, and the Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005). B. Relevant international material 18. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “15.", "Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further.", "The detention of juveniles in police custody should be supervised by the competent authorities. ” 19. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows: “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 20.", "The applicants complained of violations of Article 5 §§ 1, 3, 4 and 5 of the Convention, which read insofar as relevant as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.", "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 21. 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, firstly, that the applicants could have challenged the legality of their detention in custody pursuant to Article 19 of the Constitution in conjunction with Article 128 of the Code of Criminal Procedure. Secondly, the Government submitted that the applicants could also have sought compensation pursuant to Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. In the alternative, the Government maintained that the applicants had failed to comply with the six‑month rule. 22.", "The applicants rejected the Government’s arguments. 23. As regards the first limb of the Government’s objections, the Court observes that it has already examined and rejected it in similar cases (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 66-71, ECHR 2005-IV, Ayaz and Others v. Turkey, no. 11804/02, §§ 23-24, 22 June 2006, and Hacı Özen v. Turkey, no.", "46286/99, § 71, 12 April 2007). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in those applications. In view of the above, the Court rejects the Government’s objection. 24. As to the second limb of the Government’s objections, the Court reiterates that, according to its established case-law, where no domestic remedy is available, the six-month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six-months runs from the end of the situation concerned (see, for example, Cengiz Polat v. Turkey, no.", "40593/04, § 44, 11 December 2007). In the instant case, the applicants were remanded in custody on 4 December 2001 and lodged an application with the Court on 9 February 2002 and 30 April 2002 respectively. Accordingly, the application was lodged within six months of the date on which the act complained of ended. In view of the above, the Court also rejects the Government’s objection under this head. 25.", "Moreover, the Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1.", "Article 5 § 1 26. The applicants submitted that there had been no reasonable suspicion warranting their arrest. 27. The Government disagreed. They maintained that the applicants were taken into custody on suspicion of being members of a terrorist organisation and conducting activities in urban areas on behalf of that organisation.", "28. The Court reiterates that, in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B). Neither is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which were the grounds for detention (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no.", "300-A). 29. However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no.", "182). The Court stresses in this connection that, in the absence of a reasonable suspicion, the arrest or detention of an individual must never be imposed for the purpose of making him confess, testify against others or elicit facts or information which may serve to ground a reasonable suspicion (see Cebotari v. Moldova, no. 35615/06, § 48, 13 November 2007). 30. The Court notes in this context that the second applicant was arrested in the course of an investigation into an illegal armed organisation of which he was suspected of being a member, and of having gone to the city in order to conduct activities on its behalf.", "In these circumstances, the suspicion against him may be considered to have reached the level required by Article 5 § 1 (c), as the purpose of the deprivation of liberty was to confirm or dispel the suspicions about his involvement in this illegal organisation. In the light of the foregoing, the Court concludes that there has been no violation of Article 5 § 1 of the Convention in respect of Mr Özpamuk (see Saraçoğlu and Others v. Turkey, no. 4489/02, § 28, 29 November 2007). 31. As regards the other applicants, however, it appears that they were arrested merely because they were at the second applicant’s house at the time of the search.", "Against this background and in the absence of any information or documents demonstrating the contrary, the Court considers that, at the time of their arrest, these applicants were not detained on reasonable suspicion of having committed an offence, or to prevent their committing an offence, within the meaning of Article 5 § 1 (c) of the Convention (see Tuncer and Durmuş v. Turkey, no. 30494/96, § 50, 2 November 2004). There has accordingly been a violation of this provision in respect of Mr İpek and Mr Demirel. 2. Article 5 § 3 32.", "The applicants complained that their detention in police custody had exceeded the reasonable time requirement. 33. The Government argued that the length of the applicants’ detention of about three days and nine hours in police custody was in conformity with the legislation in force at the time and compatible with the Convention case- law. In particular, they submitted that the complexity of the case, their relation with a terrorist organisation and the state of evidence led to the continuation of the applicants’ custody period and that the necessary due diligence was displayed in the present case. 34.", "The Court observes that Article 5 § 3 requires that an arrested individual be brought promptly before a judge or judicial officer, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. While promptness has to be assessed in each case according to its special features (see, among others, Aquilina v. Malta, [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement of Article 5 § 3 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, for example, McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-...). 35.", "The Court has accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61, Murray, cited above, § 58; Aksoy v. Turkey, 18 December 1996, § 78, Reports of Judgments and Decisions 1996-VI, Demir and Others v. Turkey, 23 September 1998, § 41, Reports 1998-VI, and Dikme v. Turkey, no. 20869/92, § 64, ECHR 2000-VIII). 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 Murray, cited above, § 58). 36. The Court reiterates that it has held, on many occasions, that the strict time constraint imposed for detention without judicial control is a maximum of four days (see McKay, cited above, § 47, in fine).", "In the instant case the applicants were brought before a judge approximately three days and nine hours after their arrest. As such, the length of the applicants’ detention in police custody is, prima facie, compatible with the requirements of Article 5 § 3. However, for the particular reasons stated below, the Court considers that the delayed presentation of the applicants to a judge does not appear to have been sufficiently prompt, within the meaning of that provision. Firstly, the Court attaches great importance to the fact that the applicants were minors at the time of their arrest. However, this fact does not appear to have been taken into consideration by the investigative authorities, particularly the prosecutor, who extended the applicants’ detention for two additional days.", "Secondly, these minors were incarcerated for more than three days in the absence of any safeguards - such as access to a lawyer – against possible arbitrary conduct by the State authorities. Finally, during this time, the only investigative measures taken by the police with regard to the applicants appears to have been limited to questioning them on 3 December 2001 - some two days after their arrest and a day before they were brought before a judge. If other investigative measures were undertaken, the Government have failed to indicate them to the Court. In such circumstances, the Court, especially in view of the applicants’ young age, finds that none of the arguments put forward, in general terms, by the Government is sufficient to justify their detention in police custody for more than three days, even in the context of terrorist investigations. 37.", "In these circumstances, the Court finds no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicants before a judge much sooner (see, mutatis mutandis, Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008[1], Koster v. the Netherlands, 28 November 1991, § 25, Series A no. 221, and Rigopoulos v. Spain (dec.), no. 37388/97, ECHR 1999-II). 38.", "There has therefore been a violation of Article 5 § 3 of the Convention. 3. Article 5 § 4 39. The applicants alleged under Article 5 § 4 that there were no effective remedies in domestic law to challenge the lawfulness of their arrest and detention in police custody. 40.", "The Government contended that Article 128 of the Code of Criminal Procedure, which was in force at the material time, provided an effective remedy by which to challenge the lawfulness of detention in police custody. 41. The Court points out that, in several cases raising similar questions to those in the present case, it rejected the Government’s aforementioned submission and found a violation of Article 5 § 4 of the Convention (see, among others, Öcalan, cited above, § 76, Özçelik v. Turkey, no. 56497/00, § 34, 20 February 2007, and Saraçoğlu and Others, cited above, § 46). The Court finds no particular circumstances in the instant case which would require it to depart from such earlier findings.", "42. In conclusion, the Court holds that there has been a violation of Article 5 § 4 of the Convention. 4. Article 5 § 5 43. The applicants complained under Article 5 § 5 that they had not had a right to compensation in respect of the unlawfulness of their arrest and detention in police custody.", "44. The Government repeated that, in cases of illegal detention, a request for compensation could be submitted within three months of the final decision of the trial court, pursuant to Law no. 466 on compensation payable to persons unlawfully arrested or detained. 45. The Court notes that an action for compensation under Law no.", "466 could be brought for damage suffered as a result of, inter alia, an unlawful deprivation of liberty (Section 1 § 1) or a lawful detention if the person is not subsequently committed for trial, or is acquitted or discharged after standing trial (Section 1 § 6). 46. The Court observes at the outset that the applicants’ detention in police custody was in conformity with the domestic law. Consequently, they could not seek compensation for an unlawful deprivation of liberty using the remedy foreseen by Section 1 § 1 of Law no. 466 (see Çetinkaya and Çağlayan v. Turkey, nos.", "3921/02, 35003/02 and 17261/03, § 46, 23 January 2007). In the absence of any documents regarding the outcome of the criminal proceedings against them, the Court cannot speculate whether the applicants had the possibility of bringing a case for compensation relying on Section 1 § 6 of Law no. 466. However, since it has already held that the national courts, when awarding compensation under the terms of Section 1 § 6, base their assessment solely on the conditions required by that law and not whether the deprivation of liberty was in contravention of the first four paragraphs of Article 5 (see Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007, Medeni Kavak v. Turkey, no.", "13723/02, § 34, 3 May 2007, and Saraçoğlu and Others, cited above, § 52), the Court also finds that the applicants did not have an enforceable right to compensation, under the provisions of Section 1 § 6 of Law no. 466, for their deprivation of liberty in breach of Article 5 §§ 1 (for the first and the third applicant), 3 and 4 of the Convention, as required by Article 5 § 5 of the Convention. 47. There has accordingly been a violation of Article 5 § 5 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48. In their additional observations the first and the second applicant further complained under Article 6 of the Convention that they had been denied legal assistance in the initial stages of the proceedings. 49. The Court observes that these applicants, who are represented by a lawyer experienced in Convention proceedings, have failed to submit any documents demonstrating that the requirements of Articles 34 and 35 of the Convention have been met in relation to this complaint. 50.", "It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 52.", "The applicants Mr İpek and Mr Özpamuk each claimed, in total, 50,000 euros (EUR) in respect of non-pecuniary damage. Mr Demirel claimed EUR 35,000 in respect of non-pecuniary damage. 53. The Government contested the amounts. 54.", "The Court considers that the applicants should be awarded compensation for non-pecuniary damage since they undoubtedly suffered considerable distress on account of the facts of the case. Making an assessment, on an equitable basis, it awards Mr İpek and Mr Demirel, each, EUR 1,500, and Mr Özpamuk EUR 1,000 in this respect. B. Costs and expenses 55. The applicants Mr İpek and Mr Özpamuk claimed EUR 4,788 for legal fees, including those incurred before the domestic courts.", "Mr Demirel claimed EUR 2,565 for legal fees. The applicants further asked to be awarded an amount corresponding to the legal aid given by the Council of Europe, in respect of costs and expenses. The applicants submitted legal fees’ agreement concluded with their legal representative, the Diyarbakır Bar Association’s scale of fees’ and a time sheet prepared by their legal representative. 56. The Government contested the amount.", "57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicants, jointly, the sum of EUR 2,000 for the proceedings before the Court. C. Default interest 58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicants’ complaints under Article 5 §§ 1 (c), 3, 4 and 5 admissible and the remainder of the applications inadmissible; 2. Holds that there has been no violation of Article 5 § 1 (c) of the Convention in respect of the applicant Mr Özpamuk; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention in respect of the applicants Mr İpek and Mr Demirel; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 6. Holds that there has been a violation of Article 5 § 5 of the Convention; 7. Holds (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 at the date of settlement: i) EUR 1,500 (one thousand five hundred euros) each to Mr İpek and Mr Demirel and EUR 1,000 (one thousand euros) to Mr Özpamuk, plus any tax that may be chargeable, in respect of non‑pecuniary damage; ii) EUR 2,000 (two thousand euros) jointly, plus any tax that may chargeable to the applicants, for costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 3 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Sally DolléFrançoise TulkensRegistrarPresident [1] The judgment is not final yet." ]
[ "THIRD SECTION CASE OF SCHULLER v. ROMANIA (Application no. 4801/04) JUDGMENT STRASBOURG 25 June 2013 This judgment is final but it may be subject to editorial revision. In the case of Schuller v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alvina Gyulumyan, President,Kristina Pardalos,Johannes Silvis, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 4 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4801/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hanspeter Schuller (“the applicant”), on 8 December 2003.", "2. The applicant was represented by Mr Eugen Ostrovschi and Mrs Beate Grün, lawyers practising in Bucharest and in München, respectively. The Romanian Government (“the Government”) were represented by their Agents, Mr Răzvan-Horaţiu Radu and Ms Irina Cambrea, from the Ministry of Foreign Affairs. 3. On 16 September 2010 the application was communicated to the Government.", "In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges. 4. The German Government, having been informed by the Registrar of the right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of the Court), did not avail themselves of this right. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1943 and lives in Munich. 6. On 17 March 1995 during an investigation undertaken by the tax authorities of Teleorman County, a contravention report was issued against the applicant, suspected of smuggling, and in particular, of having illegally imported into Romania agricultural equipment, which he subsequently used for illicit activities. The report indicated that the matter was to be brought before the prosecution. 7.", "Upon the same investigation, the authorities summoned the applicant to the local tax office on 22 March 1995 to provide clarifications in respect of a fake invoice allegation. On 21 March 1995 the applicant presented himself at the tax office and tried to persuade two tax commissioners not to issue a new report against him by offering them money. On the same day, the tax authority issued a new report on the offences of smuggling and active bribery, both of which were brought before the Public Prosecutor’s Office with the County Court of Teleorman. 8. On 21 March 1995 the applicant was remanded in detention.", "9. On 12 April 1995 he was released under supervision. 10. On 11 August 1995 the applicant was brought to trial on charges of active bribery, smuggling and fraud-related offences in connection with the importation of agricultural equipment, the seizure of which was equally ordered. 11.", "From 1996 to 2000 the court listed at least nine hearings at intervals ranging from five to nine months for failure to properly summon the applicant at his residences in Germany and in Romania. Throughout the trial at first instance, the applicant’s legal representative or, in his absence, a court-appointed lawyer, were present at most of the hearings. 12. On 14 November 2000 based on contravention and in flagrante reports, customs papers, applicant’s statements and ten witness testimonies, the County Court of Teleorman found the applicant guilty of active bribery and smuggling and convicted him to a two-year deferred prison sentence. He was acquitted of charges of fraud-related offences.", "With regard to the offence of smuggling, the court applied a newly entered into force law (Law no. 141/1997 which amended the Law no. 30/1978, in force at the commission of the offence) and stated that the act of smuggling was incriminated in both laws, but the new one was more favourable in respect of penalty provisions. The seizure of the agricultural equipment was maintained in court. 13.", "On appeal, the Bucharest Court of Appeal listed a total of seven hearings of which four were adjourned in the attendance of documents and information from the Customs Office of Teleorman. Both the applicant and his legal representative were present at all court hearings. 14. On 20 December 2001 the court rejected the appeal and upheld the lower court’s judgment. The applicant appealed on points of law.", "15. On 11 June 2003 the High Court of Cassation and Justice (the former Supreme Court of Justice) convicted the applicant to a two-year deferred prison sentence for smuggling charges. With regard to the active bribery charges, he was acquitted as the criminal liability had become time-barred. The judgment became final. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” A. Admissibility 17. 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. Period to be taken into consideration 18. The Government considered that the proceedings had started on 11 August 1995 when the applicant was brought to court, and ended on 11 June 2003 when the former Supreme Court of Justice had rendered its final ruling, thus having lasted for a total of seven years and ten months for three levels of jurisdiction. They further argued that while most of this space of time was consumed at first instance, it took the higher courts no more than two years and seven months to finalise the case.", "19. The applicant did not submit any comments on the matter. 20. The Court notes that on 17 March 1995 the applicant was subjected to a tax investigation on suspicion of smuggling activities. He was subsequently brought before the prosecuting authorities on charges of smuggling and active bribery and fraud-related offences on 21 March 1995 (see paragraphs 6-8).", "Thus, the Court cannot agree with the Government on the starting point of the period to be taken into consideration. It concludes that the proceedings began on 21 March 1995 and reached their end on 11 June 2003. The total length of the proceedings was thus eight years and more than two months for three levels of jurisdiction, of which five years and nearly eight months ran only at the first level. 2. Reasonableness of the length of the proceedings 21.", "In the Government’s view, the case was of exceptional complexity, as it involved the applicant’s failure to pay customs duties on imported agricultural equipment and the examination of several criminal charges related to it. Moreover, the Government points to the evidence assessed in the case (the hearing of some ten witnesses) and to the service of process to the applicant’s residence in Germany as facts which have prolonged the proceedings at first instance. 22. Referring to the conduct of the relevant authorities, the Government suggested that there had been no sign of inactivity on their part. On the contrary, they showed due diligence in handling the case by listing hearings within short periods of generally one month.", "They added that, if several intervals between the hearings had been longer, this was mainly due to the need to ensure the duly service of process and the parties’ presence at the hearings. The Government went on to underline that the courts took constant measures to accelerate the proceedings in particular with regard to establishing the applicant’s residence in order to be lawfully summoned. 23. Lastly, the applicant was deemed to have significantly contributed to the length of the trial. The Government suggested that several adjournments of the case before the court of first instance were due to the service of process being effected in Germany, where the applicant had elected domicile.", "It pointed to a persistent attitude of disregard toward the progress of the proceedings from the part of either the applicant or his lawyer, fact which had inevitably led to the delays accrued. Thus, the “reasonable time” requirements were considered to have been complied with in the present case. 24. The applicant refrained from making any particular submissions in respect of these arguments, only reiterating his allegations on the excessive length of the proceedings. 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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, 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 Pélissier and Sassi and Frydlender, cited above, Abramiuc v. Romania, no.", "37411/02, § 103-109, 24 February 2009, Matica v. Romania, no. 19567/02, § 24, 2 November 2006, Săileanu v. Romania, no. 46268/06, § 50, 2 February 2010). 27. Turning to the facts of the present case, the Court notes that the criminal proceedings did not raise issues able of triggering a lengthy trial.", "They involved the hearing of some ten witness testimonies and the examination of rather few documents, without any expert studies conducted in the case (see paragraph 12). Thus, they were neither procedurally nor factually of exceptional complexity. 28. The Court further observes that the proceedings at first instance lasted five years and nearly eight months before the same court, which scheduled no more than nine hearings inside this long span of time. The adjournments of the case were mainly due to the defective service of process in respect of the applicant and the witnesses to be heard, and to the need to obtain documents from the relevant tax authorities.", "29. In view of the present case’s lack of complexity, the Court can find no sufficient justification for such a long lapse of time, the responsibility for which lies entirely with the authorities. It notes that the major source of delay was the courts’ failure to organise the examination of the case properly and to gather evidence in a more effective manner. 30. As for the applicant’s conduct, there is no evidence that at any stage of the proceedings he showed dilatory conduct or otherwise upset the proper conduct of the trial.", "His requests did not exceed what was normally acceptable in the exercise of his defence rights. He was present at most of the hearings either in person of through a legal representative (of his own choice or court-appointed) and he cannot be said to have contributed in any other manner to the total length of the proceedings. The Government did not put forward any fact or argument capable of persuading the Court to reach a different conclusion. 31. To sum up, the Court considers that in the instant case the length of the criminal proceedings was excessive and failed to meet the “reasonable time” requirement.", "32. There has accordingly been a breach of Article 6 § 1 as regards the length of criminal proceedings. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. Relying on Article 6 § 1, the applicant further complained about the outcome of the criminal proceedings against him, and in particular about the authorities’ failure to duly serve the indictment to his address in Germany, as well as subsequent documents to his Romanian address, the lack of adequate time to prepare his defence and the lack of opportunity to have witnesses heard in defence.", "Under Article 7, the applicant claimed that the courts had extensively and retroactively applied the law, thus resulting in an unlawful conviction for smuggling. Further, the applicant relied on Article 8 and on Article 2 of Protocol No. 4 to claim an interference with his right to private life, home and freedom of movement as a result of the court-ordered prohibition of leaving the country. Lastly, the applicant complained under Article 1 of Protocol No. 1, alleging that the seizure of his farm equipment and its subsequent depreciation had amounted to an infringement of his property rights.", "34. Having considered the applicant’s submissions in 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. 35. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 1,779,390 German marks (DM) in respect of pecuniary damage, equivalent to the value of the seized agricultural equipment. In respect of the non-pecuniary damage, the applicant claimed a sum that would cover the distress resulting from the excessive delays in a satisfactory way, without indicating a specific amount.", "38. The Government contested these claims. They pointed out that there was no causal link between the violation found and the pecuniary damage alleged. With regard to the non-pecuniary damage, they suggested that no sum should be awarded since the applicant had failed to indicate an amount in that respect. The Government claimed that the finding of a violation would constitute sufficient just satisfaction.", "39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 40. The Court considers that the applicant must have sustained non‑pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Ruling on an equitable basis, it awards him 1,200 euros (EUR) under that head.", "B. Costs and expenses 41. The applicant also claimed DM 3,374 for the costs and expenses incurred before the domestic courts, of which DM 2,000 as attorney’s fees and DM 1,374 for travel expenses. With regard to the costs and expenses incurred before the Court, he claimed reimbursement of EUR 7,344.81 comprising German attorney fees (EUR 4,594.81), translation costs (EUR 750) and Romanian attorney fees (EUR 2,000). He documented his expenses only in part by submitting transport tickets, whereas for the attorney fees he only submitted legal representation agreements and bills, without any proof of the actual payment of the sums.", "42. The Government contested these claims, while admitting that they were not opposed to the award of a sum as long as it had been actually incurred and documented. With regard to the attorney fees, they pointed out that the applicant had failed to submit proof of actual payment of the attorney fees and of the translation costs. Moreover, the fees claimed to have been paid to the Romanian attorney concerned a different set of proceedings, and should therefore be disregarded by the Court. Lastly, no sum should be awarded to reimburse travel expenses as, according to the Government, the applicant had generated them by committing criminally liable acts.", "43. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 44. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 500 covering costs and expenses in the domestic proceedings as well as for the proceedings before the Court.", "C. Default interest 45. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the criminal proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of criminal proceedings; 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 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the 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 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 25 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAlvina GyulumyanDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF TASEVA PETROVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 73759/14) JUDGMENT STRASBOURG 11 January 2018 This judgment is final but it may be subject to editorial revision In the case of Taseva Petrovska v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Aleš Pejchal, President,Armen Harutyunyan,Jovan Ilievski, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.73759/14) 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 Ms Slagana Taseva Petrovska. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.", "3. On 11 October 2016 the complaint concerning adversarial trial before the Higher Administrative Court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant is a professor of law at a private university in Skopje.", "She holds a doctoral degree in the field of criminal law. 5. On 14 January 2010 the applicant lodged a request with the Ministry of Justice (“the Ministry”) in order to be recognised as having the same status as a person who had passed the BAR examination (изедначување со правата на лицата кои положиле правосуден испит). As she did not obtain a decision, she lodged two further requests, on 24 November 2011 and 6 February 2012. 6.", "On 11 April 2012 the Ministry rejected her request, holding that she did not meet the relevant criteria to obtain such recognition. In particular, the Ministry found that although she was a professor of law at a university, she did not hold a bachelor’s degree in law (дипломиран правник на правен факултет). The Ministry further found that the bachelor’s degree which she had obtained had been awarded by the Faculty of Security and Social Defence (Факултет за безбедност и општествена самозаштита), and not by a faculty of law, as required. 7. On 10 May 2012 the applicant brought an action with the Administrative Court (Управен суд), challenging the refusal.", "She argued that as a university professor at a faculty of law she met the relevant criteria. 8. On 30 May 2013 the Administrative Court dismissed the applicant’s action. It held that regardless of her current status, she did not meet the criteria to obtain the desired recognition under domestic law. In particular, it established that the applicant did not hold a bachelor’s degree in law, which was a condition for the recognition she sought.", "9. On 23 September 2013 the applicant lodged an appeal with the Higher Administrative Court (Виш управен суд). She argued that she met the relevant criteria and that the lower court had failed to properly interpret the procedural and substantive law in the case. 10. On an unspecified date, the Ministry submitted observations to the Higher Administrative Court concerning the applicant’s case.", "The Ministry stated in the observations that the right to obtain recognition as having the same status as a person who had passed the BAR examination was dependent on having a bachelor’s degree issued by a faculty of law. The applicant did not possess such a degree and had therefore failed to meet the criteria under domestic law. Those observations were not communicated to the applicant. 11. On 30 January 2014 the Higher Administrative Court dismissed the applicant’s appeal, reiterating in full the reasons provided by the Administrative Court.", "It restated that the recognition sought by the applicant was dependent on her having a bachelor’s degree issued by a faculty of law, a condition which she had failed to meet. 12. The decision was served on the applicant on 19 May 2014. II. RELEVANT DOMESTIC LAW 13.", "Under sections 1 and 25 of the Act on the BAR examination (Закон за правосудниот испит, Official Gazette No. 10/2010) holding a bachelor’s degree in law is a condition necessary to obtain recognition as someone having passed the BAR examination. The right to seek recognition is available for the persons described in section 24 of the old Act on the BAR examination (Official Gazette Nos. 26/80 and 7/88 of the Socialist Republic of Macedonia). 14.", "Section 24 of the Act on the BAR examination (Закон за правосудниот испит, Official Gazette of the Socialist Republic of Macedonia Nos. 26/80 and 7/88) provides an exhaustive list of categories of individuals for whom the right to seek recognition as someone who had passed the BAR examination is available. 15. According to section 7-a of the Administrative Disputes Act (Закон за управните спорови, Official Gazette No. 62/2006, as applicable at the time) the Civil Proceedings Act will have subsidiary application to administrative disputes.", "16. According to section 5 of the Civil Proceedings Act (Закон за парничната постапка (пречистен текст), Official Gazette No. 7/2011), the courts are obliged to give every party the opportunity to familiarise themselves with and comment on the requests and submissions of the other party in the proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.", "The applicant complained under Article 6 § 1 of the Convention that the fact that she had not been allowed to comment on the Ministry’s observations submitted to the Higher Administrative Court had amounted to a violation of her right to a fair hearing. 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. Admissibility 18. The Government submitted that the issues raised by the applicant fell outside the scope of Article 6. In particular, they argued that she had had no rights or obligations at stake since the right that she had sought was not recognised under domestic law for persons in her situation. They further argued that even if such rights existed, they were not “civil” rights within the meaning of the Convention.", "They therefore invited the Court to reject the application as inadmissible. 19. The applicant contested that argument. 20. The Court notes that the right to obtain recognition as someone who has passed the BAR examination is recognised under domestic law (see paragraphs 13 and 14 above).", "Moreover, the Court has already held that disputes over the right to practise law and to have access to the BAR fall to be examined under Article 6 § 1 of the Convention (see H. v. Belgium, 30 November 1987, §§ 43-48, Series A no. 127‑B). In view of the above, the Court rejects the Government’s objection. 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments 22.", "The applicant reiterated that she had not been given the opportunity to receive or comment on the Ministry’s observations to the Higher Administrative Court. She maintained that that had constituted a violation of Article 6. 23. The Government held that all the material evidence had been available to the applicant during the proceedings on account of the fact that it had been the applicant’s responsibility to submit the relevant evidence to the Ministry, which had then had to decide whether the necessary criteria had been met. No additional evidence had been submitted to the Higher Administrative Court and no evidence whatsoever had been submitted by the Ministry during the proceedings.", "The Ministry’s observations to the Higher Administrative Court had merely explained the decision that it had taken and had reiterated the findings of the Administrative Court. 2. The Court’s assessment 24. The general principles on equality of arms are summarised in Grozdanoski v. the former Yugoslav Republic of Macedonia (no. 21510/03, § 36, 31 May 2007, and cases cited therein).", "25. The Court notes that in the cases of Grozdanoski (cited above) and Naumoski v. the former Yugoslav Republic of Macedonia, (no. 25248/05, §§ 26-29, 27 November 2012) it found a violation of the right to a fair trial under similar circumstances. 26. The Court notes that the violation of Article 6 § 1 found in the Naumoski case (cited above, §§ 26-29) was on account of the defendant’s observations submitted in reply to the applicant’s appeal not being forwarded to him.", "The Court finds that the same considerations are applicable to the instant case and finds no reason to hold otherwise. 27. This is sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 28.", "The applicant also raised a number of other complaints. Without invoking any particular Article of the Convention, she complained that the domestic judgments had not contained sufficient reasons and that the domestic courts had retroactively applied domestic law when deciding on her case. 29. However, those complaints were raised for the first time in the applicant’s response to the Government’s observations, which were submitted to the Court on 5 May 2017. Accordingly, those complaints were lodged outside the six-month time-limit and must be rejected as inadmissible in accordance with Article 35 § 1 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.” 31. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerAleš PejchalDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF BOCOS-CUESTA v. THE NETHERLANDS (Application no. 54789/00) JUDGMENT STRASBOURG 10 November 2005 FINAL 10/02/2006 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 Bocos-Cuesta v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrDavid Thór Björgvinsson,MsI. Ziemele, judges,MrsW. Thomassen, ad hoc judge,and Mr V. Berger, Section Registrar, Having deliberated in private on 20 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 54789/00) against the Kingdom of the Netherlands 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 Martin Bocos-Cuesta (“the applicant”), on 27 December 1999. 2. The applicant was represented by Mr G.P. Hamer, a lawyer practising in Amsterdam.", "The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that he had not had a fair trial under Article 6 §§ 1 and 3 (d) of the Convention in criminal proceedings taken against him in that statements given by four minors were used in evidence whereas the defence had never been provided with an opportunity to question them. 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 11 March 2003, the Court declared the application partly inadmissible and communicated the above complaint to the respondent Government. By a decision of 5 October 2004, the Court declared the remainder of the application admissible.", "6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. Mr Myjer, the judge elected in respect of the Netherlands, withdrew from sitting in the case (Rule 28).", "The Government accordingly appointed Mrs W. Thomassen to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "The applicant was born in 1976 and lives in Barcelona. 10. On 3 May 1997, the mother of A., a then ten-year old boy, filed a criminal complaint with the police alleging that on 1 May 1997 A. had been sexually assaulted by an unknown man at a playground. On the same day Mr Z., an officer of the Juvenile and Vice Police (jeugd- en zedenpolitie), took a statement from A., as well as from his mother. 11.", "On 11 May 1997, the mother of B., a then six-year old boy, informed the police that on 10 May 1997 an unknown man had sexually assaulted B. 12. On 12 May 1997, on the basis of descriptions given to the police by A. and B., the applicant was arrested in Amsterdam and detained on remand. 13. On 13 May 1997, A. was confronted with the applicant through a two-way mirror and identified him as the man who had assaulted him.", "According to the record of this confrontation drawn up by Mrs X., an officer of the Juvenile and Vice Police, A. had slightly recoiled when he saw the applicant, saying “That is him”. A. was also shown a rucksack, which he identified as belonging to the applicant. A. further declared that a woman from the neighbourhood had spoken with the man and that she had told him that the man spoke Spanish. 14. On the same day, Mrs E. – a maternal aunt of B.", "– gave a statement to the police in which she stated that on 10 May 1997, directly after having been told by her son W. that a man had touched the genitals of his cousin B., she had left her house in order to find this man, that she had found a man who matched the description given by her son and who was identified by B. and W. who had accompanied her, that he was sitting with some children and that this man had run away from her. One of these children, C., had told her that the man had stuck his hand into C.'s pants and that C. had then slapped the man's hand. When confronted with the applicant through a two-way mirror, she stated that she believed that he was the man whom she had seen on 10 May 1997. However, as he no longer had a beard and was looking neater and cleaner, she did not dare to say that she recognised him with 100%, rather with 80% certainty. 15.", "Also on 13 May 1997, B. 's mother filed a criminal complaint with the police against the unknown man who had sexually assaulted her son. On the same day, Mrs Y., an officer of the Juvenile and Vice Police, took a statement from B. When subsequently confronted with the applicant through a two-way mirror, he identified the applicant as the man who had sexually assaulted him. B. was further shown a rucksack, which he identified as belonging to the applicant.", "16. On 13 May 1997, the mother of C., a then nine-year old boy, filed a criminal complaint with the police against an unknown man who had sexually assaulted her son on 10 May 1997. In his statement to the police officer Mrs Y., C. gave a description of the man. According to the record drawn up by Mrs Y., C. visibly reacted in fright when he was subsequently confronted with the applicant through a two-way mirror, identified him as the man who had sexually assaulted him and started crying. C. was further shown a rucksack, which he identified as belonging to the applicant.", "According to the police record drawn up on 14 May 1997, the description given by C. of the pants worn by the perpetrator corresponded to pants found in the applicant's possession. 17. A statement was also taken from C.'s mother, who declared that her son had told her on 10 May 1997 that a man had touched his private parts. 18. On 14 May 1997, the police took a statement of Mrs F. who was living on a houseboat near to a playground where, on 1 May 1997, she had seen, met and spoken with the applicant.", "When subsequently confronted with the applicant through a two-way mirror, she stated: “That is the boy with whom I have spoken. I am fully, 100 %, certain; no mistake is possible. I recognise the boy's face.” 19. On 22 May 1997, the mother of D., a then eleven-year old boy, filed a criminal complaint with the police against an unknown man who had sexually assaulted her son D. earlier that month. On the same day, the police took a statement from D. in which he described how a man had touched his private parts, that this man had stopped this when he had started to scream, that he had then gone to his mother and told her what had happened, that later on the same day he had seen this man again, and that an angry woman had then approached this man who then ran away.", "20. On 2 June 1997, D. was confronted with the applicant through a two-way mirror. According to the record drawn up by Mrs Y., D. identified the applicant as the man who had sexually assaulted him. 21. The applicant was subsequently summoned to appear before the Amsterdam Regional Court (arrondissementsrechtbank) on 2 July 1997 in order to stand trial on charges of sexual assault and acts of indecency with persons younger than sixteen.", "22. On 24 June 1997 the applicant's lawyer requested the public prosecutor to summon the four boys, Mrs E. and Mrs F. to appear before the Regional Court in order to be heard as witnesses, stating: “In his conversations with me, my client has repeatedly and with force indicated that he is innocent of the facts he has been charged with. Under these circumstances my client has the right and has an interest in being confronted in court with [these six] witnesses and to be given the opportunity to put (or have put) questions to them. My client and I have no objections to that hearing being held in camera.” The public prosecutor rejected this request by letter of 13 June 1997, considering that it would be particularly difficult, given their young age, to hear the four boys. Moreover, the defence had failed to indicate in any way – apart from a mere denial of the facts by the applicant – on what grounds it doubted the reliability of the confrontations which had taken place and the statements which had been given at the investigation phase.", "23. At the hearing of 2 July 1997 before the Regional Court, the defence reiterated its request to hear the four boys, if appropriate in camera, as well as Mrs E. and Mrs F., stating: “My client denies wholeheartedly the charges against him. Therefore I wish to hear the victims [A., B., C. and D.] in court, as a mistake in identity is possible. It is very well possible that the four victims, under the stress that reigns at a police station, identified my client as the perpetrator because they have only been confronted with him. It is therefore in my client's interest to be confronted again [and] in court with the victims.", "... Mrs F has only seen my client talking and has seen nothing punishable. Yet in the records she is presented as an important witness. I would therefore like to hear her, in particular about the impression my client made on her while he [roller]skated away. I finally wish to hear [Mrs E.] in court. Although she is an indirect witness, as she has no own knowledge of the perpetrator's physical features, she can contribute to exculpating my client.", "During the mirror-confrontation she has not recognised my client for the full hundred percent as the person she had seen.” 24. The prosecution opposed the request to hear the four boys, but not the request to hear the other two witnesses. 25. Having deliberated, the Regional Court rejected the request to hear the four victims, holding: “A one-to-one identification through a two-way mirror (enkelvoudige spiegelconfrontatie) has taken place at the police station, the value of which is now challenged by the defence. Now counsel asks for a new one-to-one confrontation (enkelvoudige confrontatie) in court between the victims and the accused.", "On this point, the court considers that such a confrontation between the witnesses and the accused cannot change or add anything to the confrontations that have taken place previously.” 26. The Regional Court granted the request of the defence to hear Mrs E. and Mrs F. In order to allow the prosecution to comply with a request from Interpol to provide the latter with a photograph of the applicant as well as his fingerprints so as to compare these with materials held by the Spanish police, the Regional Court adjourned its further examination of the case for a maximum period of three months. 27. The Regional Court resumed its examination on 20 August 1997. The applicant was present.", "The Regional Court noted that the following items had been added to the applicant's case file: photographs of the applicant taken by the Spanish police, a fax message dated 14 July 1997 from Interpol Madrid concerning pending preliminary judicial investigations against the applicant in Barcelona in respect of, inter alia, exhibitionism and the sexual provocation of minors, and a formal record dated 19 August 1997 of the forensic bureau of the Amsterdam-Amstelland police, according to which the applicant's fingerprints matched those taken from him by the police in Barcelona on 31 May 1995. 28. The applicant accepted that he was the man in the police photographs, and confirmed that the Spanish police had taken his fingerprints on 31 May 1995. He further confirmed that, on 12 December 1995 in Tarragona (Spain), he had been convicted for the sexual assault of minors and sentenced to six months' imprisonment. He further denied the facts with which he had been charged in the Netherlands.", "29. Upon the request of the defence, the Regional Court then heard Mrs E. and Mrs F. Although both witnesses identified the applicant as the man they had seen at the material time, the applicant denied ever having seen the two women. 30. After having heard the parties' final pleadings, the Regional Court closed the trial proceedings and set a date for judgment. 31.", "In its judgment of 3 September 1997, the Regional Court convicted the applicant of sexual assault and of acts of indecency with persons younger than sixteen and sentenced him to twenty months' imprisonment. The applicant filed an appeal with the Amsterdam Court of Appeal (gerechtshof). 32. On 26 January 1998, a hearing was held before the Court of Appeal in the course of which the applicant made both oral and written submissions in which, inter alia, he denied the charges against him and challenged the reliability of his confrontation with the various witnesses and the credibility and reliability of the latter's statements. The Court of Appeal further took note of a request filed by the defence to refer the case back to the investigating judge (rechter-commissaris) in order to hear the four boys as witnesses and for an identification of the applicant by putting a selection of photographs of different persons to the witnesses (meervoudige / keuze-foto-confrontatie).", "In this connection, the lawyer acting for A. and his mother submitted that A. had been quite shocked by the events, that he no longer did certain things alone, asking to be accompanied, and that it was very difficult for him to come to terms with what had happened to him. 33. The applicant also submitted written pleadings prepared by himself in Spanish in which, inter alia, he challenged the reliability of his confrontation with the various witnesses and the latter's statements, and in which he stated that a second confrontation in the form of an identity parade would be pointless as the victims had already seen and identified him as the perpetrator in the course of a one-to-one identification through a two-way mirror. The President of the Court of Appeal ordered that this document be translated into Dutch and be added to the applicant's case-file. 34.", "After having heard the parties' pleadings, the Court of Appeal closed the trial proceedings, stated that it would determine the requests made by the defence in its judgment and set a date for judgment. 35. In its interim judgment of 9 February 1998, the Court of Appeal stated that it had appeared during its deliberations that its investigation was incomplete. It found it necessary, therefore, to take evidence from the police officers X., Y. and Z. in relation to the manner in which the victims had been questioned and confronted with the applicant. To this end, it fixed a hearing for 16 April 1998.", "It further ordered that the applicant was to be released from pre-trial detention on 10 February 1998. 36. On 16 April 1998, the Court of Appeal reopened the trial proceedings. The applicant, who had been released in the meantime, did not appear. His lawyer, who was present, informed the Court of Appeal that the applicant was being detained in Spain, and that he had instructed his lawyer by telephone to request the Court of Appeal to proceed with the trial proceedings in his absence.", "37. The Court of Appeal heard the police officers X., Y. and Z. After having heard the parties' final submissions, the Court of Appeal closed the proceedings and set a date for judgment. 38. In its judgment of 27 April 1998, the Court of Appeal quashed the Regional Court's judgment of 3 September 1997, convicted the applicant of sexual assault and acts of indecency involving persons under sixteen years of age and sentenced him to fifteen months' imprisonment of which five months suspended pending a two years' probationary period, and less the time spent in pre-trial detention.", "It also ordered the applicant to pay A., who had joined the criminal proceedings as a civil injured party (benadeelde partij) and who had filed a claim for compensation, an amount of 500 Netherlands Guilders (“NLG”; i.e. 226.89 euros; “EUR”) for non-pecuniary damage. 39. It based the applicant's conviction on a statement he had made before the Court of Appeal, the criminal complaints filed containing a description of the perpetrator given by the four victims, the statements made by the four victims to the police, the record of the two police officers who arrested the applicant and considered that the applicant corresponded to the description of the perpetrator, the records on the mirror-confrontations between the applicant and the four victims, and the statements given by Mrs E. and by Mrs F. 40. As regards the evidence the Court of Appeal held, in so far as relevant, as follows: “2.", "... during the hearing of 26 January 1998 ... the accused requested to be allowed, relying on [the Convention] to question the four minor children. 3. In its interim judgment of 9 February 1998, the court [of appeal] has lifted the pre-trial detention of the accused. It also reopened the trial proceedings, which had been closed on 26 January 1998, in order to hear the reporting police officers [X., Y. and Z.] on the manner in which the minor children had been questioned and the manner in which the confrontations had been conducted.", "These reporting police officers were heard as witnesses during the hearing of 16 April 1998. The accused did not appear at this hearing. His lawyer has indicated that he had had a contact by telephone with his client who was in Barcelona. [The applicant] had told [his lawyer] that he did not object to the further continuation of the trial proceedings in his case in his absence. 4.", "It follows from the above that the court, in its interim judgment of 9 February 1998, has not as yet granted the accused's request to hear the four minor children. The court heard the above-cited reporting police officers during the hearing of 16 April 1998 in order to obtain additional information about the manner in which the four children have been questioned and confronted with the accused. Also noting what has been stated by the reporting police officers [X., Y. and Z. at the hearing of 16 April 1998], the court considers that there is no necessity to hear the four children as witnesses. In so far as the request [to hear the four children] made by the defence is maintained – the applicant's lawyer having indicated at the hearing of 16 April 1998 that he did not wish to hear any further witnesses – the court rejects it. In balancing all interests involved, the court is of the opinion that the interests of the four still very young children in not being forced to relive a, for them, possibly very traumatic experience must be given priority over the interests of the suspect in hearing these children.", "5. The court must now address the question whether the statements of the four children, having regard to the manner in which they have been questioned and confronted with the suspect, are sufficiently reliable to be used in evidence ... It must also be examined whether their statements may be used in evidence although the suspect has never been given the opportunity to question them. 6.1. In relation to the first question the court considers as follows: Although in general it is preferable for a witness to be given a choice between various options in a confrontation for identification purposes (meervoudige keuzeconfrontatie) instead of being confronted with only one person (enkelvoudige confrontatie), it cannot be said as a rule that the result of [the latter method] can only be used in evidence when it has appeared that the [former method] could not be used.", "There may be cause to exclude such a result when the manner in which a confrontation with only one person has taken place is incompatible with the fair conduct of proceedings or where the result finds insufficient support in other evidence. 6.2. Altogether six persons have been confronted with the suspect via a two-way mirror. Apart from the minor witnesses [A., B., C. and D.], adult witnesses [Mrs E. and Mrs F.] were involved here. A reading of the records of questioning and confrontation makes it clear that, in five of the six cases, a questioning in which the witness was asked to give a description of the suspect preceded the confrontation.", "... Only in the case of Mrs E. this sequence was apparently different. In five of the six cases the most important procedural condition for obtaining reliable results in carrying out a confrontation has thus been complied with. In addition, it does not appear from the [police] records or from the reporting officers' oral evidence in court that these officers would have acted in a leading manner in the confrontations at issue. 6.3. The descriptions given by the six witnesses to the police show a high level of similarity.", "It transpires from the totality of the descriptions given that the person described was a young man, that he spoke another language than Dutch, had particular eyes, wore a cap and carried a (black-and-white) rucksack. The different witnesses each time mentioned three or more of these features ... In the [witnesses'] description of the suspect there are no points of contradiction. In the confrontation, five witnesses recognised the suspect on the basis of the features previously indicated by them. In their recognition of the suspect the witnesses demonstrated either as, in the case of Mrs E., little doubt, or a definite certainty.", "6.4. On grounds of the above, the court does not doubt that the witnesses have wished to indicate the suspect as the person who has committed the facts [at issue] and that a mistake in identity cannot have arisen. The recognition by each separate witness each time finds support in the recognition by the five other witnesses. This entails that, from the point of view of reliability, the result of the confrontations carried out can be used in evidence. 6.5.", "Also noting the above the court finds no necessity to have an identification of the perpetrator by putting a selection of photographs of different persons to the witnesses (meervoudige fotoconfrontatie) carried out. The accused himself has – not incomprehensibly– indicated [during the appeal trial proceedings] that, after the mirror-confrontations already carried out, he did not consider this now useful anymore. In so far as the defence would maintain this request – the applicant's lawyer having indicated at the hearing of 19 April 1998 that he had no objection to the closure of the trial proceedings – the court rejects this request. 7.1. The remaining question is whether the statements of the four children can be used in evidence although the suspect has not had the opportunity to question them himself.", "The court's first consideration is the fact that Article 6 [of the Convention], particularly in the light of some recent [Strasbourg] decisions given on applications brought against the Netherlands, does not unconditionally oppose the use in evidence of statements given by witnesses whom a suspect has not been able to question. There is room for the balancing of interests. In its judgment of 26 March 1996 in the case of Doorson v. the Netherlands, the European Court [of Human Rights] considered in this respect that the principles of a fair trial also require that, in appropriate cases, the interests of the suspect in questioning [witnesses] are to be balanced against the interests of witnesses and victims in the adequate protection of their rights guaranteed by Article 8 [of the Convention]. In the opinion of the European Court, briefly summarised, in balancing these interests much weight must be given to the question whether the handicaps under which the defence labours on account of the inability to questioning a witness in an indirect manner are compensated, and whether a conviction is based either solely or to a decisive extent on the statement of this witness. In its report of 17 May 1995 [in the case of Finkensieper v. the Netherlands, no.", "19525/92], the European Commission [of Human Rights] adopted an essentially similar opinion. 7.2. In the light of these decisions, the following can be said. As already found by the court, the interests of the four children in not being exposed to reliving a possibly traumatic experience weighs heavily. With that, as also already found by the court, stands the fact that the confrontations of these four witnesses with the suspect have been carried out with the required care, and that the results thereof, as already found earlier, are particularly reliable.", "As regards the acts themselves of which the suspect stands accused, the court finds it established that the four children have all been questioned by (or assisted by) investigation officers of the Amsterdam Juvenile and Vice Police Bureau with extensive experience in questioning very young persons. It has become plausible from the records drawn up by them and from the oral evidence given in court by these civil servants that the four children have been questioned in an open, careful and non-suggestive manner. What these children have stated, independently of each other, finds corroboration ... in what the other children have declared. In addition, important support for the veracity of their accounts is also to be found in the statements of the witnesses Mrs E. and Mrs F., witnesses whom the defence has been able to question at the hearing held before the Regional Court on 20 August 1997. It does not appear from the record of this hearing that their statements were challenged by the defence, only that the suspect did not recognise these witnesses.", "[The court further notes that] no request for their appearance in the proceedings on appeal has been made. Taking into account these circumstances as a whole, the court does not find a violation of the suspect's right to question witnesses in using as evidence ... the statements of the four children. 8. On the above grounds, the court is of the opinion – with the required cautiousness – that the statements of the children, as set out in the means of evidence, are reliable and credible and, furthermore, eligible to be used in evidence.” 41. On 4 May 1998, the applicant's lawyer filed an appeal in cassation, which is limited to points of law and procedural conformity, with the Supreme Court (Hoge Raad).", "42. On 6 May 1999, the applicant's lawyer completed the applicant's appeal in cassation by submitting the grounds of the appeal, in which it was denied that the applicant had dropped his request to hear the four children. In this connection it was, inter alia, pointed out that, in its ruling of 27 April 1998, also the Court of Appeal had assumed that this request had not been withdrawn. 43. On 25 June 1999, the applicant's lawyer further submitted a response to the advisory opinion of the Advocate General to the Supreme Court who, in that opinion, did not address the question whether or not the applicant had withdrawn or maintained his request to hear the four children but who did find that the reason given by the Court of Appeal for rejecting the applicant's request to hear the four children was insufficient in that it had failed to establish or consider whether and why an adapted manner of questioning was not possible.", "In this respect, the Advocate General referred to the possibility to question the witnesses in the absence of the accused, the latter being in another room where he could follow the questioning on a television screen and, from there, have questions put to the witnesses. 44. In its judgment of 12 October 1999, the Supreme Court rejected the applicant's appeal, subject to the correction of a clerical oversight in the Court of Appeal's judgment of 27 April 1998. In so far as the applicant complained that the Court of Appeal had used in evidence the statements given by the four boys, although they had never been heard by a judge and/or in the presence of the defence, and despite a request thereto filed by the defence, the Supreme Court held that it was not necessarily contrary to Article 6 to use in evidence statements of such witnesses where such evidence was sufficiently supported by other evidence. Having regard to the manner in which the Court of Appeal had set out in its judgment, as regards each separate offence of which the applicant had been convicted, the evidence given by each of the boys and other pertinent evidence, the Supreme Court noted that the other evidence related each time to those parts of the boys' statements that were disputed by the applicant.", "The Supreme Court concluded that it was implicit in the Court of Appeal's findings that it had found the supporting evidence to be sufficient and that this finding, in itself not incomprehensible, could not be examined further in cassation proceedings. 45. The Supreme Court also rejected the applicant's argument that the Court of Appeal had unjustly found that it was not necessary to hear the four minors as witnesses. It did not deal with the question whether or not the applicant had withdrawn or maintained his request to hear the four children. As regards the reasons given by the Court of Appeal for not acceding to this request, the Supreme Court held: “In rejecting the request to hear the four minors as witnesses, the Court of Appeal ... has applied the correct standard.", "Nor is this decision [of the Court of Appeal] incomprehensible, since it follows logically from the establishment of the interest of the four still very young children in not being forced to relive a, for them, possibly very traumatic experience, that every confrontation with these experiences in pursuit of the criminal investigation, however organised, must be avoided.” II. RELEVANT DOMESTIC LAW AND PRACTICE 46. The finding that an accused has committed the act with which he or she is charged must be based on “legal means of evidence” (“wettige bewijsmiddelen”) within the meaning of Article 338 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”). “Legal means of evidence” include, inter alia, the personal observations of the judge, the statements of the accused, the statements of witnesses relating to facts or circumstances which they themselves have witnessed, the formal minutes and records and other written documents (Article 339 § 1 and Article 344 §§ 1 and 2 of the CCP). 47.", "The public prosecutor has the power to call witnesses and experts to the trial court hearing (Article 260 § 2 of the CCP). In the summons to the accused the public prosecutor gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he or she can submit a request to the public prosecutor to summon a witness before the court. Such a request must be filed no later than three days before the court hearing (Article 263 § 2 of the CCP). 48.", "As a rule, the public prosecutor should summon the witness, but –according to Article 263 § 4 of the CCP as in force until 1 February 1998 – the public prosecutor could refuse to do so if it could be reasonably assumed that no prejudice to the rights of the defence would be caused if the witness was not heard in court. The public prosecutor had to give a reasoned decision in writing and at the same time inform the defence of its right under Article 280 § 3 of the CCP – as in force until 1 February 1998 – to renew the request to the trial court at the hearing. 49. If the public prosecutor had failed to summon a witness at the request of the accused, or declined to do so, the defence could, at the opening of the trial court proceedings, ask the court to have that witness summoned (Article 280 § 3 of the CCP). The trial court would accept such a request, unless it considered that the non-appearance of the witness could not reasonably be considered prejudicial to the rights of the defence (Article 280 § 4 of the CCP as in force until 1 February 1998).", "50. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with (former) Article 280, fell under Article 315 of the CCP. Under this provision the trial court has the power to order, of its own accord, where it finds this to be necessary for the determination of the charges, the production of evidence, including the summoning of witnesses whom it has not yet heard. 51. If the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file.", "The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 of the CCP). 52. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 of the CCP). The defence enjoys the same rights as it does at first instance (Article 415 of the CCP).", "53. Although the provisions of the CCP, as in force until 1 February 1998, in respect of witnesses did not provide for a possibility to take account of their interests, it was accepted in the case law that a trial court, in its determination of a request by the defence to hear a witness, could take into account, to a certain extent, the latter's interests. In a judgment given on 9 February 1993, the Supreme Court accepted the reasons given by the Court of Appeal to refuse a request under Article 280 § 3 of the CCP by the defence to take (further) evidence from the victim of a sexual offence, a 22 year old woman with Down's syndrome. The Court of Appeal had considered that, given her mental condition and her clear distress in response to questioning, followed by an inability to provide any further answers to the investigating judge, it could not reasonably be expected of her to be exposed to the stress of a hearing. Moreover, the failure to take further evidence from her would not harm the accused in his defence to such a degree that – after having balanced the interests of the defence against those of the witness – the proceedings could not longer be considered as fair within the meaning of Article 6 of the Convention.", "However, the Supreme Court did take into account the fact that the defence had been given an opportunity to provide the investigating judge with written questions and that these questions had in fact been put to the witness (Nederlandse Jurisprudentie (Netherlands Law Reports) 1993, no. 603). 54. On 1 February 1998, an amendment to a number of provisions of the CCP entered into force. According to the amended Article 264 § 1 (b) and (c) of the CCP, the public prosecutor may refuse the request of an accused to summon a witness in order to give evidence in court, where the prosecutor considers that there are well-founded reasons to believe that such oral testimony would entail a serious risk for the witness's health, or when the refusal of such a request, in all reasonableness, cannot be regarded as harming the accused's defence.", "On the same grounds, a trial court may decide not to hear a witness proposed by the defence (Article 288 § 1 (b) and (c) of the CCP). 55. Only in very rare cases are young children heard as witnesses before a court. In most cases, such witnesses are heard by an investigating judge. Witnesses younger than sixteen years of age – when heard before an investigating judge – are exempted from the obligation to testify under oath, but are urged to speak the whole truth and nothing but the truth (Article 216 § 2 of the CCP).", "56. When a trial court uses such a statement in evidence, it should give special reasons in its judgment for doing so (Article 360 § 1 of the CCP). This requirement does, however, not apply where it concerns a statement of a child set out de auditu in a written record (proces-verbaal) drawn up by an officer with powers of investigation (opsporingsambtenaar) (Hoge Raad, 6 February 1990, Nederlandse Jurisprudentie 1990, no. 482). 57.", "On 1 January 2003, an amendment to Article 457 of the CCP, which provision governs the possibilities to obtain revision (herziening) of final judgments, entered into force. This amendment extended the existing grounds on which a revision of a final conviction can be sought by including as a ground for revision a ruling by the Court that the criminal proceedings having led to that conviction had been in violation of the Convention. The amended text of Article 457 of the CCP reads, in so far as relevant, as follows: “1. An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res iudicata can be filed: ... 3o. on grounds of a ruling of the European Court of Human Rights in which has been established that [the Convention or one of its Protocols] has been violated in the proceedings having led to the conviction ... if revision is necessary with a view to reparation within the meaning of Article 41 of [the Convention].” A request for revision can be filed with the Supreme Court by the Procurator-General, the convicted person or the latter's lawyer within a period of three months after the convicted person has become aware of the Court's ruling referred to in Article 457 § 1 under 3 (Article 458 of the CCP).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 58. The applicant complained that, in the criminal proceedings against him, he was deprived of a fair trial in that the statements given by A., B., C. and D. to the police were used in evidence without the defence ever having had an opportunity to question them. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which in its relevant part 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: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. The parties' submissions 1. The Government 59. The Government submitted that, although the applicant had not been given the opportunity to follow the interviews of the four victims by the police and had not been able to have questions put to them, the use in evidence of these four victims' statements was not contrary to his rights under Article 6 of the Convention. In the first place, the applicant had consistently disputed the victims' identification of him as the perpetrator, but not the facts of the case.", "Secondly, the public prosecutor had refused the applicant's request to take further evidence from the victims considering that this would be extremely distressing for the children. Moreover, the applicant had failed to indicate on what grounds he wished to query the identification procedure and the statements taken from the four boys during the initial investigation. Thirdly, the Court of Appeal did grant his request to take further evidence from the adult witnesses, Mrs E. and Mrs F., whose statements corroborated the children's statements, and from the police officers X., Y. and Z. The Government further pointed out that, after X., Y. and Z. had been heard before the Court of Appeal on 16 April 1998, the applicant's lawyer had indicated that the defence did not wish to take further evidence from them or any other witnesses and did not explicitly persist in its request to hear the four children. 60.", "The Government distinguished the present case from that of P.S. v. Germany (no. 33900/96, 20 December 2001), the four victims having given statements independently of each other concerning the same suspect and similar acts, which statements corroborated one another. In the opinion of the domestic judicial authorities, there was sufficient evidence to corroborate the victims' statements, including the statements given by Mrs E. and Mrs F. The Government argued that, in balancing the respective interests of the applicant and the victims, the judicial authorities could conclude in all reasonableness that there was no need to summon the latter to give further evidence in court. On this point, the Government further emphasised that the defence had an opportunity at every stage of the proceedings to challenge the reliability of the statements given by the four boys and, relying on the Court's considerations in the case of Asch v. Austria (judgment of 26 April 1991, Series A no.", "203, p. 10, § 27), that Article 6 of the Convention does not require a direct confrontation with witnesses in all circumstances. 2. The applicant 61. The applicant submitted that, in the criminal proceedings against him, he had not only challenged his identification as the perpetrator but also consistently denied having committed acts of indecency. He further submitted that his conviction was based to a decisive degree on the statements given to the police by A., B., C. and D., and that his attempts to obtain further evidence from the four victims were invariably refused by the domestic judicial authorities who, in so doing, paid no attention whatsoever to the interests of the defence.", "The applicant further submitted that in the proceedings before the Court of Appeal, he himself had requested – both orally and in writing – to hear the four children and he had persisted in this request throughout the entire proceedings. According to the applicant there is no rule compelling the defence to repeat requests, which have not yet been determined. Moreover, it does not emerge from the official record (proces-verbaal) of the hearing of 16 April 1998 that the defence withdrew the request to hear the four victims. The fact that his lawyer indicated at the end of this hearing that he did not wish to hear any further witnesses can, according to the applicant, only be taken as referring to witnesses other than the four boys. Any other interpretation would defy logic.", "Moreover, it is clear from its judgment that the Court of Appeal acted on the basis of the supposition that the request to hear the four victims had been maintained and had never been waived, and also the Supreme Court considered the applicant's complaint relating to the trial courts' failure to hear the four victims during the trial proceedings on the basis of the assumption that the request to this effect by the defence had been maintained throughout. 62. According to the applicant, it would have been feasible to give the defence an opportunity to test the reliability of the four boys in a less invasive manner than by hearing them in court, for instance, by having them heard by an investigating judge on questions put in writing by the defence, or in a studio enabling the applicant and/or his lawyer to be present, at least indirectly via a video-link. Nor had he been provided with any other way of offsetting the violation of his right to cross-examine the four victims, for instance, by having video recordings of the hearings of the victims by the police played in court. The domestic courts only heard the reporting police officers, which cannot be regarded as satisfactory for the assessment of the reliability of the four witnesses.", "63. The applicant further refuted the Government's argument that his defence rights under Article 6 were not violated because it had been possible for him throughout the proceedings to challenge the statements given by the four victims. In the applicant's opinion, the possibility to challenge evidence given by a witness cannot be considered on a par with the possibility to put questions to a witness. In the present case, no involvement of the applicant or his lawyer was possible when the four victims were heard by the police, and at no point in the proceedings against him was he given an opportunity to question the four victims, to have them questioned, to see or hear what exactly they had said and, thus, to observe their demeanour under direct questioning in order to assess their reliability. B.", "The Court's assessment 64. The Court first notes that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of this Article. Consequently, the complaint will be examined under the two provisions taken together (see, for instance, Yavuz v. Austria, no. 46549/99, § 44 with further references, 27 May 2004). 65.", "As regards the question whether the applicant or his lawyer had dropped the request to hear the four children at the closure of the trial proceedings before the Court of Appeal, the Court reiterates that the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner (see, among other authorities, Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 26). 66. The Court notes in the present case that, throughout the entire trial proceedings, the applicant clearly and repeatedly requested the courts to allow the defence to question the four children. The Court further notes that, in its judgment of 27 April 1998, the Court of Appeal rejected this request, giving reasons for so doing.", "Although it noted that the remark by the applicant's lawyer after the hearing of witnesses on 16 April 1998 that he did not wish to hear any further witnesses could be interpreted as also referring to the four children, it did not base its decision on such an interpretation but on other substantive grounds. Moreover, the Supreme Court did not reject the applicant's complaint about the refusal of his request to hear the children on the basis that he had withdrawn it, but assessed and accepted as correct the reasons given by the Court of Appeal for its refusal of that request. The Court, therefore, finds that the applicant cannot be regarded as having waived his rights under Article 6 as to the hearing of these witnesses. 67. As regards the evidence given by the four victims and the manner in which it was used in the criminal proceedings at issue, the Court reiterates at the outset that the admissibility of evidence is primarily a matter for regulation by national law.", "The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. In particular, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses. 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 with further references, ECHR 2003‑V).", "68. The Court further reiterates that 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 3 (d) and 1 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 either when he was making his statements or at a later stage of the proceedings (see, among other authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194‑A, p. 12, § 34; and Lucà v. Italy, no. 33354/96, §§ 40-43, ECHR 2001-II).", "However, 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 S.N. v. Sweden, no. 34209/96, § 44, ECHR 2002‑V). 69.", "In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify. In this respect, the Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings 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, the victim's interest must be taken into account.", "The Court, therefore, 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. 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 S.N. v. Sweden, cited above, § 47 with further references). 70. Turning to the facts of the instant case, the Court notes that the witnesses Mrs E. and Mrs F., who were heard before the courts, had both seen the applicant at the material time but had not seen the alleged acts.", "Mrs E. further gave evidence on the accounts of her son and nephew of the events on 10 May 1997. The other witnesses heard before the courts, the police officers X., Y. and Z., gave evidence on the manner in which statements had been taken from the four victims and on the manner in which the latter had been confronted with the applicant for identification purposes. In these circumstances, the Court considers that the statements given by A., B., C. and D. to the police, which was the only direct evidence of the facts held against the applicant, must be regarded as having been of a decisive importance for the courts' finding of the applicant's guilt, whereas neither at the stage of the investigation nor during the trial was the applicant given the opportunity to examine or have these victims examined. It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 in respect of the evidence given by A., B., C. and D. 71. On this point, the Court notes that the applicant was not provided with an opportunity to follow the manner in which the children were heard by the police, for instance by watching this in another room via technical devices, nor was he then or later provided with an opportunity to have questions put to them.", "Furthermore, as the children's statements to the police were not recorded on videotape, neither the applicant nor the trial court judges were able to observe their demeanour under questioning and thus form their own impression of their reliability (see, a contrario, Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005-...). It is true that the trial courts undertook a careful examination of the statements taken from the children and gave the applicant ample opportunity to contest them, but this can scarcely be regarded as a proper substitute for a personal observation of a witness giving oral evidence. 72. As regards the reason given by the domestic courts for dismissing the applicant's request to hear the victims, namely that the applicant's interests in hearing them were outweighed by the interests of the four still very young children in not being forced to relive a possibly very traumatic experience, the Court has found no indication in the case file that this reason was based on any concrete evidence such as, for instance, an expert opinion.", "The Court appreciates that organising criminal proceedings in such a way as to protect the interests of very young witnesses, in particular in trial proceedings involving sexual offences, is a relevant consideration, to be taken into account for the purposes of Article 6. However, the reason given by the trial courts for refusing the applicant's request to hear the four victims cannot but be regarded as insufficiently substantiated and thus, to a certain extent, speculative. 73. In these circumstances, the Court finds that the applicant cannot be regarded as having had a proper and adequate opportunity to challenge the witness statements which were of a decisive importance for his conviction and, consequently, he did not have a fair trial. 74.", "There has thus been a violation of Article 6 § 1 taken together with Article 6 § 3 (d). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76.", "The applicant submitted that, in the domestic proceedings, he had been ordered to pay NLG 500 for damages to A., which he had not yet done. He felt that it would be wrong and unreasonable that he should have to pay this amount and therefore – if A. were to attempt to recover this amount – considered that the respondent State should compensate him for that sum, as pecuniary damage incurred by him. 77. The applicant further claimed an amount of EUR 19,160 for non-pecuniary damage on account of his nine months' detention in the Netherlands. He submitted that he had been detained in pre-trial detention on account of a very humiliating offence, for which reason he had been treated with contempt by his co-detainees.", "The fact that he is Spanish speaking, does not speak Dutch and was detained far from his country of origin entailed that his detention in the Netherlands caused him additional distress. 78. The Government submitted that the applicant apparently took it for granted that, if the alleged violation had not taken place, he would not have been held in pre-trial detention and would not have been convicted which conclusion, according to the Government, was highly speculative. Moreover, the Government emphasised that it is open for the applicant to apply for revision (herziening) under Article 457 § 1 of the CCP. They therefore considered that the finding of a violation of the Convention would constitute in itself sufficient just satisfaction under this heading.", "79. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI). 80. The respondent Government are, in principle, free to choose the means whereby they will comply with the judgment.", "This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows for restitutio in integrum, it is for the respondent Government to effect it, the Court having neither the power nor the practical possibility of doing so itself. However, if national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34, and Brumărescu v. Romania (just satisfaction) [GC], no.", "28342/95, § 20, ECHR 2001-I). 81. The Court considers that it cannot speculate what the outcome of the proceedings would have been if they had been in conformity with Article 6 of the Convention. However, as the Court has now found that, in the proceedings resulting in the applicant's conviction, the applicant's rights under Article 6 § 1 and 3(d) were violated, Article 457 § 1 of the Netherlands Code of Criminal Procedure entitles the applicant to a fresh trial. 82.", "In these circumstances, the Court considers that national law allows for adequate reparation by entitling the applicant to a fresh determination of the criminal charges against him (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; and Halis v. Turkey, no. 30007/96, § 49, 11 January 2005). Accordingly, the Court dismisses the applicant's claim for pecuniary and non-pecuniary damage. B.", "Costs and expenses 83. The applicant claimed reimbursement of the costs and expenses incurred by him in the proceedings before the Court. He submitted that he was liable to pay his representative EUR 3,299.91 for 24.20 hours' work in respect of his application, plus EUR 949.65 for translation costs and EUR 197.99 for office expenses; value-added tax came to EUR 854.03. The total amount claimed was thus EUR 5,292.58. 84.", "Pointing out that the applicant had received State-financed legal aid in the domestic proceedings, the Government did not dispute the applicant's claim for costs and expenses. 85. According to its settled case-law, the Court will award costs and expenses in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Serghides and Christoforou v. Cyprus (just satisfaction), no. 44730/98, § 38, 12 June 2003). 86.", "Taking into account that one of the applicant's two complaints has been rejected in the Court's partial decision on admissibility of 11 March 2003 and making an assessment on an equitable basis, the Court awards the applicant EUR 4,190 including value-added tax for costs and expenses. C. Default interest 87. 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 taken together with Article 6 § 3 (d) of the Convention; 2.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,190 (four thousand one hundred and ninety euros) in respect of costs and expenses including value-added tax, plus any other tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]
[ "FIFTH SECTION CASE OF PIVOVARNIK v. UKRAINE (Application no. 29070/15) JUDGMENT STRASBOURG 6 October 2016 FINAL 06/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pivovarnik v. Ukraine The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Ganna Yudkivska,Khanlar Hajiyev,André Potocki,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 13 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29070/15) 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 Yuriy Stepanovich Pivovarnik (“the applicant”), on 16 June 2015. 2. The applicant was represented by Ms I. Monina, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice. 3.", "The applicant alleged, in particular, that while held in detention he had not been provided with adequate medical assistance for his hepatitis. 4. On 14 October 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. 5. Written submissions were received from the All-Ukrainian Network of People Living with HIV/AIDS (Всеукраїнська мережа людей які живуть з ВІЛ/СНІД – hereinafter “the All-Ukrainian Network”), which had been granted leave by the President of the Section to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1977 and prior to his arrest his permanent address had been in Svitlovodsk, Kirovograd Region. 7. On an unspecified date prior to his arrest the applicant had been diagnosed with hepatitis C (“HCV”).", "A. Criminal proceedings against the applicant 8. On 26 June 2014 the applicant was arrested on suspicion of committing a drug-related offence and on 7 July 2014 placed in Kirovograd Remand Prison no. 14 (“the prison”). 9.", "On 27 June 2014 the Svitlovodsk Court remanded the applicant in custody. The applicant appealed, arguing in particular that he was suffering from HCV. On 14 July 2014 the Kirovograd Regional Court of Appeal upheld the detention order. 10. The applicant’s pre-trial detention was subsequently extended until his conviction.", "11. On 24 March 2015 the Svitlovodsk Court convicted the applicant of the unlawful purchase, possession and transportation of drugs and sentenced him to three years’ imprisonment. 12. On 13 October 2015 the Kirovograd Regional Court of Appeal amended the applicant’s sentence and released him on probation. B.", "Medical assistance in detention 13. On 8 July 2014 the prison governor sent a letter to the Svitlovodsk Central Hospital. According to the letter, the applicant had informed the prison authorities that he had been diagnosed with HCV in 2013 in Svitlovodsk but that he had not provided any more detailed information in this respect. The governor asked the hospital to confirm whether the applicant had indeed been examined for HCV and if so, what the results of the examination had been. The prison received no reply.", "14. On 6 August, 27 November and 3 December 2014 and on 9 January and 4 June 2015 the applicant consulted the prison doctor, complaining in particular of discomfort in the hypochondrium (below the lower ribs), on the right-hand side. According to the applicant’s medical record, the applicant claimed to be suffering from HCV, but the doctor noted that there were no documents to support this diagnosis. The applicant asked for a medical certificate, to be provided to the courts examining his criminal case. According to three separate reports signed by three prison employees, during three of those consultations – those of 6 August and 27 November 2014 and 4 June 2015 – the applicant was offered an opportunity to undergo a “blood test” (it is unspecified of which type) to verify whether he had HCV but refused without giving any reasons.", "The applicant denied the latter allegation. 15. On 13 August 2014 the prison’s medical unit issued a certificate stating that the applicant, according to his own statement, was suffering from HCV and that during his stay in the prison he had consulted the prison doctor on several occasions in this connection and received treatment for his symptoms. 16. On 3 December 2014 the prison governor informed the applicant’s lawyer that on 6 August and 27 November 2014 the applicant had consulted the prison doctor concerning his HCV and had been prescribed treatment for his symptoms.", "The governor went on to state that it was planned that a consultation would be arranged with an infectious diseases specialist who would be able to order the necessary examinations and prescribe treatment for the applicant. 17. On 3 March 2015 a blood test, apparently an HCV antibody test, came up positive. On the same day an ultrasound examination showed that the applicant’s liver had undergone diffuse changes. 18.", "On 8 June 2015 the head of the prison’s medical unit issued a certificate which stated that the applicant’s health had worsened in the previous two months and that he was suffering from fatigue, nausea, and weight loss. The certificate also stated that in order to ascertain the state of his health the applicant needed to be examined by an infectious diseases specialist of the Kirovograd Central City Hospital (“the City Hospital”). 19. On 19 June 2015 the acting President of the Section, upon the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that they should present the applicant urgently for medical examination by a specialised doctor of the City Hospital; secure for the applicant immediately, by appropriate means, treatment to his state of health; and inform the Court by 17 July 2015 about the applicant’s state of health and the measures undertaken. 20.", "From 6 until 9 July 2015 the applicant underwent an in-patient examination at the City Hospital in the course of which a number of blood tests and an ultrasound examination were conducted and the applicant was examined by a number of specialists. 21. On 9 July 2015 the hospital issued an opinion according to which the applicant was suffering from сhronic HCV “in an inactive phase” and liver impairment. He was prescribed hepatoprotectors (Carsil and Ursohol). It was recommended that he undergo additional blood tests, namely the polymerase chain reaction (PCR) test for HCV, and, within ten days, another general blood test and a biochemical blood test.", "The applicant was to remain under the supervision of a gastroenterologist and an infectious diseases specialist. 22. On 14 July 2015 the Government informed the Court about the applicant’s examination at the City Hospital. 23. On 19 August 2015 the applicant complained to the Court that the recommendations of the City Hospital doctors were not being followed.", "On 26 August 2015 the Court invited the Government to comment on those allegations. 24. On 1 September 2015 the applicant started to be treated with hepatoprotector medicine. On 3 September 2015 he underwent general and biochemical blood tests which, according to the Government, revealed no abnormality. On 15 September 2015 he was consulted by a gastroenterologist and an infectious diseases specialist, who confirmed the diagnosis of inactive chronic hepatitis.", "25. On 15 September 2015 the Government informed the Court of the measures taken from 1 to 15 September 2015. II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS 26. The relevant part of the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 9 to 21 October 2013 reads as follows: “161.", "The CPT is concerned by the lack of systematic screening and treatment for blood-borne viral hepatitis in the Ukrainian prison system. The delegation was informed that, currently, there was no National Programme for detecting and treating hepatitis in Ukraine (and no national standard for treatment), and that penitentiary establishments were not provided with any specific hepatitis medication. The Committee recommends that measures be taken to remedy this regrettable state of affairs.” 27. In 2013 the Ukrainian Parliamentary Commissioner for Human Rights published a special report dedicated to the monitoring of the observance of the right to medical care in the remand prisons within the purview of the State Correctional Service of Ukraine. The report contains the following observations concerning the rights of hepatitis patients (p. 35).", "Diagnosing and treating hepatitis in patients was not a priority for remand prisons’ medical units. Testing was only voluntary and could only be conducted on the initiative of the prisoner in question. In practice it was difficult to get hepatitis diagnosed and treated. Where this happened, treatment was mainly conducted at the expense of relatives and friends, who furnished medications to prisoners. Only prisoners with HIV/AIDS could receive hepatitis treatment at public expense.", "Medical units of remand prisons were in no position to ensure the treatment of acute hepatitis B and C and could only provide long-term antiviral and stabilising anti-inflammatory outpatient treatment. 28. On 29 April 2013 the Cabinet of Ministers approved a State programme for the prevention, diagnosis and treatment of viral hepatitis for the period until the end of 2016. The programme stipulates a number of goals to be achieved over that period, including extending access to hepatitis treatment to 30% of all patients. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained that he had not been provided with adequate medical care in detention. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 30. 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 31. The applicant submitted that for a year after his arrest he had received no adequate medical assistance.", "Examinations he had undergone had not been completed and medical treatment had merely treated the symptoms. For him, this revealed a systematic defect in the prison system. 32. The Government submitted that the applicant had had access to the prison doctor on several occasions and had on those occasions requested certificates to be presented to the courts considering his criminal case. From 6 until 9 July 2015 the applicant had been examined at the City Hospital and had subsequently received certain recommendations in connection with his HCV– in particular, he had been prescribed certain hepatoprotectors.", "He had started receiving them on 1 September 2015. Afterwards the applicant had undergone blood tests and had been examined by specialists. The applicant had not complained to the prosecutor’s office about the alleged inadequacy of the medical assistance he had received. The Government maintained, therefore, that the applicant had been provided with the necessary medical examination and treatment corresponding to his state of health. 33.", "The All-Ukrainian Network submitted that hepatitis was an important cause of mortality. Its prevalence in Ukraine was above the regional average. Using modern treatment methods chronic HCV was curable through a 12-48 week course of treatment with a combination of drugs (pegylated interferon with ribavirin and/or inhibitors of viral proteases). However, the cost of this treatment, which was in the range of 16,000 United States dollars per course, put it beyond the reach of the overwhelming majority of Ukrainians. The State had adopted a number of programmes and taken a number of steps in an attempt to combat hepatitis and extend access to treatment, but a lack of funding meant that in practice access to treatment had been extremely limited: currently the State provided funding for the treatment of only 2,000 of the 44,000 patients in the general population who needed it.", "According to the All-Ukrainian Network, no HCV treatment had been provided in the prisons of the State Correctional Service during the years 2013-2015. 2. The Court’s assessment (a) General principles 34. The Court has emphasised on many occasions that the health of detainees has to be adequately secured (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI).", "A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005). 35. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine.", "The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no.", "47152/06, § 137, ECHR 2016, with further references). 36. 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, and Blokhin, cited above, § 138).", "(b) Application of the above principles to the present case 37. The Court observes that on 3 December 2014 the prison authorities recognised that the applicant needed to be examined by an infectious diseases specialist in connection with his HCV. However, no action was apparently taken in respect of those recommendations until 6 July 2015, after the Court indicated the interim measure in the present case. 38. The Court is prepared to accept that prior to 3 March 2015 this lack of action was due to the applicant’s failure to cooperate by submitting to a blood test and thus obtaining confirmation of the HCV diagnosis, on which he insisted (see paragraph 14 above).", "39. However, on 3 March 2015 a blood test yielded results which tended to support the diagnosis of HCV, which was eventually definitively confirmed. This – combined with the acknowledgement, on 3 December 2014, that the applicant needed a consultation with an infectious diseases specialist – clearly indicated that at least from 3 March 2015 the prison authorities had been unequivocally aware that the applicant’s hepatitis required medical attention. 40. Even so, there was no further action for more than four months, until 6 July 2015.", "The Court is not in a position to assess the precise impact of that inaction on the applicant’s health. 41. However, the Court cannot ignore the fact that on 8 June 2015 the prison’s medical unit acknowledged that the applicant’s health had worsened in the previous two months and that on 9 July 2015, after a comprehensive medical examination, the doctors had found that the applicant was suffering from liver impairment. It cannot be ruled out that this was a result of a lack of medical care in respect of the applicant’s hepatitis. 42.", "The Court is aware that the applicant’s condition was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment. In fact, as indicated above, the authorities did find signs of deterioration in the applicant’s condition – in particular, that he suffered from a degree of liver impairment (see paragraphs 18 and 21 above) – and eventually recommended certain treatment. For the Court, this indicates that the applicant’s condition in fact required medical attention and treatment, which was denied to the applicant for a substantial period of time. 43.", "What is more, as discussed below in respect of Article 34 of the Convention, even after the applicant had undergone a medical examination in connection with his hepatitis and had been prescribed hepatoprotectors, he received that treatment only with a substantial delay (see paragraph 58 below). 44. In examining the applicant’s particular situation, the Court is also aware of the general background of the lack of sufficient medical care for hepatitis patients in the Ukrainian places of detention (see paragraphs 26, 27 and 33 above). 45. The Court concludes that the prison authorities failed to ensure regular and systematic medical supervision of the applicant’s condition and to put in place a comprehensive treatment strategy in respect of his hepatitis.", "46. These considerations are sufficient for the Court to find that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 47. The applicant complained that the Government’s failure to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court had violated his right of individual application.", "He relied on Article 34 of the Convention, which 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.” 48. Rule 39 of the Rules of Court, in so far as relevant, provides: “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. ... 3.", "The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. The parties’ submissions 49. The Government submitted that there had been no breach of Article 34. In particular, after the interim measure had been indicated, the applicant had been placed in the City Hospital and had undergone an examination there between 6 and 9 July 2015. On 14 July 2015 the Government had reported on the steps taken.", "In response to the Court’s letter of 26 August 2015 the applicant had been presented for additional tests and examinations. 50. The applicant submitted that his examination of 6-9 July 2015 had been incomplete, and that blood tests recommended on 9 July 2015 had not been performed. He had started receiving treatment with medications prescribed (also on 9 July 2015) only in September 2015. He maintained that there had been a breach of Article 34 of the Convention.", "B. The Court’s assessment 1. General principles 51. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of the right of individual application (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 125, ECHR 2005‑I, and Aoulmi v. France, no.", "50278/99, § 108, ECHR 2006‑I (extracts). 52. 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 Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998‑IV). Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009).", "It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see ibid., cited above, § 92, and Grori v. Albania, no. 25336/04, § 184, 7 July 2009). 53. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91), and indeed to its very purpose (see Patranin v. Russia, no. 12983/14, § 52, 23 July 2015).", "54. Interim measures are to be complied with as a matter of urgency (see Paladi, § 98, and Grori, § 190, both cited above). A delay in compliance has lead the Court to find violations of Article 34 even in cases where the interim measure was eventually complied with (see, for example, Grori, cited above, §§ 64, 70 and 190-95, and D.B. v. Turkey, no. 33526/08, § 67, 13 July 2010).", "2. Application of the above principles to the present case 55. The Court notes that on 19 June 2015 under Rule 39 of the Rules of Court it indicated to the respondent Government that they should (i) present the applicant urgently for medical examination at the City Hospital; (ii) immediately provide the appropriate treatment to the applicant; and (iii) inform the Court by 17 July 2015 about the applicant’s state of health and the steps taken. 56. The Court notes that, in response to this measure, the Government secured the applicant’s examination at the City Hospital on 6 July 2015 and duly informed the Court about the results of that examination.", "Upon the applicant’s discharge from the hospital on 9 July 2015, a number of recommendations were made. In particular, the applicant was prescribed hepatoprotectors and it was recommended that he undergo a number of blood tests. 57. However, the prison authorities did not take any steps to comply with those recommendations until 1 September 2015 that is only after the Court forwarded to the Government the applicant’s complaint that those recommendations were not being followed through. It appears that even then compliance was not comprehensive – in particular the PCR blood test (see paragraph 21 above) was apparently never conducted.", "58. The Court must conclude, therefore, that the prison authorities failed to comply with the interim measure from 9 July to 1 September 2015. The Government have not identified any objective impediments to compliance with the interim measure in that period (compare Grori, cited above, §§ 190-95). 59. Whether or not that delay caused the irreversible damage which the interim measure was designed to prevent, is, in itself, irrelevant to the Court’s assessment (see Paladi, cited above, § 89, and Salakhov and Islyamova v. Ukraine, no.", "28005/08, § 223, 14 March 2013). 60. The purpose of the interim measure indicated by the Court, as is apparent from its very wording, was to ensure that the applicant received appropriate medical assistance in detention while his case was pending before the Court. However, this purpose could not be achieved since the prison authorities merely ensured the initial examination of the applicant and then, having provided a report to the Government Agent’s office (and, through it, to the Court), apparently neglected to follow up on any of the medical recommendations made following that examination without providing any justification for this omission. 61.", "Such conduct on the part of the prison authorities undermined the effective operation of the interim measure indicated by the Court since it required the Court to continue to intervene to make sure that the respondent State continued to comply with the measure even after they had reported to the Court that the measure has been complied with. 62. The Court concludes, therefore, that the respondent State has failed to fulfil its obligation under Article 34 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 applicant claimed 16,000 euros (EUR) in respect of non‑pecuniary damage. 65. The Government considered that claim excessive.", "66. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 67. The applicant also claimed 3,673 Ukrainian hryvnias for the costs and expenses incurred before the Court.", "68. The Government left this matter 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 sum of EUR 121 under this head.", "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. IV. RULE 39 OF THE RULES OF COURT 71. Given that the factual circumstances which led to the application of Rule 39 of the Rules of Court in the present case have changed, the Court considers that it is appropriate to discontinue the interim measure indicated to the Government.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that respondent State has failed to fulfil its obligation under 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, 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 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 121 (one hundred and twenty-one 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. 6. Decides to discontinue the application of Rule 39 of the Rules of Court. Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF A.C. AND OTHERS v. RUSSIA (Applications nos. 46966/14 and 7 others - see appended list) JUDGMENT STRASBOURG 14 June 2018 This judgment is final but it may be subject to editorial revision. In the case of A.C. and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt,Acting Deputy Section Registrar, Having deliberated in private on 24 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "Some applicants also raised complaints under Article 13 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.", "The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 8.", "In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS OF WELL-ESTABLISHED CASE-LAW 11. Some applicants submitted complaints under Article 13 of the Convention (see appended table).", "These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin, cited above, §§ 38-45. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table. 14.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4.", "Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena Poláčková Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention(inadequate conditions of detention) No. Application no.", "Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 46966/14 27/09/2014 A.C. 22/12/1979 IK-56 Sverdlovsk Region 17/09/2012 to 25/07/2014 1 year(s) and 10 month(s) and 9 day(s) IK-56 Sverdlovsk Region 24/08/2014 to 07/11/2015 1 year(s) and 2 month(s) and 15 day(s) IK-56 Sverdlovsk Region 06/12/2015 to 05/10/2016 10 month(s) IK-56 Sverdlovsk Region 28/11/2016 pending More than 1 year(s) and 4 month(s) and 24 day(s) 3.8-7 m² 3.8-7 m² 3.8-7 m² 3.8-7 m² no or restricted access to warm water, no or restricted access to running water, no or restricted access to potable water, no or restricted access to shower, mouldy or dirty cell, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, poor quality of food, no sewage system in the detention facility, inmates use a bucket as a lavatory pan and then take it outside daily to a cesspool from which an awful odour spreads, the same facility as in the case of Gorbulya v. Russia (no. 31535/09, 6 March 2014); Romanenko v. Russia (no. 34310/12, 7 February 2017), lack of or insufficient electric light Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 15,300 14076/16 30/08/2016 Andrey Fedorovich Avdulov 21/12/1977 IK-2 Zabaykalskiy Region 14/09/2008 pending More than 9 year(s) and 7 month(s) and 7 day(s) 14 inmate(s) 2.3 m² overcrowding, inadequate temperature, no or restricted access to running water, poor quality of food, lack of fresh air 10,000 45716/16 03/10/2016 Vladimir Nikolayevich Lanochkin 25/07/1972 IK-2 Zabaykalskiy Region 22/11/2015 pending More than 2 year(s) and 4 month(s) and 30 day(s) 135 inmate(s) 1.6 m² overcrowding, inadequate temperature, no or restricted access to running water, poor quality of food, lack of fresh air Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention 9,300 57406/16 13/09/2016 Vladimir Igorevich Ovadenko 28/01/1987 IK-1 Syktyvkar 23/08/2013 pending More than 4 year(s) and 7 month(s) and 29 day(s) 100 inmate(s) 1.8 m² 4 toilet(s) overcrowding, lack of or insufficient electric light, lack of fresh air, poor quality of food, lack of privacy for toilet, no or restricted access to shower, no or restricted access to warm water, mouldy or dirty cell, lack of or insufficient physical exercise in fresh air Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 10,000 60447/16 07/10/2016 Leonid Vasilyevich Petrov 10/03/1982 Vinogradov Aleksandr Vladimirovich Kostroma IK-1 Kostroma Region 10/07/2015 to 09/10/2017 2 year(s) and 3 month(s) 100 inmate(s) 2 m² overcrowding, lack of or insufficient electric light, poor quality of food, no or restricted access to running water 8,300 60737/16 11/10/2016 Aleksey Vitalyevich Zverev 10/06/1977 Alekseyeva Natalya Vasilyevna Krsanoyarsk IK-16 Krasnoyarsk Region 23/08/2012 pending More than 5 year(s) and 7 month(s) and 29 day(s) 2 m² 4 toilet(s) overcrowding, lack of fresh air, no or restricted access to toilet, no or restricted access to running water, no or restricted access to shower 9,800 51002/17 03/07/2017 Sergey Vladimirovich Yesin 16/04/1971 IK-11 Nizhniy Novgorod Region 26/02/2012 pending More than 6 year(s) and 1 month(s) and 26 day(s) 135 inmate(s) 1.4 m² 6 toilet(s) overcrowding, poor quality of food, lack of or restricted access to leisure or educational activities, lack of or inadequate hygienic facilities, no or restricted access to warm water, no or restricted access to shower, lack or insufficient quantity of food 7,500 53613/17 14/07/2017 Vadim Valeryevich Gogin 29/05/1961 Vinogradov Aleksandr Vladimirovich Kostroma IK-1 Kostroma Region 27/12/2014 to 04/07/2017 2 year(s) and 6 month(s) and 8 day(s) 100 inmate(s) 2 m² inadequate temperature, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of or insufficient electric light, no or restricted access to shower, overcrowding, poor quality of food Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FOURTH SECTION CASE OF K.H. AND OTHERS v. SLOVAKIA (Application no. 32881/04) JUDGMENT This version was rectified on 24 August 2011 under Rule 81 of the Rules of Court STRASBOURG 28 April 2009 FINAL 06/11/2009 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of K.H.", "and Others v. Slovakia, 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,Mihai Poalelungi,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 7 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32881/04) 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 eight Slovak nationals, K.H., J.H., A.Č., J.Čo., J.Če., V.D., H.M. and V.Ž., on 30 August 2004. The President of the Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2.", "The applicants were represented by Ms V. Durbáková, a lawyer practising in Košice and Ms B. Bukovská from the Centre for Civil and Human Rights in Košice. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3. The applicants alleged, in particular, that their rights under Articles 6 § 1, 8 and 13 of the Convention had been infringed as a result of the failure by the domestic authorities to make photocopies of their medical records available to them. 4.", "By a decision of 9 October 2007 the Court declared the application partly admissible. 5. The Government filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the applicants replied in writing to the Government’s observations. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants are eight female Slovakian nationals of Roma ethnic origin. A. Background to the case 7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries.", "Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents. 8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice.", "The lawyers were authorised to review and photocopy the women’s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights. 9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002.", "The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so. 10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted. B.", "Civil proceedings 11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records. 1. Action against the J.", "A. Reiman University Hospital in Prešov 12. Six applicants brought an action against the J.A. Reiman University Hospital (Fakultná nemocnica J. A. Reimana) in Prešov (“the Prešov Hospital”) on 13 January 2003. 13.", "On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003. 14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse.", "It was not contrary to the plaintiffs’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment. 15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised.", "In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient’s claim for damages. 2. Action against the Health Care Centre in Krompachy 16. H.M. and V.Ž., the two remaining applicants, brought an identical action against the Health Care Centre (Nemocnica s poliklinikou) in Krompachy (“the Krompachy Hospital”) on 13 January 2003. 17.", "On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein. 18.", "The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages. 19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records. C. Constitutional proceedings 1.", "Complaint of 24 May 2004 20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention. 21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could.", "However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals. 22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them.", "23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court’s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act.", "Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents. 2. Complaint of 25 June 2004 24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court’s judgment of 24 March 2004. 25.", "On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court’s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned. D. Subsequent developments 26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application. 27.", "As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H. II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure 28.", "Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated. 29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons’ rights. 30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later.", "31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons. 32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court.", "Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue. B. Health Care Act 1994 33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 (Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force: “Section 16 – Medical records 1. The keeping of medical records shall form an inseparable part of health care.", "2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ... 3. Medical records shall be archived for a period of 50 years after the patient’s death. ... 5.", "A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities. 6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ... 8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ... 11.", "An excerpt from a person’s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.” 34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows: “Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety.", "It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.” C. Health Care Act 2004 35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts (Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows: “Section 25 – Access to data included in medical records 1.", "Data included in medical records shall be made available by means of consultation of the medical records to: (a) the person concerned or his or her legal representative, without any restriction; ... (c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ... (g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ... 2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.” III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA 36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected.", "The relevant part provides: “Rights of access and of rectification 8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form. 8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if: a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37.", "The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides: “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. Arguments of the parties 1.", "The applicants 38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome. 39.", "The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part.", "40. Finally, the applicants saw no justification for the Government’s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available. 2. The Government 41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994.", "It had been compatible with the applicants’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof. 42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State’s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues.", "It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records. 43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings.", "B. The Court’s assessment 44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005‑X, with further reference).", "45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one’s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160). 46.", "The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one’s health and well-being resulting from environmental pollution (Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998‑I), information which would permit them to assess any risk resulting from their participation in nuclear tests (McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998‑III) or tests involving exposure to toxic chemicals (Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references). Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002).", "47. Bearing in mind that the exercise of the right under Article 8 to respect for one’s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007‑... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files. 48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject.", "However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility. 49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.", "50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status. 51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance.", "As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 27 above). 52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof. 53.", "The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants’ right to obtain copies of their medical records. 54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents. 55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no.", "20511/03, § 38, 17 July 2008). 56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96). 57.", "The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration. 58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants’ private and family lives in breach of Article 8 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...” 60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs.", "61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party’s costs if the courts dismissed their action. 62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings.", "They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants’ medical records. 63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate.", "The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue. 64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court.", "Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). 65. The Court accepts the applicants’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment. 66.", "The protection of a person’s rights under Article 6 requires, in the Court’s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification. 67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases.", "68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court. 69. There has therefore been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of 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.” 71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.", "A. Alleged violation of Article 13 in conjunction with Article 8 72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland (dec.), no. 7793/95, 10 June 2003).", "It follows from the terms of the applicants’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints. In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention. B. Alleged violation of Article 13 in conjunction with Article 6 § 1 73.", "In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106). IV. 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 eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected. 76. The Government considered that claim to be excessive.", "77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3,500 in respect of non-pecuniary damage. B. Costs and expenses 78.", "The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court. 79. The Government considered that the claims relating to the applicants’ representation and the administrative costs were overstated.", "They had no objection to the sums claimed in respect of translation costs and international postage. 80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no.", "33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII). 81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants. C. Default interest 82.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been a violation of Article 8 of the Convention; 2. Holds by six votes to one[1] that there has been a violation of Article 6 § 1 of the Convention; 3. Holds unanimously that there has been no violation of Article 13 in conjunction with Article 8 of the Convention; 4.", "Holds unanimously that a separate examination of the complaint under Article 13 in conjunction with Article 6 § 1 of the Convention is not called for; 5. Holds unanimously (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 3,500 (three thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 8,000 (eight thousand euros) jointly to all 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 unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Šikuta is annexed to this judgment.", "N.B.T.L.E. PARTLY DISSENTING OPINION OF JUDGE ŠIKUTA To my regret, I cannot agree with the majority’s conclusion that there has been a violation of Article 6 of the Convention, for the following reasons. Since the Chamber was unanimous in finding the violation of Article 8 of the Convention, which was the real substance of the case, I was of the opinion that there was no need to examine the complaint under Article 6 of the Convention. The national courts at two levels of jurisdiction, in two different sets of civil proceedings, granted the applicants’ claim and ordered the J.A. Reiman University Hospital in Prešov and the Health Care Centre in Krompachy to permit all the applicants and their representatives to consult their medical records and to make handwritten excerpts thereof.", "As regards access to medical records, that was the maximum that was allowed and permitted according to the relevant national legislation in force at the material time. Accordingly, the courts dismissed their request to make a photocopy of the medical documents. The fact that the Court has found a violation of Article 8 of the Convention because the applicants had no possibility of making copies of their medical records does not mean that they had no access to a court. I do agree that in such a situation the applicants had only a limited amount of evidence and information in their hands since they were not allowed to make copies of medical records. I do not agree that this amount of information in their possession was not sufficient to assess the position in their cases and that that amount of information was not sufficient to initiate civil proceedings if appropriate.", "I do not agree that the unavailability of copies of the records barred the applicants from starting a lawsuit on the basis of the information obtained in the course of the consultation of their files. Firstly: If additional information to that in the possession of the applicants were needed in the course of civil proceedings, a national court, according to the standard practice, would appoint an expert, whose role would be to study originals of the medical records, to examine the state of health of the applicants and to reply to qualified medical questions put forward by the court dealing with the case. This procedure would come into play regardless of whether the applicants had available copies of all medical records, and regardless of whether the applicants also attached to the lawsuit a private expert opinion prepared by another expert upon their request. The national court would be obliged, after the commencement of the proceedings, to appoint of its own motion another independent expert from the List of Court Experts, who would have access to all originals of medical records in line with Section 16 of the Health Care Act 1994 (Zákon o zdravotnej starostlivosti č. 277/1994 Z.z.).", "Secondly: The applicants did not even try to bring such civil proceedings. Therefore the arguments of the applicants to the effect, that the lack of copies was very important for potential civil litigation concerning any possible claims for damages, for discharge of the burden of proof and for the assessment of the prospects of success of any future civil actions are of a hypothetical and speculative nature. Here I fully agree with the Constitutional Court’s conclusions. In addition, if the applicants were unable to support their lawsuit sufficiently with more evidence because of statutory restrictions, the courts would not reject such lawsuit and would not disadvantage the applicants as regards their burden of proof, but would order both health institutions – the University Hospital in Prešov and the Health Care Centre in Krompachy, to disclose all originals or relevant excerpts of the applicants’ medical records. Thirdly: Such broad and wide interpretation of the right of access to a court goes far beyond the Court’s established case-law.", "In the case of McGinley and Egan v. The United Kingdom (judgment of 9 June 1998), which is to a certain extent the most similar to this case, the Court did not find a violation of Article 6 § 1 of the Convention, on the basis that a procedure was provided for the disclosure of documents which the applicants failed to utilise, and under such circumstances it could not be said that the State denied the applicants effective access to the PAT (Pension Appeal Tribunal). We now have the same situation in the instant case; the applicants could initiate civil proceedings, in the course of which all relevant medical records of the applicants would be disclosed according to Section 16 of the 1994 Health Care Act. The applicants did not bring any such proceedings and they therefore failed to utilise an existing available procedure. In conclusion, I am of the opinion, that the applicants in the instant case did have a limited amount of information in their hands since they were not allowed to make copies of all medical records, but they were not limited to such an extent and in such a manner, as would bar their effective access to a court and would violate Article 6 § 1 of the Convention. [1].", "Rectified on 24 August 2011. The wording “Holds by a majority” was replaced by “Holds by six votes to one”." ]
[ "SECOND SECTION CASE OF COX v. TURKEY (Application no. 2933/03) JUDGMENT STRASBOURG 20 May 2010 FINAL 20/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cox v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 29 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "2933/03) 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 national of the United States of America, Ms Norma Jeanne Cox (“the applicant”), on 28 August 2002. 2. The applicant was represented by Mr Selim Baktıaya, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, that she had been deported from Turkey and a ban had been imposed on her re-entry on account of opinions she had expressed. 4. On 8 February 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). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1944 and lives in Philadelphia, the United States. 6. The applicant lived and studied in Turkey at various times from 1972 onwards. In 1983 she received a postgraduate degree from Boğaziçi University in Istanbul.", "Between 1983 and 1984 she worked as a lecturer at Istanbul University. In 1984 she started working as a lecturer at the Middle East Technical University (Ortadoğu Teknik Üniversitesi) in the city of Gaziantep in southern Turkey. 7. On 23 September 1985 the deputy governor of Gaziantep sent a letter to the Ministry of the Interior, recommending that the applicant be expelled from Turkey on account of her “harmful activities”. According to the deputy governor, the applicant had said to her students and colleagues at the university that the Turks had expelled the Armenians and had massacred them.", "Moreover, the Turks had assimilated the Kurds and exploited their culture. In January 1986 the applicant's contract of employment was terminated by the university. On 4 April 1986 the National Intelligence Service also recommended that the applicant be expelled from Turkey. On 12 August 1986 the Ministry of the Interior ordered that the applicant be expelled and a ban imposed on her return. The applicant left Turkey in 1986.", "8. At some stage the applicant returned to Turkey, where she was arrested in 1989 while distributing leaflets protesting against the film The Last Temptation of Christ. The applicant was subsequently expelled from Turkey. 9. At the time, and following the applicant's expulsion from Turkey, the Ministry of the Interior allegedly compiled classified reports about the applicant containing phrases such as “[the applicant, who] works as a missionary in our country” and “[the applicant, who] was put under surveillance following her attendance at a service in a Protestant church in Turkey”.", "The applicant did not submit a copy of these reports to the Court. 10. At some stage in 1996 the applicant entered Turkey again. On 31 August 1996, while she was leaving Turkey, an entry was made in her passport by the authorities, stating that she was banned from entering Turkey. She was urged by the authorities not to return.", "11. On 14 October 1996 the applicant, with the assistance of her lawyer in Turkey, brought proceedings against the Ministry of the Interior before the Ankara Administrative Court and asked for the ban to be lifted. She argued that the decision to ban her from entering Turkey had been taken on the basis of a decision adopted by the Ministry of the Interior on 12 August 1986. She maintained that the reason for the decision had been her religion. This, she argued, had been in breach of domestic legislation, the Constitution and international conventions, including Article 9 of the European Convention on Human Rights.", "12. The Ministry of the Interior submitted written observations to the Ankara Administrative Court on 25 December 1996, stating that, while she was teaching at the university in Gaziantep, the applicant had had discussions with her students and colleagues about Turks assimilating Kurds and Armenians, and Turks forcing Armenians out of the country and committing genocide. On account of her separatist activities against the national security of Turkey, her name had been included in the Ministry's list of persons whose entry into Turkey was prohibited. Her contract of employment had subsequently been annulled and she had been expelled on the advice of the National Intelligence Service and in accordance with section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683).", "She had also been banned from re-entering Turkey, pursuant to section 8(4) and (5) of the Passport Act (no. 5682). 13. The Ministry maintained that the applicant had been expelled and banned from entering Turkey on account of her separatist activities, which were incompatible with national security, and not because of her religious opinions or for disseminating Christian propaganda. 14.", "The applicant submitted her written observations in response to those of the Ministry of the Interior, arguing that the Ministry's allegations against her had not been proven. Even assuming that she had said those things at the university, she had remained within the permissible limits of criticism. Furthermore, she had never been prosecuted for having expressed those opinions. The action taken against her by the Ministry had therefore been devoid of any legal basis. 15.", "On 17 October 1997 the Ankara Administrative Court rejected the applicant's claim. It considered that the opinions expressed by the applicant at the university in Gaziantep had been on issues followed closely by society because those issues concerned terrorism, from which the country had been suffering. Such opinions were, without any doubt, incompatible with national security and also with political imperatives. The Ministry's decision had been in accordance with the applicable legislation and the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights and freedoms. 16.", "The applicant appealed. She referred to the above-mentioned reports allegedly detailing her religious activities, and maintained that she had been subjected to unjust treatment because of her religion. 17. The appeal was dismissed by the Supreme Administrative Court on 20 January 2000. 18.", "The applicant requested a rectification of the decision of 17 October 1997. She argued, inter alia, that the entire case had revolved around her having expressed opinions on certain subjects. The Ministry's action and the courts' decisions had restricted her freedom of expression. She added that she still believed that it was possible to rectify this at the national level before she applied to international courts. 19.", "Her request for rectification was rejected by the Supreme Administrative Court in a decision of 26 December 2001, which was communicated to the applicant on 5 March 2002. II. RELEVANT DOMESTIC LAW 20. By section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683), aliens whose presence in Turkey is deemed by the Ministry of the Interior to be contrary to national security and to political and administrative imperatives are required to leave the country within a given period.", "If they fail to leave the country at the end of that period, they may be deported. 21. By section 8(4) and (5) of the Passport Act (Law no. 5682), persons who have been deported from Turkey and who are refused permission to return, as well as persons who are deemed to have entered the country with the aim of harming, or of assisting those whose aim is to harm the public order and the security of the Turkish Republic, will not be allowed to enter the country. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE CONVENTION 22. The applicant alleged that she had been subjected to unjustified treatment on account of her religion, in violation of Article 9 of the Convention. In support of her allegation she submitted that she had been expelled from Turkey after having protested against the film The Last Temptation of Christ and after her protests had been given media coverage. Under the same Article, she further alleged that expressing opinions on Kurdish and Armenian issues at a university, where freedom of expression should be unlimited, could not be used as a justification for any sanctions, such as the ban on her re-entry into Turkey. 23.", "Having regard to the applicant's failure to substantiate her allegations under Article 9 of the Convention by failing to submit to the Court a copy of the reports mentioned by her in her application form (see paragraph 9 above), and having further regard to the reasons for the re-entry ban imposed upon her which she challenged before the national courts, the Court considers it appropriate to examine these complaints solely from the standpoint of Article 10 of the Convention, which insofar 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, [or] for the prevention of disorder or crime, ...” 24.", "The Government contested the applicant's arguments. A. Admissibility 25. The Court considers that it may only examine the applicant's case insofar as it is related to events and procedures from 1996 onwards (see paragraphs 10‑19 above). It is prevented from considering earlier incidents, except as background information, by virtue of the operation of the six-month rule laid down in Article 35 § 1 of the Convention. 26.", "However, the Court finds that the applicant's Article 10 complaint concerning post 1996 events 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.", "Existence of an interference with the applicant's right to freedom of expression 27. The Court observes that the applicant did not complain that she was not allowed to stay or live in Turkey but rather that her previously expressed opinions had prompted the Turkish authorities to impose a permanent ban on her re-entry. The Court reiterates in this connection that, whereas the right of a foreigner to enter or remain in a country is not as such guaranteed by the Convention, immigration controls must be exercised consistently with Convention obligations (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, §§ 59-60, Series A no. 94). Thus, in the context of freedom of religion, in its judgment in the case of Perry v. Latvia, the Court held that the refusal to issue an Evangelical pastor with a permanent residence permit “for religious activities”, a decision which had been grounded on national-security considerations, amounted to an interference with that applicant's right to freedom of religion (no.", "30273/03, §§ 10 and 56, 8 November 2007). 28. In its decision in the case of Omkarananda and the Divine Light Zentrum v. Switzerland, the Commission found in the context of deportation that “deportation does not ... as such constitute an interference with the rights guaranteed by Article 9, unless it can be established that the measure was designed to repress the exercise of such rights and stifle the spreading of the religion or philosophy of the followers” (no. 8118/77, Commission decision of 19 March 1981, Decisions and Reports (DR) 25, p. 118). Similarly, in Nolan and K. v. Russia the Court examined a denial of re-entry in conjunction with the grounds of expulsion in the context of freedom of religion (no.", "2512/04, §§ 58-79, 12 February 2009). 29. The considerations applicable in the context of freedom of religion are also relevant in the context of freedom of expression. For example, in the case of Piermont v. France the Court held that the expulsion and ban imposed on a German national's entry to French Polynesia, on account of that applicant's statements attacking French policies, amounted to an interference under Article 10 of the Convention (27 April 1995, §§ 51‑53, Series A no. 314).", "More recently, the Court examined a ban imposed by the Portuguese authorities on a ship whose crew was about to launch a campaign in Portugal in favour of the decriminalisation of abortion. The ban which effectively prevented the ship from entering Portuguese territorial waters was held by the Court to amount to an interference with the applicants' right to freedom of expression (see Women On Waves and Others v. Portugal, no. 31276/05, § 30, ECHR 2009‑... (extracts)). 30. In the present case the applicant was banned from re-entering Turkey on account of the contents of her previous conversations with students and colleagues.", "Despite the deportation order issued in 1986, she was able to re-enter Turkey several times after that. However, when she became aware of the existence of the ban, which had been stamped in her passport when leaving Turkey on 31 August 1996, she applied for its revocation. Her request was denied by the administrative courts and the ban is still valid. She has been unable to return to Turkey since then. 31.", "The Court considers that the ban on the applicant's re-entry is materially related to her right to freedom of expression because it disregards the fact that Article 10 rights are enshrined “regardless of frontiers” and that no distinction can be drawn between the protected freedom of expression of nationals and that of foreigners. This principle implies that the Contracting States may only restrict information received from abroad within the confines of the justifications set out in Article 10 § 2 (Autronic AG v. Switzerland, 22 May 1990, §§ 50 and 52, Series A no. 178). The scope of Article 10 of the Convention includes the right to impart information. The applicant is precluded from re-entering on grounds of her past opinions and, as a result, is no longer able to impart information and ideas within that country.", "In light of the foregoing, the Court concludes that there has been an interference with the applicant's rights guaranteed by Article 10 of the Convention. The Court will thus proceed to examine whether that interference was justified under the second paragraph of that provision. 2. “Prescribed by law” 32. The Government submitted that the applicant had been denied re-entry into Turkey pursuant to section 8(4) and (5) of the Passport Act (Law no.", "5682). 33. The Court observes that the applicant was indeed banned from re-entry on the basis of this legislation (see paragraphs 12 and 21 above). In this connection, the Court reiterates that 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 or her conduct; the individual 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 (see, inter alia, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑XI).", "Nevertheless, having regard to its conclusion below (see paragraph 45), the Court does not deem it necessary to ascertain whether this legislation had the quality of “law” within the meaning of this provision. 3. “Legitimate aim” 34. The Government submitted that the interference had been necessary in the interests of national security, territorial integrity, public safety and the prevention of disorder or crime. 35.", "The Court is prepared to accept that the interference pursued one or more of the legitimate aims cited by the Government. 4. “Necessary in a democratic society” 36. The applicant submitted that freedom to express opinions at a university should be unlimited, and argued that sanctioning her for having discussions on minority related issues had been in breach of the Convention. 37.", "The Government were of the view that, in placing a ban on the applicant's re-entry, the national authorities had remained within their margin of appreciation. The interference in question had thus been necessary in a democratic society. 38. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” which 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. It is also to be reiterated at this juncture that such exceptions and restrictions call for the most careful scrutiny on the part of the Court (see, inter alia, Editions Plon v. France, no. 58148/00, § 42, ECHR 2004‑IV). 39.", "Moreover, in order for an interference to be compatible with the Convention, the interference must not only be prescribed by law and pursue one or more of the legitimate aims set out in the second paragraph of Article 10 of the Convention, but it must also be “necessary in a democratic society” to achieve that aim or aims. In this connection the Court has consistently held that Contracting States enjoy a certain margin of appreciation in assessing the need for interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the case. Where, as in the instant case, there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the importance of the rights in question; the importance of these rights has been stressed by the Court many times. The necessity for restricting them must be convincingly established (see Autronic AG, cited above, § 61, and the case cited therein). 40.", "In exercising its supervisory function, the Court has to look at the interference complained of in the light of the case as a whole. In particular, it 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 of the Convention (Feldek v. Slovakia, no. 29032/95, § 73, ECHR 2001‑VIII). 41.", "As noted above, a ban was imposed on the applicant's re-entry into Turkey for having previously expressed controversial opinions concerning, inter alia, Kurdish and Armenian issues. The Court observes that there was never any suggestion that she had committed any offence by voicing such opinions and, indeed, no criminal prosecution was ever brought against her. 42. The opinions expressed by the applicant related to topics which continue to be the subject of heated debate, not only within Turkey but also in the international arena, with all those involved voicing their views and counter-views. The Court is aware that the opinions expressed on these issues by one side may sometime offend the other side but, as pointed out above, a democratic society requires tolerance and broadmindedness in the face of controversial expressions.", "43. When the interference with a right under the Convention takes the form of a denial of re-entry to a country, the Court is empowered to examine the grounds for that ban (cf. mutatis mutandis, Nolan and K., cited above, §§ 62-63). In the present case the Court is unable to glean from the reasoning of the Ankara Administrative Court (see paragraph 15 above) how and why exactly the applicant's views were deemed harmful to the national security of Turkey. Moreover, given that the sole reason for her inability to return to Turkey was based on her previously expressed opinions, the Court is unable to agree with the Ankara Administrative Court that “the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights and freedoms”.", "As the Court has already found, the purported national security grounds for the denial of the applicant's re-entry indeed concerned the applicant's freedom of expression. 44. In light of the foregoing, the Court concludes that the reasons adduced by the domestic courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant's right to freedom of expression. Having regard to the fact that the applicant has not been shown to have been engaged in any activities which could clearly be seen as harmful to the State, the Court considers it established that the ban on the applicant's re-entry into Turkey was designed to repress the exercise of her freedom of expression and stifle the spreading of ideas (see, mutatis mutandis, Nolan and K., cited above, § 66; and Omkarananda and the Divine Light Zentrum, cited above). 45.", "It thus follows that the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. There has therefore been a violation of Article 10 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. The applicant also complained that the proceedings had not been completed within a reasonable time, contrary to the requirement of Article 6 of the Convention.", "Relying on Article 7 of the Convention, she complained that she had been expelled and banned from re-entering Turkey on account of her religious activities. Relying on Article 14 of the Convention, the applicant further alleged that she had been discriminated against because, although persons who disseminated Islamic propaganda were not subjected to any sanctions in Turkey but were supported by the State, those who disseminated Christian propaganda were subjected to physical sanctions. 47. She further alleged that the Supreme Administrative Court had interpreted the domestic legislation to mean that expressing opinions which were incompatible with the prevailing political ideas was against national security. Such a restriction on freedom of expression was not compatible with Article 17 of the Convention.", "Finally, the applicant argued that her expulsion from Turkey had been in violation of Article 1 of Protocol No. 7 to the Convention. 48. The Court has examined these complaints. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 submitted that, as a result of her deportation, she had had to leave Turkey and had lost her job and income. She claimed 100,000 euros (EUR) in respect of pecuniary damage on that account. She also claimed EUR 100,000 in respect of non-pecuniary damage. 51. The Government considered the sums claimed to be exaggerated and unsupported.", "52. The Court observes that it has only examined the merits of the complaint about freedom of expression since 1996, in respect of which the facts relating to the applicant's employment, dismissal and deportation from Turkey were excluded (paragraphs 25-26 above). 53. In these circumstances, the Court does not discern any causal link between the violation found and the pecuniary damage claimed by the applicant on account of her loss of employment in Turkey; it therefore dismisses this claim. However, deciding on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage.", "B. Costs and expenses 54. The applicant also claimed EUR 20,000 for costs and expenses, but did not submit any bills or any other information quantifying this claim. In the absence of such information and substantiation, the Court makes no award in this respect. C. Default interest 55.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 10 of the Convention, as of 1996, admissible and the remainder of the application inadmissible; 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, EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the United States 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 20 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]
[ "THIRD SECTION CASE OF YEGOROV AND OTHERS v. RUSSIA (Applications nos. 32795/16 and 7 others – see appended list) JUDGMENT STRASBOURG 12 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Yegorov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 21 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "Some applicants also raised complaints under Article 13 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.", "The applicants complained principally of the inadequate conditions of their detention in the detention facilities and during the periods indicated in the appended table. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36‑40, 7 April 2005). 8.", "In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention in the detention facilities and during the periods, indicated in the appended table, were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. Some applicants submitted complaints which also raised issues under Article 13 of the Convention, in accordance with the relevant well‑established case-law of the Court (see appended table).", "These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin v. Russia, no. 5993/08, §§ 38-45, 28 November 2013. IV.", "REMAINING COMPLAINTS 12. In application no. 33543/16, the applicant also complained under Article 3 of the Convention about the conditions of his detention during the period preceding 28 February 2014. However, the detention period does not form a continuous situation as it was interrupted by the applicant’s prolonged stay in another facility of which he did not complain (see Gorbulya v. Russia, no. 31535/09, § 47, 6 March 2014).", "Therefore, the Court finds this complaint about the conditions of his detention before 28 February 2014 to be belated (see Eskerkhanov and Others v. Russia, nos. 18496/16 and 2 others, § 31, 25 July 2017), given that the applicant only lodged his application with the Court on 15 May 2016. 13. It follows that this part of application no. 33543/16 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014 and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table.", "16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention, as well as other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application no.", "33543/16 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 12 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no.Date of introduction Applicant name Date of birth Facility Start and end date Duration Number of inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 32795/16 18/05/2016 Andrey Vladimirovich Yegorov 25/12/1987 IK-8 Ukhta, Komi 07/06/2014 to 22/11/2015 1 year(s) and 5 month(s) and 16 day(s) 1.1 m² 1 toilet(s) overcrowding, mouldy or dirty cell, lack of fresh air, lack of or inadequate hygienic facilities, lack or insufficient quantity of food, poor quality of food, lack of privacy for toilet, no or restricted access to shower, lack or inadequate furniture, lack of or poor quality of bedding and bed linen Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention 5,000 33543/16 15/05/2016 Mikhail Yuryevich Mineyev 01/11/1975 IK-7 Kostroma region 28/02/2014 to 25/02/2016 1 year(s) and 11 month(s) and 29 day(s) 120 inmate(s) 1 m² 3 toilet(s) overcrowding, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, poor quality of potable water, poor quality of food, lack of or insufficient natural light 5,000 44913/16 22/07/2016 Sergey Valentinovich Varentsov 26/02/1969 IK-1 Kostromskaya Region 18/08/2015 to 24/05/2016 9 month(s) and 7 day(s) 120 inmate(s) 1.6 m² 3 toilet(s) no or restricted access to running water, poor quality of food, lack of or insufficient electric light, lack of fresh air, infestation of cell with insects/rodents, lack of privacy for toilet, sharing cells with inmates infected with contagious disease, mouldy or dirty cell 4,300 45190/16 30/06/2016 Valeriy Pavlovich Shmelev 26/05/1960 IK-25 Kirovskiy Region 09/03/2016 to 30/03/2016 22 day(s) 8 inmate(s) 2 m² overcrowding, lack of or insufficient natural light, lack of fresh air, passive smoking, lack or insufficient quantity of food, lack or inadequate furniture, inadequate temperature, no or restricted access to shower, no or restricted access to warm water, lack of or insufficient physical exercise in fresh air Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention 1,000 64785/16 28/10/2016 Yuriy Alekseyevich Belskiy 06/10/1970 IK-11 Nizhniy Novgorod Region 27/01/2013 to 26/07/2016 3 year(s) and 6 month(s) 140 inmate(s) 2 m² 6 toilet(s) lack of or inadequate hygienic facilities, no or restricted access to warm water, lack or insufficient quantity of food, inadequate clothing 5,000 65913/16 08/11/2016 Rustem Mintagirovich Ganiyev 20/03/1983 IK-11 Nizhniy Novgorod Region 04/03/2013 to 18/10/2016 3 year(s) and 7 month(s) and 15 day(s) 143 inmate(s) 1.5-1.6 m² 9 toilet(s) overcrowding, lack of or restricted access to leisure or educational activities, bunk beds, lack of fresh air, no or restricted access to toilet, no or restricted access to warm water, poor quality of food, infestation of cell with insects/rodents 5,000 76874/16 21/11/2016 Yevgeniy Sergeyevich Kulik 12/08/1982 IK-29 Sorda, Kirov Region 15/06/2015 pending More than 2 year(s) and 1 month(s) and 11 day(s) lack of fresh air, poor quality of food, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, bunk beds, lack of or insufficient electric light Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention 7,300 76903/16 28/11/2016 Sergey Sergeyevich Ryabov 11/08/1980 IK-11 Bor, Nizhniy Novgorod Region 03/12/2012 pending More than 4 year(s) and 7 month(s) and 23 day(s) 130 inmate(s) 1.5 m² 6 toilet(s) overcrowding, lack or inadequate furniture, infestation of cell with insects/rodents, no or restricted access to warm water, lack of or insufficient electric light, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, poor quality of food Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention 7,000 [1]. Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF SANGARIYEVA AND OTHERS v. RUSSIA (Application no. 1839/04) JUDGMENT STRASBOURG 29 May 2008 FINAL 01/12/2008 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 Sangariyeva 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 6 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1839/04) 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 nine Russian nationals (“the applicants”), on 5 January 2004. 2. The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 1 September 2005 the President of the Chamber decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application. 4. On 7 June 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicants are: 1) Ms Aset Alikovna Sangariyeva, who was born in 1974; 2) Mr Abubakar Khamidovich (also spelled Khamitovich) Gaytayev, who was born in 1971; 3) Mr Adam Khamidovich (also spelled Khamitovich) Gaytayev, who was born in 1977; 4) Mr Israil Khamitovich Gaytayev, who was born in 1964; 5) Ms Khaza Gaytayeva, who was born in 1939; 6) Mr Mansur Musayevich Gaytayev, who was born in 1995; 7) Mr Muslim Musayevich Gaytayev, who was born in 1997; 8) Ms Makka Musayevna Gaytayeva, who was born in 2001; 9) Ms Roza Musayevna Sangariyeva, who was born in 2003. 7.", "The first applicant was married to Mr Musa Gaytayev, who was born in 1972. The fifth applicant is the mother of Musa Gaytayev and of the second, third and fourth applicants. The first applicant and Musa Gaytayev are the parents of the sixth, seventh, eighth and ninth applicants. 8. In 1999-2000 Musa Gaytayev worked as an ambulance driver for a state hospital and the Red Cross in Alkhan-Kala, Chechnya.", "In 2000 he was arrested in company with all the medical personnel of the Red Cross working in Alkhan-Kala. Between April and June 2000 he was detained in Chernokozovo and other detention facilities. At some point he was released on the basis of an amnesty law but was not given his identity papers back. 9. At the material time Musa Gaytayev lived with his family in a house which was a part of the family household located at 11 Svobody Street in the village of Martan-Chu, Urus-Martan District in the Chechen Republic.", "He worked as a carpenter in a construction yard run by the fourth applicant. By 2003 he was due to be issued with new identity papers by the local department of the interior. A. Disappearance of Musa Gaytayev 1. The applicants’ account 10.", "On the night of 23 to 24 January 2003 the applicants and Musa Gaytayev were sleeping at home. At about 2 a.m. around twenty men parked two “Ural” trucks about 150 metres away and came to the house on foot. They were all in camouflage uniform and some were also wearing balaclava masks; they were armed with machine guns. The applicants inferred that the men belonged to the Russian military. The servicemen knocked at the door and demanded access to carry out a check.", "As soon as the applicants opened the door, the men rushed into the rooms without identifying themselves or giving any explanations and forced all the adult male members of the Gaytayev household outside, into the courtyard. The second applicant was ordered to lean against the wall while standing barefoot in the snow; the third applicant was told to lie down. Their documents were checked; some of them were seized, including the identity papers of the second and third applicants and their vehicle documents. At the same time the servicemen apprehended Musa Gaytayev and, pushing his relatives aside, took him away. He was barefoot, wearing a leather jacket and sports trousers.", "When the servicemen were leaving, the third applicant asked them to give his documents back, but was hit with the butt of a gun for his pains. 11. On the same night another of the applicants’ relatives, Magomed Gaytayev, a cousin of Musa Gaytayev, was also apprehended. At the material time he worked as a police officer in Gudermes and was in possession of a duty pistol and a machine gun. Although he produced an official authorisation for the weapons to the servicemen, they seized both the pistol and the machine gun.", "12. The fourth applicant, who slept in the building across the courtyard, rushed out on hearing the noise to see what was happening, just in time to see the servicemen loading Musa Gaytayev into one of the trucks. He also saw their cousin, Magomed Gaytayev, being loaded into another truck. The fourth applicant ran after the trucks for some distance and saw them leaving in the direction of Urus-Martan and passing the military checkpoint without being stopped. The checkpoint was located about 500 metres from the applicants’ house and the fourth applicant could see the lights of torches used by the servicemen on duty at the check-point.", "13. Magomed Gaytayev was released the same day, and gave the applicants the following account of his and Musa Gaytayev’s arrest. The two men had been blindfolded by sacks pulled over their heads and loaded into separate trucks. When they stopped he had been pulled down from the truck and the sack had fallen from his head. At that point he had recognised the premises of the Urus-Martan military commander’s office.", "He, but not Musa Gaytayev, had been put back into one the trucks and taken towards the village of Gekhi in Urus-Martan District. On a country road strong alcohol had been forced down his throat and he had been left on the side of the road. He had returned home in the morning of 24 January 2003 under the influence of alcohol, his face bruised from having been hit with a machine-gun butt. After the events of that night Magomed Gaytayev had for safety reasons moved from his home to his office in Gudermes and had been living there since. On an unspecified date servicemen of the Urus-Martan district department of the interior (“the ROVD”) had returned his duty pistol.", "14. Musa Gaytayev has been missing since his apprehension on the night of 23-24 January 2003. 2. The Government’s account 15. The Government submitted that the Prosecutor General’s Office had established that at about 2 a.m. on 24 January 2003 unidentified persons had kidnapped Musa Gaytayev in the village of Martan-Chu, Urus-Martan District in the Chechen Republic, and that his whereabouts had not been established.", "B. Search for Musa Gaytayev and the investigation 1. The applicants’ account 16. In the morning of 24 January 2003 the fourth applicant went to the local police station, the local administration, the prosecutor’s office and the military commander’s office to enquire about his brother. However, no officials acknowledged detaining or holding Musa Gaytayev, and no information was provided on his whereabouts and fate.", "17. The applicants also wrote numerous letters to various State officials, copies of which, together with the replies from official bodies, have been provided to the Court. Their submissions concerning the search for Musa Gaytayev may be summarised as follows. 18. On 24 January 2003 the fourth applicant in person filed written complaints with the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the ROVD.", "He complained about Musa Gaytayev’s abduction and requested that his whereabouts be established and the persons responsible for his detention identified. 19. On 28 January 2003 the fifth applicant made a like complaint to the district prosecutor’s office. 20. On 29 January 2003 the first applicant also complained to the district prosecutor’s office about the incident.", "21. On an unspecified date the fifth applicant wrote to the Special Envoy of the Russian President for Rights and Freedoms in Chechnya complaining about the forced disappearance of her son. On 12 February 2003 her letter was forwarded to the district prosecutor’s office for action. 22. On 14 February 2003 the district prosecutor’s office informed the fifth applicant of the institution of criminal proceedings in respect of the kidnapping of Musa Gaytayev.", "23. On 16 February 2003 the first applicant was granted victim status in the proceedings. 24. On 1 April 2003 the first applicant filed requests with the district prosecutor’s office, the Urus-Martan military commander’s office and the head of the ROVD. She repeated the complaints about the forced disappearance of her husband and requested an effective investigation into the incident.", "25. On 16 April 2003 the district prosecutor’s office informed the first applicant that the investigation into Musa Gaytayev’s kidnapping had been suspended on 14 April 2003. 26. On 4 June 2003 the SRJI on behalf of the applicants requested the district prosecutor’s office to update them on progress in the investigation. No reply was received.", "27. On 13 July 2003 the Department of the Federal Security Service (“the FSB”) for the Chechen Republic informed the first applicant that the FSB had had no information on her husband’s whereabouts. It stated that no arrest warrant had been issued against him and he was not suspected of any unlawful activities; her letter had been forwarded to the military prosecutor of the United Group Alignment for the Northern Caucasus. 28. On 28 July 2003 the first applicant complained to the Prosecutor’s Office of the Chechen Republic of the failure on the part of the district prosecutor’s office to conduct an effective investigation.", "She requested that the criminal proceedings be resumed and measures taken to establish the whereabouts of Musa Gaytayev and to find those responsible for his kidnapping. She also requested that, if necessary, the case be transferred to a military prosecutor’s office for further investigation. 29. On 2 September 2003 the SRJI on behalf of the applicants wrote to the district prosecutor’s office requesting an update on the criminal proceedings and putting specific questions about the measures taken to investigate the kidnapping. In particular, they asked whether any of the eye-witnesses to Musa Gaytayev’s abduction had been questioned, such as family members, neighbours or fellow villagers; whether any servicemen of the Urus-Martan military commander’s office had been questioned; and whether any servicemen on duty at the checkpoint between Martan-Chu and Urus-Martan on the night of 23 to 24 January 2003 had been questioned.", "No reply was received to that letter. 30. On 5 September 2003 the military prosecutor’s office of military unit no. 20102 informed the first applicant that further to her request a number of enquiries concerning the security raids of 23 to 24 January 2003 had been sent to the official “power structures” (силовые структуры) of the Urus-Martan District. She was informed that Musa Gaytayev had not been arrested during those raids and that the involvement of the federal servicemen in the kidnapping of her husband had not been confirmed.", "Her request was forwarded to the Urus-Martan military commander’s office. 31. On 22 June 2005 the SRJI on behalf of the first applicant requested the district prosecutor’s office to update them on progress in the investigation. On 8 July 2005 the district prosecutor’s office replied that investigative measures were being taken to solve the crime. 2.", "Information submitted by the Government 32. On 13 February 2003 the district prosecutor’s office opened criminal investigation file no. 34018 into the kidnapping of Musa Gaytayev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 33. On 16 February 2003 the first applicant was granted victim status.", "She was repeatedly questioned and stated that on the night of 23 to 24 January 2003 unknown masked persons armed with machine guns had entered her family home, kidnapped Musa Gaytayev and taken his brothers’ documents. She had also seen Magomed Gaytayev being taken away. 34. On 18 February 2003 the second, third and fifth applicants were also questioned and made statements similar to that of the first applicant. 35.", "On 18 February 2003 the district prosecutor’s office questioned Magomed Gaytayev, who stated that at about 2 a.m. on 24 January 2003 armed and masked men wearing camouflage uniforms with no insignia had burst into his house and ordered him to lie down on the floor. They had taken his duty pistol and machine gun, told him to get dressed, put a hood over his head and placed him in a vehicle. After a ten-minute ride they had put him face down on the ground, tied his arms behind his back with a piece of wire and left. He did not know the men’s identities. 36.", "The fourth applicant and Musa Gaytayev’s father were also questioned and had made statements identical to those mentioned above. 37. In order to verify the hypothesis of the involvement of the security forces in the kidnapping, the district prosecutor’s office repeatedly requested information from State agencies and took other investigative measures to solve the crime. 38. The head of the Urus-Martan District Department of the FSB informed the district prosecutor’s office on 18 February 2004 that his subordinates had not apprehended Musa Gaytayev and that no criminal proceedings had been instituted against him.", "39. The Urus-Martan military commander’s office, the heads of district departments of the interior and various prosecutors’ offices replied to the queries of the district prosecutor’s office that no special operation had been carried out in respect of Musa Gaytayev, that the latter had not been apprehended by servicemen from their agencies or held in any temporary detention facility. 40. In the course of the investigation it was established that the law-enforcement agencies of the Chechen Republic had not instituted any criminal proceedings against Musa Gaytayev. His abductors had not been identified and the hypothesis of the involvement of special forces was not proved.", "41. On 14 April 2003 the district prosecutor’s office suspended the investigation for failure to identify those responsible. 42. On 25 April 2005 the district prosecutor’s office quashed the decision of 14 April 2003 and resumed the investigation. On 26 April 2005 they notified the first applicant accordingly.", "43. The investigation in case no. 34018 was several times suspended for failure to identify those responsible and then resumed. The first applicant was promptly informed of all decisions. 44.", "On 21 July 2006 the investigation was once again resumed. It was being supervised by the Prosecutor General’s Office. 45. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34018, providing only copies of decisions to suspend and resume the investigation and to grant victim status, and of several notifications to the relatives of the suspension and resumption of the proceedings.", "Relying on 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. C. Court proceedings against the investigators 46. On 15 February 2005 the SRJI complained on behalf of the first applicant to the Urus-Martan Town Court (“the town court”) of the investigators’ failure to carry out an effective investigation into Musa Gaytayev’s disappearance. In particular, it was submitted that the district prosecutor’s office had not questioned all members of the Gaytayev family and their neighbours; or questioned servicemen of the Urus-Martan military commander’s office and servicemen on duty at the check-point on the night of the abduction. Furthermore, the district prosecutor’s office had not updated the first applicant on progress in the investigation.", "The town court was also requested to take measures to ensure the safety of the Gaytayev family. 47. On 25 March 2005 the town court found that the district prosecutor’s office had not taken all requisite investigative measures to solve the crime. It upheld the first applicant’s complaint regarding the effectiveness of the investigation and ordered the district prosecutor’s office to carry out a comprehensive investigation in criminal case no. 34018.", "It dismissed the request to ensure the Gaytayevs’ safety as unsubstantiated. II. RELEVANT DOMESTIC LAW 48. 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 the Validity of the applicants’ observations 49. The Government doubted the validity of the applicants’ observations dated 15 November 2006 because they bore the stamp of the applicants’ representative and had not been signed by hand. 50. Having examined the observations in question, the Court notes that they bear the handwritten signature of one of the applicants’ representatives.", "In such circumstances, it finds no grounds to question the validity of the observations. Accordingly, the Government’s objection must be dismissed. II. The government’s objection regarding the exhaustion of domestic remedies A. The parties’ arguments 51.", "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 Musa Gaytayev had not yet been completed. They further argued that it had been open to the applicants to challenge any acts or omissions of the investigating authorities in court and that their complaint had been granted in part by the town court. They also argued that the applicants could have pursued civil complaints but had failed to do so. 52.", "The applicants contested that objection. They stated that the criminal investigation had proved ineffective and that their complaints to that effect, including their application to the town court, had been futile. They also alleged the existence of an administrative practice of not investigating crimes committed by State servicemen in the Chechen Republic and referred to other cases concerning such crimes which have been reviewed by the Court, and also to reports of various NGOs and international bodies. This, in their view, has rendered any potentially effective remedies inadequate and illusory in their case. B.", "The Court’s assessment 53. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, § 73-74, 12 October 2006). 54. 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.", "55. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. 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, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.", "The Government’s objection in this regard is thus dismissed. 56. As regards criminal-law remedies, the Court observes that the applicants complained to the law-enforcement authorities immediately after the detention of Musa Gaytayev and that an investigation has been pending since 13 February 2003. The applicants and the Government dispute the effectiveness of this investigation. 57.", "The Court considers that this limb of the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties’ arguments 58.", "The applicants maintained that it was beyond reasonable doubt that the men who had intruded into their home and taken away Musa Gaytayev were State agents. In support of their complaint, they referred to the fact that the men had arrived in military vehicles late at night, which indicated that they had been able to circulate freely during the curfew. The applicants further referred to Magomed Gaytayev’s submissions that following his abduction he had been brought to the Urus-Martan military commander’s office and to the fact that the police had returned him the duty pistol seized on the night of 23 to 24 January 2004. The applicants also pointed out that the ground given for the Government’s refusal to submit the file in criminal case no. 34018 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”.", "59. The Government submitted that on 23 January 2003 “unidentified masked men in camouflage uniforms armed with machine guns” had kidnapped Musa Gaytayev. They further contended that the investigation into the incident was pending, that there was no evidence that the men had been State agents and 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 60. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). It 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, judgment of 18 January 1978, Series A no. 25, pp.", "64-65, § 161). 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. It will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant’s relative can be presumed dead and whether his death can be attributed to the authorities. 61. The applicants alleged that the persons who had taken Musa Gaytayev away on 24 January 2003 and subsequently killed him were State agents.", "62. The Court finds that the fact that a large group of armed men in uniform was able to move freely through military roadblocks during curfew hours strongly supports the applicants’ allegation that they were State servicemen. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check the involvement of law-enforcement agencies in the kidnapping. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps were taken in that direction. 63.", "The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such 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). 64.", "Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was detained by State servicemen. The Government’s statement that the investigation had not found any evidence to support the involvement of special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Musa and Magomed Gaytayev were apprehended on the night of 23 to 24 January 2003 at their homes by State servicemen during an unacknowledged security operation. 65. There has been no reliable news of Musa Gaytayev since 24 January 2003.", "His name has not been found in any official detention facility’s records and the Government have not submitted any explanation as to what happened to him after his abduction. 66. The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in the Chechen Republic (see, among others, Bazorkina, cited above; Imakayeva v. Russia, no. 7615/02, ECHR 2006‑... (extracts); Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... (extracts); Baysayeva v. Russia, no.", "74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, cited above; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007). The Court has already found that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The fact that Musa Gaytayev has been missing and that there has been no news of him for several years supports this assumption. 67.", "The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation, owing to the Government’s failure to disclose most of the documents from the file (see paragraph 45 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping. 68. Furthermore, in a case involving disappearance, the Court finds it particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors. The few documents submitted by the Government from the investigation file opened by the district prosecutor’s office do not suggest any progress in almost four years and, if anything, show the incomplete and inadequate nature of those proceedings.", "Moreover, the stance of the district prosecutor’s office after the news of Musa Gaytayev’s detention was communicated to them by the applicants contributed significantly to the likelihood of his disappearance, as no necessary steps were taken in the crucial first days and weeks after the kidnapping. 69. For the above reasons, the Court considers that it has been established beyond reasonable doubt that Musa Gaytayev must be presumed dead following his unacknowledged detention by State servicemen. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 70.", "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 71. The Government contended that the domestic investigation had obtained no evidence to the effect that Musa Gaytayev was dead or that any servicemen of the federal law-enforcement agencies were involved in his kidnapping or alleged killing. The Government claimed that the investigation into the disappearance of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged by national law were being taken to identify those responsible. 72.", "The applicants argued that their relative had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. They also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. They noted that the investigation had been suspended and resumed a number of times so protracting even the most basic steps, and that the applicants had not been informed properly of the most important investigative steps. They argued that the fact that the investigation had been pending for almost four years without producing any known results was further proof of its ineffectiveness. 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 73. 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. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal-law remedies should be joined to the merits of the complaint (see paragraph 57 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 74. 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, to which no derogation is permitted.", "In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147). 75. The Court has already found it established that the applicants’ relative must be presumed dead following his unacknowledged arrest by State servicemen 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 Musa Gaytayev. (b) The alleged inadequacy of the investigation 76. 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). 77.", "In the present case, the kidnapping was investigated. The Court must assess whether that investigation met the requirements of Article 2. 78. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.", "79. The Court notes that the authorities were immediately made aware of the crime by the applicants’ statements. The investigation was opened twenty days after the kidnapping occurred. This delay in itself was liable to affect the investigation of a crime such as kidnapping in life-threatening circumstances, where action has to be taken in the crucial first days after the abduction. In the days following the opening of the investigation the applicants were questioned and the first applicant was granted victim status.", "However, it appears that thereafter a number of crucial steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, if at all. 80. In particular, the Court notes that the investigators remained inactive for two years as there were no proceedings pending between 14 April 2003 and 25 April 2005. Further, as noted in the decision of the town court of 25 March 2005, during the first two years after Musa Gaytayev’s abduction the district prosecutor’s office did not question the servicemen of the Urus-Martan military commander’s office where Magomed Gaytayev had allegedly being taken. Nor did they question the servicemen on duty at the check-point, who had allowed the Ural vehicles with armed men aboard through (see paragraphs 46 and 47 above).", "81. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. These delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). 82.", "The Court also notes that, even though the first applicant was granted victim status, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. 83. Finally, the Court notes that the investigation was suspended and resumed on a number of occasions and that the town court criticised deficiencies in the proceedings and ordered remedial measures. It appears that its instructions were not complied with.", "84. The Government asserted that the applicants could have sought judicial review of the investigating authorities’ decisions in the context of the exhaustion of domestic remedies. The Court observes that the applicants 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 town court’s instructions to the district prosecutor’s office to investigate the crime effectively did not bring any tangible results for the applicants.", "The investigation was repeatedly suspended and resumed, but it appears that no significant investigative measures were taken to identify those responsible for the abduction. In such circumstances, the Court considers that the applicants could not be required to challenge in court every single decision of the district prosecutor’s office. Accordingly, it finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection of a failure to exhaust domestic remedies within the context of the criminal investigation. 85. 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 Musa Gaytayev, in breach of Article 2 in its procedural aspect.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 86. The applicants further relied on Article 3 of the Convention, submitting that as a result of the disappearance of their relative and the State’s failure to investigate the events properly, they had endured mental suffering. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 87. The Government disagreed with these allegations and argued that the investigation had not established that Musa Gaytayev and the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3.", "As to the level of suffering allegedly caused to the applicants by the fact of their relative’s disappearance, that, in the Government’s view, was beyond the evaluation of the law-enforcement authorities and could not be objectively measured, as it related to psychological aspects, such as the emotions and personalities of the individuals concerned. 88. The applicants reiterated their complaint. B. The Court’s assessment 1.", "Admissibility 89. 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 90. 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; Imakayeva, cited above, § 164). 91. In the present case, the Court notes that the applicants are close relatives of the missing man. They were eyewitnesses to his abduction. For almost four years they have not had any news of him.", "During this period they have made enquiries of various official bodies, both in writing and in person. Despite their efforts, the applicants have never received any plausible explanation or information as to what became of their relative following his abduction. The responses they received mostly denied that the State was responsible for his arrest or simply informed them that an investigation was pending. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 92.", "In view of the above, the Court finds that the applicants suffered, and continue to suffer, distress and anguish as a result of the disappearance of their relative and their inability to find out what happened to him. The manner in which their complaints have been dealt with by the authorities must be considered inhuman treatment contrary to Article 3. 93. 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 94. The applicants further submitted that Musa Gaytayev 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 95. In the Government’s submission, no evidence had been obtained by the investigators to confirm that Musa Gaytayev had been detained in breach of the guarantees set out in Article 5 of the Convention. 96.", "The applicants reiterated their complaint. B. The Court’s assessment 1. Admissibility 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal-law remedies should be joined to the merits of the complaint (see paragraph 57 above). The complaint under Article 5 of the Convention must therefore be declared admissible. 2. Merits 98. 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). 99. The Court has found it established that Musa Gaytayev was apprehended by State servicemen on 24 January 2003 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate.", "In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 100. 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.", "101. Consequently, the Court finds that Musa Gaytayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 102.", "The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 103. 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. In particular, the applicants had received reasoned replies to all their complaints lodged in the context of criminal proceedings. Besides, the applicants had had an opportunity to challenge the acts or omissions of the investigating authorities in court.", "In sum, they submitted that there had been no violation of Article 13. 104. The applicants reiterated their complaint. B. The Court’s assessment 1.", "Admissibility 105. 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 106. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV; and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005).", "The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183). 107. It follows that in circumstances where, as here, the criminal investigation into the violent death was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention. 108. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.", "109. 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 their close relative, their inability to find out what had happened to him and the way the authorities had handled their complaints. However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention. 110.", "As regards the applicants’ reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. VIII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 111. The applicants complained that they had been discriminated against in the enjoyment of their Convention rights, because the violations of which they complained 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.” A.", "The parties’ submissions 112. The Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground. 113. The applicants insisted that they had been discriminated against. B.", "The Court’s assessment 114. The Court observes that no evidence has been submitted to it to suggest that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. 115. 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.", "IX. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 116. In their initial application form the applicants stated that they had been deprived of access to a court, contrary to the provisions of Article 6 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 117. In their observations on admissibility and merits of 15 November 2006 the applicants withdrew this complaint. 118.", "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, among other authorities, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).", "119. 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 120. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 121.", "The applicants claimed damages in respect of the lost wages of their missing relative from the time of his kidnapping and subsequent disappearance. They claimed a total of 2,367,857.10 Russian roubles (RUB) under this head (65,773.80 euros (EUR)). 122. They claimed that Musa Gaytayev had worked as a carpenter. In particular, between March and November 2002 he had worked for a cooperative society for RUB 15,000 per month; the cooperative society had ceased its activities in December 2002.", "From December 2002 until his disappearance Musa Gaytayev had been in the process of building a shop with his relatives and had expected to earn RUB 15,000 monthly once the construction works were completed. The applicants concluded that Musa Gaytayev’s annual wage would have amounted to RUB 180,000 and that between January 2003 and December 2032, when he would have reached retirement age, he would have earned RUB 5,220,000 (EUR 145,000). 123. The first applicant claimed that her husband would have supported her until his retirement and that she would have received one seventh of his earnings until 2032, which amounted to RUB 745,714.3 (EUR 20,714.28). 124.", "Taking the average life expectancy for women in Russia to be 70 years, the fifth applicant assumed that she would have been financially dependant on her son and would have received one seventh of his earnings until 2010, which amounted to RUB 180,000 (EUR 5,000). 125. Musa Gaytayev’s children submitted that they would have been financially dependent on their father until they reached the age of 18. Each of them claimed one seventh of his earnings, which amounted to RUB 250,714.3 (EUR 6,964.28) in respect of the sixth applicant, RUB 308,571.4 (EUR 8,571.43) in respect of the seventh applicant, RUB 420,000 (EUR 11,666.66) in respect of the eighth applicant and RUB 462,857.10 ( EUR 12,857.14) in respect of the ninth applicant. 126.", "The Government regarded these claims as unfounded. 127. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in an appropriate case, include compensation in respect of loss of earnings. 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”. 128.", "The Court finds that there is a direct causal link between the violation of Article 2 in respect of the applicants’ husband, son and father and the loss by the applicants of the financial support which he could have provided. However, it points out that the loss-of-earnings calculations submitted by the applicants are based on the assumption that Musa Gaytayev would have had a stable income for thirty years. Various eventualities, such as unemployment or incapacity to work, have not been taken into account. Furthermore, the applicants submitted that Musa Gaytayev could have expected to earn RUB 15,000 per month after the completion of the building works, but did not provide any documents confirming his wages for the period between November 2002 and January 2003. Accordingly, the Court finds that the amounts claimed as pecuniary damage are excessive.", "129. It therefore considers it appropriate to award EUR 2,000 to the fifth applicant and EUR 10,000 to the first, sixth, seventh, eighth and ninth applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on those amounts. B. Non-pecuniary damage 130. The applicants claimed they had sustained non-pecuniary damage as a result of the suffering they had endured as a result of the loss of their missing relative, the indifference shown by the authorities towards them and the failure to provide any information about their relative’s fate. They left the exact amount to be awarded under this head to the Court’s discretion.", "131. The Government submitted that a symbolic amount would suffice as compensation for the non-pecuniary damage. 132. 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. Ruling on an equitable basis it awards to the second, third and fourth applicants EUR 2,000 each, EUR 6,000 to the fifth applicant and EUR 28,000 to the first, sixth, seventh, eighth and ninth applicants jointly, plus any tax that may be chargeable thereon. C. Costs and expenses 133. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff.", "The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 10,066.86. 134. The Government contended that the sum claimed was excessive for legal-representation rates applicable in Russia and disputed the reasonableness of and justification for the amounts claimed under this head. They also objected to the representatives’ request to transfer the award for legal representation directly into their account in the Netherlands. 135.", "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). 136. Having regard to the information provided, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives. 137. 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, owing 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. 138. Furthermore, the Court notes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly into the applicant’s representatives’ accounts (see, for example, Toğcu, cited above, § 158; Nachova and Others v. Bulgaria [GC], nos.", "43577/98 and 43579/98, § 175, ECHR 2005‑VII; and Imakayeva, cited above). 139. Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 7,000, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants. D. Default interest 140. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaints under Article 6 of the Convention; 2. Decides to join to the merits the Government’s objection concerning the exhaustion of domestic remedies; 3. Declares the complaints under Articles 2, 3, 5 and 13 admissible and the remainder of the application inadmissible; 4. Holds that there has been a violation of Article 2 of the Convention in respect of Musa Gaytayev; 5.", "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 Musa Gaytayev disappeared; 6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 7. Holds that there has been a violation of Article 5 of the Convention in respect of Musa Gaytayev; 8. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention; 9. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 10.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros) in respect of pecuniary damage to the fifth applicant and EUR 10,000 (ten thousand euros) to the first, sixth, seventh, eighth and ninth 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 these amounts; (ii) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to the second, third and fourth applicants, EUR 6,000 (six thousand euros) to the fifth applicant and EUR 28,000 (twenty-eight thousand euros) to the first, sixth, seventh, eighth and ninth 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 these amounts; (iii) EUR 6,150 (six thousand one 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; 11. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FOURTH SECTION CASE OF IZET HAXHIA v. ALBANIA (Applications no. 34783/06) JUDGMENT STRASBOURG 5 November 2013 FINAL 05/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Izet Haxhia v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,David Thór Björgvinsson,George Nicolaou,Zdravka Kalaydjieva,Vincent A. De Gaetano,Paul Mahoney, judges,Altina Xhoxhaj, ad hoc judge,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 34783/06) 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 Izet Haxhia (“the applicant”), on 28 August 2006. 2. The applicant was represented by Messrs. F. Shanaj and Sh. Dizdari, lawyers practising in Tirana.", "The Albanian Government (“the Government”) were initially represented by their then Agents, Ms S. Mëneri of the Albanian Ministry of Foreign Affairs and Mrs E. Hajro of the State Advocate’s Office and, subsequently, by Ms L. Mandia of the State Advocate’s Office. 3. Mr Ledi Bianku, the judge elected in respect of Albania, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Chamber decided to appoint Ms Altina Xhoxhaj to sit as an ad hoc judge in his place (Rule 29 § 1(b)). 4.", "The applicant alleged a number of violations under Articles 5, 6 and 7 of the Convention. 5. On 17 March 2008 the President of the Fourth Section, to which the case was allocated, decided to give notice of the application to the respondent 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 1966. He used to be the bodyguard of the then Albanian President, Mr Sali Berisha. At the time of the introduction of the application, he was detained in Turkey pending the outcome of his extradition to Albania. 7.", "On 12 September 1998 at about 9.15 p.m. Mr Azem Hajdari, a Member of Parliament (“MP”), and his bodyguards B.C and Z.N were shot as they came out of the Democratic Party (“DP”) headquarters in Tirana. Mr Hajdari and B.C died the same day in hospital. The second bodyguard Z.N was seriously injured. Mr Hajdari was a leading member of the DP which was one of the two main political parties in Albania and, at the material time, in opposition. A criminal investigation was opened into the murder.", "8. On 13 January 2001 the prosecutor’s office issued an arrest warrant in respect of the applicant, on suspicion of involvement in the assassination of the MP and of one of his bodyguards as well as in the attempted murder of the other bodyguard. The arrest of four other people in connection with the murder was also ordered by the prosecutor. 9. On 31 January 2001 the Tirana District Court (“District Court”) ordered the applicant’s arrest.", "He was represented by a court-appointed lawyer. 10. On 3 March 2001 the District Court declared the applicant a fugitive after unsuccessful attempts to locate him. The decision stated that the applicant’s family did not know of his whereabouts. His neighbours had also mentioned that no one had lived in the applicant’s residence for two years.", "11. On 13 March 2001 the prosecutor lodged a bill of indictment with the District Court. The applicant and four other co-accused were indicted on charges of having participated in, or organised, the assassination of the MP, his bodyguard and the attempted murder of civilians. 12. The trial proceedings against the applicant were conducted in absentia.", "He was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 13. On 29 April 2001 the District Court convicted the applicant in absentia. He was sentenced to twenty-five years’ imprisonment. 14.", "The applicant’s family-appointed lawyer as well as the co-accused appealed against the conviction to the Court of Appeal and the Supreme Court. 15. On 9 July 2002 and 14 February 2003 the Court of Appeal and the Supreme Court, respectively, upheld the District Court’s decision. The applicant was represented by the family-appointed lawyer. 16.", "The applicant’s family-appointed lawyer did not lodge a constitutional appeal, owing to the lack of a power of attorney to do so. The constitutional appeals of two of the co-accused, concerning the overall unfairness of the proceedings, were declared inadmissible by the Constitutional Court on 9 July 2003 on the ground that the appeals did not disclose a breach of the right to a fair trial. 17. A detailed account of the facts, the criminal investigation and the domestic courts’ decisions has been described in Haxhia v. Albania, no. 29861/03, 8 October 2013, not yet final and Mulosmani v. Albania, no.", "29861/03, 8 October 2013, not yet final. 18. On 3 June 2006 the applicant was arrested by the Turkish authorities, apparently on the basis of an arrest warrant issued by the Albanian authorities. It would appear that the Albanian authorities requested the applicant’s extradition. A copy of the extradition request has not been submitted to this Court.", "No further information has been provided by the parties as to the outcome of the extradition proceedings in Turkey. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Code of Criminal Procedure (“CCP) 19.", "The relevant provisions of the CCP as regards the appointment of and representation by a counsel read as follows: Article 48 – Counsel appointed by the accused “1. The accused has the right to appoint no more than two lawyers. 2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel. 3.", "The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”. Article 410 – The defendant’s appeal “2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law”. 20. The relevant provisions of the CCP as regards an application for leave to appeal out of time read as follows: “Article 147 – Leave to appeal out of time “1.", "The prosecutor, the accused, the private parties and the defence counsel may request the reopening of the time-limit if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure. 2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision. 3. An application for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant effectively acquires knowledge of the decision.", "Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceeding”. 4. The application is examined by the court seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj). 5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case.", "6. An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time”. Article 148 – The effects of leave to appeal out of time “1. The court which grants leave to appeal out of time, upon request of the party and in so far as it is possible, orders that those actions in which the party was entitled to participate be carried out again.” 21. Articles 449–461 of the CCP govern the application for review of a final judgment.", "Article 450 – Cases for review An application for review may be lodged: a) when the facts of the grounds of the decision do not comply with those of another final decision; (b) when the decision has relied on a civil court decision which has subsequently been quashed; (c) when, subsequent to the decision, new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and (d) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence”. 22. An application for review should be lodged with the Supreme Court. 2. The Act on Jurisdictional Relations with Foreign Authorities in Criminal Matters (Law no.", "10193 of 03.12.2009 “Për Marrëdhëniet Juridiksionale me Autoritetet e Huaja në Çështjet Penale” – The Jurisdictional Relations in Criminal Matters Act) 23. Section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act states that “a final criminal decision against an extradited person, which was delivered in his absence, can be reviewed at that person’s request, provided that the Minister of Justice gave such an assurance to the requesting State. The application for review should be submitted within 30 days of the applicant’s arrival in the territory of Albania and its examination is subject to the provisions of the Code of Criminal Procedure”. B. The Constitutional Court Act (Law on organisation and operation of the Constitutional Court of the Republic of Albania no.", "8577 dated 10 February 2000) 24. The relevant provisions of the Constitutional Court Act read as follows: Section 30 “1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law. 2. An individual’s appeal for a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation.", "If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the last instance body’s decision”. C. Domestic case-law 1. As regards an application for leave to appeal out of time (a) Lower courts’ case-law 25. On 3 May 2007 and 10 October 2007 the Gjirokastra District Court granted two accused’s applications for leave to appeal out of time against their conviction in absentia.", "The accused made their applications following their extradition to Albania. In the meantime, they have lodged two separate applications with this Court (Hysi v. Albania, no. 72361/11 and Malo v. Albania, no. 72359/11) about the fairness of the re-trial. Those applications are pending on the date of the adoption of the present judgment.", "26. On 2 November 2010 the Shkodra District Court granted an accused’s application for leave to appeal out of time against his conviction in absentia. The accused made that application following his extradition to Albania (see the Supreme Court’s decision no. 37/2011 for more information). (b) Supreme Court’s case-law 27.", "In its unifying decision no. 2 of 14 October 2002, the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him, within ten days of the date on which the accused was effectively informed of the decision given in absentia (decision no. 2/2002). This right could not be exercised by the accused’s family members if the accused was not realistically aware of the decision in absentia. The application for leave to appeal out of time shall be examined by the District Court, sitting in a three-judge formation.", "The District Court’s decision can be appealed to the Court of Appeal and, thereafter, to the Supreme Court. However, the last finding was rectified by the Constitutional Court’s decision no. 31/2012 (see paragraph 36 below). 28. In its unifying decision no.", "1 of 20 January 2011, the Supreme Court Joint Benches examined three issues concerning an application for leave to appeal out of time (decision no. 1/2011). The appellant had been convicted in absentia. His family-appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to the Court of Appeal. The lawyer’s subsequent appeals on the merits of the case were rejected by the Court of Appeal and the Supreme Court.", "Following his extradition to Albania, the appellant was granted leave to appeal out of time against the Court of Appeal’s judgment to the Supreme Court. He was represented by a lawyer of his own choosing in the proceedings before the Supreme Court Joint Benches. 29. In the first place, the Supreme Court Joint Benches ruled that, when an appeal had been previously examined and rejected by a Supreme Court’s bench, in proceedings in absentia in which the accused was represented by a family-appointed lawyer in accordance with Articles 48 § 3 and 410 § 2 of the CCP, neither the accused nor his lawyer could (re)lodge an application for leave to appeal out of time against a Court of Appeal’s decision on the grounds that the accused had not been informed of the decision in absentia (me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit) as this would run counter to the principle of res judicata. The same reasoning would apply to an application for leave to appeal out of time against a District Court’s decision.", "30. Secondly, the Supreme Court Joint Benches held that only when a higher court dismissed an appeal as having been time-barred, without examining the merits or the lawfulness of the complaints raised in the grounds of appeal, would the accused have a right to lodge an application for leave to appeal out of time in accordance with Article 147 § 1 of the CCP. 31. The third finding concerned the effect of an appeal lodged by an accused, in the absence of a co-accused’s appeal, on the latter’s application for leave to appeal out of time. The Supreme Court Joint Benches held that, as a rule, “in criminal proceedings against several co-accused, the court should not grant an accused’s application for leave to appeal out of time, if it is proved that the [merits of the] case were examined upon the appeal lodged by a co-accused”.", "However, “only when a[n] [co-accused’s] appeal has been declared inadmissible on the strength of Article 420 of the CCP [non-compliance with formal requirements] and, only when the court solely examined [the merits of] that co-accused’s appeal, can the accused, who did not lodge an appeal, seek leave to appeal out of time against a court’s decision given in absentia”. 32. On 5 October 2011, following two accused’s applications for leave to appeal out of time, the Supreme Court, relying on its unifying decision no. 1/2011, rejected those applications (decisions nos. 121/2011 and 122/2011).", "The Supreme Court held that the accused’s lawyers, who had been appointed by family members in accordance with Articles 48 § 3 and 410 § 2 of the CCP, had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court. Consequently, their conviction in absentia “had acquired the force of res judicata” which barred any re-trial. 33. Following extradition from Italy, an accused lodged an application for leave to appeal out of time. On 12 October 2011 the Supreme Court, relying on its unifying decision no.", "1/2011, rejected that application on the ground that the accused’s family-appointed lawyer had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court (decision no. 130/2011). 34. On 5 September 2012 the Supreme Court, relying on its unifying decision no. 1/2011, held, inter alia, that the lower court had erred in granting the accused leave to appeal out of time, since the accused’s family-appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia (decision no.", "218/2012). (c) Constitutional Court’s case-law 35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, the Constitutional Court decided, by decision no. 30 of 17 June 2010 (decision no. 30/2010), that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused’s intention not to attend the proceedings.", "The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused’s family. The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family. 36. In response to a referral request by the Supreme Court on the constitutionality of Article 147 §§ 4 and 6 of the CCP, the Constitutional Court, by decision no. 31 of 17 May 2012 (decision no.", "31/2012), clarified that the term “the court seized” provided for in Article 147 § 4 referred to the court against which decision the accused is seeking leave to appeal out of time. If the accused sought leave to appeal against an appellate court decision, the application for leave to appeal out of time should be [lodged with and] examined by the appellate court instead of the District Court. What confused the interpretation of the above term was the use of the words “with the court of appeal” in Article 147 § 6 of the CCP. The Constitutional Court decided that those words were unconstitutional and that they could be replaced by the words “with a higher court”. Since Article 147 of the CCP did not provide for the parties’ [direct] right to appeal against a decision granting leave to appeal out of time (Article 147 § 5 of the CCP) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time (Article 147 § 6 of the CPP), the Constitutional Court further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal.", "The law as it stood meant that, in the examination of the merits, the Supreme Court would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time, which was not compatible with the nature of proceedings before that instance. 2. As regards an application for review of a final decision 37. On 17 September 2010 the Supreme Court held that an extradited person could make an application for review of the final conviction in absentia under Article 450 of the CCP, provided that the Minister of Justice had given an assurance to the requested State that the extradited person would be re-tried following extradition (decision no. 812/2010).", "In its reasoning, the Supreme Court relied on Article 3 of the Second Additional Protocol to the European Convention on Extradition which was ratified by Albania and, consequently, took precedence over national law in accordance with the Constitution as well as on section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act (see paragraphs 23 above and 42 below). In that case, the appellant was extradited from Spain on the strength of the Minister of Justice’s assurance that he would be given a re-trial. The Supreme Court accepted his application for review of the conviction in absentia under Article 450 of the CCP, in spite of the exhaustive grounds of review listed in Article 450. 38. On 19 January 2011 the Supreme Court, relying on its decision no.", "812/2010, accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 9/2011). The appellant was extradited from the United Kingdom on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 39. On 16 February 2011 the Supreme Court accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no.", "33/2011). The appellant was extradited from Germany on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 3. As regards the possibility to lodge a constitutional complaint 40. In decision no.", "30 of 26 November 2009 the Constitutional Court accepted an appellant’s constitutional complaint against his trial in absentia, following his extradition to Albania. The appellant had been convicted by a final decision of the Supreme Court on 24 March 2000 in absentia, and was extradited to Albania on 4 June 2008. The Constitutional Court found a breach of the appellant’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him. 41. In decision nos.", "83 of 5 July 2013 and 118 of 30 October 2012, the Constitutional Court found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the two-year statutory time-limit, which had started to run on the date they were extradited to Albania. In both cases, the appellants were separately convicted in absentia by Supreme Court decisions of 2001 and 2004. They were extradited on an unspecified date in 2007, one from the United Kingdom and the other from Germany. Upon extradition, they lodged separate applications for leave to appeal out of time, but these were rejected by the Supreme Court on 6 May 2011 and 19 January 2012 respectively. The Constitutional Court held that, having regard to the Supreme Court Joint Benches’ unifying decision no.", "1/2011 (see paragraph 28 above), it was not open to the appellants to lodge an application for leave to appeal out of time, as their family-appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia. The appellants should have lodged their constitutional complaints within the two-year statutory time-limit, which had started to run on the date of their extradition to Albania, when they had been notified of the decisions given in absentia. Instead, they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time, after the expiry of the two-year statutory time-limit. D. International law European Convention on Extradition 42. The European Convention on Extradition was ratified by Albania on 19 May 1998 and it entered into force on 17 August 1998.", "Article 3 of its Second Additional Protocol states as follows: “Article 3 – Judgments in absentia 1. When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited. 2.", "When the requested Party informs the person whose extradition has been requested of the judgment rendered against him in absentia, the requesting Party shall not regard this communication as a formal notification for the purposes of the criminal procedure in that State”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 43. The applicant alleged that the criminal proceedings and conviction in absentia were unfair within the meaning of Article 6 of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.", "Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (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.” A. Admissibility 1. The parties’ submissions 44. The Government raised two main grounds of inadmissibility. In the first place, they argued that the application had been lodged outside the six-month time-limit. Secondly, they contended that the applicant had failed to exhaust domestic remedies.", "He did not lodge a constitutional appeal with the Constitutional Court to complain about the unfairness of the proceedings. He did not make an application for either the review of the final conviction in absentia under Article 450 of the CCP or for leave to appeal out of time in accordance with Article 147 of the CCP. 45. The applicant submitted that he lodged the application with the Court after he was arrested by the Turkish authorities, when he was informed for the first time of the Albanian authorities’ decisions given in absentia. As regards the exhaustion of domestic remedies, he argued that they were ineffective.", "2. The Court’s assessment (a) As regards non-compliance with the six-month time-limit 46. The Court reiterates that it “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken” (see, amongst others, Alimuçaj v. Albania, no. 20134/05, § 139, 7 February 2012; and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).", "The six-month period starts to run from the date on which the applicant has effective and sufficient knowledge of the final domestic decision (see, amongst others, Baghli v. France, no. 34374/97, § 31, ECHR 1999‑VIII). It is for the State which relies on the failure to comply with the six-month time-limit to establish the date when the applicant became aware of the final domestic decision (Şahmo v. Turkey (dec.), no. 37415/97, 1 April 2003). 47.", "In the present case, the Court notes that the applicant’s conviction in absentia was upheld by the Supreme Court’s final decision of 14 February 2003. The applicant was informed of that decision on 3 June 2006 when he was arrested by the Turkish authorities. This has not been disputed. He lodged the application with this Court on 28 August 2006, within the six-month time-limit of the notification of his conviction in absentia. In these circumstances, the Court rejects the Government’s objection.", "(b) As regards non-exhaustion of domestic remedies (i) Failure to lodge a constitutional appeal 48. The Court reiterates that applicants are only obliged to exhaust domestic remedies which are available in theory and in practice at the relevant time and which they can directly institute themselves – that is to say, remedies that are accessible, capable of providing redress in respect of their complaints and offering reasonable prospects of success (see, for example, Sejdovic v. Italy [GC], no. 56581/00, § 46, 1 March 2006). Furthermore, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court, although this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V, and Babylonová v. Slovakia, no.", "69146/01, § 44, ECHR 2006-VIII). 49. In the instant case, the Court notes that the applicant’s conviction in absentia was upheld by the Supreme Court on 14 February 2003. It would not have been open to the applicant to lodge a constitutional appeal within two years of the date of the Supreme Court’s decision, since it was established that he had not learned of his conviction in absentia until 3 June 2006, when he was arrested by the Turkish authorities (see Shkalla v. Albania, no. 26866/05, §§ 52 and 53, 10 May 2011, in which the Constitutional Court, on 1 February 2005, declared the applicant’s constitutional complaint time-barred, the time-limit having started to run on the date of delivery of the Supreme Court’s decision given in absentia instead of the moment the applicant was informed of the Supreme Court’s decision).", "Accordingly, at the time of lodging his application with this Court, the applicant could not have been expected to lodge a constitutional complaint, which at the time did not offer him any reasonable prospect of success (see Pikić v. Croatia, no. 16552/02, §§ 30-32, 18 January 2005). The Government did not submit any evidence to the contrary, and there are no special circumstances which would justify making an exception to that rule (compare and contrast Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010; Nogolica v. Croatia (dec.), no.", "77784/01, 5 September 2002; 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; Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX). The Court therefore rejects this objection. 50.", "However, having regard to the developments in the Constitutional Court’s case-law (see paragraphs 40 and 41 above), the Court would accept that, after 26 November 2009, in cases similar to the present one, applicants cannot be discharged from their obligation to lodge a constitutional complaint against their trial and conviction in absentia as soon as they are extradited to Albania and served with a copy of the decision given in absentia. 51. For the Court, the question is whether the applicant had a means to seek the reopening of proceedings held in absentia. The Court will revert to this matter below. (ii) Failure to lodge an application for review of a final decision 52.", "The Court notes that, at the time of the introduction of the complaint and until 2010, the exhaustive grounds of Article 450 of the CCP could not have been relied on to file an application for review of a final decision, not least of a decision in absentia. No evidence to the contrary has been submitted by the Government. On 17 September 2010 the Supreme Court extended the application of Article 450 to allow for review of final decisions given in absentia in respect of an extradited person, on condition that an assurance had been given by the Minister of Justice that the extradited person would be given a re-trial. This line of case-law has been applied by the Supreme Court in subsequent cases (see paragraphs 37-39 above). 53.", "Turning to the present case, while it is likely that an extradition request was made by the Albanian authorities, the Court has not been presented with the terms of any assurance given by Albania to Turkey. Nor does it have any knowledge of any concessions made so as to enable the Supreme Court to be seized under Article 450 of the CCP with a request for a re-trial. In these circumstances, the Court rejects as unsubstantiated the Government’s objection under this head. (iii) Failure to lodge an application for leave to appeal out of time 54. The Court observes that under Article 147 § 2 of the CCP an accused may lodge an application for leave to appeal out of time on condition that the conviction was given in absentia and that the accused was not notified of the conviction.", "The application for leave to appeal out of time must be lodged within ten days of the notification of the conviction in absentia with the court which convicted the accused (see paragraph 36 above). Under domestic case-law, the ten-day time-limit begins to run from the date on which the accused is handed over to the Albanian authorities, at which point he is supposed to be notified of the conviction in absentia (see the District Court’s decision in paragraphs 25-26 above). Once leave to appeal out of time is granted, the accused has the opportunity of appealing against the conviction in absentia, by submitting factual and legal arguments he considers necessary for his defence in the course of the appeal proceedings. 55. The Court further observes that, under the recent case-law of the Supreme Court, an accused’s application for leave to appeal out of time will not be granted where the family-appointed lawyer had previously and unsuccessfully appealed to the Supreme Court and where a co-accused had appealed against the decision and the merits of the case had been examined as a whole (see paragraphs 28-34 above).", "56. Turning to the present case, the Court notes that not only did the applicant’s family-appointed lawyer previously and unsuccessfully appeal to the Supreme Court, but the other co-accused previously and unsuccessfully appealed against all courts’ decisions. In these circumstances, an application for leave to appeal out of time would be doomed to failure. 57. The Court rejects the Government’s objection under this head.", "(c) Conclusion 58. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds, the complaint must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 59. The applicant maintained that he was tried and convicted in absentia and that there existed no remedy to afford him the possibility of a re-trial. 60. The Government accepted that the applicant was tried and convicted in absentia. However, relying on the submissions in the case of Haxhia v. Albania (no.", "29861/03), they argued that the domestic proceedings had not been unfair. They also contended that he was represented either by a court-appointed lawyer or by a family-appointed lawyer and that the applicant’s defence rights were respected. 2. The Court’s assessment 61. The Court recalls the general principles as regards proceedings in absentia described in the Sejdovic judgment, cited above (references omitted).", "“81. Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (...). 82. 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 of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (...) or that he intended to escape trial (...).", "83. The Convention leaves Contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6. The Court’s task is to determine whether the result called for by the Convention has been achieved. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to escape trial (...). 84.", "The Court has further held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (...). Accordingly, the refusal to reopen proceedings conducted in the accused’s absence, without any indication that the accused has waived his or her right to be present during the trial, has been found to be a “flagrant denial of justice” rendering the proceedings “manifestly contrary to the provisions of Article 6 or the principles embodied therein” (...). 85. The Court has also held that the reopening of the time allowed for appealing against a conviction in absentia, where the defendant was entitled to attend the hearing in the court of appeal and to request the admission of new evidence, entailed the possibility of a fresh factual and legal determination of the criminal charge, so that the proceedings as a whole could be said to have been fair (...). 86.", "Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (...). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (...). Furthermore, it must not run counter to any important public interest (...). 87. The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a “fugitive”, which was founded on a presumption with an insufficient factual basis, that he had waived his right to appear at the trial and defend himself (...).", "It has also had occasion to point out that, before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (...). 88. Furthermore, a person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure (...). At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (...). 89.", "Under the terms of paragraph 3 (a) of Article 6 of the Convention, everyone charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. This provision points to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him (...). 90. The scope of the above provision 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 (...). 91. Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (...). A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial (...). It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (...).", "92. At the same time, it is of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses. The legislature must accordingly be able to discourage unjustified absences, provided that any sanctions used are not disproportionate in the circumstances of the case and the defendant is not deprived of his right to be defended by counsel (...). 93. It is for the courts to ensure that a trial was fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the accused in his absence is given the opportunity of doing so (...).", "94. While it confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance ...”, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (...). In this connection, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (...). 95.", "Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes or by the accused. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal aid scheme or privately financed (...). The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or is sufficiently brought to their attention in some other way (...).” 62. It further recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 (see Edwards v. the United Kingdom, 16 December 1992, § 33, Series A no. 247-B).", "63. In the present case it was not disputed by the parties that the applicant was tried and convicted in absentia. It has not been shown that he had sufficient knowledge of the legal proceedings against him. In fact, it was established that he was informed of the conviction in absentia only on 3 June 2006, when he was arrested by the Turkish authorities. Nor has it been shown that he explicitly or implicitly authorised his family members’ actions on appeal or unequivocally waived his right to appear in court by deliberately evading justice.", "Under the domestic law there was no possibility for the applicant to request a re-trial of his case (see paragraphs 48-57 above). 64. In the light of the foregoing, the Court finds that the applicant did not have the opportunity of obtaining a fresh determination of the merits of the charges against him by a court which would have heard him in proceedings compliant with the fairness guarantees of Article 6. 65. There has therefore been a violation of Article 6 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 66. The applicant raised complaints under Article 5 §§ 1 and 2, Article 6 § 2 as well as under Article 7 of the Convention, which are similar to those raised by two of his co-accused in the cases of Haxhia, cited above, not yet final and Mulosmani, cited above, not yet final. 67. The Court has examined the above complaints as submitted by the applicant.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 69. The applicant did not submit a claim for damages. Accordingly, the Court considers that there is no call to award him any sum on that account. 70. The Court reiterates its findings in Shkalla v. Albania (no.", "26866/05, §§ 77-79, 10 May 2011), that when an applicant has been convicted in breach of his rights as guaranteed by Article 6 of the Convention, the most appropriate form of redress would be to ensure that the applicant is put as far as possible in the position in which he would have been had this provision been respected. The most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings if requested (see, also, Xheraj v. Albania, no. 37959/02, § 82, 29 July 2008; Caka v. Albania, no. 44023/02, § 122, 8 December 2009, and Laska and Lika, cited above, §§ 73-77). B.", "Costs and expenses 71. The applicant claimed ALL 200,000 (EUR 1,409) for the costs and expenses incurred before this Court and ALL 275,000 (EUR 1,937) for those incurred before the domestic courts. 72. The Government did not submit any comments. 73.", "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 it was not clearly proved that the applicant incurred the expenses claimed before the domestic courts, the Court considers it reasonable to award the sum of EUR 1,400 for the proceedings before the Court. C. Default interest 74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares admissible the applicant’s complaint under Article 6 of the Convention regarding his conviction in absentia and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 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 1,400 (one thousand four hundred euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into the national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosIneta ZiemeleRegistrarPresident" ]
[ "FIRST SECTION CASE OF KARNER v. AUSTRIA (Application no. 40016/98) JUDGMENT STRASBOURG 24 July 2003 FINAL 24/10/2003 In the case of Karner v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrG. Bonello,MrsN.", "Vajić,MrsS. Botoucharova,MrV. Zagrebelsky, judges,MrC. Grabenwarter, ad hoc judge,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 7 November 2002 and 3 July 2003, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "40016/98) against the Republic of Austria 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 Austrian national, Mr Siegmund Karner (“the applicant”), on 24 July 1997. 2. The applicant was represented by Lansky & Partner, a law firm in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Winkler. 3.", "The applicant alleged, in particular, that the Supreme Court's decision not to recognise his right to succeed to a tenancy after the death of his companion amounted to discrimination on the ground of his sexual orientation in breach of Article 14 of the Convention taken in conjunction with Article 8. 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). 6. By a decision of 11 September 2001 the Chamber declared the application partly admissible. 7.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 8. On 7 December 2001 the President of the Chamber granted ILGA-Europe (The European Region of the International Lesbian and Gay Association), Liberty and Stonewall leave to intervene as third parties (Article 36 § 2 of the Convention and Rule 61 § 3).", "The third parties were represented by Mr R. Wintemute. 9. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10.", "The applicant was born in 1955 and lived in Vienna. 11. From 1989 the applicant lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat. 12.", "In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating the applicant as his heir. 13.", "In 1995 the landlord of the flat brought proceedings against the applicant for termination of the tenancy. On 6 January 1996 the Favoriten District Court (Bezirksgericht) dismissed the action. It considered that section 14(3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship. 14. On 30 April 1996 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the landlord's appeal.", "It found that section 14(3) of the Rent Act was intended to protect persons who had lived together for a long time without being married against sudden homelessness. It applied to homosexuals as well as to persons of opposite sex. 15. On 5 December 1996 the Supreme Court (Oberster Gerichtshof) granted the landlord's appeal, quashed the lower court's decision and terminated the lease. It found that the notion of “life companion” (Lebensgefährte) in section 14(3) of the Rent Act was to be interpreted as at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex.", "16. On 26 September 2000 the applicant died. 17. On 11 November 2001 the applicant's lawyer informed the Court of the applicant's death and that his mother had waived her right to succeed to the estate. He asked the Court not to strike the application out of its list before the public notary handling the applicant's estate had traced other heirs.", "18. On 10 April 2002 the applicant's lawyer informed the Court that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate. II. RELEVANT DOMESTIC LAW 19. Section 14 of the Rent Act (Mietrechtsgesetz) reads as follows: “Right to a tenancy in the event of death (1) The death of the landlord or a tenant shall not terminate a tenancy.", "(2) On the death of the main tenant of a flat, the persons designated in subsection (3) as being entitled to succeed to the tenancy shall do so, to the exclusion of other persons entitled to succeed to the estate, unless they have notified the landlord within fourteen days of the main tenant's death that they do not wish to continue the tenancy. On succeeding to the tenancy, the new tenants shall assume liability for the rent and any obligations that arose during the tenancy of the deceased main tenant. If more than one person is entitled to succeed, they shall succeed jointly to the tenancy and become jointly and severally liable. (3) The following shall be entitled to succeed to the tenancy for the purposes of subsection (2): a spouse, a life companion, relatives in the direct line including adopted children, and siblings of the former tenant, in so far as such persons have a pressing need for accommodation and have already lived in the accommodation with the tenant as members of the same household. For the purposes of this provision, 'life companion' shall mean a person who has lived in the flat with the former tenant until the latter's death for at least three years, sharing a household on an economic footing like that of a marriage; a life companion shall be deemed to have lived in the flat for three years if he or she moved into the flat together with the former tenant at the outset.” THE LAW I.", "JURISDICTION OF THE COURT 20. The Government requested that the application be struck out of the list of cases in accordance with Article 37 § 1 of the Convention, since the applicant had died and there were no heirs who wished to pursue the application. 21. The applicant's counsel emphasised that the case involved an important issue of Austrian law and that respect for human rights required its continued examination, in accordance with Article 37 § 1 in fine. Article 37 § 1 of the Convention reads as follows: “1.", "The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. 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. 22. The Court notes 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, among other authorities, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, pp.", "19‑20, §§ 37-38; X v. the United Kingdom, judgment of 5 November 1981, Series A no. 46, p. 15, § 32; Vocaturo v. Italy, judgment of 24 May 1991, Series A no. 206-C, p. 29, § 2; G. v. Italy, judgment of 27 February 1992, Series A no. 228-F, p. 65, § 2; Pandolfelli and Palumbo v. Italy, judgment of 27 February 1992, Series A no. 231-B, p. 16, § 2; X v. France, judgment of 31 March 1992, Series A no.", "234-C, p. 89, § 26; and Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 8, § 2). 23. On the other hand, it has been the Court's practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed the wish to pursue an application (see Scherer v. Switzerland, judgment of 25 March 1994, Series A no 287, pp. 14-15, § 31; Öhlinger v. Austria, no.", "21444/93, Commission's report of 14 January 1997, § 15, unreported; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). Thus, the Court has to determine whether the application in the present case should also be struck out of the list. In formulating an appropriate answer to this question, the object and purpose of the Convention system as such must be taken into account. 24.", "The Court reiterates that, while Article 33 (former Article 24) of the Convention allows each Contracting State to refer to the Court (Commission) “any alleged breach” of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 34 (former Article 25), claim “to be the victim of a violation ... of the rights set forth in the Convention or the Protocols thereto”. Thus, in contrast to the position under Article 33 – where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application – Article 34 requires that an individual applicant should claim to have been actually affected by the violation he alleges (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 90-91, §§ 239-40, and Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp.", "17-18, § 33). Article 34 does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention (see Norris v. Ireland, judgment of 26 October 1988, Series A no. 142, pp. 15-16, § 31, and Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI).", "25. While under Article 34 of the Convention the existence of a “victim of a violation”, that is to say, an individual applicant who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the whole proceedings. As a rule, and in particular in cases which primarily involve pecuniary, and, for this reason, transferable claims, the existence of other persons to whom that claim is transferred is an important criterion, but cannot be the only one. As the Court pointed out in Malhous (decision cited above), human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant's death should be continued. All the more so if the main issue raised by the case transcends the person and the interests of the applicant.", "26. The Court has repeatedly stated that its “judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (see Ireland v. the United Kingdom, cited above, p. 62, § 154, and Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 31, § 86). Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States. 27.", "The Court considers that the subject matter of the present application – the difference in treatment of homosexuals as regards succession to tenancies under Austrian law – involves an important question of general interest not only for Austria but also for other States Parties to the Convention. In this connection the Court refers to the submissions made by ILGA-Europe, Liberty and Stonewall, whose intervention in the proceedings as third parties was authorised as it highlights the general importance of the issue. Thus, the continued examination of the present application would contribute to elucidate, safeguard and develop the standards of protection under the Convention. 28. In these particular circumstances, the Court finds that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case (Article 37 § 1 in fine of the Convention) and accordingly rejects the Government's request for the application to be struck out of its list.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 29. The applicant claimed to have been a victim of discrimination on the ground of his sexual orientation in that the Supreme Court, in its decision of 5 December 1996, had denied him the status of “life companion” of the late Mr W. within the meaning of section 14 of the Rent Act, thereby preventing him from succeeding to Mr W.'s tenancy. He relied on Article 14 of the Convention taken in conjunction with Article 8, which provide as follows: 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 [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.” A. Applicability of Article 14 30. The applicant submitted that the subject matter fell within the scope of Article 8 § 1 as regards the elements of private life, family life and home. 31. The Government, referring to Röösli v. Germany (no. 28318/95, Commission decision of 15 May 1996, Decisions and Reports 85-A, p. 149), submitted that the subject matter of the present case did not come within the ambit of Article 8 § 1 as regards the elements of “private and family life”.", "The issue whether it came within the ambit of the “home” element could be left open because, in any event, there had been no breach of Article 14 of the Convention taken in conjunction with Article 8. 32. The Court reiterates 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 “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions, and to this extent it is autonomous, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 585, § 22).", "33. The Court has to consider whether the subject matter of the present case falls within the ambit of Article 8. The Court does not find it necessary to determine the notions of “private life” or “family life” because, in any event, the applicant's complaint relates to the manner in which the alleged difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under Article 8 of the Convention (see Larkos v. Cyprus [GC], no. 29515/95, § 28, ECHR 1999-I). The applicant had been living in the flat that had been let to Mr W. and if it had not been for his sex, or rather, sexual orientation, he could have been accepted as a life companion entitled to succeed to the lease, in accordance with section 14 of the Rent Act.", "Therefore, Article 14 of the Convention applies. B. Compliance with Article 14 taken in conjunction with Article 8 34. The applicant submitted that section 14 of the Rent Act aimed to provide surviving cohabitants with social and financial protection from homelessness but did not pursue any family- or social-policy aims. That being so, there was no justification for the difference in treatment of homosexual and heterosexual partners.", "Accordingly, he had been the victim of discrimination on the ground of his sexual orientation. 35. The Government accepted that in respect of succession to the tenancy the applicant had been treated differently on the ground of his sexual orientation. They maintained that that difference in treatment had an objective and reasonable justification, as the aim of the relevant provision of the Rent Act had been the protection of the traditional family. 36.", "ILGA-Europe, Liberty and Stonewall submitted as third-party interveners that a strong justification was required when the ground for a distinction was sex or sexual orientation. They pointed out that a growing number of national courts in European and other democratic societies required equal treatment of unmarried different-sex partners and unmarried same-sex partners, and that that view was supported by recommendations and legislation of European institutions, such as Protocol No. 12 to the Convention, recommendations by the Parliamentary Assembly of the Council of Europe (Recommendations 1470 (2000) and 1474 (2000)), the European Parliament (Resolution on equal rights for homosexuals and lesbians in the EC, OJ C 61, 28 February 1994, p. 40; Resolution on respect for human rights in the European Union 1998-1999, A5-0050/00, § 57, 16 March 2000) and the Council of the European Union (Directive 2000/78/EC, OJ L 303/16, 27 November 2000). 37. The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, 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 (see Petrovic, cited above, p. 586, § 30).", "Furthermore, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 27; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24; Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 29, ECHR 1999-IX; Smith and Grady v. the United Kingdom, nos.", "33985/96 and 33986/96, § 94, ECHR 1999-VI; Fretté v. France, no. 36515/97, §§ 34 and 40, ECHR 2002‑I; and S.L. v. Austria, no. 45330/99, § 36, ECHR 2003-I). Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Smith and Grady, cited above, § 90, and S.L.", "v. Austria, cited above, § 37). 38. In the present case, after Mr W.'s death, the applicant sought to avail himself of the right under section 14(3) of the Rent Act, which he asserted entitled him as a surviving partner to succeed to the tenancy. The court of first instance dismissed an action by the landlord for termination of the tenancy and the Vienna Regional Court dismissed the appeal. It found that the provision in issue protected persons who had been living together for a long time without being married against sudden homelessness and applied to homosexuals as well as to heterosexuals.", "39. The Supreme Court, which ultimately granted the landlord's action for termination of the tenancy, did not argue that there were important reasons for restricting the right to succeed to a tenancy to heterosexual couples. It stated instead that it had not been the intention of the legislature when enacting section 14(3) of the Rent Act in 1974 to include protection for couples of the same sex. The Government now submit that the aim of the provision in issue was the protection of the traditional family unit. 40.", "The Court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001-VI, with further references). It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected. 41. 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.", "In cases in which the margin of appreciation afforded to States is narrow, 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 realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of section 14 of the Rent Act. The Court cannot see that the Government have advanced any arguments that would allow such a conclusion. 42. Accordingly, the Court finds that the Government have not offered convincing and weighty reasons justifying the narrow interpretation of section 14(3) of the Rent Act that prevented a surviving partner of a couple of the same sex from relying on that provision.", "43. Thus, there has been a violation of Article 14 of the Convention taken in conjunction with Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 45. The applicant's lawyer claimed 7,267 euros (EUR) as compensation for pecuniary damage caused by the applicant's having to return the flat, which he had renovated, have recourse to an estate agent and renovate a new flat. He also claimed EUR 7,267 for non-pecuniary damage due to the anxiety suffered by the applicant. 46. The Government argued that the claim for pecuniary damage was not supported by any receipts.", "As to the claim for non-pecuniary damage, it had only been made after the applicant's death. In the absence of any injury to any heirs, it was unnecessary to determine whether such a claim could form part of the applicant's estate. 47. The Court considers that in the absence of an injured party no award can be made under Article 41 of the Convention as regards the claims for pecuniary and non-pecuniary damage. Accordingly, the Court rejects these claims.", "B. Costs and expenses 48. The applicant's lawyer claimed EUR 13,027.75 for costs and expenses incurred in the Convention proceedings. 49. The Government considered this request to be excessive and that any award under that head should not exceed EUR 1,453.46.", "50. The Court, making an assessment on an equitable basis, decides that EUR 5,000 shall be paid to the applicant's estate in respect of costs and expenses, plus any tax that may be chargeable. C. Default interest 51. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Rejects by six votes to one the Government's request that the application be struck out of the list of cases; 2. Holds by six votes to one that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8; 3. Holds by six votes to one (a) that the respondent State is to pay the applicant's estate, 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 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. 4. Dismisses unanimously the remainder of the claims for just satisfaction.", "Done in English, and notified in writing on 24 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Grabenwarter is annexed to this judgment. C.L.R. S.N. DISSENTING OPINION OF JUDGE GRABENWARTER 1.", "I voted against the majority's decision to reject the Government's request that the application be struck out of the list of cases, for the following reasons. The Court has decided on a number of occasions to permit a successor in title to continue Convention proceedings when an applicant has died. In the present case, however, it appears that there are no heirs, with the result that Article 37 § 1 of the Convention is in issue. 2. Under Article 37 § 1 of the Convention the Court may at any stage of the proceedings decide to strike an application out of the list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue his application.", "However, the Court should continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. I agree with the majority that discrimination against homosexuals in general, and in the field of tenancy legislation in particular, forms an important aspect of respect for human rights. This does not, however, in itself justify the continued examination of a case after the death of an applicant in proceedings under Article 34 of the Convention. The reasoning of the majority is rather short as the reference to case-law concerning the continuation of proceedings when there are heirs does not apply in this case. At the outset, I agree with the majority that, despite the death of the applicant and the absence of a formal successor in title, the Court may in exceptional cases continue the examination of a case.", "I also agree that the general importance of the case may be of relevance in this respect. 3. However, I do not share the opinion that the present case is one of “general importance” for these purposes. In taking up the wording of earlier judgments in a different context, the majority suggest that it suffices if the continuation of the examination would “contribute to elucidate, safeguard and develop the standards of protection under the Convention” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 62, § 154, and Guzzardi v. Italy, judgment of 6 November 1980, Series A no.", "39, p. 31, § 86). While it is true that judgments also serve these purposes, it is not in line with the character of the Convention system (which is primarily designed to protect individuals) to continue proceedings without an applicant on the ground that this contributes to elucidating, safeguarding and developing the standards of protection under the Convention. This rather general criterion is met by the majority of the cases declared admissible, at least by those where the alleged violation is caused by domestic law or general practice and not by the practice applied in the particular case. “General importance” needs to be read in a narrower sense. The judgment gives no reason for the “general importance” of the case other than the reference to the submissions of a third party, whose intervention “highlights the general importance of the issue”.", "The fact that third parties applied to intervene is an indication of a certain general interest in the case, but it does not mean that the case is of a general importance (see Rule 61 § 3 of the Rules of Court and Article 36 § 2 of the Convention for the criteria for third-party interventions). In this connection, reference must be made to a recent judgment of the Fourth Section of the Court in Sevgi Erdoğan v. Turkey (striking out) (no. 28492/95, 29 April 2003), paragraph 38 of which reads as follows: “In the light of the foregoing, and given the impossibility of establishing any communication with the applicant's close relatives or statutory heirs, the Court considers that her representative cannot meaningfully continue the proceedings before it (see, mutatis mutandis, Ali v. Switzerland, judgment of 5 August 1998, Reports of Judgments and Decisions 1998‑V, pp. 2148-49, § 32). The Court would also point out that it has already had occasion to rule on the issue raised by the applicant under Article 3 in its examination of other applications against Turkey (see, among many other authorities, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996‑VI; Büyükdağ v. Turkey, no.", "28340/95, 21 December 2000; and, as the most recent example, Algür v. Turkey, no. 32574/96, 22 October 2002). Having regard to those considerations, the Court concludes that it is no longer justified to continue the examination of the application.” Sevgi Erdoğan shows that, while a question of general importance may attach to, for example, cases involving gross violations of human rights (such as the execution of someone following a death sentence before this Court has given judgment), even treatment that may fall under Article 3 of the Convention does not in itself justify continuing the examination of an application. Therefore, it is hard to see why a violation of Article 14 of the Convention taken in conjunction with Article 8 should be seen differently unless there are other reasons. It appears from Sevgi Erdoğan that a prior judgment on the same issue may be relevant in considering whether an application should be struck out of the list of cases under Article 37 § 1 of the Convention.", "The majority do not rely on that argument. If they had done so they could not have supported the continuation of the proceedings for the following reason. If the Court has not yet decided a particular issue, the question arises whether it would be difficult to bring a similar case before the Court. It follows, however, from the submissions of the applicant's lawyer that there are a number of parallel cases in Austria, especially in Vienna, that could easily be brought before the Austrian courts and hence before this Court. Against the background of the decision of the Austrian Supreme Court in this case, it may even be doubtful whether future applicants would have to introduce a remedy before that court in order to fulfil the requirements of Article 35 of the Convention.", "In sum, I do not think that it would be especially difficult to bring a parallel case before the European Court of Human Rights. Both the lack of general importance of the present case and the lack of any particular difficulty in bringing a parallel case before the Court lead me to the conclusion that the present application should have been struck out of the list of cases. The European Court of Human Rights is not a constitutional court which decides on a case-by-case basis which cases it deems expedient to examine on the basis of a general criterion such as the one provided by the majority. At any rate, the Chamber broke new ground with this decision, which is unprecedented in the case-law of the Court. It refers to a number of cases at paragraph 23 of the judgment, although not Sevgi Erdoğan, and then proceeds to decide this case differently.", "In my view, this is a clear case in which Article 30 of the Convention applies: the judgment has a “result inconsistent with a judgment previously delivered by the Court”. It also raises a serious question affecting the interpretation of the Convention. The Chamber should then have relinquished jurisdiction in favour of the Grand Chamber. 4. Were the applicant still alive, I would have voted in favour of finding a violation of Article 14 of the Convention taken in conjunction with Article 8.", "I only voted against finding a violation as a consequence of my vote on the Government's request to strike the application out of the list of cases. 5. I also voted against the award of just satisfaction under Article 41 of the Convention. However, this is not only a matter of consistency. The decision on that point again shows the problems which arise if one strains the natural wording of the Convention.", "Article 41 tells us that just satisfaction can only be awarded to an “injured party”. This reflects again the notion that the Convention system serves to protect individuals. In this case we have no injured party any more, and there is still some doubt about whether heirs might still turn up (see paragraph 18 of the judgment). To award the specified sum to the applicant's “estate” where there are no heirs does not solve the problem. In the (probable) event that no heir is found, the estate will pass to the State (Article 760 of the Civil Code, ABGB), which means that the Contracting Party will have to pay the money from one pocket to the other." ]
[ "FIFTH SECTION CASE OF HELHAL v. FRANCE (Application no. 10401/12) JUDGMENT STRASBOURG 19 February 2015 FINAL 19/05/2015 This judgment has become final under Article 44 § 2 of the Convention final but it may be subject to editorial revision. In the case of Helhal v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10401/12) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Algerian national, Mr Mohammed Helhal (“the applicant”), on 23 November 2011. 2. The applicant was represented by Mr P. Spinosi, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3.", "The applicant, who is disabled, complained that his continued detention and the care he was receiving in prison were incompatible with Article 3 of the Convention. 4. On 17 December 2012 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "Facts submitted at the time of the application 5. The applicant, who was born in 1972, is serving a thirty-year prison sentence imposed on 31 May 2007 by the Meurthe-et-Moselle Assize Court for murder, attempted murder and assault involving the use or threatened use of a weapon. He has been imprisoned since 17 May 2002 and will become eligible for release on 18 July 2027. 6. On 18 March 2006, while he was in prison in Nancy, the applicant fell several metres during an attempted escape and suffered a fractured spine.", "He spent several months at the Fresnes rehabilitation clinic before being transferred to Mulhouse Prison, where he encountered substantial difficulties (particularly on account of the staircases, which made it impossible for him to move about unaided), and Metz Prison, where his cell was not equipped for wheelchair use. He was subsequently transferred back to Fresnes from 5 November 2008 until 28 May 2009. From that date until 17 September 2014 he was held in Uzerche Prison, before being transferred to Poitiers-Vivonne Prison, where he is currently detained. 7. On 12 August 2010 the applicant applied to the Tulle judge responsible for the execution of sentences to have his sentence suspended on medical grounds, under Article 720-1-1 of the Code of Criminal Procedure (see paragraph 27 below).", "He explained that as a wheelchair user with paraplegia, he was not being detained in appropriate conditions since the premises were not designed for wheelchair use, and he was unable to receive the care he required. He noted that access to the toilet in his cell was undignified, that he could not reach all parts of the prison premises unaided, and that the provision of medical and paramedical care was inadequate, particularly as regards physiotherapy. He pointed out that he was unable to go to the showers autonomously and that the prison had assigned a prisoner to assist him for a payment of fifty euros per month. This prison orderly was responsible for cleaning the applicant’s cell and accompanying him to the showers and washroom. 8.", "In an order of 27 September 2010 the judge appointed two doctors as experts. They submitted their reports on 2 and 14 November 2010. 9. The report by Dr G., drawn up on 21 October 2010, concluded: “... Mr Mohammed Helhal has incomplete paraplegia with total effective urinary incontinence requiring self-catheterisation and round-the-clock use of a nappy. He also has major haemorrhoidal irregularities, for which he has refused any treatment.", "Mr Mohammed Helhal currently has active muscle relaxation in the two lower limbs, for which physiotherapy is required several times a week on a regular, long-term basis. That being so, Mr Mohammed Helhal’s state of health is not incompatible with imprisonment, subject to the express condition of being detained in a facility catering for his disability, where he can undergo regular physiotherapy and have appropriate access to a gym.” 10. The report by Dr R. was drawn up on 28 October 2010 and read as follows: “... On 17 November 2009 ... Dr Dubois stated: ... ‘his condition requires treatment by a physiotherapist in a specialist environment and daily pressure-sore relief’. ... The most recent assessment at Bordeaux University Hospital, where the patient stayed from 5 to 12 March 2010, confirms that there has been a good sensorimotor recovery in the lower limbs and that mobility is possible with two walking sticks and a frame, whereas at present the patient mainly moves about in a wheelchair.", "Appropriate physiotherapy focusing on both the joints and the muscles would clearly enable the prisoner to perform his own transfers with technical support, which would also have the benefit of easing the complications at the pressure points. At the same time, alongside the favourable progress in this post-traumatic condition, the patient has an anal disorder as a result of haemorrhoid surgery, and this essentially causes discomfort on a functional level. Conclusion ... - The prisoner displays sensorimotor damage resulting from a thoracolumbar spine fracture; - The damage is stable with clear evidence of motor recovery in the lower limbs; - Daily physiotherapy would be justified to improve motor skills in the lower limbs and the quality of transfers, but this is not possible at Uzerche Prison as there is no on-site physiotherapist; - There is permanent sensory damage in the L5-S1 region requiring self-catheterisation, which is being adequately managed on a day-to-day basis by the prisoner; - All of these spinal conditions are currently stable and unlikely to worsen, but could improve with proper treatment; - The various disorders observed, in terms of both traumatic spinal cord injuries and anal damage, are not life-endangering for the prisoner; - The prisoner’s state of health is in my opinion not incompatible in the long term with continued detention; - The disorders currently observed are stable and will continue to develop on a chronic basis, justifying palliative care.” 11. In a judgment of 3 February 2011 the Limoges Post-Sentencing Court dismissed the application for suspension of the applicant’s sentence. It took into account the two concurring medical opinions in finding that the applicant’s state of health was compatible in the long term with his imprisonment.", "However, the court observed that “Uzerche Prison manifestly fails to satisfy the criteria for ensuring a suitable detention regime for the applicant, in terms of both the premises and the availability of paramedical care, despite the undisputed efforts by the prison’s management and staff to ease the prisoner’s living conditions as far as possible”. It then noted that there were custodial facilities that were equipped to cater for the applicant’s condition, such as Fresnes Prison or Roanne Prison, “which is designed and organised in a manner compatible with accommodating disabled prisoners, and where [he] will be able to have the regular physiotherapy sessions that he rightly demands, since a masseur/physiotherapist comes to the prison almost every day”. The court concluded as follows: “It therefore appears from all of the above considerations, both from a medical perspective and in terms of the prospect of arranging suitable conditions of detention, that the prisoner does not satisfy the requirements for having his sentence suspended on medical grounds.” 12. The applicant appealed against the judgment of 3 February 2011. He reiterated that besides the structural inadequacy of Uzerche Prison, he had not been offered any special arrangements in terms of medical and paramedical care (physiotherapy and access to the gym).", "He also submitted that Roanne Prison was no more suitable than Uzerche Prison as it did not have a rehabilitation facility. 13. In a judgment of 3 May 2011 the Post-Sentencing Division of the Limoges Court of Appeal upheld the judgment of 3 February, holding: “The two experts concurred in concluding that [the applicant’s] condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. While it is indeed not possible for these requirements to be fulfilled at Uzerche Prison, where [the applicant] has been transferred at his own request to be closer to his family, it has not been shown that he cannot be accommodated in conditions catering for his disorders at Roanne Prison, and therefore the criteria for suspending the execution of his sentence have not been satisfied, particularly since [the applicant] continues to deny – as stated in his letter of 23 March 2011 – the serious criminal acts that led to his conviction.” 14. The applicant appealed on points of law.", "In a judgment of 31 August 2011 the Court of Cassation declared the appeal inadmissible. 15. In a letter of 28 February 2012 to the Registry of the Court, the applicant contended that he was not undergoing any physical rehabilitation, there being no physiotherapist at Uzerche Prison, and that he had no access to the gym. He wrote that his health was deteriorating on a daily basis and that he was being mistreated through the lack of provision of care. B.", "Facts brought to the Court’s attention in the parties’ observations of 10 April and 14 June 2013 and the Government’s additional observations of 24 July 2013 1. Provision of care 16. According to the Government, the applicant has received the following medical assistance: (a) twelve occasions of escorted leave between 3 May 2011 and 26 June 2012 for specialist consultations and medical imaging tests at Tulle Hospital and Limoges University Hospital; (b) thirty-three medical appointments with a doctor from the prison medical unit, consisting of a medical examination on 28 May 2009 followed by consultations spread across his time at the prison (ten in 2009, three in 2010, ten in 2011, six in 2012, one in 2013); (c) three stays in hospital for several days in 2010, 2011 and 2012; (d) technical assistance from nurses on fifty-five occasions between 2009 and 2013, plus weekly meetings with the prison nurse; (e) eight psychiatric consultations and sixteen meetings with a psychiatric nurse; (f) provision of medical equipment to alleviate or offset disabilities, including a walking frame (June 2009), an anti-pressure-sore cushion (August 2009), spectacles (January 2010), a new wheelchair (September 2012), and an electrostimulation device (February 2013). 17. In addition to the treatment described above, the Government informed the Court that from September 2012 the applicant had attended physiotherapy sessions at Uzerche Prison.", "The physiotherapist’s services had been engaged following three letters dated 18 November 2011, 28 December 2011 and 19 March 2012 in which the interregional director of the Prison Service had alerted the Director General of the Limousin Regional Health Agency to the detrimental effects of the lack of physiotherapy on the care provided to prisoners. 18. The Government added that the applicant had been offered the opportunity to attend yoga classes but had been removed from the list of those enrolled for the classes because of his non-attendance. 19. The applicant confirmed the occasions of escorted leave mentioned by the Government but pointed out that on each occasion he had been transferred by ambulance – with his wrists and ankles handcuffed – and had had to undergo a full body search beforehand and a rub-down search afterwards.", "He added that the full body searches carried out whenever he received visits and when he was escorted outside the prison were deeply humiliating; he was obliged to have his nappy inspected, and in order to proceed more quickly, several warders carried out this task together. During one inspection, a senior warder had said in front of everyone that “the boss had given instructions to inspect his nappy”. The applicant maintained that as a result of these practices, he had asked his sister to visit him less frequently. 20. With regard to the applicant’s complaints about the instances of escorted leave and the body searches, the Government pointed out that the physical damage he had suffered could not be regarded as having eradicated any security risk, since his health had no bearing on his potential connections on the outside and the risk of his escaping.", "To that end, they produced copies of two decisions dated 2011 (month illegible) and June 2012 ordering individual (full body) searches in connection with escorted leave for medical reasons. They noted that in May 2013 the applicant had been sent to a punishment cell for ten days following an assault on a fellow prisoner and the discovery of a mobile telephone in his cell. They stated that searches in the prison were not carried out systematically but on the basis of incidents noted during visits or in the cells. They produced three decisions ordering individual searches, dated 14 May and 26 December 2011 and 10 May 2013 (involving searches of the applicant’s cell), and seven decisions ordering a one-off search of a specific sector of the prison after the visits received on 10 June 2011, 10 November 2011, 26 June 2012, 1 October 2012, 14 December 2012, 22 March 2013 and 31 May 2013. 21.", "With regard to physiotherapy, the applicant pointed out that he had only started receiving it in September 2012 and that it was limited to a weekly fifteen-minute session. He produced a medical certificate issued on 10 May 2013 by a doctor from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) stating that his “condition requires daily rehabilitation, which Uzerche Prison is unable to provide, both on account of the lack of qualified staff and because the premises are not suitably equipped. As a result, the patient cannot remain in this facility without his health suffering. He must be given the possibility of admission to a specialised facility.” The applicant submitted that the doctor was repeating what his colleagues had already noted on 17 November 2009 (see paragraph 10 above) and 11 March 2011; he produced a medical certificate signed on the latter date by a doctor from the UCSA who stated that the applicant could not remain in the facility without his health suffering and added that “his paraplegia must be treated in a rehabilitation centre”. 22.", "With regard to the electrostimulation device, the applicant submitted that his doctor had obtained the funds needed to purchase it but that the prison authorities had not allowed him to do so. As to the possibility of attending yoga classes, the applicant pointed out that he had been urged to go no more than once a week in order to avoid “monopolising” the lift leading to where the classes were held. 23. The applicant again stressed that he was dependent on the prison orderly responsible for assisting him in his everyday activities. The prisoner currently “assigned” to that duty was the third since his admission to the prison, and the applicant was dependent on him for supplying incontinence products, accompanying him to the showers (there was a step preventing unassisted wheelchair access) and cleaning his cell.", "This level of dependency and the problems associated with his incontinence complicated his relationship with the orderly. Going to the shower was a stressful time because the structure did not shield him from the view of others and his incontinence exposed him to extremely humiliating situations, causing irritation or even hostility on the part of his fellow inmates, who were unwilling to put up with such inconvenience in the course of their personal hygiene activities. 24. Lastly, the applicant informed the Court that he had been temporarily transferred to a cell in the secure unit, further to a decision by the classification board, after a mobile phone had been found in his cell. Under the resulting regime, he had access to one hour’s exercise in the morning and one hour in the afternoon, despite the fact that a doctor had issued a certificate on 7 June 2013 stating that his condition required access to at least five hours’ exercise a day.", "The Government stated that the applicant had been transferred back to his cell on 26 June 2013. 2. Prospect of a transfer to Roanne Prison 25. The applicant submitted that although the prison management had indeed encouraged him to request a transfer to Roanne Prison, their approach had been guided by purely administrative considerations unconnected to his care-related needs. The management had refused to give the slightest undertaking about the conditions in which he would be accommodated in Roanne and the care he could be given there.", "They had been unable to provide any guarantees as to care arrangements as there were six cells for disabled prisoners at that facility and they were all occupied, and a single physiotherapist came to the prison for four half-days a week to provide services for five hundred prisoners. The applicant contended that he had not applied for a transfer on the grounds that the prison in question did not offer appropriate care facilities and would simply have represented a further upheaval and ordeal for him following his repeated moves from one prison to another (twelve transfers between 2002 and 2009). He referred to information obtained from International Prison Watch (Observatoire international des prisons – OIP) by his sister and his lawyer and produced a copy of an email sent by OIP to his lawyer on 3 January 2011, reading as follows: “I do not think that Meaux and Roanne are particularly well equipped although, like all recent establishments, they do have disabled cells. I attach a decision in which the Douai Court of Appeal found, in relation to another wheelchair user, that ‘no custodial facility is equipped to cater for the applicant’s condition’ and accordingly suspended the execution of his sentence. ...", "Nevertheless, I consider it important to stress the consequences of a change of prison, not only in terms of family ties but also as regards the procedure for requesting a suspension of the sentence, since that procedure would then have to be started over again. ...” The applicant emphasised in any event that the medical unit at Uzerche Prison had not recommended his transfer to Roanne but rather the provision of treatment in a specialist facility. 26. The Government submitted that the applicant’s transfer to Roanne Prison had been envisaged by the health-care professionals at Uzerche Prison but observed that he had never actually requested such a transfer; after mentioning a transfer request, he had indicated the following day (9 August 2011) that he did not intend to pursue it, for reasons that were unclear. The Government also produced a note drawn up on 12 June 2012, which in their submission suggested that “the applicant’s main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive”.", "They rejected the applicant’s arguments about the inability of Roanne Prison to accommodate him and submitted, in their additional observations, that only three of the six cells reserved for people with reduced mobility were occupied. They produced a copy of an email sent by the Prison Service in July 2013 indicating the availability of such cells. They also pointed out that an agreement had been signed in June 2013 between Roanne Prison, the UCSA and a non-governmental organisation with a view to providing appropriate care for dependent prisoners with specialist professional assistance. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Suspension of the execution of a sentence on medical grounds 27. Article 720-1-1 of the Code of Criminal Procedure was worded as follows at the material time: “Unless there is a serious risk of reoffending, suspension may also be ordered, regardless of the nature of the sentence or the portion remaining to be served, and for a duration that does not need to be determined, where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital. The suspension may only be ordered if two separate medical opinions concur in finding that the prisoner is in one of the situations set out in the previous paragraph. However, in an emergency where the prisoner’s life is at risk, the suspension may be ordered on the basis of a medical certificate issued by the doctor in charge of the medical unit treating the prisoner, or a doctor standing in for him or her ...” Law no. 2014-896 of 15 August 2014 on adapting sentences to the individual and increasing the effectiveness of criminal penalties, which came into force on 1 October 2014, has amended the system for suspending the execution of sentences.", "In the case of convicted prisoners, it has, among other things, abolished the requirement for a second medical opinion. Paragraph 2 of Article 720-1-1 of the Code of Criminal Procedure now provides that “[t]he suspension may only be ordered if a medical opinion establishes that the prisoner is in one of the situations set out in the previous paragraph”. In the same paragraph, “where the prisoner’s life is at risk” has been removed as a requirement in the event of an emergency. 28. Examining the provision in question, the Court of Cassation specified in a judgment of 28 September 2005 (Criminal Division, 05-81.010) that the convicted prisoner’s condition necessarily required a poor short-term prognosis.", "In a judgment of 7 January 2009 (Criminal Division, 08-83364) the Court of Cassation held that in rejecting an application by a disabled prisoner for the suspension of his sentence, the Post-Sentencing Division of the Amiens Court of Appeal had not justified its decision on the basis of Article 720-1-1 of the Code of Criminal Procedure since it had not determined, as the applicant’s submissions had invited it to do, whether the two expert opinions indicated that the actual conditions of his detention were incompatible in the long term with his state of health. Lastly, in a decision of 26 June 2013 (Criminal Division, 12-88284) the Court of Cassation refused to refer a question relating to Article 720-1-1 of the Code of Criminal Procedure to the Constitutional Council for a preliminary ruling on constitutionality. The question concerned the alleged interference with the ordinary courts’ duty to protect personal liberty in so far as they were bound by the medical experts’ two concurring opinions; the fact that the measure could be granted only if there was no serious risk of reoffending; and the lack of clarity of the provision in terms of respect for human dignity. The Criminal Division found that the question raised had no serious merit, for the following reasons: “... firstly, ... the person concerned has been deprived of his liberty for the purpose of serving a sentence deemed necessary by the judicial authority, a suspension of the sentence on medical grounds being an exceptional measure, and secondly, ... even where two expert opinions concur in finding that the prisoner is not in one of the situations provided for in Article 720-1-1 [of the Code of Criminal Procedure], it is reasonable to envisage that the court dealing with an application for suspension of a sentence would be competent either to order a further opinion or to determine whether the continued detention of the person concerned would amount to inhuman or degrading treatment, for example because it would be incompatible with the guarantees to which he is entitled for the protection of his health.” 29. In his annual activity report for 2012 the Inspector General of Detention Facilities (contrôleur général des lieux de privation de liberté – CGLPL) included a chapter on “old age, invalidity and disability in prison”, in which he noted that people in these categories were excluded by the very nature of prison architecture and the organisation of everyday prison life.", "He explained that cells for prisoners with reduced mobility were often located on the ground floor, which was normally set aside for prisoners under the “closed doors” regime; this was not conducive to any communication. The daily routine was a further source of anxiety: “fear of being confronted with violence, fear of a primarily young population, fear of going to the exercise yard. Boredom too, since an occupational activity is no longer accessible to them and the activities available are unsuited to their physical condition. And finally, the humiliation of being dependent. Although many facilities have signed agreements with associations providing personal assistance, there are still too many prisons where the duties of ‘attendant’ or domestic help are performed by other prisoners employed by the prison management – the ‘prison orderlies’; this situation is unacceptable on account of the risks of blackmail and the lack of appropriate training and remuneration.” The CGLPL advocated a rethink of the architecture and living arrangements at detention facilities, but emphasised that consideration should be given to allowing these types of prisoners to serve their sentences in a non-custodial environment.", "He also recommended that “the suspension of sentences on medical grounds be better adapted to the reality of the situations it may cover”. Among the targets of his criticism in that respect were the restrictive conditions laid down in Article 720-1-1 of the Code of Criminal Procedure, by which the execution of a sentence could be suspended only in extremely serious cases and as a short-term measure. He added: “It must be noted that the experts assigned to assess whether the prisoner’s health is compatible with continued detention do not take sufficient account of the physical conditions of incarceration, quite simply because they are entirely unaware of the constraints it entails”. He recommended that Parliament amend Article 720-1-1 “to introduce a third possible criterion besides the risk to life and the long-term incompatibility of the prisoner’s health with detention, namely granting a request for suspension of a sentence where the treatment required by the prisoner cannot be provided either in detention or even during periods of ordinary or escorted prison leave, because of its repetitive and regular nature”. 30.", "On 20 November 2013 the Justice/Health Interministerial Working Group submitted a report to the Ministers of Justice and Health on “Adjustments of sentence and suspensions of sentence on medical grounds”, which recommended, among other things, extending the scope of the suspension of sentences on medical grounds by giving greater consideration to disabilities in the examination of such applications: “The working group agrees on the need to specify in the practical guide that the suspension of a sentence on medical grounds is applicable to individuals whose disability is incompatible in the long term with detention and that due regard should be had in this assessment to the actual conditions of ordinary detention (reference is made to the case-law of the European Court of Human Rights and the Court of Cassation). It is recommended that the experts be provided with all possible means in order to determine whether the prisoner’s health is compatible with the conditions of ordinary detention. While some members of the group wanted to include a specific reference to disability in the text of Article 720-1-1 of the Code of Criminal Procedure, others are of the view that disability can already be taken into account under the existing provisions.” B. Relevant provisions on health care 31. Reference is made to the judgments in Mouisel v. France (no.", "67263/01, § 26, ECHR 2002-IX) and Rivière v. France (no. 33834/03, § 29, 11 July 2006) for the provisions governing health care in prison. It should be noted that health care for prisoners has been the responsibility of the public hospital service since the Law of 18 January 1994 came into force. Outside appointments and emergency and short-term hospital admissions take place at the hospital to which the UCSA – an internal unit of the hospital based in the detention facility – is attached. Any treatment that is unavailable at the UCSA is provided either at the local hospital or in one of the eight secure interregional hospital units (unités hospitalières sécurisées interrégionales – UHSI) or the National Public Health Institution in Fresnes (EPSNF).", "The UHSIs are responsible for providing medical and surgical treatment for detainees referred by UCSA medical personnel for stays of more than forty-eight hours. The EPSNF has medical, aftercare and rehabilitation departments and admits prisoners whose health requires an extended hospital stay or major therapy (see Guide du prisonnier (Prisoner’s handbook), OIP, 2012, section on “La médecine générale”). In its 2014 annual report the Court of Audit included a chapter entitled “Detainees’ health: further progress still essential”, in which it outlined the arrangements for admitting detainees to hospital and noted, among other things, the “poor take-up of somatic hospital capacity”, and especially the under-occupation of the UHSIs. The report also mentions “an approach to health care that is all too often dependent on the operation of the prison system”, and concludes that “in addition to the rigidity and constraints of the prison environment, the available treatment is still inadequate, the need for more modern premises and equipment is not satisfied and the forms of cooperation between the parties concerned are fragile and incomplete”. Furthermore, it calls for “the development of a stronger and clearer public‑health policy” through the assistance of regional health agencies, which “assess and identify detainees’ health-care needs.", "They define and regulate the provision of health care in a prison environment.” 32. Article D. 82 of the Code of Criminal Procedure provides that prisoners can be transferred either at the request of the governor of the prison where they are serving their sentence or at their own request. A Prison Service circular of 21 February 2012 on the assignment of detainees to custodial facilities specifies the procedure for applying for a transfer. Article D. 360 of the same Code deals with transfers of prisoners to a facility better equipped to cater for their condition. Article R. 57-8-6 of the Code concerns the rights of prisoners with disabilities.", "The two last-mentioned provisions are worded as follows: Article D. 360 “A transfer to a more appropriate custodial facility may be requested, in accordance with the fourth paragraph of Article D. 382, for detainees whose physical conditions of detention in the facility where they are being held are not suited to their medical condition, and for prisoners requiring special medical care. The regional director shall order any transfer within his or her region, subject to the conditions laid down in Article D. 301, with the aim of enabling a sick prisoner to receive treatment in more favourable conditions. In the case of remand prisoners, the judge dealing with the investigation must have given his or her prior consent to the transfer, after being informed of the likely duration of the treatment envisaged.” Article R. 57-8-6 (introduced by Decree no. 2010-1634 of 23 December 2010) “Any detainees who are prevented on a long-term basis, as a result of functional limitations of the upper limbs in connection with a physical disability, from independently performing actions linked to treatment prescribed by a doctor may designate another person, including a fellow detainee, to help him or her carry out these actions during periods when professional care staff are absent. The person thus designated must give express consent.", "... The head of the facility may oppose the designation of a particular helper for reasons relating, for example, to personal safety or the preservation of order within the facility.” [See also the methodological guide to health care for persons detained by the judicial authorities, Ministry of Justice and Ministry of Social Affairs and Health, 2012, p. 90] C. Report on the CGLPL’s visit to Uzerche Prison (October 2010) 33. The CGLPL published a detailed report following his visit to Uzerche Prison, an institution opened in 1990; only some parts of the report are relevant to the present case. It does not specifically mention problems linked to the situation for people with disabilities. With regard to the more general question of personal hygiene, the CGLPL observed that “no particular difficulties for prisoners have been noted.", "The showers are permanently accessible for prisoners under the ‘open doors’ regime, and once a day for prisoners under the ‘closed doors’ regime in B building.” He noted that the exercise yards were similar in all the wings of the prison, comprising a yard, two or three concrete benches, a concrete table-tennis table and an area for playing boules. They had “Turkish” (squat) toilets, which were inaccessible for prisoners with certain types of disability. In buildings C and D, there had for a long time been unrestricted access to the exercise yard, and prisoners had been able to come and go as they pleased. This was no longer the case. Set opening times had been introduced, and prisoners were required to enter the yard at the start of the time slot and leave at the end, with no other option: from 9 to 11 a.m., 2 to 4 p.m. and 4 to 5.30 p.m.", "The report also noted that “no physiotherapists have visited the prison since the retirement in 2009 of the person who previously performed this service. Several prisoners have complained about this.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 34. The applicant complained that he had been subjected to treatment in breach of Article 3 of the Convention on account of the inaccessibility of health care while in detention. The provision relied on by the applicant reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 35.", "The Government requested that the application be rejected as manifestly ill-founded. 36. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 37. The applicant submitted firstly that the conditions of his imprisonment undermined his dignity, and drew attention in that connection to the position taken by the judge responsible for the execution of sentences and the Post-Sentencing Division and challenged by the Government, to the effect that his continued detention was conditional on the availability of premises catering for his disability and the accessibility of appropriate treatment. The Government’s position was all the more unacceptable as the courts in question had merely examined the most immediately visible aspects of his situation, namely the configuration of the premises and the treatment available to detainees.", "Referring to the reports by the CGLPL and the Justice/Health Interministerial Working Group mentioned in paragraphs 29 and 30 above, he submitted that the competent authorities’ assessment of dignity was limited to the question of the provision of care rather than covering practical living conditions. However, his state of complete dependence on the prison orderly, the conditions in which he took a shower, the security measures imposed on him whenever he was escorted outside the prison and the full body searches all amounted to repeated humiliation undermining his personality. All these measures had been found to be inhuman and degrading by the Court (the applicant cited Vincent v. France, no. 6253/03, 24 October 2006; Khider v. France, no. 39364/05, 9 July 2009; and Duval v. France, no.", "19868/08, 26 May 2011), and the same conclusion had to be reached in his case, in view of the cumulative effect of the ill-treatment and his disability, as well as the complete lack of justification for the security measures imposed on him. 38. Regarding the quality of care provided, the applicant observed that the Government had acknowledged that no physiotherapy sessions had been available until 2012 and had provided no details as to their frequency after that time. He asserted that the treatment provided was derisory (see paragraph 21 above), even though the experts and doctors had repeatedly stressed the consequences of failure to provide suitable treatment for his condition. A transfer to Roanne Prison would not guarantee him any better treatment.", "The cells set aside there for prisoners with reduced mobility were all taken by severely disabled prisoners. The applicant also noted that one prisoner in a wheelchair had committed suicide in that prison in November 2012, and that in any event the doctors had recommended that he be admitted to a specialist facility for his rehabilitation. 39. As to whether his continued detention was appropriate, the applicant complained that Article 720-1-1 of the Code of Criminal Procedure had been read in a restrictive manner that conflated dignified conditions of detention with sufficiency of treatment. Furthermore, the Court of Appeal had based its findings on a ground not provided for by the Article in question for refusing a request for suspension of execution of a sentence, namely failure to acknowledge the offence.", "Relying on Gülay Çetin v. Turkey (no. 44084/10, 5 March 2013), he emphasised that there were no clear provisions of domestic law that required consideration to be given to personal capacity to cope with detention regardless of the quality of treatment needed, or that allowed situations infringing human dignity to carry on indefinitely. The intensity of the ordeal inflicted on a person with disabilities amounted to disregarding the purposes of the sentence, instead turning it into pure retribution and an indiscriminate punishment. The UCSAs’ task was in no way to remove their patients from the reality of their existence but rather to provide diagnosis and treatment. 40.", "The Government justified the applicant’s continued detention in the light of judgments such as Matencio v. France (no. 58749/00, 15 January 2004) and Vincent (cited above), given that it had not been established that he was suffering from a lack of autonomy. They drew attention to the two expert medical opinions finding that his state of health was compatible with detention, provided that he was detained in appropriate conditions. 41. As far as those conditions were concerned, the Government observed that the applicant was held in a cell equipped for people with reduced mobility, where it was possible to move about in a wheelchair.", "The cell was on the ground floor, thus facilitating access to the exercise yard and the socio-educational area. Stair-free access to the UCSA, the canteens, the visiting rooms and the registry was also possible. 42. The Government stated that the applicant was assisted in his daily activities by a prison orderly. In their additional observations they noted that the prison did not have individual showers, but that there was unrestricted access to the showers.", "Without indicating the location of the showers or the frequency with which the applicant was able to use them, they submitted that he could choose a time, subject to a maximum of thirteen prisoners per day; furthermore, each shower had a partition so as to ensure privacy. 43. The Government also emphasised the consideration given to the applicant’s well-being through access to a physical activity, namely yoga classes. They acknowledged that the sports area was not wheelchair accessible but pointed out that it was possible for the applicant to reach the area using crutches or his walking frame and that in any event he had never gone there. 44.", "The Government submitted in conclusion that the management had taken every step to reconcile the applicant’s disability as far as possible with the imperatives of detention, by enabling him to be as autonomous as possible and ensuring his well-being through cultural and physical activities. 45. The Government contended that the measures taken when the applicant was escorted outside the prison had been justified (see paragraph 20 above) in view of the offences of which he had been convicted, his sentence and his attempted escape; the security arrangements were regularly adjusted and reviewed. The body searches were also appropriate in view of the circumstances and could not be considered unjustified simply because of the applicant’s condition. 46.", "With regard to the treatment provided to the applicant, the Government stated that the prison service had provided him with all the facilities required for his disability, including an anti-pressure-sore cushion for the visiting room, an anti-pressure-sore mattress in his cell and a plastic chair for use while taking a shower. They also detailed all the occasions when the applicant had been admitted to hospital or escorted outside the prison (see paragraph 16 above), and the steps taken to ensure that a physiotherapist came to Uzerche Prison from September 2012 (see paragraph 17 above), submitting in conclusion that the conditions of his detention in relation to his state of health could not be deemed to amount to treatment in breach of Article 3 of the Convention. 2. The Court’s assessment (a) General principles (i) Duty of care 47. The Court refers to its settled case-law to the effect that the duty of care towards sick prisoners imposes the following specific obligations on the State: to verify that prisoners are fit to serve their sentence, to provide them with the necessary medical treatment and, where appropriate, to adapt the general conditions of detention to their particular state of health.", "These obligations are set out very clearly in Xiros v. Greece (no. 1033/07, § 73, 9 September 2010; for a more recent authority, see Ürfi Çetinkaya v. Turkey, no. 19866/04, §§ 87-92, 23 July 2013) and may be summarised as follows. 48. With regard to the first obligation, in a State founded on the rule of law fitness for detention is the prerequisite for pursuing the execution of a sentence.", "Although this cannot be construed as a general obligation to release detainees or transfer them to a civil hospital, even if they are suffering from an illness which is particularly difficult to treat, the Court cannot rule out the possibility that in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies in the form of humanitarian measures. Accordingly, in exceptional cases where the state of a detainee’s health is absolutely incompatible with his or her detention, Article 3 may require the release of that person under certain conditions (see Xiros, cited above, § 74). As regards the second obligation, the lack of appropriate medical care may in principle amount to treatment contrary to Article 3. The Court requires, firstly, the provision of relevant medical support for sick detainees and appropriate medical treatment for their specific ailments. The promptness and frequency with which medical care is provided to such prisoners are two factors to be taken into account in assessing whether they are being treated in a manner compatible with the requirements of Article 3.", "In particular, these two factors are not assessed by the Court in absolute terms, but with due regard for the prisoner’s particular state of health in each case. In general, the worsening of the prisoner’s health does not in itself play a decisive role as regards observance of Article 3 of the Convention. The Court examines in each case whether the deterioration of the prisoner’s health was attributable to inadequacies in the medical care provided (ibid., § 75). As regards the third obligation, the Court requires the prison environment to be adapted, where necessary, to the prisoner’s specific needs so that he or she can serve the sentence in conditions that do not undermine his or her psychological well-being (ibid., § 76). (ii) Prisoners with disabilities 49.", "Severe physical disability, like health and age, is a circumstance giving rise to the question of fitness for detention in the light of Article 3 of the Convention (see Mouisel v. France, no. 67263/01, § 38, ECHR 2002-IX, and Matencio, cited above, § 76). 50. Where the national authorities decide to place or maintain a person with disabilities in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from the detainee’s disability (see Price v. the United Kingdom, no. 33394/96, § 25, ECHR 2001-VII; Farbtuhs v. Latvia, no.", "4672/02, § 56, 2 December 2004; and Zarzycki v. Poland, no. 15351/03, § 102, 12 March 2013). 51. The detention of a disabled person for a lengthy period in a facility where he or she is unable to move about independently, and in particular leave his or her cell, amounts to degrading treatment proscribed by Article 3 of the Convention (see Vincent, cited above, § 103, and Cara-Damiani v. Italy, no. 2447/05, § 72, 7 February 2012).", "52. While it is true that the Convention does not in itself guarantee the right to social assistance, the State cannot release itself from its duty to ensure that detention conditions meet the special needs of disabled prisoners by shifting responsibility for their supervision or assistance to fellow inmates (see Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009; Grimailovs v. Latvia, no. 6087/03, § 161, 25 June 2013; and lastly, Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, in which reference is made to the risk of disabled prisoners being stigmatised by receiving assistance from fellow inmates in their everyday activities).", "In some cases, relying on assistance from fellow inmates in order to go to the toilet, wash or get dressed or undressed may be degrading or humiliating (see the case-law cited in Zarzycki, cited above, § 104, and also D.G. v. Poland, no. 45705/07, § 147, 12 February 2013). Access to sanitation facilities raises a particular concern under Article 3 of the Convention (see D.G. v. Poland, cited above, §§ 147 and 150, and Semikhvostov, cited above, § 81).", "(b) Application of the above principles in the present case 53. The Court observes firstly that it is not disputed that the applicant has a disability which leaves him largely confined to a wheelchair, although it appears that he is sometimes able to move about with the aid of walking sticks or a walking frame (see paragraph 10 above). The applicant’s complaint should therefore be examined in the light of the principles set out above governing the State’s duty of care towards people with disabilities, in view of their vulnerability in dealing with the hardships of detention. (i) Continued detention 54. The Court notes that the experts appointed following the application for suspension of the applicant’s sentence found that his state of health was compatible with detention provided that he could receive daily physiotherapy.", "One of them pointed out in his conclusions that physiotherapy could not be provided at Uzerche Prison (see paragraph 10 above). The post-sentencing courts subsequently found that the applicant did not satisfy the conditions for having the execution of his sentence suspended, while taking care to note that the prison where he was detained was not suited to his circumstances. The Court of Cassation declared the applicant’s subsequent appeal points of law inadmissible. 55. Having regard to the foregoing, the Court observes that it has not been ruled out that the applicant could receive physiotherapy in a prison setting (contrast Cara-Damiani, cited above, § 74).", "The Court observes that the applicant’s disability was taken into account in the assessment of his application for suspension of his sentence, which was rejected on the basis of concurring medical opinions concluding that his condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. In addition, the courts found that Uzerche Prison manifestly failed to satisfy the requirements for the applicant’s detention regime, in terms of both the premises and the availability of paramedical care (see paragraphs 11 and 13 above). The Court notes in that connection the developments in domestic law and in the positions taken by official bodies as to the need to take account of disabilities when considering applications for the suspension of sentences (see paragraphs 27, 28, 29 and 30 above). Lastly, it observes that it does not appear from the case file that the applicant’s health has deteriorated during his detention or that his disability has worsened as a result of the detention conditions. In particular, the report on the visit to Uzerche Prison by the CGLPL (see paragraph 33 above), which does not deal specifically with the situation for people with disabilities, does not suggest that the conditions there are such as render the applicant’s continued detention incompatible with Article 3 of the Convention.", "Furthermore, should the applicant’s health deteriorate, French law affords him the opportunity to submit a fresh application to have his sentence suspended on medical grounds, a process that Parliament has recently relaxed with a view to making it easier to use (see paragraphs 27 and 28 above). Accordingly, the present case does not concern the question of the applicant’s fitness to serve his sentence, but rather the quality of the care provided, and in particular whether the national authorities did everything that could reasonably be expected of them to provide him with the rehabilitative treatment he needed and to offer him some prospect of an improvement in his condition. (ii) Quality of treatment 56. The Court observes that there is no dispute between the parties as to the promptness and frequency of the medical treatment provided to the applicant since his transfer to Uzerche Prison, including access to specialist consultations (see paragraphs 16 and 19 above), and also as to the medical equipment made available to him, except for the electrostimulation device, the purchase of which, according the applicant, has been blocked by the prison authorities. On this specific point, no substantiated arguments have been submitted to the Court, in particular regarding the reason given by the appropriate authorities for refusing to allow the applicant to purchase such a device himself, which he is apparently in a position to do (see paragraphs 16 and 22 above) in the absence of any complaints on his part as to whether the device could be covered by the social-security system (contrast, for example, V.D.", "v. Romania, no. 7078/02, §§ 94-96, 16 February 2010). In view of these circumstances, the Court is unable to adopt a position on this point. 57. With regard to the physiotherapy prescribed by all the doctors who examined the applicant, the Court observes that they unanimously recommended daily rehabilitation sessions and access to a gym.", "However, the applicant did not receive any paramedical care of this kind until September 2012 – that is, for a period of more than three years following his admission to Uzerche Prison – on account of the lack of qualified staff at the institution. It was also very difficult for him to go to the gym since it was not wheelchair accessible, as the Government explained. The Court would note that the application for suspension of the applicant’s sentence was refused subject to his receiving appropriate physiotherapy sessions tailored to his condition, and that the domestic courts pointed out on that occasion that such treatment could not be provided at Uzerche Prison, but in other custodial facilities (see paragraphs 11 and 13 above). The UCSA doctors emphasised that the applicant’s rehabilitation should take place in a specialist environment (see paragraph 21 above). The Court is not in a position to assess whether an ordinary prison without admission to hospital (see paragraph 31 above) would constitute an appropriate setting, but it must ascertain whether measures were taken by the prison authorities to offer the applicant the treatment prescribed by the doctors.", "58. In that connection it notes, firstly, that no physiotherapist came to see the applicant at Uzerche Prison between 2009 and September 2012. According to the information supplied by the Government, the interregional director of the Prison Service repeatedly called upon the appropriate health-care authorities to remedy the deficiencies in the provision of physiotherapy at the prison (see paragraph 17 above), but it has to be noted that her appeal went unheeded for more than three years. The Court observes that while the responsibility for ensuring the presence of a physiotherapist at the prison lies with a separate authority from the Prison Service, this cannot justify such a lengthy period of inaction and on no account releases the State from its duties towards the applicant. The Court further observes that the Government have not shown that any effort was made to find a solution whereby the applicant could be transferred to another prison or a specialist setting.", "It cannot accept the Government’s argument that the failure to transfer the applicant to such a facility, in particular to Roanne Prison, was entirely his own fault. Admittedly, the applicant’s assertion that it would not have possible to provide him with the necessary treatment in that prison can only be regarded as speculation; the parties’ observations on this issue differ considerably since they referred to the situation at that prison at different times (see paragraphs 25 and 26 above). It is likewise true that the applicant did not formally request a transfer but decided against doing so, firstly in June 2010 because, according to the Government, his “main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive”, and then in August 2011, for unclear reasons (see paragraph 26 above). However, the Court does not consider that this attitude amounted to a refusal of treatment: it notes that in August 2011 the applicant was awaiting the outcome of his court application to have his sentence suspended, which might explain why he did not make any requests to the prison authorities at that time. Furthermore, although Article D. 360 of the Code of Criminal Procedure states that prisoners may request a transfer to another custodial facility more suited to their medical condition, it provides above all that the responsibility for such a transfer lies with the interregional director of the Prison Service, who is to order “any transfer ... with the aim of enabling a sick prisoner to receive treatment in more favourable conditions” (see paragraph 32 above).", "However, it does not appear from the case file that any specific measures were taken during that entire period or that any efforts were made to allow the applicant to undergo physiotherapy sessions tailored to his condition, despite the repeated recommendations of the UCSA doctors that he be provided with care in a specialist setting (see paragraph 21 above). The attitude of the applicant, who was apparently reluctant to seek a transfer for reasons including the distance from his family (see paragraph 25 above), cannot in itself justify the inaction of the prison and health-care authorities in failing to cooperate (see paragraph 31 above) to provide him with the care deemed necessary by the doctors who had examined him. The Court further notes that the physiotherapy he has received since September 2012 is limited to one weekly fifteen-minute session (see paragraph 21 above). (iii) Conditions of detention 59. Uzerche Prison has a cell for disabled prisoners on the ground floor, near the Outpatient Consultation and Treatment Unit, the canteen, the visiting rooms, the route to the exercise yard, and the socio-educational sector.", "The Court observes that it has not received any complaints from the applicant about the layout of his cell, which is wheelchair accessible (contrast Vincent cited above, §§ 101 and 102). Nor has the applicant indicated that he has suffered any hardship in moving around the different wings of the prison, which the Court notes is equipped with a lift that he can use where necessary (contrast Arutyunyan v. Russia, no. 48977/09, §§ 78-79, 10 January 2012). Although it does not appear from the case file that the applicant often leaves his cell, the Court cannot infer from his observations any specific problems attaining the level of severity required for Article 3 to be applicable as far as his movements around the facility are concerned, including access to outdoor exercise. 60.", "It remains for the Court to examine the part of the complaint concerning: the searches performed on the applicant and the measures taken when he was escorted outside the prison, all of which in his view constituted repeated acts of humiliation; his access to the showers; and the arrangements for assisting him. 61. Firstly, with regard to the body searches and security measures which the applicant was required to undergo whenever he was transferred to hospital, the Court points out that he did not complain about this issue in his initial application, raising it only in his observations, to which the Government responded by providing additional information about the frequency of and reasons for such transfers (see paragraph 20 above). It has already acknowledged that measures of this kind may reach the minimum level of severity required by Article 3 to constitute inhuman or degrading treatment (see Khider, cited above; El Shennawy v. France, no. 51246/08, 20 January 2011; and Duval, cited above), but it does not consider that this level has been attained in the present case; the Government’s additional observations on this issue indicate that the applicant was not searched systematically but on specific occasions during his detention, some of which concerned all prisoners at the facility.", "Moreover, only two decisions ordering searches when the applicant was escorted from the prison for medical reasons have been produced to the Court. Having regard to the reasons given by the Government to justify these occasional measures (see paragraph 20 above), which were not always aimed at the applicant alone, the Court considers that, despite their arduous nature, they do not appear to have attained the requisite level of severity for Article 3 to be applicable. The Court observes in this connection that the conditions and procedures complained of in relation to the transfers and searches of the applicant are not comparable to those observed in other similar cases (see Duval and El Shenawy, cited above; Mouisel, cited above, §§ 46 and 47; and Hénaf v. France, no. 65436/01, §§ 54-58, ECHR 2003-XI). 62.", "Secondly, as regards access to the sanitary facilities, and more specifically the showers, the Court observes that the applicant’s complaint is that since there are no such facilities in his cell, he is unable to go there unaided but is dependent on the assistance of a fellow inmate, a situation that exposes him to humiliation vis-à-vis the prison orderly in question and other prisoners on account of his incontinence. The Court does not have any information about the precise situation regarding the showers or the frequency with which the applicant can use them. However, it has not been disputed by the Government that he is unable to go there on his own (see paragraph 23 above) and that they are not designed to be accessible to people with reduced mobility. It can also be inferred from the applicant’s condition that the prisoner responsible for assisting him on a day-to-day basis according to the Government (see paragraph 42 above) has to help him to get washed. This state of affairs, where the showers are not wheelchair accessible and the applicant has to rely on a prison orderly to get washed, has been deemed unacceptable by the CGLPL (see paragraph 29 above).", "Furthermore, while legislation passed in 2009 made it possible for any prisoners with disabilities to designate a helper of their choice (see paragraph 32 above), the Court observes that a measure of this kind, assuming that the conditions governing such a choice have been satisfied in the present case, is not sufficient to meet the applicant’s needs, since having a shower is an uncomfortable occasion for him in view of his incontinence, the lack of privacy and the role of the prisoner designated to assist him (see, mutatis mutandis, D.G. v. Poland, cited above, § 177). Indeed, it does not appear from the evidence before the Court that such assistance complements the care provided to the applicant by health-care professionals, or that the prisoner designated to assist him has received the necessary training to perform the actions required to accompany a disabled person. The Court observes in this connection that it has held on several occasions that assistance from a fellow inmate, even on a voluntary basis, does not mean that an applicant’s special needs are satisfied and that the State has on that account discharged its obligations under Article 3 of the Convention. It has pointed out that it could not endorse a situation where prison staff evade their safety obligations and duty of care towards the most vulnerable prisoners by making their cellmates responsible for providing them with day-to-day assistance or, where appropriate, emergency care; such a situation gives rise to anxiety and places the prisoner in a position of inferiority vis-à-vis the other prisoners (see Farbtuhs, cited above, § 60, and D.G.", "v. Poland, cited above, § 147). (iv) Conclusion 63. In the final analysis, the Court takes the view that the applicant’s continued detention is not in itself incompatible with Article 3 of the Convention, but that the national authorities have not provided him with the care required to avoid subjecting him to treatment contrary to that provision. In view of his severe disability and the fact that he suffers from urinary and faecal incontinence, the length of time during which he was detained without receiving any rehabilitative treatment, and his inability to take a shower without the help of a fellow prisoner, are factors that have subjected the applicant to hardship exceeding the unavoidable level of suffering inherent in detention. Those circumstances amount to degrading treatment and thus to a breach of Article 3 of the Convention.", "The absence of any indication that the authorities acted with the intention of humiliating or debasing the applicant does not alter that finding in any way (see Farbtuhs, cited above, §§ 50 and 60). 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 30,000 euros (EUR) in respect of non-pecuniary damage. 66. The Government submitted that the claim was excessive. In the event of a finding of a violation, the sum of EUR 6,000 could be awarded to the applicant. 67.", "In the circumstances of the case, the Court considers it appropriate to award the applicant EUR 7,000 in respect of non-pecuniary damage. B. Costs and expenses 68. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court. 69.", "The Government did not object to the payment of that amount. 70. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 4,000 for the proceedings before it. C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall able on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in French, and notified in writing on 19 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident" ]
[ "FOURTH SECTION CASE OF ELENA COJOCARU v. ROMANIA (Application no. 74114/12) JUDGMENT STRASBOURG 22 March 2016 FINAL 22/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Elena Cojocaru v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Boštjan M. Zupančič,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Iulia Antoanella Motoc,Gabriele Kucsko-Stadlmayer, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 23 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 74114/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Elena Cojocaru (“the applicant”), on 14 November 2012. 2. The applicant was represented by Mr M. Stoleriu, a lawyer practising in Suceava. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.", "3. By relying on Articles 2, 6 and 13 of the Convention the applicant complained of the death of her daughter and granddaughter as a result of the Suceava County Hospital medical staff’s malpractice. In addition, she argued that the criminal investigation into the two deaths was ineffective, superficial and lacked any promptness. 4. On 11 July 2013 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Roman. A. The medical treatment received by the applicant’s daughter 6.", "The applicant’s daughter was monitored during her pregnancy by Dr I.M., a gynaecologist working at the Suceava County Hospital. She was examined on a monthly basis and her pregnancy developed normally. 7. On 8 October 2001, Dr I.M. performed a routine check-up on the applicant’s daughter when she was eight months pregnant.", "According to the applicant, on that occasion Dr I.M. informed her daughter that she needed to be hospitalised for further investigations because an imminent premature birth was suspected. 8. On the same date the applicant’s daughter was admitted to hospital with the diagnosis of imminent premature birth and sub icterus of unknown aetiology. 9.", "On 9 October 2001 the applicant’s daughter was examined and blood samples were collected because it was suspected that she was suffering from viral hepatitis and an internal condition. She was also suffering from pain in the lumbar region and food poisoning was suspected because she had stated that she had eaten mushrooms picked from the forest. She was treated with Duvadilan (a vasodilator, prescribed for peripheral vascular disease associated with cerebrovascular insufficiency and premature labour) and other medication. According to the applicant, as a result of this treatment large ecchymoses caused by the rupture of blood vessels appeared on her daughter’s legs and abdomen. 10.", "On the night of 9 to 10 October 2001 the medical condition of the applicant’s daughter worsened. 11. On 10 October 2001 the applicant’s daughter was transferred to the intensive care unit and her condition continued to deteriorate. 12. According to the applicant, after repeated requests from her and her son-in-law, Dr I.M.", "agreed to contact Dr D.D. from the Cuza-Vodă Clinic located in Iaşi. Dr D.D. was a university professor. When he received information about the patient’s condition and treatment, Dr D.D.", "diagnosed the applicant’s daughter with Hellp syndrome (an exceptionally serious pre‑natal condition) and asked Dr I.M. to perform an emergency C-section in order to save the mother’s life. 13. According to the applicant, Dr I.M. refused to perform the emergency C-section, but eventually agreed that the applicant’s daughter could be transferred to the Cuza-Vodă Clinic in Iaşi.", "14. The applicant’s daughter was transferred by ambulance to Iaşi, 150 kilometres away from Suceava, unaccompanied by a doctor. Her condition worsened during the transport. 15. She was admitted to the Cuza-Vodă Clinic in a coma, with the diagnosis of Hellp syndrome.", "An emergency C-section was performed thirty minutes after she arrived at the hospital. She died ten minutes after the surgery from cardiac arrest, despite resuscitation manoeuvres. The applicant’s granddaughter died on 12 October 2001 from cardiac arrest, despite resuscitation manoeuvres. B. Criminal investigations concerning the death of the applicant’s daughter and granddaughter 1.", "Ex-officio police investigation 16. On 10 October 2001 the Iaşi Police Department initiated of its own motion a criminal investigation into the death of the applicant’s daughter. They carried out an examination of the body, took photographic evidence and they interviewed Dr C.N., who had assisted Dr D.D. during the surgery, as well as the applicant’s son-in-law. 17.", "On 12 October 2001 a post-mortem report was produced in respect of the applicant’s daughter’s and granddaughter’s deaths at the Iaşi Police Department’s request. It concluded that the cause of the applicant’s daughter’s death had been cardio-respiratory and hepatic-renal insufficiency with brain hypoxia. In addition, the applicant’s granddaughter’s death had been caused by lung and brain hypoxia. 18. On 27 March 2002, the Iaşi Forensics Institute produced a forensic necropsy report.", "It noted amongst other things that according to the serology examination report no spores of poisonous mushrooms were found. It concluded that the death of the applicant’s daughter was pathological and was caused by hepatic-nephritis and generalised haemorrhagic vasculopathy, with cardio-respiratory and circulatory insufficiency. In addition, the assessment of the medical assistance provided to the victim during pregnancy and upon giving birth had to be made, after medical documents were adduced, by a review commission (comisia de avizare) composed of obstetrics and gynaecology experts. 19. On 30 May 2002, the Iaşi Forensics Institute, sitting as a review commission, informed the Iaşi Police Department that they approved the conclusions of the forensic necropsy report of 27 March 2002 as scientifically grounded and based on the medical data included in the report.", "In addition, it found that there had been no omissions in the techno-medical treatment of the victim (în atitudinea tehnic-medicală față de victimă nu se constată omisiuni). 2. Investigation under files nos. 670/P/2002 and 2294/P/2002 20. On 6 February 2002, the applicant’s son-in-law lodged a criminal complaint, with no civil claims, with the Iaşi Prosecutor’s Office, requesting an investigation into his wife’s and daughter’s deaths following his wife’s admission to the Cuza-Vodă Clinic in Iaşi.", "His complaint was registered on 12 February 2002 with the Iaşi Prosecutor’s Office under criminal file no. 670/P/2002. 21. On 27 March 2002, the applicant’s son-in-law lodged a second criminal complaint, with no civil claims, with the General Prosecutor’s Office attached to the Court of Cassation (“the General Prosecutor’s Office”) against the medical personnel of the Suceava County Hospital and the Cuza-Vodă Clinic in Iaşi. He relied on Article 178 (2) of the Romanian Criminal Code, and argued that the medical personnel had been medically negligent.", "In addition, he contended amongst other things that the criminal investigation lacked the required speediness. The complaint was registered on 23 April 2002 with the Iaşi Prosecutor’s Office under criminal file no. 2294/P/2002. 22. By an order of 26 July 2002 the Iaşi Prosecutor’s Office decided to join the criminal files nos.", "670/P/2002 and 2294/P/2002 and not to open criminal proceedings (neînceperea urmăririi penale) in the case. It held, on the basis of the medical evidence, the forensic necropsy report and the approval of the review commission of 30 May 2002, that the death of the victim had had natural causes and had not been induced by any medical error. Subsequently, the order was notified to the applicant’s son-in-law and he challenged the order before the superior prosecutor. 23. On 31 July 2002, the applicant’s son-in-law challenged the order before the Prosecutor General’s Office.", "His complaint was subsequently referred to the Iaşi Prosecutor’s Office. 24. On 30 September 2002, the superior prosecutor dismissed the applicant’s son-in-law’s challenge to the order of 26 July 2002. 3. Investigation under file no.", "735/P/2002 25. On an unspecified date in 2002, the applicant’s son-in-law lodged a criminal complaint against Dr I.M. with the Suceava Prosecutor’s Office for involuntary manslaughter following the deaths of his wife and daughter. The complaint was registered under criminal file no. 735/P/2002.", "26. On 8 January 2003 the Suceava Prosecutor’s Office informed the applicant’s son-in-law that the criminal investigation concerning Dr I.M. was pending; that he would be heard after the medical authorities had submitted the relevant medical and forensic documents; and that once the investigation had ended he would be notified of the outcome. 27. On 22 January 2003 the applicant’s son-in-law was heard in respect of the circumstances of his wife’s death.", "28. On 16 May 2003 the Suceava Police Department asked the Iaşi Forensics Institute to help them clarify certain aspects of the case and to explain: (a) if Dr I.M. had acted correctly by hospitalising the patient and by giving her the treatment he did; (b) if the treatment with Duvadilan was appropriate for the patient’s condition and if the treatment had influenced the deterioration of her condition; (c) what were the possible causes of the patient’s death occurring soon afterwards; (d) what would have been the patient’s chances of survival, given her diagnosis, if the surgery had been performed as soon as her condition had deteriorated. 29. On 16 May and 21 August 2003, Dr I.M.", "was heard in respect of the circumstances of his patient’s death. 30. On 10 June 2003 the Iaşi Forensics Institute informed the Suceava Police Department that given his patient’s diagnosis Dr I.M. had had a duty to carry out haemolysis and other blood tests in order to identify a state of pre-eclampsia, given that the patient had been hospitalised with sub icterus. In addition, the prompt treatment recommended in case of suspicion of Hellp syndrome would have been the immediate evacuation of the pregnancy in order to avoid aggravation of the hepatic and vascular lesions.", "Furthermore, with careful monitoring of the mother and of the foetus as well as prompt treatment, the deaths might have been avoided. The fact that the patient reached the Cuza-Vodă Clinic in Iaşi in a serious condition suggested inadequate monitoring. The absence of a diagnosis for three days aggravated the patient’s condition. Given the doctor’s aforementioned duties, he should have been aware of the evolution of a state of pre‑eclampsia, and he was obliged to exhaust all the available remedies to avoid it and treat it. The extremely low level of thrombocytes in the patient’s blood in Suceava was an important aid to a suspicion of this type of complication and an indication that prompt intervention was necessary.", "31. On 25 August 2003, following Dr I.M.’s objections, the Suceava Police Department reiterated before the Higher Forensics Commission attached to the National Forensics Institute in Bucharest (“the Higher Forensics Commission”) the same questions raised before the Iaşi Forensics Institute on 16 May 2003, and asked it to help them clarify those aspects of the case and to provide explanations. 32. On 12 January and 8 March 2004, the Suceava Police Department asked the Higher Forensics Commission to provide its conclusions in respect of their request from 25 August 2003. It emphasised that the conclusions were necessary to solve the case, and that the victim’s family had complained repeatedly before the domestic authorities about the lack of promptness of the criminal investigation.", "33. On 29 January 2004 the applicant complained before the superior prosecutor attached to the Suceava Prosecutor’s Office that the criminal investigation lacked promptness and had failed to clarify the circumstances of the victims’ deaths. She stated that the last written notification received concerning the case had been the information note of 8 January 2003. She also requested to be informed of the outcome of the investigation. 34.", "On 6 February 2004 the Suceava Police Department informed the applicant that the Higher Forensics Commission had been asked to produce a forensic expert report in the case. The applicant was also informed that as soon as the Higher Forensics Commission’s report was available a lawful solution would be issued in respect of the case and that she would be notified about it. 35. On 23 April 2004 the Higher Forensics Commission approved the note (avizul) produced by the Iaşi Forensics Institute on 10 June 2003 with additional explanations. In particular, it noted amongst other things that while she was in hospital the applicant’s daughter stated that she had eaten forest mushrooms.", "At the time there was another patient in the hospital suffering from mushroom poisoning. This caused her medical condition to be blamed on the mushrooms, which delayed the Hellp syndrome diagnosis. It also noted that during the applicant’s hospitalisation on the intensive therapy unit the applicant’s daughter condition worsened. Dr D.D. was contacted by phone and he suggested that the pregnancy should be evacuated.", "Given the patient’s serious condition and the local intensive therapy possibilities (posibilitățile locale de terapie intensivă), in order to solve the case, Dr D.D. was contacted and he accepted that the patient be transferred to Iaşi. It further noted that according to the post-mortem report the patient had displayed symptoms of hepatic-nephritis and generalised haemorrhagic vasculopathy and subsequent cardio-respiratory insufficiency. It concluded that the actions of the Suceava Hospital’s staff could be explained from a medical standpoint, in the context of the patient’s anamnesis and given that according to the information available and on the basis of the patient’s symptoms they could have also concluded that the patient’s condition had been caused by mushroom poisoning, and not by Hellp syndrome as turned out to be the case. There were similarities in the symptoms of the two medical conditions.", "36. By an order of 4 May 2004 the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M. for involuntary manslaughter, on the ground that such an unlawful act had not taken place. 37. On 13 December 2007 the applicant requested information from the General Prosecutor’s Office about the status of the criminal investigation and the measures taken in the case.", "She also accused the authorities investigating the case of procrastination and of waiting for Dr I.M.’s criminal liability to become time-barred. 38. On 13 August 2008, the Suceava Prosecutor’s Office informed the applicant that the criminal investigation against Dr I.M. had been terminated by the order of 4 May 2004, and that the aforementioned order had been communicated to her son-in-law. Also, it noted that the same information had been communicated to the applicant on 6 February 2008.", "39. On an unspecified date, the applicant challenged the order of 4 May 2004 before the superior prosecutor attached to the Suceava Prosecutor’s Office. 40. On 1 September 2008, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge. C. Court proceedings and subsequent investigation of the case 41.", "On 26 September 2008, the applicant challenged the orders of 26 July and 30 September 2002 as well as those of 4 May 2004 and 1 September 2008 before the Suceava County Court. 42. On 12 November 2008 the Suceava County Court declined jurisdiction to examine the case in favour of the Suceava District Court, on account of the nature of the offence under investigation. 43. On 25 November 2008, the applicant lodged a request with the Court of Cassation seeking the transfer of the file to a different district court.", "44. On 4 February 2009, the Court of Cassation allowed the applicant’s request and ordered the transfer of the file for examination to the Iaşi District Court. 45. On 22 May 2009 the file was registered with the Iaşi District Court. 46.", "By a judgment of 20 November 2009, the Iaşi District Court allowed the applicant’s and her son-in-law’s challenge against the order of 4 May 2004, cancelled the order, and referred the file back to the prosecutor’s office for criminal proceedings to be opened against Dr I.M. for involuntary manslaughter. The challenge to the order of 26 July 2002 rendered by the Iaşi Prosecutor’s Office was dismissed as lodged out of time. 47. The court considered that the criminal investigation had not been complete, and that additional evidence was needed.", "It held that the decision not to open criminal proceedings had been based on the two forensic expert reports, but forensic expert reports had in fact not been asked for by the investigating authorities and had not been produced in the case. The document produced on 10 June 2003 was in fact a note of the Iaşi Forensic Service in response to the investigating authorities’ request for clarification of some aspects of the case. The aforementioned documents did not have the content of a forensic expert report produced according to law. The same considerations applied to the document issued by the Higher Forensic Commission on 23 April 2004. 48.", "According to the court, a forensic expert report was essential evidence in cases of suspected involuntary manslaughter and it was required when medical negligence had supposedly been the cause of death. Also, the content of the Iaşi Forensic Service’s note of 10 June 2003 which indicated a possible medical error by Dr I.M. made a forensic expert report even more necessary. 49. The court considered that essential aspects of the case needed to be clarified, namely to establish the cause of death and to examine whether Dr I.M.", "had administered medical treatment in accordance with his professional obligations, and, if such treatment had been inappropriate, whether this had had any causal link with the deaths of the applicant’s daughter and grand-daughter. In addition, the question of whether the applicant’s daughter had eaten forest mushrooms had not been entirely clarified. Dr I.M.’s statement that the applicant’s daughter had eaten the aforementioned mushrooms had not been confirmed or rebutted by any other evidence. The information concerning the consumption of mushrooms found in the clinical observation chart was also added there by Dr I.M. Furthermore, the reasons why the applicant’s daughter was not accompanied by a doctor during her transfer by ambulance remained unclear.", "Consequently, the court ordered a forensic expert report to be produced which would establish whether: (a) the doctor had been diligent enough to correctly establish the diagnosis; (b) the actual diagnosis had been established on the basis of the symptoms and the investigations made in the case; (c) the correct diagnosis could have been established on the basis of supplementary tests and examinations which should have been performed; (d) the medical treatment had been appropriate; (e) the medical intervention should have been performed at the Suceava County Hospital; (f) the applicant’s daughter’s health had deteriorated during her transfer to the clinic in Iaşi because she was not assisted by a doctor throughout the transportation; (g) any of the aspects above, or others, had any causal link with the death of the applicant’s daughter and her new born granddaughter. If the expert report established a causal link between the death and the fact that the transfer by ambulance had not been done with a doctor present, the reason why the patient had not been accompanied by a doctor and the identity of those responsible should be established. Consequently, the medical staff responsible for the transfer by ambulance should be heard. The court also ordered that the notes on the clinical observation chart should be checked for accuracy against the doctor’s statements regarding the consumption of forest mushrooms, and accordingly the victim’s mother and husband should be heard. 50.", "The Iaşi Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment. 51. On 30 March 2010, the Iaşi County Court dismissed the Iaşi Prosecutor’s Office’s appeal on points of law and upheld the judgment of the district court. 52. By an order of 21 December 2010, the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M., on the ground that his criminal liability had become time-barred.", "53. The applicant challenged the order before the superior prosecutor. She argued amongst other things, that the investigating authorities had delayed the investigation of the case, although she had repeatedly asked for a speedy investigation. Also, she had not been notified without undue delay of the outcome of the criminal investigation, although on 6 February 2004 the Suceava Police Department had informed her that she would be notified about the outcome of the investigation. 54.", "On 1 February 2011, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge and upheld the order of 21 December 2010. It held amongst other things that the proceedings had not been abandoned by the authorities, since they had finished the investigation on 4 May 2004. The length of proceedings had been affected by the forensic expert reports, the last one being produced on 23 April 2004. 55. The applicant challenged the order before the Iaşi District Court.", "56. On 22 April 2011, the Iaşi District Court declined jurisdiction in the case in favour of the Suceava District Court. 57. On 21 July 2011, the file was registered with the Suceava District Court. 58.", "On 21 September 2011, the Suceava District Court considered that only the Iaşi District Court was competent ratione loci to examine the case. Consequently, it referred the case to the Court of Cassation to examine and decide on the conflict of competence between the two district courts. 59. On 25 January 2012, the Court of Cassation decided that the Suceava District Court was competent to examine the case. 60.", "On 5 April 2012, the file was registered once again with the Suceava District Court. 61. By a final judgment of 6 June 2012 the Suceava District Court dismissed the applicant’s action as ill-founded and upheld the prosecutor’s office’s order. It held that according to the relevant criminal law provisions and given the nature of the offence he had been suspected of, Dr I.M.’s criminal liability had become time-barred eight years after the unfortunate event. The statute of limitations had not been suspended or interrupted by any act carried out in the case that had to be communicated to the accused (ȋnvinuitului) or to the defendant (inculpatului).", "Criminal proceedings against Dr I.M. had not been opened and therefore he had not been considered either an accused or a defendant, as the investigation against him had been carried out at the preliminary investigation (acte premergătoare) stage of the proceedings. 62. The court considered that the applicant’s argument that an expert medical report could be requested only after a criminal investigation had been opened was not supported by any legal provision. Also, it could not be accepted that the running of the statutory limit had been stopped or suspended, either by the request for a medical expert report to be produced or by the judgment of 20 November 2009.", "The judgment of a court quashing an order of the prosecutor’s office to discontinue a criminal investigation was not one of the lawfully permissible reasons to suspend the running of the statutory limit. 63. The court also held that the Suceava Prosecutor’s Office had been competent to investigate the case. The fact that the Court of Cassation had transferred the case for examination to a different district court would not have justified an investigation of the case by a different prosecutor’s office from the one which had initially investigated the case, once the examining court had referred the case back to the prosecutor. Furthermore, the prosecutor was legally bound to open criminal proceedings only if, after the evidence indicated by the court was adduced to the file, it did not appear that there were circumstances that would impede it.", "Also, even if the prosecutor’s office had taken into account the applicant’s granddaughter’s death and had requalified Dr I.M.’s acts from involuntary manslaughter to aggravated involuntary manslaughter and the maximum penalty had been increased by three years, the offence would still have been time-barred. 64. The applicant appealed on points of law against the judgment. 65. On 26 September 2012 the Suceava Court of Appeal dismissed as inadmissible the applicant’s appeal on points of law, on the ground that the domestic legislation did not allow a second level of jurisdiction in respect of court proceedings initiated against the prosecutor’s office’s orders or decisions.", "D. Disciplinary proceedings 66. On 16 May 2002, following Dr I.M.’s request, the Professional Jurisdiction Commission attached to the Suceava County College of Doctors (Comisia de Jursidicţie Profesională a Colegiului Judeţean al Medicilor Suceava) established that there were no elements to suggest medical error or other deficiencies in the medical treatment and investigations provided to the applicant’s daughter at the Suceava County Hospital. Her illness had been identified promptly once she was hospitalised, and she had been transferred to intensive care and afterwards to Iaşi. However, the seriousness of her illness led to her death. In addition, there had been no other case before the Romanian College of Doctors in which Dr I.M.", "had been accused of medical error or breaches of the code of medical ethics. 67. On 30 May 2002, the Suceava County College of Doctors validated the Professional Jurisdiction Commission’s decision. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Domestic law 68. The relevant domestic law concerning forensic expert reports and the competent authorities to issue them, as well as the civil liability of medical staff, is described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010). 69. The relevant provisions of the former Romanian Criminal Code regarding involuntary manslaughter and the statute of limitation read as follows: Article 122 “(1) The terms for the statute of limitations shall be ... c) eight years, when the law punishes the criminal offence by imprisonment of more than five years but less than ten years ... (2) The terms provided in this article shall run from the date of perpetration of the criminal offence.", "In the case of continuing offences, the term shall start from the date when the action or inaction ceased, and in the case of continued offences from the date when the last action or inaction was performed.” Article 123 “(1) The lapse of the term for the statute of limitations provided in Article 122 shall be interrupted by any act which, according to the law, must be communicated to the person accused or indicted during the conduct of the criminal proceedings. (2) After every interruption a new term for the statute of limitations shall start running. The interruption of the statute of limitations affects all the offenders, even if the interruption act concerns only some of them.” Article 128 “(1) The lapse of the term for the statute of limitations provided in Article 122 shall be stayed for as long as a legal provision or an unpredictable or unavoidable circumstance impedes the commencement of the criminal proceedings or the continuation of the criminal trial ... (3) The statute of limitations shall resume running when the cause of the suspension ceases.” Article 1781 “(1) The involuntary manslaughter of a person shall be punished by imprisonment of from one to five years. (2) Involuntary manslaughter caused by failure to observe legal provisions or the precautionary measures for the exercise of a profession or for the performance of a certain activity shall be punished by imprisonment of two to seven years ... (5) If the deed caused the death of two or more persons, a further three years shall be applied to the maximum of the sanctions provided in the previous paragraphs.” 70. The relevant provisions of the former Romanian Civil Code concerning civil liability for tort read as follows: Article 998 “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” Article 999 “Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.” 71.", "The provisions of the former Romanian Code of Criminal Procedure regarding the possibility of opening civil proceedings separately from or jointly with criminal proceedings read as follows: Article 15 “(1) A victim may lodge civil claims during criminal proceedings against the accused, the defendant or the civilly liable person. (2) Civil claims may be lodged during criminal proceedings, as well as before the trial court until the indictment has been read out in court.” Article 19 “(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings before the civil courts for damages arising from the offence. (2) Civil proceedings shall be stayed pending a final judgment of the criminal courts. (3) A victim who has joined criminal proceedings as a civil party may also initiate separate civil proceedings if the criminal proceedings are stayed. If the criminal proceedings are reopened the civil proceedings opened before the civil courts shall be stayed.", "(4) A victim who has initiated civil proceedings before a civil court may abandon these proceedings and lodge a request with the investigating authorities or the trial court if criminal proceedings have subsequently been opened...The civil proceedings may not be abandoned if the civil court has delivered a judgment, even if the judgment is not a final one.” 72. The relevant provisions of Law Decree no. 167/1958 on the statute of limitations read as follows: Article 1 “The right to bring an action with pecuniary effect shall be time-barred if it is not used within the lawful timeline.” Article 3 “The term of the statute of limitations is three years.” B. Domestic practice 73. The Government submitted examples of a large number of decisions delivered by the Superior Disciplinary Commission between 2005 and 2011 concerning reviews of the conduct of doctors and medical staff in respect of their patients.", "The aforementioned decisions concluded that doctors or the medical staff had breached good medical and disciplinary practice. The Government also submitted a statistic concerning the Superior Disciplinary Commission’s national activity from 2001 to 2012, which showed that some of the cases examined during that period had resulted in doctors being punished for their actions. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 74. The applicant complained under Articles 2, 6 and 13 of the Convention that the deaths of her daughter and granddaughter were attributable to the Suceava County Hospital medical staff’s malpractice, in particular that of Dr I.M.", "In addition, she argued that the criminal investigation into the two deaths was ineffective, superficial and was laggard. 75. The Court considers that the applicant’s allegations fall to be examined exclusively under Article 2 of the Convention (see Istrățoiu v. Romania (dec.), no. 56556/10, § 56, 27 January 2015), the relevant part of which reads: “Everyone’s right to life shall be protected by law...” A. Admissibility 1. The parties’ submissions (a) The Government 76.", "The Government raised a preliminary objection of non-exhaustion of domestic remedies, arguing that the applicant could have lodged a general tort law action under Articles 998 and 999 of the former Romanian Civil Code against Dr I.M. or other persons she considered responsible for the deaths of her daughter and granddaughter. The remedy in question would have been available to the applicant, particularly because it was exempted from judicial tax, and according to the Court’s case-law was adequate, given the circumstances of the case. They also contended that according to the relevant domestic legal doctrine criminal law considered the fault (culpa) a form of guilt only where it met a high level of severity. However, tort liability could be engaged even for the slightest negligence (culpa cea mai uşoară).", "Therefore, the scope of application of tort liability is wider than that of criminal liability. Consequently, the findings of the domestic authorities excluded only Dr I.M.’s criminal liability, and not his tort liability. They also submitted that, according to the relevant criminal procedure rules, since criminal proceedings against Dr I.M. had never been opened, separate general tort law proceedings would not have been suspended pending the outcome of the criminal proceedings. 77.", "In addition, the Government contended that the applicant had failed to open disciplinary proceedings against Dr I.M., although that remedy was also available and effective. They argued that the applicant could have lodged a disciplinary complaint with the College of Doctors. Her complaint would have been joined to the disciplinary proceedings initiated by Dr I.M. himself. Subsequently, if the applicant was dissatisfied by any potentially unfavourable decision she could have appealed against it before the Superior Disciplinary Commission, and afterwards before the administrative courts.", "78. The Government supported their arguments that the general tort law proceedings and the disciplinary proceedings would have been effective remedies in the circumstances of the case by referring to the relevant domestic practice submitted before the Court in the cases of Csoma v. Romania, no. 8759/05, §§ 24-25, 15 January 2013; Stihi-Boos v. Romania (dec.), no. 7823/06, §§ 42-43, 11 October 2011; and Istrățoiu, cited above, §§ 52-53. (b) The applicant 79.", "The applicant contested the Government’s position. She argued that disciplinary proceedings would have been unlikely to succeed, since the Iaşi and Suceava College of Doctors had never applied any sanctions to doctors for medical negligence, and the Government’s submissions had not rebutted that fact. In addition, she did not need to exhaust disciplinary proceedings before she could lodge a criminal complaint. She further argued that the disciplinary proceedings instituted on Dr I.M.’s initiative had not been adversarial, had been carried out in private without her involvement, and the decision had not been communicated to her. Consequently, the aforementioned investigation was null and void.", "80. The applicant stated that she could have raised civil claims at any stage of the criminal proceedings, up to the day the indictment was read in court, but the proceedings never reached that stage. Also, the excessive delays in the criminal investigation had had a prejudicial impact on the civil proceedings, and the failure to criminally punish the responsible medical personnel impeded the applicant from opening subsequent civil proceedings for compensation for pecuniary and non-pecuniary damage. 2. The Court’s assessment 81.", "The Court recalls that in T.W. v. Malta ([GC], no. 25644/94, § 34, 29 April 1999) it had stated that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot also be required to have tried others that were available but probably no more likely to be successful. The Court has also stated (see Bajić v. Croatia, no. 41108/10, § 74, 13 November 2012 and the case law there cited) that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance.", "In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required. 82. The Court notes that there is no evidence in the file that the applicant initiated any disciplinary proceedings or a general tort law action against Dr I.M. or any of the medical staff she considered responsible for the deaths in her family. The question is therefore whether in the present case the applicant should have raised the matter before the civil or administrative courts, as the Government contended.", "83. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaints. It therefore joins the objection to the merits. 84. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 85.", "The applicant contended that Dr I.M. had refused to follow Dr D.D.’s recommendation that emergency surgery be performed and thus to save her daughter’s life, despite the fact that his professional duty obliged him to do so. Consequently, he intentionally and not negligently refused to fulfil his professional responsibilities, although he was aware of the consequences. In these circumstances, the authorities failed to take into account that Dr I.M.’s acts amounted to a more serious offence, of aggravated manslaughter, which also carried a more severe prison sentence. 86.", "The applicant also contended that Dr I.M. had failed to correctly diagnose her daughter for three days, and had blamed her condition on mushroom poisoning. The applicant stated that Dr I.M. had never been informed by the patient that she had eaten mushrooms prior to hospitalisation. It was the patient’s uncle who had suggested that to him, without providing any supporting evidence.", "87. The applicant further argued that once Dr I.M. had agreed to her daughter being transferred to Iaşi the transfer was carried out by an ambulance that lacked the necessary medical equipment, and without an accompanying doctor. Although after her daughter’s and granddaughter’s deaths she had lodged repeated complaints with the relevant domestic authorities, all of them refused to actively investigate the case. 88.", "The applicant submitted that the investigations initiated into her relatives’ deaths were assigned to police officers who either acted superficially or did not have the required level of training to investigate this type of case. Consequently, the investigation lacked any promptness and she received notification of the measures taken in the case only in February 2004. In addition, although the domestic authorities had taken it upon themselves in 2004 to notify the applicant about the outcome of the investigation, they failed to do so. They contented themselves with waiting for the suspect’s criminal liability to become time-barred. 89.", "The applicant also argued that the domestic authorities investigating the case lacked impartiality on account of the social position of Dr I.M., and that they failed to follow the mandatory instructions delivered by the domestic courts on 20 November 2009 and to clarify essential circumstances of the case. In addition, they eventually discontinued the criminal investigation by unlawfully relying on the argument that the doctor’s criminal liability had become time-barred. Furthermore, seven years had to elapse for them to notify her of the outcome of the criminal investigation. 90. The applicant contended that both she and her son-in-law had repeatedly and unsuccessfully complained before the domestic authorities about the lack of promptness of the investigation.", "(b) The Government 91. The Government argued that the domestic authorities had set up an adequate legal framework for protecting patients’ lives, for regulating the medical profession and for punishing any faulty behaviour. 92. They submitted that the domestic authorities reacted promptly and opened a criminal investigation on their own motion. In addition, they had taken all necessary steps to clarify the circumstances of the victims’ deaths and to identify those responsible.", "Also, the authorities in Suceava had become aware of the applicant’s relatives’ deaths only after her son-in-law had lodged his complaint with them. 93. The Government stated that the criminal investigation had been carried out by independent investigators who had no connection with the individuals involved in the events being investigated and had adduced to the file all the evidence requested by the parties. Also, the length of the criminal investigation had not been excessive. The investigation in file no.", "735/P/2002 had been concluded in two years by order of 4 May 2004. The order had been communicated to the applicant’s son-in-law, who had been continuously involved in the proceedings and who had not challenged it. 94. In respect of the applicant’s involvement in the proceedings, the Government argued that the applicant had not taken part in the investigation carried out under files nos. 670/P/2002 and 2294/P/2002 and had not challenged the order of 26 July 2002.", "She had intervened in the investigation carried out in file no. 735/P/2002 only on 29 January 2004. However, she did not state any intention to take part in the proceedings as a victim or a civil party. The fact that in her letter she referred to a document sent by the authorities to her son-in-law could have reasonably led the authorities to believe that documents communicated to her son-in-law had also reached the applicant and that therefore it was not necessary to notify them to her. 95.", "Moreover, the Government submitted that the time which had elapsed between 29 January 2004 and 13 December 2007, appears unreasonably long for a diligent person interested in the development of the investigation. They also considered that the aforementioned period and the fact that after the reopening of the proceedings she had lodged a complaint with a non-competent court contributed significantly to the lapse of the statute of limitation for the criminal liability of Dr I.M. 96. The Government further considered that the criminal investigation had ended in 2004, and given the applicant’s conduct the time which had elapsed subsequent to that date should not be taken into account in any assessment of the investigation carried out by the domestic authorities. 97.", "The Government also submitted that although the investigation authorities had not ordered a forensic expert report in file no. 735/P/2002 all the available medical documents in the case had been submitted to the Iaşi Forensic Service, which had provided reasoned answers to the investigating authorities’ questions. Subsequently, all the medical documents were submitted to the highest forensic authority in the country, namely the Higher Forensic Commission, which had established the absence of any medical fault. 98. Lastly, the Government acknowledged that the domestic courts had asked the investigating authorities to establish the reason why the applicant’s daughter had not been accompanied by a doctor while being transferred by ambulance, and to clarify the allegations of mushroom consumption.", "However, several documents from file no. 735/P/2002, namely the clinical observation chart and the report prepared by another doctor than Dr I.M., attested to the consumption of mushrooms. Also, the report prepared by the aforementioned doctor attested that the applicant was assisted during the ambulance transfer by medical personnel. Consequently, the existence of some potential errors during the investigation could not alter its impartial and thorough character. 2.", "The Court’s assessment (a) General principles 99. The Court reiterates that the first sentence of Article 2 enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. These principles apply also to the area of public health (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; and Valeriy Fuklev v. Ukraine, no.", "6318/03, § 64, 16 January 2014). It cannot be excluded that the acts and omissions of the authorities in the context of public-health policies may, in certain circumstances, engage their responsibility under the substantive limb of Article 2 (see Powell, cited above). 100. However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and to protect the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (ibid.). 101.", "That being so, the Court reiterates that the positive obligations imposed on the State by Article 2 of the Convention imply that a regulatory structure be set up, requiring that hospitals, be they private or public, take appropriate steps to ensure that patients’ lives are protected. They also imply the obligation to put in place an effective independent judicial system by which the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Arskaya v. Ukraine, no. 45076/05, § 63, 5 December 2013; and Mehmet Şentürk et Bekir Şentürk v. Turkey, no. 13423/09, § 81, ECHR 2013). 102.", "Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, the Court has stated on a number of occasions that 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 is 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. In the specific sphere of medical negligence, “the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII, with further references; and Bajić, cited above, § 76).", "103. 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 (see Calvelli and Ciglio v. Italy, no. 32867/96, § 53, 17 January 2002). Therefore the Court is called to examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. In other words, rather than assessing the legal regime in abstracto, the Court must examine whether the legal system as a whole adequately dealt with the case at hand (see Arskaya, cited above, § 66).", "(b) Application of the principles to the present case 104. The Court observes that in the instant case the applicant claimed in her submissions before the Court that Dr I.M. had intentionally and not negligently refused to fulfil his professional duties and to perform the emergency surgery that could have saved her daughter and granddaughter’s life. 105. However, it is impossible for the Court to establish, on the basis of the evidence before it, whether or not the applicant’s daughter and granddaughter had been intentionally deprived of their lives, contrary to Article 2 of the Convention, as she alleged.", "106. The Court observes, nonetheless, that, irrespective if Dr I.M. had acted intentionally or not, the evidence available to the file suggests certain dysfunctionalities in the coordination of the medical services involved in her treatment and a delay of the appropriate emergency treatment required by her condition. 107. In this connection, the Court points out that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care they have undertaken to make available to the population in general (see Cyprus v. Turkey [GC], no.", "25781/94, § 219, ECHR 2001‑IV, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002, and Mehmet Şentürk et Bekir Şentürk, cited above, § 88). 108. In the circumstances of this case, the Court is therefore required to determine whether the domestic authorities did what could reasonably be expected of them and whether, in particular, they fulfilled, as a matter of principle, their obligation to protect the patient’s physical integrity, particularly through the administration of appropriate medical treatment. In so doing, the Court attaches weight to the sequence of the events which led to the applicant daughter and granddaughter’s tragic deaths as set out in the case file, and to the available evidence.", "109. The Court notes that once Dr I.M. became fully aware after his conversation with Dr D.D. that the applicant’s daughter’s condition might have been cause by the Hellp syndrome and not a mushroom poisoning, a certain medical protocol had to be followed and an emergency C-section had to be performed in order to save the mother’s life. The Court also notes that the aforementioned emergency C-section was not performed in Suceava and that the patient was transferred by ambulance to Iaşi, 150 kilometres away.", "The Court cannot speculated whether Dr I.M.’s decision to transfer the patient to another city, even though she was in a very serious condition, was prompted by his blatant refusal to perform the emergency C-section as stated by the applicant (see paragraph 13 above) or by the intensive therapy possibilities in Suceava and therefore the insufficient material conditions for patient treatment in Suceava Hospital as suggested by the Higher Forensic Commission on 23 April 2004 (see paragraph 35 above). The Court notes, however, that irrespective of the reason, the patient’s transfer delayed the emergency treatment needed by the applicant’s daughter and granddaughter. 110. Moreover, the Court notes that, although before and during the transfer to Iaşi her condition was very serious, the applicant’s daughter was accompanied during her transfer only by medical personnel and not by a doctor and that her medical condition seems to have worsened during the transfer. 111.", "Even though it remains unclear why a doctor did not accompany the patient’s transfer and the Court is not prepared to speculate on the applicant’s relatives’ chances of survival if the impugned condition had been diagnosed sooner or if the emergency treatment had been performed without delay, it considers that the apparent lack of coordination of the medical services and the delay in administering the appropriate emergency treatment attest to a dysfunctionality of the public hospital services. 112. Nevertheless, in the instant case, apart from the issue of the potential criminal liability of the doctor concerned, the Court considers that it is important to also examine the domestic judicial and non-judicial authorities’ reaction when faced with the applicant’s complaints and the effectiveness of the ensuing investigation. 113. The Court reiterates that the requirements of an effective investigation include, among other things, that of “thoroughness”, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.", "They must take all reasonable steps available to them to secure the evidence concerning the incident (see, for example, Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, § 271, ECHR 2011 (extracts)). Furthermore, the requirement of promptness and reasonable expedition is implicit in this context (see Šilih, cited above, § 195; and Valeriy Fuklev, cited above, § 72). 114. In this regard, the Court notes that it is undeniable that a substantial criminal investigation was carried out in file no.", "735/P/2002 by the domestic authorities at the request of the victims’ family. The case was initially investigated by way of preliminary investigation measures which ended by a prosecutor office’s decision refusing to institute criminal proceedings. 115. However, on 30 March 2010 the aforementioned prosecutor office’s decision was quashed by the domestic courts which ordered the opening of criminal proceedings against Dr I.M. 116.", "The Court notes that when ordering the opening of criminal proceedings against Dr I.M., the domestic courts pinpointed numerous deficiencies in the criminal investigation and ordered specific measures to be taken by the domestic authorities in order to clarify the cause of the two deaths and to identify the persons responsible. 117. The Court, like the domestic courts, observes that the investigation authorities had failed to produce a forensic expert report in respect of the circumstances of the applicant’s relative’s deaths even though such reports were essential evidence in cases of suspected involuntary manslaughter and they were required when medical negligence had supposedly been the cause of death. Moreover, the domestic authorities had failed to clarify essential aspects of the case, including the cause of death, whether Dr I.M. had administered medical treatment in accordance with his professional obligations and if such treatment had been inappropriate.", "Furthermore, the reasons why the applicant’s daughter had not been accompanied by a doctor during her transfer by ambulance in spite of her serious condition had remained unexplored. 118. The Court further notes that in spite of the specific instructions given by the domestic courts in their judgments, the criminal investigation was closed on the ground that Dr I.M.’s criminal liability had become time‑barred. Moreover, it appears that no additional efforts have been made by the authorities to clarify the circumstances of the case. Consequently, the aspects touched upon by the domestic courts remained unresolved.", "119. In respect of the promptness of the investigation, the Court notes that the criminal proceedings in file no. 735/P/2002 started in 2002 and ended in June 2012, approximately ten years later. Also, the Court notes that the domestic authorities informed the applicant about the prosecutor office’s decision of 4 May 2004 only in 2008 (see paragraph 38, above) and only after in December 2007 she reiterated her request to be informed about the investigation’s outcome. It should be also underlined that from the moment the applicant contacted the authorities again in December 2007 another four years and six months lapsed before the criminal proceedings opened against Dr I.M.", "reached a conclusion. 120. The Court agrees with the Government when they argue that the applicant’s participation in the proceedings might not have been exemplary or that her partial inactivity might have confused the authorities as to whether she was actually a party to the proceedings and that therefore she might had contributed to some extent to the delay in the proceedings. However, it considers that her behaviour did not release the authorities from the obligation to carry out a speedy and comprehensive investigation capable of clarifying all the aspects of the case in the first place. 121.", "Having regard to the manner in which the case was investigated and the length of the criminal investigations, the Court considers that the authorities failed to show the requisite diligence in dealing with the criminal case, as required by Article 2 of the Convention (see Valeriy Fuklev, cited above, § 76). 122. That said, the Court does not consider that the applicant acted inappropriately when choosing to pursue the case under the Code of Criminal Procedure. It notes that the impugned proceedings afforded a joint examination of criminal responsibility and civil liability arising from the same culpable conduct, thus facilitating the overall procedural protection of the rights at stake. Under the circumstances, it is not surprising that the introduction of the civil claim in the criminal case appeared preferable for the applicant as the investigative authorities were under an obligation to collect evidence in those proceedings and the evidence that should have been collected by them in the criminal case was essential for the determination of the applicant’s potential civil claim.", "123. On the whole, the applicant should be viewed as having legitimately pursued the criminal proceedings, reasonably expecting that she would be able to raise her civil claims in the criminal case, and was not obliged to embark on a separate civil or disciplinary action. The Court’s conclusion that these proceedings turned out to be ineffective cannot be held against her. 124. In the light of the foregoing, the Court finds that the Government’s preliminary objection should be dismissed and that the applicant was not provided with an effective legal procedure compatible with the requirements of Article 2 of the Convention.", "125. Consequently, given on the one hand the apparent circumstances that have led to the failure to provide adequate emergency treatment for the applicant’s relatives and on the other hand the ineffectiveness of the domestic legal procedure, the Court considers that the respondent State has failed to comply with the obligations imposed by Article 2 of the Convention. 126. Therefore, there has been a violation of the aforementioned Article. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 128. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage for the raising and schooling of her daughter, for funeral expenses and for commemoration expenses since 2001. She also claimed EUR 1,000,000 in respect of non-pecuniary damage for the loss of her only daughter and granddaughter and the psychological suffering incurred.", "129. The Government considered that there was no causal link between the applicant’s claim for the fees paid for her daughter’s education and the alleged violation of the Convention. They also argued that the amount submitted by the applicant in respect of pecuniary damage was not supported by any documents. Moreover, they argued that her claim in respect of non-pecuniary damage was excessive. 130.", "The Court notes that the applicant did not submit any documents supporting her claim for pecuniary damage. It therefore rejects this part of the applicant’s claims. 131. Having regard to all the circumstances of the present case, the Court accepts that the applicant 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 applicant EUR 39,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.", "B. Costs and expenses 132. The applicant also claimed EUR 100 and 290 Romanian lei (RON) (approximately EUR 64) for costs and expenses incurred before the Court. She submitted an invoice of RON 290 for the translation of documents into French and two invoices totalling RON 55 (approximately EUR 12) for correspondence with the Court. 133.", "The Government did not oppose the applicant being awarded the EUR 76 supported by documents. However, they considered that the applicant’s remaining claim for costs and expenses should be dismissed. 134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (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 76 covering costs for the proceedings before the Court. C. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection concerning the exhaustion of domestic remedies and dismisses it; 2.", "Declares the application admissible; 3. Holds that there has been a violation of Article 2 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 39,000 (thirty-nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 76 (seventy-six 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 22 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosAndras SajόRegistrarPresident 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. A.S.F.E.P. CONCURRING OPINION OF JUDGE SAJÓ 1. I agree that the Article 2 rights of the applicant were violated in the present case. However, I disagree with my colleagues as I find this violation to be of a strictly procedural nature.", "The case-law, perfectly summarised in the judgment (§ 103), is as follows: “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 (see Calvelli and Ciglio v. Italy, no. 32867/96, § 53, 17 January 2002). Therefore the Court is called to examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim.” 2. The Court finds that there were deficiencies in the criminal procedure that was chosen by applicant. I agree: the legal remedy used by the applicant as applied in practice was not capable of holding those at fault accountable.", "3. As to the substantive violation of Article 2, the Court has concluded that no intentional deprivation of life by the doctors can be established. However, the majority claims that the life of the applicant was put at risk due to certain dysfunctions in the coordination of the medical services involved in her treatment and a delay in providing the appropriate emergency treatment required by her condition (§ 106). 4. Of course, an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual’s life at risk by denying healthcare which they have undertaken to make available to the population in general.", "For the Court this is, therefore, a denial of service. The majority refers to Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001‑IV, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002, and Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, § 88, ECHR 2013.", "5. However, in the case of Cyprus v. Turkey the denial was understood as being deliberate: “[T]he Commission was unable to establish on the evidence that the “TRNC” authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. It observes that during the period under consideration medical visits were indeed hampered on account of restrictions imposed by the “TRNC” authorities on the movement of the populations concerned and that in certain cases delays did occur.” 6. Likewise in Nitecki, where the State failed to fully fund prescription medication, the issue was again one of (lack of) hampering of medical service. Finally, in Mehmet Şentürk and Bekir Şentürk (cited above) medical treatment was denied, on account of the inability to advance the costs, in violation of the law.", "Again, this was a case of denial of medical service and not a medical negligence case. 7. I had the opportunity to express my concerns regarding this departure from the Court’s case-law on medical negligence in a joint dissenting opinion prepared together with Judge Tsotsoria, in Lopes de Sousa Fernandes v. Portugal, no. 56080/13, 15 December 2015. In the present case too there is a noticeable trend to discreetly impose a duty to provide a specific level of healthcare service under Article 2 (1).", "Here too the Court disregards the findings of the domestic experts without proper reason and in disregard of the natural boundaries of its capacity to review issues of medical expertise on matters dealt with by the national forensic experts. The Court did not offer any reasons for departing from its own case-law as reaffirmed for a factually similar situation in Eugenia Lazăr v. Romania, no. 32146/05, 16 February 2010, quoted in at least a dozen cases. Where a Contracting State has made adequate provision for securing high professional standards among healthcare professionals and the protection of the lives of patients, it cannot accept that matters such as an error of judgment on the part of a healthcare professional or negligent coordination among healthcare professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Stihi-Boos v. Romania (dec.), no. 7823/06, § 54, 11 October 2011, and Florin Istrățoiu v. Romania, no.", "56556/10, § 74, 27 January 2015). 8. While it is legitimate for an applicant to choose among the domestic remedies available, we should not encourage the use of criminal law in medical negligence cases, whereas the Court has noticed an evolution of the domestic laws in the healthcare field whereby the responsibility of health‑care professionals is attached to the risk relating to the exercise of that profession, thus constituting an objective basis for a more efficient legal remedy aimed at compensating the damage caused to a patient’s life or health (see Florin Istrățoiu v. Romania, § 82, cited above). [1] 9. It is for this reason that, to my regret, I could not agree with the finding of a substantive violation of Article 2.", "From the perspective of a procedural violation the award of just satisfaction would be unusually high, notwithstanding the undeniable suffering resulting from this tragedy. Not all tragedies amount to violations of the Convention. [1] In the discussion of the admissibility of the application the present judgment (§ 81) refers to W. v. Malta ([GC], no. 25644/94, § 34, 29 April 1999), in which the Court stated that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot also be required to have tried others that were available but probably no more likely to be successful. It seems to me that in view of the above consideration in Istrățoiu the civil remedy is more likely to be successful.", "However, in view of the specificity of the remedy and the finding in W. v. Malta I consider that to reject an application on that ground would have been unfair. It is for this reason that the admissibility standards of Bajić v. Croatia, no. 41108/10, § 74, 13 November 2012, (a standard that goes back to at least 1985) were found applicable, although the Court leaves open the issue as if the two standards were the same. As the present context indicates, and in view of Istrățoiu, they are not." ]
[ "FOURTH SECTION CASE OF ELENA APOSTOL AND OTHERS v. ROMANIA (Applications nos. 24093/14 and 16 other applications) (See list appended) JUDGMENT This version was rectified on 22 March and 6 June 2016 under Rule 81 of the Rules of Court STRASBOURG 23 February 2016 FINAL 23/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Elena Apostol and others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in seventeen applications (nos. 24093/14, 24104/14, 24106/14, 24108/14, 24113/14, 24119/14, 24121/14 24124/14, 24127/14, 24149/14, 24159/14, 24160/14, 24170/14, 24185/14, 24214/14, 45779/14 and 45780/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seventeen Romanian nationals. Their names and other details, as well as the date of lodging of each application, are specified in the appended table. 2. The applicants were represented by Mr I. Matei, a lawyer practising in Bucharest.", "The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. In so far as Ms Iulia Antoanella Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court), the President decided to appoint Mr Krzysztof Wojtyczek to sit as an ad hoc judge (Rule 29). 4. The applicants alleged, in particular, that there had been no effective investigation into the violent suppression of anti-government demonstrations in December 1989 in which their relatives had been killed.", "5. On 10 October 2014 and 10 February 2015 these complaints were communicated to the Government and the remaining complaints were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 6. The parties submitted written observations. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Background to the case 7. The facts of the case, as submitted by the parties, are similar to those in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011). They have the same historical context and relate to the same domestic criminal proceedings.", "They can be summarised as follows: 8. On 17 December 1989, following demonstrations against the Government and on the orders of President Nicolae Ceauşescu, military operations were conducted in Timișoara and, over the following days, in other towns, including Bucharest, Reșița and Braşov. These operations caused many civilian deaths and casualties. According to a document of 5 June 2008, issued by the military prosecutor’s office at the High Court of Cassation and Justice, “more than 1,200 people died, more than 5,000 people were injured and several thousand people were unlawfully deprived of their liberty and subjected to ill treatment”, in Bucharest, Timişoara, Reşiţa, Buzău, Constanţa, Craiova, Brăila, Oradea, Cluj, Braşov, Târgu Mureş, Sibiu and other towns in Romania. In addition, it appears from Ministry of Defence documents, declassified by Government decision no.", "94/2010 of 10 February 2010, that thousands of servicemen, equipped with combat tanks and other armed vehicles, were deployed in Bucharest and other cities. During the period of 17 to 30 December 1989 they used considerable quantities of ammunition against the demonstrators. B. Criminal proceedings 9. The applicants are people whose relatives were shot and killed in the events which took place between 17 and 30 December in Bucharest, except for the applicant in application no.", "45779/14, whose husband was killed in Reșița and the applicant in application no. 24127/14, whose son was killed in Braşov. 10. In 1990, military prosecutors in Bucharest, Timişoara, Oradea, Constanţa, Craiova, Bacău, Târgu Mureş and Cluj opened investigations into the use of force and the unlawful deprivation of liberty of the participants in demonstrations in the final days of December 1989. To date, the main criminal investigation into the use of violence, particularly against civilian demonstrators, both prior to and following the overthrow of Nicolae Ceauşescu, has been contained in file no.", "97/P/1990 (current number 11/P/2014). The most important procedural steps undertaken between 1990 and 2009 were summarised in Association “21 December 1989” and Others (cited above, §§ 12-41). Subsequent developments are described below. 11. On 18 October 2010 the military prosecutor’s office at the High Court of Cassation and Justice decided not to institute criminal proceedings with regard to the acts committed by the military, finding that the applicants’ complaints were partly statute-barred and partly ill-founded.", "The investigation into crimes committed by civilians, members of the Patriotic Guards, militia members and prison staff was severed from the case file and jurisdiction was relinquished in favour of the prosecuting authorities at the High Court of Cassation and Justice. 12. On 15 April 2011 the chief prosecutor at the military prosecutor’s office set aside the decision of 18 October 2010 on the grounds that the investigation had not yet been finalised and that not all the victims and perpetrators had been identified. 13. On 18 April 2011 the military prosecutor’s office relinquished jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice on the grounds that the investigation concerned both civilians and military personnel.", "14. On 9 March 2012 – after classified material in the criminal investigation file had been opened to the public in 2010 – the case was re-registered with a view to an investigation in the light of the newly available information. 15. In February 2014, after the entry into force of the new Code of Criminal Procedure, jurisdiction was again relinquished in favour of the military prosecuting authorities and the file was registered under the domestic case file no. 11/P/2014.", "16. By an ordinance of 14 October 2015, the prosecuting authorities at the High Court of Cassation and Justice discontinued the proceedings in relation to case file no. 11/P/2014. The parties have not submitted any information on whether there was an appeal against that decision. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 17. The Court’s judgments in Association “21 December 1989” and Others (cited above, §§ 95-107) and Mocanu and Others v. Romania ([GC], nos. 10865/09, 45886/07 and 32431/08, §§ 193-196, 17 September 2014) describe in detail the relevant domestic law and practice in relation to the criminal proceedings in connection with the events of December 1989 and respectively to the statutory limitation of criminal liability. 18.", "The relevant legislative enactments concerning the independence and impartiality of military prosecutors are the following. (1) Law no. 303 of 28 June 2004 on the status of judges and prosecutors, in force as of 16 September 2005 19. Article 105 specifies that the provisions of the above Law apply equally to civilian and military judges and prosecutors. Article 3 provides that prosecutors enjoy stability of employment and are independent, by virtue of the law.", "Article 75 of the Law provides that the High Council of the Judiciary has the right and the obligation to defend all prosecutors and judges against any act which might affect their independence or impartiality or that might raise any suspicions in that regard. Judges and prosecutors who consider that their independence or impartiality has been affected in any way by acts which interfere with their professional activity can ask the High Council of the Judiciary to take the necessary measures, in accordance with the law. Pursuant to Articles 31 and 32 of the Law, military prosecutors and judges are appointed by the State President, on a proposal by the High Council of the Judiciary, after obtaining the assent of the Ministry of Defence. Every aspect of the appointment, transfer and promotion of military prosecutors and judges is covered by a joint regulation of the High Council of the Judiciary and the Ministry of Defence. Article 98 § 2 of the Law states that proceedings entailing any possibility of disciplinary action against military prosecutors and judges can only be pursued in accordance with the provisions of the Law.", "In accordance with Article 101, disciplinary measures are applied by the High Council of the Judiciary. Article 65 states that prosecutors and judges can only be dismissed in accordance with the general conditions laid down in the Law. (2) Law no. 304 of 28 June 2004 on the organisation of the judicial system, in force as of 24 September 2004 20. Chapter I of Law no 304/2004 provides that the military court system is part of the Romanian judicial system.", "Articles 51 to 56 of the Law list the military courts and describe their structure and powers, whilst Articles 98 to 102 detail the structure and functioning of the military prosecutors’ offices. (3) Joint regulation of 6 February 2014 on the appointment of military judges and prosecutors; transfer from civilian to military courts or prosecutor’s offices; granting of military ranks and promotion of military judges and prosecutors, in force as of 29 April 2014 21. Chapter I of the joint regulation provides that the High Council of the Judiciary is in charge of appointing military prosecutors and judges. Article 3 states that the assent from the Ministry of Defence is to be granted on the basis of a medical examination of the appointee, including a physical training assessment and a psychological evaluation. (4) New Code of Criminal Procedure, in force as of 1 February 2014 22.", "Article 56 § 4 of the new Code of Criminal Procedure states that it is mandatory for military prosecutors to investigate crimes committed by military officers. 23. Article 339 § 4 states that an appeal against ordinances discontinuing proceedings can be made within twenty days of the date they are communicated. B. Decision by the Committee of Ministers of the Council of Europe 24.", "The last decision concerning the execution of the judgment in the case of Association “21 December 1989” and Others (cited above), adopted by the Committee of Ministers on June 2014 at the 1201st meeting of the Ministers’ Deputies, invited the Romanian authorities to respond to the criticism made by the Court in its judgment concerning the impugned investigation. The relevant parts of the decision are worded as follows: “The Deputies 1. noted that, in these cases, the European Court found that certain aspects of the national legislation governing the status of the military magistrates cast doubt on the institutional and hierarchical independence of military prosecutors, when the persons under investigation belong to the armed forces or to other military forces; 2. invited the Romanian authorities to carry out rapidly a thorough assessment of the consequences to be drawn from these findings, as regards the general and individual measures in these cases, and to keep the Committee of Ministers informed of the conclusions and of the measures that might be defined and adopted in the light of this assessment; 3. invited, moreover, the authorities to present an assessment of the general measures that might be necessary to ensure that, in the future, bodies holding information on facts that are the subject of such investigations, co-operate fully with the investigators; ...” THE LAW I. JOINDER OF THE CASES 25. The Court notes that the applications concern the same factual circumstances and raise similar legal issues. Consequently, it considers it appropriate to join the applications, in accordance with Rule 42 § 1 of the Rules of Court. II.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 26. The applicants complained that the criminal investigation opened by the authorities in 1990 into the events of December 1989 had been ineffective. They alleged that the respondent State had failed to comply with the procedural requirements of Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. ...” A. Admissibility 27.", "The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds, bearing also in mind the Court’s findings with respect to its ratione temporis jurisdiction in the cases of Association “21 December 1989” and Others (cited above, §§ 116- 118) and, mutatis mutandis, Mocanu and Others (cited above §§ 207-211). They must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 28. The applicants emphasised that twenty-six years after the death of their relatives, the related criminal investigation had still not identified those responsible and sent them for trial. They submitted that the duration of the investigation had been excessive and that the authorities had not complied with the requirements set forth in the Court’s case-law on Article 2 of the Convention. 29. The Government admitted that the investigation had been particularly long.", "30. However, with regard to the issue of the independence and impartiality of the military prosecutors, the Government contended that the system of military courts was provided with sufficient guarantees for independence and impartiality, as well as safeguards against outside pressure. Law no. 304/2004 on the organisation of the judicial system stated that the military courts and military prosecutors’ offices were part of the general judicial system and were organised and functioned according to the same rules and regulations as their civilian counterparts. Similarly, Law no.", "303/2004 on the status of judges and prosecutors also referred to military judges and prosecutors and provided that the High Council of the Judiciary had the right and obligation to defend judges and prosecutors from any act of interference which might affect their independence and impartiality. The Government further submitted that the High Council of the Judiciary was the competent body to recommend military prosecutors for appointment by the State President, relying exclusively on their professional expertise. They contended that the need for assent from the Ministry of Defence, which was a prerequisite for the appointment of military judges and prosecutors, referred only to medical, physical and psychological assessments of candidates. They added that military prosecutors’ salaries were paid from the budget of the Ministry of Defence, but that the Ministry acted merely as a manager of the military courts’ budget. The Government contended that it could not be concluded from such considerations that military prosecutors and judges were in a relationship of direct or indirect subordination within the military hierarchy.", "Moreover, military prosecutors could only be dismissed in accordance with the general conditions laid down in the statute of magistrates, and the High Council of the Judiciary was the only body in a position to apply any disciplinary sanctions. The Government further submitted that in the context of the penal reform carried out in the last few years, the principle of the specialisation of judges and prosecutors was deemed to be crucial for ensuring fair and rapid proceedings, and that therefore, in accordance with the new Code of Criminal Procedure, military prosecutors were in charge of all investigations of crimes committed by military personnel. 2. The Court’s assessment 31. The Court reiterates its well-established principles concerning the procedural obligations imposed by Article 2, which were summarised in its judgments in the cases of Association “21 December 1989” and Others (cited above, §§ 133-135); Mocanu and Others (cited above § 317-325); and Mustafa Tunç and Fecire Tunç v. Turkey ([GC] no.", "24014/05, § 171‑181, 14 April 2015). 32. According to these principles, the procedural obligation imposed by Article 2 requires an effective investigation to be conducted where the use of force, particularly by State agents, has resulted in the loss of human life. This involves the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings, which is capable of leading to the identification and punishment of those responsible. This is not an obligation of results to be achieved, but of means to be employed.", "The authorities must have taken reasonable steps to secure the evidence concerning the incident. A requirement of promptness and reasonable expedition is implicit in this context. Equally, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events, which means not only a lack of hierarchical or institutional connection, but also practical independence. Furthermore, a prompt response by the authorities is essential in maintaining public confidence in their adherence to the rule of law. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability, in practice as well as in theory (see Association “21 December 1989” and Others, cited above, § 133-135).", "33. The Court further observes that in order to establish whether a “tribunal” can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office; the existence of guarantees against outside pressures; and the question whether the body presents an appearance of independence. As to “impartiality”, there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint – that is, it must offer sufficient guarantees to exclude any legitimate doubt in that respect (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, and Mustafa Tunç and Fecire Tunç, cited above, § 221).", "34. The Court takes note of the Government’s submissions that the independence and impartiality of military prosecutors is currently fully guaranteed by the relevant legislation, as successively amended since 2004. It observes that the applicable laws have put in place transparent mechanisms for the appointment of military prosecutors, as well as for the stability of their employment, and that they are bound by the same professional obligations and entitled to similar protection against outside interference as their civilian counterparts. The Court is thus satisfied that the amendments in question appear to provide sufficient safeguards in respect of the statutory independence of military prosecutors. 35.", "Nevertheless, the Court reiterates that the issue of independence must also be examined in concreto in relation to the prosecutors in charge of an investigation, in order to check for potential ties to the persons likely to be investigated and for evidence of bias (see Mustafa Tunç and Fecire Tunç, cited above, § 237). 36. In this connection, the Court cannot ignore the fact that starting from 1990, and lasting at least until 2004, when the above-mentioned amendments were initiated, the investigations into the events of December 1989 were conducted by military prosecutors who, according to the legislation in force at the time, were in a relationship of subordination within the military hierarchy. 37. Furthermore, the Court refers to the conclusion it drew in the case of Association “21 December 1989” and Others (cited above, §§ 136-145), where the finding of a violation of Article 2 of the Convention in its procedural aspect was based on several other shortcomings of the investigations, rather than the issue of the independence and impartiality of the military prosecutors.", "These included the excessive length of the investigations and long periods of inactivity; the lack of involvement of the victims’ relatives in the proceedings; and the lack of information to the public about the progress of the investigations. The Court notes that the same shortcomings are discernible in the present cases. 38. Therefore, the Court sees no reason to depart from its findings in Association “21 December 1989” and Others (cited above), and holds that there has been a violation of Article 2 of the Convention under its procedural limb. III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION CONCERNING THE LENGTH OF PROCEEDINGS AND THE LACK OF AN EFFECTIVE REMEDY 39. The applicants relied on Article 6 § 1 of the Convention to complain about the length of the criminal investigations into the events of December 1989, and on Article 13 to complain of the lack of an effective remedy in respect of the determination of their claims. Article 6 § 1 and Article 13 of the Convention read as follows, in so far as relevant: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 40. Having regard to its finding of a violation under the procedural limb of Article 2 of the Convention (see paragraph 37 above), the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Association “21 December 1989” and Others, cited above, § 181). IV.", "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. Each of the applicants claimed 100,000 euros (EUR) in respect of non-pecuniary damage. 43.", "The Government submitted that the claims were excessive. 44. The Court observes that it has found a procedural violation of Article 2 of the Convention on account of the absence of an effective investigation into the events of December 1989 in which the applicants’ relatives were shot and killed. 45. Having regard to all the circumstances of the present case, 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 each of the applicants EUR 15,000, in respect of non-pecuniary damage, plus any tax that may be chargeable to them. B. Costs and expenses 46. The applicants did not submit a claim for costs and expenses. C. Default interest 47.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, to join the applications; 2. Declares, by a majority, the complaints under the procedural limb of Article 2 of the Convention admissible; 3. Holds, by six votes to one, that there has been a violation of Article 2 of the Convention, under its procedural limb; 4.", "Holds, unanimously, that it is not necessary to examine the admissibility and merits of the complaints under Article 6 § 1 and Article 13 of the Convention; 5. Holds, by six votes to one, (a) that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 23 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAndrás SajóDeputy RegistrarPresident 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. A.S.F.A. APPENDIX No Application No Lodged on Applicant Date of birth Place of residence 24093/14 21/03/2014 Elena APOSTOL 12/09/1949 Măgurele 24104/14 21/03/2014 Maria BARA 17/07/1947 Bucharest 24106/14 21/03/2014 Stan BURCIOAICA 01/03/1954 Bucharest 24108/14 21/03/2014 Elena Liliana BUTNARU (married CIOBANU)[1] 21/12/1982 Bucharest 24113/14 21/03/2014 Antoaneta DIMULESCU 02/07/1952 Bucharest 24119/14 21/03/2014 Maria ENACHE 20/11/1946 Bucharest 24121/14 21/03/2014 Traian CILIBEANU 01/05/1941 Bucuresti 24124/14 21/03/2014 Dumitra IANCU 10/04/1953 Bucharest 24127/14 21/03/2014 Florica IVAN 05/05/1948 Bucharest 24149/14 21/03/2014 Petra GHEORGHE 02/01/1951[2] Bucharest 24159/14 21/03/2014 Liliana Olga GRECU 04/09/1945 Bucuresti 24160/14 21/03/2014 Ștefan Jenică KOPICUC 10/12/1977 Bucharest 24170/14 21/03/2014 Anica KOPICUC 17/09/1948 Bucharest 24185/14 21/03/2014 Constanța LACHE 02/06/1950 Bucharest 24214/14 21/03/2014 Elena MĂNESCU 12/12/1935 Bucharest 45779/14 30/05/2014 Gabriela-Simina BÎRBORĂ[3] 25/09/1962 Reșița 45780/14 30/05/2014 Anca Ioana VLASIN 05/01/1985 Bucharest DISSENTING OPINION OF JUDGE WOJTYCZEK 1.", "I expressed my opinion on the temporal scope of the application of the Convention in my separate opinions appended to the judgments in the cases of Janowiec and Others v. Russia [GC] (nos. 55508/07 and 29520/09, 21 October 2013) and Mocanu and Others v. Romania ([GC], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014). In these two separate opinions I explained in detail why, in my view, the Convention does not impose on High Contracting Parties the obligation to investigate events which pre-dated the entry into force of that instrument in respect of individual States. I maintain my position on this legal issue.", "2. The events, which the applicants said had not been properly investigated, had taken place before the entry into force of the Convention in respect of Romania. The obligation to investigate events pre-dating the entry into force of the Convention was established by the judgment in the case of Šilih v. Slovenia [GC] (no. 71463/01, 9 April 2009). Before that date the High Contracting Parties could not have expected to have to answer under the Convention for not properly investigating events which had taken place prior to the entry into force of that instrument in respect of them.", "3. Finding a violation of the Convention is tantamount to attributing to a State the international responsibility for non-compliance with a treaty obligation. In my own assessment, the conditions for holding Romania responsible for a violation of the obligations stemming from the Convention were not met in the instant case. [1]. Rectified on 6 June 2016 ; the text was “Elena Liliana BUTNARU” [2].", "Rectified on 22 March 2016 ; the text was “02/01/1952” [3]. Rectified on 22 March 2016 ; the text was “Gabriela Simina BIRBORĂ”" ]
[ "FIRST SECTION CASE OF ISRAFILOVA AND AGALAROV v. AZERBAIJAN (Applications nos. 16806/11 and 61696/11) JUDGMENT STRASBOURG 10 October 2013 This judgment is final but it may be subject to editorial revision. In the case of Israfilova and Agalarov v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of: Julia Laffranque, President,Khanlar Hajiyev,Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 16806/11 and 61696/11) 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 two Azerbaijani nationals, Ms Rozakhanim Israfilova (“the first applicant”) and Mr Miryusif Agalarov (“the second applicant”), on 28 February and 20 September 2011 respectively.", "2. The applicants were represented by Mr R. Mustafazada, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. On 4 July 2012 the applications were communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1950 and 1946 respectively and live in Sumgayit. 5. The first applicant has tenancy rights to her flat on the basis of an occupancy voucher (yaşayış sahəsi orderi) and the second applicant is an owner of his flat on the basis of an ownership certificate issued by the competent domestic authority (see Appendix - Table I).", "6. In both cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the Armenian Azerbaijani conflict over Nagorno-Karabakh. 7. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats. 8.", "On the dates indicated in the Appendix, the applicants’ claims were granted by the domestic courts, which ordered the eviction of the IDPs from their flats. 9. In application no. 16806/11 (lodged by the first applicant) the execution of the judgment was postponed, by virtue of the judgment’s operative provision, until IDPs’ return to their land or their settlement in other temporary accommodation. 10.", "No appeals were filed against these judgments and, pursuant to the domestic law in force at the material time, they became enforceable within one month after their delivery. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced. 11. The applicants instituted court actions against the enforcement authorities complaining of their inactivity and seeking prompt execution of the judgments. On 19 March 2010 the Sumgayit City Court dismissed Ms Israfilova’s claims.", "On 11 May 2010 the Sumgayit Court of Appeal considered her appeal inadmissible. On 21 May 2011 the Sumgayit City Court granted Mr Agalarov’s claims, ordering immediate execution of the judgement. II. RELEVANT DOMESTIC LAW 12. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no.", "38798/07, §§ 18-24, 22 April 2010). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 13. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention, the applicants complained about the non‑enforcement of the judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, as follows: “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 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.” 14.", "The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. A. Admissibility 15. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must, therefore, be declared admissible. B.", "Merits 16. The Court points out that the factual circumstances of these cases are similar and that the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above), in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1. 17. Having examined all the material in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present applications.", "18. In particular, the Court is prepared to accept that, in these cases, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgments in the applicants’ favour. Nevertheless, the judgments remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with them. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgments in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgments.", "19. As regards the applicants’ submissions concerning the alleged violation of their property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicants’ right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs’ right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgments for considerable periods of time resulted in a situation in which the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, 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 applicants’ right to peaceful enjoyment of their possessions (see Gulmammadova, cited above, §§ 43-50).", "20. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.” 22. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. 23. However, the Court considers that, in so far as the judgments remain in force, the State’s outstanding obligation to enforce them cannot be disputed.", "Accordingly, the applicants in both cases are still entitled to the enforcement of those judgments. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicants, as far as possible, are put in the position they 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 cases. It, therefore, considers that the Government shall secure, by appropriate means, the enforcement of the judgments in the applicants’ favour.", "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 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 5. Holds that that the respondent State, within three months, shall secure, by appropriate means, the enforcement of the final domestic judgments in the applicants’ favour. Done in English, and notified in writing on 10 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachJulia LaffranqueDeputy RegistrarPresident APPENDIX Case no. Applicant’s name Document confirming the applicant’s property rights Date of delivery of the enforceable judgments Date of lodging of the application with the Court Applicant’s Representative 16806/11 Rozakhanim Israfilova Occupancy voucher of 10 December 1996 The Sumgayit City Court’s judgment of 7 March 2006 28 February 2011 Ruslan Mustafazada 61696/11 Miryusif Agalarov Ownership certificate of 3 April 2008 The Sumgayit City Court’s judgment of 21 October 2010 20 September 2011 Ruslan Mustafazada" ]
[ "SECOND SECTION CASE OF HARMATI v. HUNGARY (Application no. 63012/10) JUDGMENT STRASBOURG 21 October 2014 This judgment is final but it may be subject to editorial revision. In the case of Harmati 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 30 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63012/10) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Sándor Harmati (“the applicant”), on 11 October 2010.", "2. The applicant was represented by Mr J. Fiala-Butora, 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 3 of Protocol No.", "1 about an allegedly unjustified interference with his electoral rights. 4. On 25 June 2012 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Érd.", "6. The applicant suffers from an intellectual disability. On 4 October 2000 he was placed under plenary guardianship by the Budapest II/III District Court. As an automatic consequence flowing from Article 70(5) of the Constitution, as in force at the material time, he was deleted from the electoral register. Consequently, he could not vote in the general elections held in Hungary on 11 April 2010.", "THE LAW 7. The applicant complained that he was disenfranchised on account of his disability, in breach of Article 3 of Protocol No. 1. He relied on the Court’s case-law as enounced in the judgment Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010).", "The Government did not dispute the applicant’s arguments. 8. The Court considers that the circumstances of the present application are virtually identical to those of the Alajos Kiss judgment (cited above) and sees no reason to reach a different conclusion in the present case. It follows that there has been a violation of Article 3 of Protocol No. 1.", "9. Relying on Article 41 of the Convention, the applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. 10. The Government contested the claim. 11.", "The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards him EUR 2,700 under that head. 12. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the Court. 13.", "The Government contested the claim. 14. Regard being had to the documents in its possession and to its case-law, the Court awards EUR 1,000 under this head. 15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,700 (two thousand seven 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 21 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposHelen KellerDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF GACHMA v. RUSSIA (Application no. 9589/06) JUDGMENT STRASBOURG 17 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Gachma v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9589/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Vasiliy Alekseyevich Gachma (“the applicant”) on 25 January 2006.", "2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 18 May 2015 the application was communicated to the Government in accordance with the pilot judgment Burdov v. Russia (no. 2) (no.", "33509/04, ECHR 2009). 4. On 21 September 2015 the Government informed the Court that the judgment in the applicant’s favour had not been fully enforced due to, inter alia, the applicant’s behaviour. They requested to consider the application on the merits. The Court therefore decided to resume examination of the present case.", "THE FACTS 5. The applicant was born in 1955 and lives in Budenovsk, the Stavropol Region of the Russian Federation. He is a former military officer. 6. On an unspecified date the applicant sued his former employer military unit.", "7. On 3 May 2001 the Military Court of the Pyatigorsk Garrison (“the military court”) ordered, inter alia, the head of the respondent military unit to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for the time when the applicant had participated in a military operation. The military court obliged the head of the military unit to issue the relevant orders, to calculate and to pay the applicant some additional payments and field allowance for the periods specified in the judgment. The judgment contained information on the indexes and other parameters that should be applied for the awarded amounts to be calculated. 8.", "On 14 May 2001 the judgment came into force. 9. In March 2002 the applicant obtained the writ of execution and submitted it to the Department of the Federal Treasury in Budenovsk. 10. On 19 March 2002 the Department of the Federal Treasury returned the writ of execution to the applicant on the ground that the military unit did not have an account there, and the judgment contained no specific amounts awarded to the applicant.", "11. On 21 March 2002 the applicant submitted the writ of execution to the bailiffs’ service. On the same day the enforcement proceedings were initiated. 12. On 19 February 2003 the enforcement proceedings were terminated and the writ was returned to the applicant without enforcement following his request to withdraw the writ.", "13. In 2004-2005 the applicant applied to the domestic courts for clarification of the initial judgment with the view to establish the specific amounts due to him. The applicant’s requests were dismissed as being lodged out of time. The courts noted that, in any case, the matter concerning the awarded amounts should have been resolved by way of an additional decision rather than clarification of a final judgment, and informed that an application for an additional decision should have been lodged before the entry into force of the main judgment. 14.", "It is not disputed between the parties that the judgment of 3 May 2001 remained unenforced in the part concerning the payment to the applicant of the second salary and the field allowances for the periods specified in the judgment. 15. On 24 March 2016, after communication of the present case, the Ministry of Finance of Russia calculated the amount due to the applicant under the judgment of 3 May 2001. According to this calculation, the main debt amounted to 80,220.74 Russian roubles. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 16. The applicant complained about non-enforcement of the above judgment. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, as far as relevant, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 17. 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 18. The Government acknowledged that the judgment in the applicant’s favour was not fully enforced (see paragraphs 14-15 above). They argued, however, that the non-enforcement was due to the applicant’s behaviour. According to the Government, by his withdrawal of the writ of execution from the bailiffs’ service in 2003 the applicant impeded any further enforcement of the judgment in his favour.", "19. 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). It further reiterates that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).", "Where a judgment is against the State, the defendant State authority must be duly notified thereof and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for compliance (see Akashev v. Russia, no. 30616/05, § 21, 12 June 2008). The complexity of the domestic enforcement procedure or of the State budgetary system cannot 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 (Burdov (no. 2), cited above, § 70). 20.", "At the same time, the Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt (see Shvedov v. Russia, no. 69306/01, § 32, 20 October 2005). The creditor’s uncooperative behaviour may be an obstacle to timely enforcement of a judgment, thus alleviating the authorities’ responsibility for delays (see Belayev v. Russia (dec.), no. 36020/02, 22 March 2011). 21.", "Turning to the present case, the Court notes that on 19 March 2002 the writ of execution was returned to the applicant from the Federal Treasury with the reasoning that, inter alia, the judgment contained no specific amounts due to him. The applicant further submitted the writ of execution to the bailiffs’ service, and, having waited for approximately eleven months, decided to apply for clarification of the judgment of 3 May 2001, considering that the main obstacle for its enforcement in the part concerning the outstanding payments had been the absence of the specific amounts in its text (see paragraphs 10-15 above). 22. In the view of the foregoing, the Court does not consider that the applicant failed to undertake the necessary procedural steps in order to recover the judgment debt. 23.", "The Court accordingly finds that the arguments advanced by the Government do not justify prolonged non-enforcement of the judgment in the applicant’s favour. 24. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to the ones in the present case (see, for example, Kochalidze v. Russia, no. 44038/05, §§ 12-15, 10 April 2012, and Bezborodov v. Russia, no.", "36765/03, §§ 45-51, 20 November 2008). 25. Having examined the material submitted to it, the Court sees no reason for reaching a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for over fourteen years to comply with the enforceable judgment in the applicant’s favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving the money he had reasonably expected to receive. 26.", "There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 28. The applicant claimed 18,000 euros (EUR) in respect of pecuniary damage relating to the loss of value of the judgment debt due to inflation following the lengthy non-enforcement. He submitted a calculation of his claims. It was based on the amount of the main debt, calculated by the applicant as 280,788 Russian roubles, multiplied by the consumer price index in the Stavropol Region for the period from May 2001 until November 2015. The applicant submitted a letter from the Stavropol Regional Department of the State Statistics of 26 November 2015 showing the consumer price index for each month during the reference period.", "At the same time, the applicant did not explain the method of his calculation of the amount of the main debt in accordance with the judgment of 3 May 2001. The applicant also claimed that the judgment 3 May 2001 in his favour should be enforced, and EUR 50,000 in respect of non-pecuniary damage. 29. The Government submitted that the applicant’s rights in the present case had not been violated. They further disagreed with the claims, with reference to the letter from the Ministry of Defence of 24 March 2016 (see paragraph 15 above).", "They pointed out that the applicant’s calculation of the debt payable under the initial judgment had been wrong, and, therefore, the inflation losses claimed by him were excessive. At the same time, the Government did not contest in principle the method of the applicant’s calculation of the pecuniary damage in this part and the index applied to the amount of the main debt. They submitted no alternative calculation of pecuniary damage sustained as a result of the depreciation of that amount. The Government also disputed the amount claimed for non-pecuniary damage as excessive and unreasonable. 30.", "The Court notes that the State’s outstanding obligation to enforce the judgment in respect of certain payments is not in dispute (see paragraph 14 above). Accordingly, the applicant is still entitled to recover the outstanding amounts under the judgment. The Court reiterates that the best redress in respect of the violation found would be to put the applicant as far as possible in the position he would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). The Court finds that in the present case this principle applies as well, having regard to the violation found.", "It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgment of 3 May 2001 in the parts, in which it remained unenforced. 31. The Court notes that the applicant’s calculation of the main debt according to the judgment is not itemised or otherwise explained, while the Government provided a more detailed calculation of the amount of the debt, prepared by the Ministry of Defence (see paragraph 15 above). The Court accepts the calculation of the outstanding amounts submitted by the Government. 32.", "The Court notes that the judgment debt depreciated as a result of the prolonged non-enforcement. The Court accepts the applicant’s argument relating to the loss of value of that award, as well as the method of calculation suggested by the applicant and not disputed by the Government. 33. In these circumstances, the Court considers that the respective calculation of losses of value of the initial award for the period of non-enforcement should be made based on the Government’s calculation of the main debt. Making its estimate on the basis of information at its disposal and decides to award the applicant EUR 3,852 under this head, plus any tax that may be chargeable.", "34. As to the claim for non-pecuniary damage, the Court accepts that the applicant suffered distress from the non-enforcement of the judgment in his favour. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 under this head, plus any tax that may be chargeable. B. Costs and expenses 35.", "The applicant did not submit any claim for costs and expenses. The Court will therefore make no award under this head. 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.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 3. Holds (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 3,852 (three thousand eight hundred and fifty-two euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 6,000 (six 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF MAKHLYAGIN AND BELYAYEV v. RUSSIA (Applications nos. 14784/09 and 51742/11) JUDGMENT STRASBOURG 9 January 2018 This judgment is final but it may be subject to editorial revision. In the case of Makhlyagin and Belyayev v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 14784/09 and 51742/11) 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 two Russian nationals, Mr Yuriy Petrovich Makhlyagin on 18 September 2008 and Mr Aleksandr Mikhaylovich Belyayev on 21 June 2011.", "2. Mr Makhlyagin was represented by Mr A. Obukhov, a lawyer practising in Nizhniy Tagil; Mr Belyayev was represented by Mr E. Markov, a lawyer practising in Vienna. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 13 May 2015 complaints concerning correspondence (in respect of both applications) and concerning access to court (in respect of the application lodged by Mr Makhlyagin) were communicated to the Government, and the remainder of both applications was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants, Mr Makhlyagin and Mr Belyayev, were born in 1983 and 1979 respectively and were held in different detention facilities. The facilities’ officials opened and/or inspected letters that the applicants exchanged with the Court. A.", "Application no. 14784/09 5. From September 2008 until October 2009 the applicant, detained in a correctional colony, lodged several letters with the Court. All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant’s letters. Some letters also bore the colony’s registration stamps.", "6. The applicant lodged a claim, alleging that the colony’s staff had impeded his correspondence with the Court. On 22 January 2009 the Tagilstroyevskiy District Court of Nizhniy Tagil dismissed his claim 7. The applicant lodged an appeal with the Sverdlovskiy Regional Court. On 4 March 2009 the Sverdlovskiy Regional Court rejected his appeal, stating that it should be lodged through the first-instance court.", "The regional court also noted that the applicant could request that the time-limit in respect of the appeal be re-set. 8. On 30 March 2009 the applicant lodged his appeal with the first‑instance court. Instead of requesting that the time-limit in respect of his appeal be re-set the applicant asked the court to restore his case to the list of pending cases. On 9 April 2009 the District Court refused to examine the appeal as belated.", "9. The applicant appealed against this decision. However, he once again lodged his appeal with the Regional Court instead of the first-instance court. His appeal statement did not contain a request for the missed time‑limit to be re-set. The Sverdlovskiy Regional Court dismissed the applicant’s appeal.", "B. Application no. 51742/11 10. On 2 November 2010 the applicant received a letter from the Court; the letter was opened by a member of the remand prison staff. 11.", "The applicant lodged a claim for compensation. By a final decision of 7 June 2011 the Tver Regional Court dismissed his claim. The court stated that Russian law did not prohibit the opening of incoming correspondence from the Court. II. RELEVANT DOMESTIC LAW 12.", "For a summary of the relevant domestic provisions in force at the material time, see the case of Boris Popov v. Russia (no. 23284/04, §§ 35‑39, 28 October 2010). THE LAW I. JOINDER OF THE APPLICATIONS 13. The Court decides to join the applications, given their similar factual and legal background. II.", "ALLEGED VIOLATIONS CONCERNING THE CENSORSHIP OF CORRESPONDENCE 14. The applicants complained of disruption to their correspondence with the Court. Both applicants relied on Article 8 of the Convention. Mr Makhlyagin also invoked Article 34 of the Convention. A.", "The parties’ submissions 15. Mr Makhlyagin argued that the presence of prison stamps on the letters, as well as the cover letters drafted by prison officials, confirmed that they had been inspected and possibly photocopied by prison stuff. He also alleged that the occasional lack of envelopes and postage stamps in the detention facility amounted to a risk that his correspondence would be inspected after being handed over to prison officials for posting. 16. Mr Belyayev claimed that the opening of one letter from the Court amounted to a violation of his rights.", "17. The Government argued that Mr Makhlyagin had not exhausted the domestic remedies, referring to his failure to appeal against the judgment of the Tagilstroyevskiy District Court of Nizhniy Tagil of 22 January 2009. 18. As regards Mr Belyayev’s application, the Government submitted that the letter had been opened by mistake. They further argued that since no routine monitoring of the applicant’s correspondence had taken place, the incident had not amounted to a violation of the applicant’s rights.", "19. The applicants maintained their claims. B. The Court’s assessment 20. The Court has examined complaints concerning the monitoring of correspondence between applicants and the Court under Article 8 of the Convention (see Alekseyenko v. Russia, no.", "74266/01, § 68, 8 January 2009; Boris Popov v. Russia, no. 23284/04, §§ 93-94, 28 October 2010; and Idalov v. Russia [GC], no. 5826/03, § 199, 22 May 2012), under Article 34 (see, among other authorities, Ponushkov v. Russia, no. 30209/04, §§ 79-85, 6 November 2008; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 17 January 2012; and Trosin v. Ukraine, no.", "39758/05, § 49, 23 February 2012), or under both provisions (see Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 50-63, 16 February 2012, and Shekhov v. Russia, no. 12440/04, §§ 49-65, 19 June 2014). 21. As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant’s submissions (see Scoppola v. Italy (no.", "2) [GC], no. 10249/03, § 54, 17 September 2009), it considers that cases should be examined under Article 34 of the Convention, which 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.” 22. The Court observes at the outset that a complaint under Article 34 of the Convention is of a procedural nature and does not therefore give rise to any issue of admissibility under the Convention (see Juhas Đurić v. Serbia, no. 48155/06, § 72, 7 June 2011, with further references).", "Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual to communicate freely with the Convention institutions without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. Therefore, the Government’s objection of non-exhaustion of domestic remedies is misconceived. 23. It is important to respect the confidentiality of the Court’s correspondence with applicants since it may concern allegations against prison authorities or prison officials. The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned.", "The opening of letters by prison authorities can therefore hinder applicants in bringing their cases to the Court (see, among others, Klyakhin v. Russia, no. 46082/99, §§ 118-19, 30 November 2004). 24. In the present case it is not in dispute that staff at the detention facilities have opened and/or read the letters that the applicants have exchanged with the Court. 25.", "The Court considers that the opening of correspondence and its inspection, as well as a mere risk thereof, could have had an intimidating effect on the applicants, which is incompatible with the respondent State’s obligation under Article 34 of the Convention. 26. The Court therefore considers that the respondent State has failed to comply with its obligations under Article 34 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27.", "Mr Makhlyagin further complained that he had been denied access to the appeal court in relation to the first-instance court judgment of 22 January 2009. 28. The Court has examined this complaint, as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. Mr Makhlyagin claimed 25,000 euros (EUR) and Mr Belyayev claimed EUR 20,000 in respect of non-pecuniary damage.", "31. The Government contested these claims. 32. The Court considers that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the applicants. Accordingly, it rejects the applicants’ claims in respect of non‑pecuniary damage.", "B. Costs and expenses 33. Mr Belyayev claimed EUR 50 for postal and photocopying expenses. He further claimed EUR 1,730 for legal costs incurred before the Court, to be paid to the applicant’s representative, Mr E. Markov. 34.", "Mr Makhlyagin did not claim any costs or expenses. 35. The Government contested Mr Belyayev’s claims. 36. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 150 covering costs under all heads, to be paid into Mr E. Markov’s bank account.", "C. Default interest 37. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning monitoring of correspondence admissible and the remainder of the applications inadmissible; 3.", "Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of both applicants; 4. Holds (a) that the respondent State is to pay Mr Belyayev, within three months, EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of Mr Eduard Markov; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF OTTO v. GERMANY (Application no. 28348/09) JUDGMENT STRASBOURG 22 September 2011 This judgment is final but it may be subject to editorial revision. In the case of Otto v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President,Ganna Yudkivska,Angelika Nußberger, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 30 August 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28348/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Rüdiger Albert Otto (“the applicant”), on 26 May 2009.", "2. The applicant was represented by Mr H. Sauer and Mrs K. Sauer, lawyers practising in Cologne. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. 3. On 22 February 2010 the President of the Fifth Section decided to give notice of the application to the Government.", "In accordance with Protocol 14, the application was assigned to a Committee of three Judges. 4. The applicant and the Government each filed observations on the merits of the application (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1946 and lives in Cologne. 6. On 15 November 1989 the applicant brought civil proceedings against his former partner of a civil-law partnership (Gesellschaft bürgerlichen Rechts) to stop the compulsory enforcement of certain cost orders (Kostenfestsetzungsbeschlüsse) issued by the Cologne Regional Court in respect of previous proceedings between them. 7. On 29 November 1989 the Regional Court provisionally stayed the enforcement of the cost orders.", "On 22 January 1990 the Cologne Court of Appeal dismissed the defendant’s appeal against this decision. 8. On 4 December 1989 the applicant further extended his action. 9. On 30 March 1990 the Regional Court held an early first hearing (früher erster Termin) and announced a decision for 1 June 1990.", "10. On 8 May 1990 the applicant again further extended his action. 11. On 1 June 1990 the Regional Court reopened the oral hearing and scheduled a new oral hearing for 21 December 1990, which was postponed at the applicant’s request and rescheduled for 8 February 1990. 12.", "On 21 June 1990 and 21 August 1990 the applicant further extended or modified his action. 13. On 17 December 1990 the defendant lodged a counterclaim (Widerklage) requesting the court inter alia to order the applicant to pay him approximately DEM 702,600 (approximately EUR 360,000), concerning claims resulting from the termination of their partnership in 1979. 14. On 8 February 1991 the Regional Court held an oral hearing.", "15. On 12 April 1991 it commissioned an expert report on the applicant’s damages caused by the enforcement measures. 16. On 2 December 1991 the defendant suggested to separate the counterclaim from the proceedings in order to speed up the proceedings. On 8 January 1992 the applicant opposed a separation, whereupon the Regional Court decided not to separate the proceedings.", "17. On 5 February 1992 the court appointed an expert after two other experts had declared that they would not be in a position to prepare the report. On 12 October 1992 the applicant submitted additional information to the expert with a delay of three months. On 24 June 1993 the expert finalised his report of 75 pages. 18.", "On 28 March 1994 the defendant challenged the expert for bias. 19. On 8 July 1994 the Regional Court held another oral hearing and announced a decision for 28 October 1994, which was later on rescheduled for 16 December 1994. 20. On 5 August 1994 the court rejected the defendant’s challenge for bias.", "On 25 November 1994 the Cologne Court of Appeal quashed the Regional Court’s decision and found that the expert had been biased. 21. On 16 December 1994 the Regional Court reopened the oral hearing. 22. On 14 July 1995 the court held an oral hearing.", "23. On 17 November 1995 the Regional Court commissioned a fresh expert report. On 23 December 1997 the expert delivered his report of 41 pages. 24. On 7 November 1996 the defendant again suggested to separate the counterclaim from the proceedings.", "On 26 November 1996 the applicant opposed a separation. 25. A further hearing scheduled for 24 April 1998 was postponed twice. First, because the applicant had further questions to the expert, and later because the sitting judge was seconded to another court. 26.", "On 6 November 1998 the court held an oral hearing. 27. By partial judgment of 5 February 1999 the Regional Court dismissed the applicant’s action. The partial judgment comprised 32 pages. In respect of the defendant’s counterclaim it commissioned an expert report on the dissolution balance sheet (Auseinandersetzungsbilanz) submitted by the defendant and comprising more than 100 pages.", "28. The applicant appealed against the partial judgment. 29. On 30 December 1999 the Cologne Court of Appeal quashed the Regional Court’s partial judgment of 5 February 1999 and remitted the case to this court. 30.", "A hearing scheduled for 20 October 2000 was postponed to 12 January 2001 because of changes in the composition of the Regional Court’s chamber. On 12 January 2001 the court held an oral hearing and took evidence by hearing witnesses. 31. On 3 May 2002 the Regional Court commissioned a further expert report on the dissolution balance sheet submitted by the defendant. 32.", "In August 2002 the applicant asked for an extension of time-limit for submissions by four weeks due to friendly settlement negotiations which subsequently failed. 33. On 31 March 2004 the expert finalised her report of 7 pages. On 7 April 2004 the court sent it to the parties for comments. 34.", "On 7 January 2005 the Regional Court held another oral hearing. 35. On 18 March 2005 it dismissed the applicant’s action, ordered him to pay the defendant some EUR 5,800 and dismissed the remainder of the counteraction. The judgment comprised 42 pages. 36.", "Both parties appealed to the Cologne Court of Appeal. The applicant was granted an extension of the time-limit for reasoning his appeal twice. On 1 July 2005 the applicant submitted his statement of grounds for appeal and further extended his action. 37. On 15 August 2005 the Court of Appeal scheduled an oral hearing for 27 April 2006, which was later on postponed to 16 May 2006.", "38. On 16 May 2006 the Court of Appeal held an oral hearing and announced a decision, which was postponed several times. 39. On 14 May 2007 the Court of Appeal scheduled another hearing for 11 October 2007, which was postponed to 18 October 2007. 40.", "On 8 November 2007 the Cologne Court of Appeal quashed the Regional Court’s judgment. It dismissed the applicant’s action and ordered him to pay the defendant EUR 170,564 plus interest at the annual rate of 4% from 3 January 1991. The judgment comprised 30 pages. 41. On 8 December 2008 the Federal Court of Justice dismissed the applicant’s request to be granted leave to appeal on points of law.", "II. RELEVANT DOMESTIC LAW 42. According to section 288 § 1 of the German Civil Code (Bürgerliches Gesetzbuch) in force at the relevant time any money debt must bear interest during the time of default. According to section 291 of the German Civil Code the debtor must pay interest on a money debt from the date when litigation is pending onwards, even if he is not in default. THE LAW I.", "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 his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 44. The Government contested that argument. They argued that the proceedings had been exceptionally complex. In this respect they referred to the large number of damages claimed by the applicant, to the applicant having extended his claims several times, to the defendant’s counterclaim and to the fact that the relevant events dated back several years.", "They further pointed out that three expert opinions had to be obtained and that due to the volume and complexity of the case it was difficult to find experts. The Government conceded that due to the high value in dispute the proceedings were of some importance to the applicant. Nevertheless, the applicant had signalled in the course of the proceedings that bringing them to a close promptly was not important to him. They stressed that the applicant had contested a separation of the counterclaim from the proceedings two times, but noted, however, that the Regional Court in its sole discretion decided not to separate the proceedings. Finally, the Government argued that the applicant had belatedly submitted information to the experts and several times asked for the extension of time-limits set by the domestic courts.", "Nevertheless, they admitted that there had been delays attributable to the domestic courts. 45. The period to be taken into consideration began on 15 November 1989 and ended on 8 December 2008. It thus lasted 19 years and almost one month for three levels of jurisdiction, including one remittal. A. Admissibility 46.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 47.", "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). 48. 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). 49.", "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. 50. The Court acknowledges that the case was factually and legally very complex and takes note of the several expert opinions that had to be obtained. However, the complexity of the case alone cannot explain the overall length of the proceedings, which lasted more than 19 years for three levels of jurisdiction. As regards the applicant’s conduct, the Court observes that even if there are delays attributable to the applicant, it cannot be considered to have decisively contributed to the total duration of the proceedings.", "As regards the applicant’s extensions of his action and his opposition to the separation of the counterclaim, the Court emphasises that the former mainly took place in the very beginning of the proceedings and that the decision not to separate the proceedings lay in the Regional Court’s sole discretion. The Court also notes that an applicant, in principle, cannot be held responsible for availing himself of the procedural means at his disposal under German law (see, mutatis mutandis, Ballhausen v. Germany, no. 1479/08, § 63, 23 April 2009). Against this background, the Court finds that there were substantial periods of inactivity or delay, which are solely imputable to the domestic courts (see, in this context, among many other authorities, Süßmann v. Germany, 16 September 1996, § 55, Reports of Judgments and Decisions 1996‑IV). 51.", "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 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 53. The applicant claimed EUR 92,135.08 in respect of pecuniary damage. He specified that an amount of EUR 90,135.76 was attributable to the fact that due to the excessive length of the domestic proceedings he had to pay higher default interest to the defendant. He referred to the judgment of the Cologne Court of Appeal (see paragraph 38 above) and the relevant domestic provisions (see Relevant domestic law). An amount of EUR 1,999.32 related to lawyer’s fees expended with a view to seeking compensation for the aforementioned damage from the respondent Government before he lodged his application with the Court.", "The applicant also claimed just satisfaction in respect of non-pecuniary damage and left the amount to be awarded to the Court’s discretion. 54. The Government did not express an opinion on the matter. 55. The Court observes that the aim and purpose of default interest is to compensate the creditor for the disadvantages of not having benefited from the money owed by the debtor during the default period, or, the other way around, to skim off the debtor’s advantages of having had that money at his disposal during the default period.", "In fact, the applicant had to pay higher default interest not because of the excessive length of the proceedings, but rather because he had specific financial resources at his disposal for a longer period of time. The Court finds that the applicant cannot be said to have suffered pecuniary damage in this respect. Therefore, the Court rejects this claim as well as the applicant’s related claim for the lawyer’s fees expended in this connection. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage as a result of the excessive length of the proceedings which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards him EUR 16,800 under that head.", "B. Costs and expenses 56. The applicant also claimed EUR 2,819.75 for the costs and expenses incurred before the Court. Referring to the relevant provisions of the German Lawyers’ Fees Act (Rechtsanwaltsvergütungsgesetz), he specified that an amount of EUR 2,455.21 was not yet paid, but would be due in the future. As regards an amount of EUR 364.54 the applicant submitted an itemised fee note of his lawyer.", "57. The Government did not express an opinion on the matter. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant partly failed to substantiate that he actually incurred the costs claimed (see, for example, Fetullah Akpolat v. Turkey, no.", "22077/03, § 43, 15 February 2011). Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 364.54 for the proceedings before the Court. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "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 (i) EUR 16,800 (sixteen thousand and eight hundred euros) in respect of non-pecuniary damage; (ii) EUR 364.54 (three hundred and sixty-four euros and fifty-four cents) in respect of costs and expenses; (iii) any tax that may be chargeable to the applicant on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsBoštjan M. ZupančičDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF ANĐELKOVIĆ v. SERBIA (Application no. 1401/08) JUDGMENT STRASBOURG 9 April 2013 FINAL 09/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Anđelković v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Peer Lorenzen,Dragoljub Popović,András Sajó,Nebojša Vučinić,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 19 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1401/08) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Milomir Anđelković (“the applicant”), on 22 November 2007. 2. The applicant was represented by Mr M. Milosavljević, a lawyer practising in Bor. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "The applicant claimed that the final judgment rendered in his case, which had partially overturned a judgment in his favour, had been arbitrary. 4. On 26 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1958 and lives in Bor. 6. On 26 October 2004 the applicant filed a civil claim against his employer, company Z, seeking the payment of outstanding holiday pay (regres za korišćenje godišnjeg odmora) due for 2002 and 2003, the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from October 2001 to May 2004, statutory interest and legal costs. 7.", "Following a remittal in 2005, on 15 March 2006 the Bor Municipal Court (Opštinski sud) ruled in favour of the applicant. As regards the outstanding holiday pay, the court observed that company Z had not paid the holiday pay due for 2002 and 2003 to any of its employees, as its alleged parent company had been encountering financial difficulties. The court, however, found these facts to be irrelevant to the outcome of the applicant’s claim, as according to the Labour Act and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer’s profits. 8. On 3 September 2007 the Zaječar District Court (Okružni sud) reversed the part of the Municipal Court’s judgment which concerned holiday pay and legal costs, while upholding the remainder.", "The District Court based its refusal on the finding, disregarding applicable employment law, that company Z had not paid outstanding holiday pay to any of its employees and therefore that “to accept the applicant’s claim would mean that the applicant would be treated more favourably than his colleagues, who had not received payment of outstanding holiday pay from their employer either”. No further recourse against this judgment was available to the applicant. 9. It would appear that between 2004 and 2009 a number of the applicant’s colleagues lodged the same or similar claims to those of the applicant with the Municipal Court. 10.", "On 28 April and 2 June 2009 the Municipal Court rejected the claims of the applicant’s colleagues for the same reasons as the District Court had in the applicant’s case. However, the Belgrade Court of Appeal, which, following reforms to the judicial system had become the competent appeal court, overturned both judgments on 29 April and 30 June 2010, respectively. In so doing, the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law (see paragraphs 10-13 below), finding that the reasons for judgment given by the Municipal Court in their cases were irrelevant and that it had erred in law in rendering the judgments. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Labour Act 2001 (Zakon o radu; published in the Official Gazette of the Republic of Serbia “OG RS” nos.", "70/01 and 73/01) 11. Article 90 paragraph 3 stipulated that collective bargaining agreements, labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act. B. General Collective Bargaining Agreement 2001 (Opšti kolektivni ugovor; published in the OG RS nos. 22/97, 21/98, 53/99, 12/00 and 31/01 – “the 2001 Agreement”) 12.", "Pursuant to clause 30a(1.2), an employee shall be entitled to additional pay, including to holiday pay, which shall amount to a monthly average wage in the relevant industrial sector. Holiday pay shall be paid in full to employees who are entitled to 18 days of annual leave, and shall be reduced proportionally if the employee is entitled to fewer days of annual leave. C. Special Collective Bargaining Agreement for metal industry workers (Poseban (granski) kolektivni ugovor metalaca Srbije, published in the OG RS nos. 50/95, 9/96, 44/97, 9/00 and 49/01) 13. The text of clause 4(2) of this agreement corresponds to clause 30 of the 2001 Agreement.", "D. Enterprise Bargaining Agreement concluded between the trade union and the director of company Z (Pojedinačni kolektivni ugovor između Organizacije sindikata i direktora privrednog društva Z., no. 01-83/98 of 22 October 1998) 14. The text of clause 116(1) of this agreement corresponds to clause 30 of the 2001 Agreement. Additionally, clause 116(4) provides that in case of its financial inability to pay holiday pay as a lump sum, the employer may pay it in several instalments. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 15. The applicant complained that the court of final instance had rejected his claim for outstanding holiday pay for reasons which had not been correct in law, in breach of Article 6 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 16. The Government maintained that the applicant had failed to pursue his application with reasonable expedition (relying upon Kemevuako v. the Netherlands (dec.), no. 65938/09, 1 June 2010). Whilst the Court appeared to consider that the application had been lodged on 22 November 2007, the Government, however, noted that the applicant had failed to follow the Court’s instruction to submit an application form by 28 October 2011, justifying his delay on the belated delivery of the Court’s letter of 4 October 2011 containing that instruction.", "The Government maintained that the significant delay of more than two years between the initial letter (22 November 2007) and the submission of the completed application form (by 28 October 2011 at the earliest) meant that the initial letter should cease to be regarded as the introduction of the application and that only the date on which the completed application had been lodged should be relevant. The final decision in the present case being the judgment of 3 September 2007, the Government concluded that the application had been introduced outside the six-month time-limit set down by Article 35 § 1 of the Convention. 17. The applicant’s observations, following the communication of his case to the Government, were submitted after the expiration of the time-limit set by the Court. The President of the Chamber therefore decided, pursuant to Rule 38 § 1 of the Rules of Court, that they should not be included in the case file for the Court’s consideration (see also paragraph 20 of the Practice Direction on Written Pleadings).", "18. In accordance with the established practice of the Convention organs, the Court normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication as to the nature of the application. Such first communication will interrupt the running of the six-month period (see Arslan v. Turkey (dec.), no. 36747/02, 21 November 2002, ECHR 2002‑X (extracts), and Růžičková v. the Czech Republic (dec.), no. 15630/05, 16 September 2008).", "19. Turning to the present case, the Court observes that the Government have misinterpreted the facts. The present application was introduced on 22 November 2007 on a duly completed application form, which contained a full outline of the applicant’s case. As regards the Government’s objection, the Court observes that, by its letter of 4 October 2011, the Registry gave notice of the present application to the Government. In a corresponding letter of the same date, the applicant was notified by the Registry that, pursuant to Rule 36 §§ 2 and 4 of the Rules of Court, he was required to appoint an “advocate” at that stage of the proceedings and, in that regard, to complete and return an enclosed authority form to the Court by 28 October 2011.", "The applicant did so on 11 November 2011, claiming that the delivery of the Registry’s letter of 4 October 2011 had been delayed. In addition, he submitted another copy of the application form with the words “already served on the Court on 22 November 2007” noted under each relevant field. The Court emphasises that the applicant’s further submission of additional documents, including another copy of the application form, did not change the original date of introduction. Since the final decision in the present case was adopted on 3 September 2007, and the application was lodged with the Court on 22 November 2007, this objection by the Government must be dismissed. 20.", "The Court notes, moreover, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is likewise not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 21.", "The Government contended, based on a two-pronged argument, that the facts of the present case clearly disclosed no violation of Article 6 § 1 of the Convention. 22. Firstly, they submitted that the case-law of the Zaječar District Court on the issue in question had been consistent, although, admittedly, it had diverged from the practice of Belgrade Court of Appeal. Nevertheless, conflicting judgments of these two domestic courts on the same legal matter could not be characterised in the present case as “profound and long-standing differences” (making reference to Tudor Tudor v. Romania, no. 21911/03, 24 March 2009).", "23. Secondly, the Government maintained that the status of the applicant was “almost analogous” to that of the applicant in the case of Karuna v. Ukraine (dec), no. 43788/05, 2 April 2007. In view of the Court’s finding in the Karuna case that it is not its function to deal with errors of fact or law allegedly committed by a national court, the Government invited the Court to likewise reject the present application as manifestly ill-founded. 24.", "The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among many authorities, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII). That being so, the Court will not question the interpretation of domestic law by the national courts, save in the event of evident arbitrariness (see, mutatis mutandis, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008), in other words, when it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary conclusions and/or a denial of justice (see, mutatis mutandis, Farbers and Harlanova v. Latvia (dec.), no 57313/00, 6 September 2001, and, albeit in the context of Article 1 of Protocol No. 1, Beyeler v. Italy [GC], no.", "33202/96, § 108, ECHR 2000-I). 25. Turning to the present case, the Court finds Article 6 § 1 applicable, given that the domestic courts were called upon to determine a dispute concerning a right to outstanding holiday pay, which can be considered to be a civil right which the applicant could, on arguable grounds, claim under Serbian law. 26. Further, even accepting the Government’s assertion about the claim’s rejection being in line with the consistent practice of the District Court in such matters, the Court considers that this is not of relevance to the case, as the subject of the Court’s examination in the present case is not the possible legal uncertainty stemming from the divergent interpretation of domestic law by domestic courts; rather, the fundamental issue in the present case, which distinguishes it, inter alia, from many of the other cases before this Court, including Karuna, is the element of arbitrariness disclosed in the appellate judgment complained of.", "27. Specifically, the Court observes that Serbian labour law governing holiday pay is not vague and ambiguous, but clearly provides for the instances in which employees are entitled to such additional payments (see paragraphs 11-14). The first-instance court established certain facts and found that the applicant had a legal entitlement to the holiday pay claimed. The District Court overturned that judgment on appeal and rejected the applicant’s claim without even making reference to the facts and the labour law as presented by the first-instance court. Nor did it refer in the impugned judgment to what the law was, how it should have been applied to the applicant’s case or whether the conditions stipulated in the applicable collective and enterprise bargaining agreements had been met in the applicant’s case.", "The District Court, while disregarding applicable employment law, rejected the applicant’s claim on the sole ground that “to accept the applicant’s claim would mean that the applicant would be treated more favourably than his colleagues, who had not received payment of outstanding holiday pay from their employer either” (see paragraph 8 above). This reasoning had no legal foundation (see, mutatis mutandis, De Moor v. Belgium, 23 June 1994, § 55, Series A no. 292‑A) and was based on what appears to be an abstract assertion quite outside of any reasonable judicial discretion. Furthermore, a connection between the established facts, the applicable law and the outcome of the proceedings is wholly absent from the impugned judgment. The Court therefore finds that such an arbitrary District Court’s ruling has amounted to a denial of justice in the applicant’s case (see, albeit in the context of assessment of evidence, Khamidov v. Russia, no.", "72118/01, § 175, 15 November 2007, and contrast to Camilleri v. Malta (dec.), no. 51760/99, 16 March 2000). 28. Lastly, the Court observes that no further recourse against this appellate judgment was available to the applicant at the material time. 29.", "In these circumstances, the Court considers that the District Court did not give the applicant’s case a fair hearing and finds accordingly that there has been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 31. The applicant claimed 23,539 dinars (RSD; approximately 210 euros (EUR)) for non-pecuniary and pecuniary damage suffered, and RSD 14,541 (approximately EUR 130) for costs and expenses incurred in connection with the proceedings before the Court.", "32. The Government submitted that these claims were belated. 33. The Court notes that the applicant’s just satisfaction claims were set out on the application form but were only resubmitted on 14 May 2012, almost two months after the expiry of the allotted time-limit for so doing. This time-limit was imposed upon the Court’s transmission of the Government’s initial observations.", "The applicant has therefore failed to comply with Rule 60 §§ 2 and 3 of the Rules of Court and paragraph 5 of the Practice Direction on Just Satisfaction Claims, which, in so far as relevant, provides that the Court “will also reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings and claims lodged out of time”. The applicant’s just satisfaction claims must therefore be dismissed. 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.", "Dismisses the applicant’s claims for just satisfaction. Done in English, and notified in writing on 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]
[ "SECOND SECTION CASE OF ÖCALAN v. TURKEY (No. 2) (Applications nos. 24069/03, 197/04, 6201/06 and 10464/07) JUDGMENT (Extracts) STRASBOURG 18 March 2014 This judgment is final. It may be subject to editorial revision. In the case of Öcalan v. Turkey (no.", "2), The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Peer Lorenzen,Dragoljub Popović,András Sajó,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 11 February 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos. 24069/03, 197/04, 6201/06 and 10464/07) 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 Abdullah Öcalan (“the applicant”), on 1 August 2003. 2. The applicant was represented by Mr T. Otty and Mr M. Muller, lawyers practising in London (applications nos.", "24069/03 and 197/04); Ms A. Tuğluk, Mr D. Erbaş, Mr I. Dündar, Mr H. Kaplan, Ms M. Tepe, Ms F. Köstak, Mr F. Aydınkaya, Mr Ö. Güneş, Mr I. Bilmez, Mr B. Kaya, Mr Ş. Tur and Mr E. Emekçi, lawyers practising in Istanbul; Mr K. Bilgiç and Ms H. Korkut, lawyers practising in İzmir; Mr M. Şakar and Ms R. Yalçındağ, lawyers practising in Diyarbakır; Mr N. Bulgan, a lawyer practising in Gaziantep; Mr A. Oruç, a lawyer practising in Denizli (applications nos. 24069/03, 197/04, 6201/06 and 10464/07), and Mr R.B. Ahues, a lawyer practising in Hanover. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant complained in general of his conditions of detention in İmralı Prison (at Mudanya, Bursa, Turkey), the restrictions on his communication with members of his family, his life sentence without the possibility of parole and an attempted poisoning. 4. On 3 April 2007 the applications were joined and communicated to the Government. It was also decided that the Chamber would determine the merits of the case at the same time as its admissibility (Article 29 § 1 of the Convention). The exchange of observations between the parties was completed on 8 March 2012.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison. 6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no.", "46221/99, ECHR 2005‑IV). They may be summarised as follows. 7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999.", "The inmates at this prison had meanwhile been transferred to other prisons. 8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. A. The trial 9.", "By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey’s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan – hereafter “the PKK”). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government’s estimate of the number of those killed (almost 30,000) or wounded as a result of the PKK’s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.", "10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety. 11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no.", "4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. 12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant’s death sentence to life imprisonment. 13.", "On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances. B. Conditions of detention after 12 May 2005 1. Conditions of detention in İmralı Prison 14.", "The applicant’s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date (see Öcalan, cited above, §§ 192-196). 15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built. 16. In May 2007 and January 2010, that is to say after the Court’s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited İmralı Prison.", "(a) Before 17 November 2009 17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air-conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting.", "In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 18. The time granted to the applicant to leave his cell and use the exercise yard (measuring approximately 45 sq. m), which is walled in and covered with mesh, was limited to one hour daily (divided into two 30-minute periods, one in the morning and the other in the afternoon). 19.", "The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison. 20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences.", "Nor was he given access to a telephone, for the same reasons. 21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers.", "In the absence of visits from family members and lawyers (owing to the inaccessibility of the island), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored. 22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored.", "Correspondence with the outside was occasionally interrupted. 23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months. (b) Since 17 November 2009 24. In order to comply with the requests put forward by the CPT and put an end to the applicant’s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison.", "On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities. 25. Since that date the applicant has been on his own in a cell with an area of 9.8 sq. m (living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin.", "The building containing the cells is properly damp-proofed. According to the CPT, although the applicant’s cell has a 1 m x 0.5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6-m-high wall surrounding the yard. The CPT’s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light. 26. The prison is equipped with a sports room with a ping‑pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight.", "Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room (where no specific activities are on offer) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour’s conversation per week with the other prisoners. 27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.", "28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities: painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities (painting/handicraft, board games and sport).", "The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners. 29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes’ telephone calls to the outside every fortnight. 30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day (eight hours or more) outside their cells, engaged in purposeful activities of a varied nature.", "The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high-security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set. 2. Restrictions to visits by the applicant’s lawyers and relatives (a) Visit frequency 31.", "The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “poor weather conditions”, “maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions”. 32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland.", "It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks. 33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 (one out of six requests refused), January 2007 (two out of six requests refused) and February 2007 (all four requests granted), visit frequency once again dropped off in March 2007 (six out of eight requests refused) and April 2007 (four out of five requests refused), picking up again in May 2007 (one out of five requests refused) and June 2007 (one out of four requests refused).", "The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers. 34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant’s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after (because of unfavourable weather conditions).", "35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty-seven requested visits by his lawyers. Three lawyers’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011.", "Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns. In 2012 the applicant received a few visits from his brother, and none from his lawyers. (b) Visits by lawyers 36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period.", "Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant’s lawyers’ visits, in practice, always took place on a Wednesday, the day of the crossing. i. Procedure during visits by the applicant’s lawyers 37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no.", "5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and/or confiscation of all or some of these documents by the judge. 38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post-sentencing judge applying section 59 of Law no.", "5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination. 39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “rendered the visit and the interview pointless in terms of preparing his defence”.", "40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination. 41. The applicant’s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge’s decision ordering attendance by an officer during interviews and the recording of the conversations.", "By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant’s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant’s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation. 42. During the lawyers’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant’s defence before a judicial authority. The applicant’s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor’s office issued a decision not to prosecute.", "ii. Content of the exchanges between the applicant and his lawyers 43. It appears from the records of the lawyers’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK’s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries.", "Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party’s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK’s demands had been met. 44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics. 45.", "Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement. The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement. iii.", "Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers 46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers’ visits on the following dates: 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009. 47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language. 48.", "On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant’s words corresponded to “training and propaganda activities within a criminal organisation”, sentenced the applicant to 20 days’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant’s books and newspapers for twenty days. 49. The applicant’s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation. 50.", "On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant’s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law. 51. The applicant was subjected to a further sanction of 20 days’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006.", "The applicant’s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected. (c) Visits by members of the applicant’s family 52. Visits by relatives of the applicant (in practice, his brothers and sisters) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision.", "Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “around a table” for the first time. 53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family’s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.", "54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions. 3. Proceedings brought against some of the applicant’s lawyers (a) Ban on some lawyers representing the applicant 55.", "Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers. 56. By a decision of 6 June 2005, the Istanbul prosecutor’s office invited the Istanbul Assize Court to apply this measure to some of the applicant’s lawyers. 57.", "By a decision of 7 June 2005, the 9th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year. 58. On 20 June 2005, the 10th Assize Court of Istanbul dismissed the applicant’s appeal against that decision. (b) Prosecution of some of the applicant’s lawyers for acting as messengers between him and his former armed organisation 59. On 23 November 2011, on instructions from the Istanbul public prosecutor’s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court), searched their offices and seized all the documents relating to the applicant.", "The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders. 4. Alleged poisoning of the applicant 60. By a letter of 7 March 2007 the applicant’s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium. 61.", "However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION 79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention.", "He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 1. The parties’ submissions (a) The applicant 81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred.", "Following this transfer his situation had not greatly improved: the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high-security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books. 82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention.", "83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation. (b) The Government 84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill-treatment by prison staff.", "85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant’s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light. 86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners.", "When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities. 87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT’s recommendations. 88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no.", "5275 on the enforcement of sentences and preventive measures. 89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT’s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day.", "90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation. 91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant’s incarceration, the PKK had continued its armed attacks and terrorist activities.", "There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law. 92.", "The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight. 2. The Court’s assessment (a) Period of detention to be taken into consideration 93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3. 94.", "It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI). 95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant’s conditions of detention from the outset until 12 May 2005 in its judgment of the same date (see Öcalan, cited above, §§ 192‑196), when it reached the following conclusion: “While concurring with the CPT’s recommendations that the long-term effects of the applicant’s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account.” 96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 (application no.", "46221/99), up to 8 March 2012 (the date of the latest observations received). It will, however, take into account the applicant’s situation on 12 May 2005, particularly with regard to the long-term effects of his particular conditions of detention. (b) General principles 97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see El Masri v. “the Former Yugoslav Republic of Macedonia” [GC], no.", "39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006‑IX; and Chahal, cited above, § 79). 98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos.", "1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 (see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001).", "99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161). 100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI).", "In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997‑VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003‑II). 101.", "In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). 102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation.", "Nevertheless, Article 3 requires the State to ensure that all prisoners are 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 them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued (see Ramirez Sanchez, cited above, § 119). 103. Furthermore, 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). 104. One of the main elements of the applicant’s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner’s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners.", "These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls (see Ramirez Sanchez, cited above, § 138). 105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes.", "106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner’s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement (ibid., § 139). 107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment (or indeed, under some circumstances, torture), as follows: “Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason.", "On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.” (see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999‑V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3). Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention: “As regards the applicant’s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation.", "The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible. The applicant’s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals.", "In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health.” (see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005). (c) Application of these principles to the present case i. Specific nature of the case 108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant’s detention posed exceptional difficulties for the Turkish authorities.", "As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison. 109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers (see § 43 above) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme (see § 45 above).", "The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant. ii. Physical conditions of detention 110. The physical conditions of the applicant’s detention must be taken into account in assessing the nature and duration of his solitary confinement. 111.", "The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.", "112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9.8 sq. m (living space), with an additional 2 sq. m (bathroom and toilets), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin.", "The building comprising the cells is properly damp-proofed. The applicant’s cell has a window measuring 1 m x 0.5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant’s safety, would appear not to have accepted the CPT’s proposal to lower the wall. 113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight.", "In the new building, up until the end of 2009/beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library (see paragraph 26 above). 114. In response to the CPT’s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day.", "115. The Court notes that the physical conditions of the applicant’s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “broadly acceptable”. Therefore, no infringement of Article 3 can be found on this account. iii.", "The nature of the applicant’s isolation – Access to information 116. Before 17 November 2009 the applicant’s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant’s relative social isolation.", "117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored.", "118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight. 119.", "All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term. – Communication with prison staff 120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 (see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs.", "A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship. 121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor’s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant’s health, assessing the data and ensuring respect for their medical secrecy. 122.", "The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant’s relative social isolation could have major and permanent negative effects on the applicant’s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant’s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant’s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored. 123.", "The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner’s social isolation. – Communication with the other inmates 124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties. 125.", "After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates. 126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five: painting and handicraft activities, table tennis, chess, volleyball and basketball.", "He can therefore engage in a total of five hours’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities. – Communication with family members 127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother.", "128. Even though the prison rules authorise a one-hour visit by close relatives (brothers and sisters in the applicant’s case) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high-security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “poor weather conditions”, “maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions”. 129.", "Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week’s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport (see Öcalan, cited above, § 194). 130.", "As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier (consisting of glass panels and telephones), because under the prison rules visiting rooms without barriers were reserved for first-degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table. – Communication with lawyers and other persons 131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week (every Wednesday), he was in fact deprived of most of these visits.", "The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests. 132. The Court notes that the periods when the applicant was refused lawyer’s visits preceded the commencement of proceedings against some of the applicant’s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns. 133.", "The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored. 134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge. 135.", "The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “legitimate restrictions” on them inasmuch as those restrictions are strictly necessary to protect society against violence. – Conclusion on the nature of the solitary confinement imposed on the applicant 136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative.", "Since 17 November 2009 (for the remainder of the period under consideration, see § 96 above), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers. iv. Duration of the applicant’s social isolation 137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months.", "The total duration of the detention in relative social isolation was therefore nineteen years and nine months. 138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant’s physical and mental condition was compatible with his continued solitary confinement (see Ramirez Sanchez, cited above, § 136). 139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention (ibid., particularly §§ 125-150).", "While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to-day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted. 140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant’s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader. 141.", "Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate (ibid., § 146). 142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment. 143.", "The Court notes the Government’s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant’s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building. 144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation.", "His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT’s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture. 145. The Court notes the CPT’s concern about the possible long-term effects of the prolonged lack of a television set in the applicant’s cell (until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners’, and therefore the applicant’s, social isolation.", "Prolonged absence of such facilities, combined with the “time” factor, that is to say over thirteen years’ incarceration in the applicant’s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation. In particular, the Court holds that although the choice of a remote island as the applicant’s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners. v. Conclusions - Prior to 17 November 2009 146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT’s recommendations that the applicant’s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives (see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention (see Öcalan, cited above, § 196).", "However, the Court now notes that the applicant’s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment. In its assessment of the applicant’s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit (see § 72 above) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison’s only inmate (see paragraph 137 above), the lack of communication media to prevent the applicant’s social isolation (protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above), excessive restrictions on access to news information (see paragraphs 116, 117 and 119 above), the persistent major problems with access by visitors to the prison (for family members and lawyers) and the insufficiency of the means of marine transport in coping with weather conditions (see paragraph 129 above), the restriction of staff communication with the applicant to the bare minimum required for their work (see paragraphs 123 and 124 above), the lack of any constructive doctor/patient relationship with the applicant (see paragraph 120 above), the deterioration in the applicant’s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment (see paragraph 122 above), and the fact that no alternatives were sought to the applicant’s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation (see paragraph 122 above). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant’s conditions of detention up to 17 November 2009.", "- After 17 November 2009 148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant’s detention, the Government’s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison (see paragraph 143 above), the improvement in the applicant’s access to news and information during this period (see paragraph 118 above), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT’s observations following its visit in January 2010 (see paragraph 126 above), the increased frequency of visits authorised and the quality of the applicant’s conversations with his family, without any glass barrier (see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation (telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009.", "The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS 150. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits. 151.", "Article 8 of the Convention 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.” 152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family.", "They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits. ... B. Merits 154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life.", "However, it is an essential part of a prisoner’s right to respect for family life that the prison authorities assist him in maintaining contact with his close family (see Messina v. Italy (no. 2), cited above, § 61). 155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high-security prison, is subject to a special detention regime which involved restricting the number of family visits (once a week, on request) and, up until 2010, imposed measures to monitor the visits (the prisoner was separated from his visitors by a glass panel). 156.", "The Court considers that these restrictions undoubtedly constitute an interference with the applicant’s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention (see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246). 157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”. 158.", "The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime. 159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued (see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII).", "160. The Court notes that the regulations on contacts with families for life prisoners in high-security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 (see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government’s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant’s detention had radically changed between 2005 and the date of the said restrictions on communication. 161.", "The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside. 162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant. 163.", "As regards striking a balance between the applicant’s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT’s recommendations, allowed the applicant to receive his visitors seated at a table (see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities.", "164. In the light of these considerations, the Court considers that the restrictions on the applicant’s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention. There has therefore been no violation of Article 8 of the Convention on this account. III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 165.", "The applicant further complained of a violation of Article 7 of the Convention, 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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” A.", "The parties 166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction (under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years. In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment (with no possibility of parole until the end of his life).", "167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention. 168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant’s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty-six years.", "However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “reinforced life sentence” that is to say a life sentence to last for the remainder of the person’s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism (including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no.", "5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti-Terrorism Law). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole. B. The Court’s assessment ... 2.", "Merits (a) General principles 171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It 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 Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W.", "v. the United Kingdom, 22 November 1995, § 34, Series A no. 335‑B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335‑C). 172.", "Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000‑VII).", "173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006‑IV).", "174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability (see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries (see Achour, cited above, § 41).", "The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996‑V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54). 175.", "The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant (see Scoppola (no. 2), cited above, § 109). 176. In its decision in the case of Hummatov v. Azerbaijan ((dec.), nos.", "9852/03 and 13413/04, 18 May 2006), the Court approved the parties’ shared opinion that a life sentence was not a harsher penalty than the death penalty. (b) Application of these principles to the present case 177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant’s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code (see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty (see, to the same effect, Hummatov, cited above).", "178. The parties’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant’s death penalty to “life imprisonment”, and the interpretation of the latter sentence. 179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty-six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984. 180.", "The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court’s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment (see Öcalan, cited above, § 172). 181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty-six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant’s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it.", "It follows that the Court cannot accept the applicant’s contention that the penalty imposed on him had amounted, from the outset, to a thirty-six year prison sentence. 182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ordinary” life sentence and then, much later and in breach of Article 7 of the Convention, into “aggravated” life imprisonment, without any possibility of parole. 183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “more severe penalty” and the principle of retrospective enforcement of the “more lenient penalty”.", "184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment. 185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole.", "The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle. 186.", "It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms (reinforced life imprisonment, aggravated life imprisonment) were used in the various laws on the matter does not alter this finding. 187. The Court will also consider the applicant’s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison.", "This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant’s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high-security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases. 188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested.", "189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE 190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention.", "He also stated that a life sentence which took no account of the prisoner’s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment. 191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant’s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole.", "As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner (the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners. ... B. Merits 193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Vinter and Others v. the United Kingdom [GC], nos.", "66069/09, 130/10 and 3896/10, § 106, ECHR 2013 (extracts), and Kafkaris, cited above, § 97). 194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001‑VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no.", "67385/01, 22 May 2003). 195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108): “... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above).", "Indeed, preventing a criminal from re-offending is one of the ‘essential functions’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002‑VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person.", "The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State’s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above).” 196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Vinter and Others [GC], cited above, §§ 108 and 109). 197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review: “111.", "It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence.", "It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated. 112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ... 113.", "Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner’s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ... Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002‑III, and V.C.", "v. Slovakia, no. 18968/07, § 105, ECHR 2011).” 198. In the same judgment (Vinter and Others), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3: “119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. 120.", "However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ... 121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention. 122.", "Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.” 199.", "In the instant case, the Court first of all reiterates its above-mentioned finding that since 17 November 2009, the applicant’s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT’s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention. 200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention. 201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths.", "Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant’s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration (see paragraph 182 above regarding the Court’s findings on the complaints under Article 7 of the Convention). 202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant’s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code (Book 2, Chapter 4, sub-chapter 4).", "It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds. 203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “prospect of release” on legitimate penological grounds (see, to similar effect, Vinter and Others, § 129).", "204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws (the latter type of law grants release on parole after a minimum term) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration.", "205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above). 206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant.", "207. There has accordingly been a violation of Article 3 of the Convention on this point. Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111‑113 of its Grand Chamber judgment in the case of Vinter and Others (quoted in paragraph 194 of this judgment), whether the applicant’s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant’s continued detention is justified by reason of his dangerousness. ... FOR THESE REASONS, THE COURT ... 2.", "Holds, by four votes to three, that there has been a violation of Article 3 of the Convention as regards the complaints concerning the conditions of detention prior to 17 November 2009; 3. Holds, by six votes to one, that there has been no violation of Article 3 of the Convention as regards the complaints concerning the conditions of detention after 17 November 2009; 4. Holds, by four votes to three, that there has been no violation of Article 8 of the Convention as regards the complaints concerning the restrictions on visits by and communication with family members; 5. Holds, by six votes to one, that there has been no violation of Article 7 of the Convention; 6. Holds, unanimously, that there has been a violation of Article 3 of the Convention as regards the complaints concerning the imposition of a life sentence without any possibility of release on parole; ...", "Done in French, and notified in writing on 18 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido Raimondi Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Judges Raimondi, Karakaş and Lorenzen; (b) partly dissenting opinion of Judges Sajó and Keller; (c) partly dissenting opinion of Judge Pinto de Albuquerque. G.R.A.S.H.N. JOINT PARTLY DISSENTING OPINION OF JUDGES RAIMONDI, KARAKAŞ AND LORENZEN We voted with the majority on all the salient points, but we cannot concur with the conclusion that the applicant’s conditions of detention up to 17 November 2009 were in breach of Article 3 of the Convention. In its judgment of 12 May 2005 the Grand Chamber of the Court concluded – unanimously – that the general conditions under which the applicant had been incarcerated had not, at the time of the judgment, attained the severity threshold to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention, and that consequently there had been no violation of that provision.", "It considered that it had been established that the applicant’s detention had created exceptional difficulties for the Turkish authorities and that it was understandable that they should have deemed it necessary to adopt extraordinary security measures in this case. The Grand Chamber, moreover, had regard to the fact that the applicant’s cell had incontrovertibly been equipped with quite impeccable amenities and that he could not be deemed to have been kept in sensory isolation or solitary confinement. Although it did consider, in line with CPT’s recommendations, that the long-term effects of the applicant’s relative social isolation should be mitigated by providing him with the same amenities available to other inmates of high-security prisons in Turkey, including television and telephone communication with his family, it did not consider it necessary to adopt the relevant measures in the short term in order to avoid violating Article 3. Up to 17 November 2009 the applicant’s living conditions at the prison remained unchanged, particularly as regards access to television and telephone calls. The CPT’s recommendations were only followed at a later juncture.", "We consider, nonetheless, that in the specific circumstances of the present case, the fact that the detention continued under the same conditions for some four-and-a-half years cannot justify an assessment different from that of the Grand Chamber in the previous case. We note that the Government have (albeit rather dilatorily) observed the CPT’s recommendations, and that from June 2008 onwards the applicant must have known that his conditions of detention were going to change considerably with the construction of the new building. We also attach importance to the fact that there is no evidence that the applicant’s conditions of detention have seriously damaged his health. For these reasons we consider that those conditions did not amount to a violation of Article 3 of the Convention. PARTLY DISSENTING OPINION OF JUDGES SAJÓ AND KELLER (Translation) 1.", "With all due respect to our colleagues, we cannot support the majority’s position that there has been no violation of Article 8 of the Convention in the present case. We take the view that the restrictions placed on family visits are contrary to the law. 2. Although any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life, it is an essential part of a prisoner’s right to respect for family life that the prison authorities assist him in maintaining contact with his close family (see Messina v. Italy (no. 2), no.", "25498/94, § 61, ECHR 2000-X, and Ouinas v. France, no. 13756/88, Commission decision of 12 March 1990, Decisions and Reports (DR) 65, p. 265). That also applies in the case of a dangerous prisoner subject to a special detention regime: the Court has found on several occasions that limiting the number of family visits constitutes an interference with prisoners’ right to respect for their family life and that such interference must be “in accordance with the law”, pursue one or more of the legitimate aims set out in Article 8 § 2 and be regarded as a measure which is “necessary in a democratic society” (see Messina (no. 2), cited above, § 63; Schiavone v. Italy (dec.), no. 65039/01, 13 November 2007; and X v. the United Kingdom, no.", "8065/77, Commission decision of 3 May 1978, DR 14, p. 246). 3. In accordance with section 25 of Law no. 5275 of 13 December 2004 on the enforcement of sentences and provisional measures (cited in paragraph 67 of the judgment), the applicant can receive family visits once a fortnight, each visit lasting a maximum of one hour. This legal basis implies that the applicant is entitled to see members of his family approximately twenty-five times per year.", "4. The total number of visits by relatives amounted to fourteen in 2005, thirteen in 2006, seven in 2007 and two between January and October 2011 (see paragraphs 33 and 35 of the judgment). Between 16 February 1999 and September 2007 the applicant should have had some 190 visits. In fact, the number of visits which actually took place was much lower. Even though the applicant received 126 family visits between 16 February 1999 and September 2007, there were long periods of time when he never saw his relatives.", "5. We are not convinced that the reasons mentioned by the Government (poor weather conditions, maintenance work on the ferry boats between the island and the mainland and the inability of the boats to cope with prevailing weather conditions – see paragraph 31 of the judgment) can explain the many refusals to authorise visits. Almost half of all the visits requested were refused on the grounds that the boat had broken down or that the weather conditions were poor (see paragraph 54 of the judgment). 6. In our view, the significant discrepancy between the number of visits provided for in national law and the number of visits actually carried out was unjustified, which is why we consider that there has been a violation of Article 8 of the Convention in the present case.", "PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE 1. In the Öcalan case the European Court of Human Rights (the Court) is again faced with the question of principle of the compatibility with the European Convention on Human Rights (the Convention) of life sentences without parole imposed on mentally fit offenders[1]. There are two novelties in this case in comparison to the Vinter judgment[2]. This time the point at issue is the sentence applied to the convicted leader of a terrorist organisation, and the scope of the case also includes the very strict prison regime applied to the applicant, and in particular the restrictions in his access to relatives and legal assistance and the lack of proper medical care. The discussion of the fundamental problem of a life sentence has, in the present case, the benefit of the knowledge of the particulars of the prison regime applied to the applicant from June 1999 to March 2012[3].", "Both reasons would have sufficed to justify my separate opinion. But there is a third reason. In view of the reaction to Vinter, the Court could and should have taken the opportunity to clarify the meaning of its standard in this matter. That is also the purpose of this opinion. Incompatibility of life sentence with international law 2.", "The applicant was convicted and sentenced to the death penalty in 1999 in an unfair trial, according to the Grand Chamber’s judgment of 2005[4]. In spite of a clear statement by the Grand Chamber that a retrial should be provided to the applicant, and his subsequent request to that effect, no retrial ever occurred. Neither the Committee of Ministers nor the Court addressed the question of the failure to implement the Grand Chamber judgment of 2005[5]. In practical terms, the Grand Chamber’s findings on the unfairness of the applicant’s conviction remained without effect, owing to the fact that both the Court and the Committee of Ministers refrained from exercising their competences[6]. The death penalty was subsequently replaced by life imprisonment without parole.", "3. Criminal punishment of mentally fit offenders may have one or more of the following five purposes: (1) positive special prevention (resocialising the offender), i.e. preparing the offender to lead a law-abiding life in the community after release; (2) negative special prevention (incapacitating the offender), i.e. avoiding future breaches of the law by the sentenced person by keeping him or her away from the community; (3) positive general prevention (reinforcing the breached norm), i.e. strengthening social acceptance of and compliance with the breached provision; (4) negative general prevention (deterring would-be offenders), i.e.", "avoiding future breaches of that provision by other members of the community; and (5) retribution, i.e. ensuring atonement for the guilty act by the offender. 4. In Vinter, the Grand Chamber held that a “whole life order” (i.e. an irreducible life sentence) irretrievably breaches Article 3 of the Convention, because it contradicts the resocialisation purpose[7].", "In fact, an irreducible life sentence is per se incompatible with international law, insofar as it disregards the clear prohibition set out in Article 37 (a) of the United Nations Convention on the Rights of the Child and Article 9 of the Inter-American Convention on extradition, and the international obligation of resocialisation of offenders sentenced to prison terms laid down in Article 10 (3) of the International Covenant on Civil and Political Rights, Article 5 (6) of the American Convention on Human Rights, and Article 40 (1) of the United Nations Convention on the Rights of the Child[8]. As the US Supreme Court once put it, “a sentence of life imprisonment without parole, however, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to re-enter the community, the State makes an irrevocable judgment about that person’s value and place in society.”[9] In blunt terms, an irreducible life sentence is akin to inhuman treatment because of the desocialising and therefore dehumanising effects of long-term imprisonment. In fact, this also holds true for any kind of open-ended, indeterminate sentence, any fixed-term sentence which exceeds a normal life span, or any extremely long fixed-term.", "Human dignity is incompatible with these forms of punishment. Restricted access to, or even denial of, drug treatment and vocational and educational programmes for life prisoners only aggravates the inherent inhumanity of the penalty. 5. General prevention of crime does not justify life imprisonment. Even if there were a proven correlation between life imprisonment and lower crime rates, or at least lower rates of murder and other violent crime, punishing the offender for the purposes of deterring other people’s behaviour and strengthening the social authority of the legal norm would reduce the offender to an instrument of a state strategy.", "But there is no such correlation. On the contrary, not only do countries with a longstanding practice of life imprisonment, such as the U.S. and Russia, have high crime rates, and in particular, high murder and violent crime rates, but countries which do not have life imprisonment actually have low crime rates. The best example is Portugal. Life imprisonment was first abolished in Portugal under the prison reform of 1884[10]. This longstanding tradition was enshrined in Article 30 of the Portuguese Constitution itself, which prohibits life or indeterminate imprisonment.", "Yet Portuguese murder and violent crime rates have long been among the lowest in the world[11]. The fact that other European countries, such as Andorra (Articles 35 and 58 of the Criminal Code), Bosnia and Herzegovina (Article 42 of the Criminal Code), Croatia (Articles 44 and 51 of the new Criminal Code), Montenegro (Article 33 of the Criminal Code), San Marino (Article 81 of the Criminal Code), Serbia (see Article 45 of the Criminal Code) and Spain (Articles 36 and 76 of the Criminal Code)[12], and non-European countries, such as Angola (Article 66 of the Constitution), Brazil (Article 5 (XVVII) of the Constitution), Bolivia (Article 27 of the Criminal Code), Cape Verde (Article 32 of the Constitution), China (Article 41 of the Criminal Code of the Autonomous Region of Macau), Colombia (Article 34 of Constitution), Costa Rica (Article 51 of the Criminal Code), Dominican Republic (Article 7 of the Criminal code), East Timor (Article 32 of the Constitution), Ecuador (Articles 51 and 53 of the Criminal Code), El Salvador (Article 45 of the Criminal Code), Guatemala (Article 44 of the Criminal Code), Honduras (Article 39 of the Criminal Code), Mexico (Article 25 of the Federal Criminal Code), Mozambique (Article 61 of the Constitution), Nicaragua (Article 52 of the Criminal Code), Panama (Article 52 of the Criminal Code), Paraguay (Article 38 of the Criminal Code), São Tomé and Príncipe (Article 37 of the Constitution) and Uruguay (Article 68 of the Criminal Code), have taken the same step, shows that societies in different continents with different cultures can survive without life imprisonment. This is clear, abundant and incontrovertible evidence of a continuing international trend, proving that no society has ever collapsed for lack of life imprisonment[13]. 6. Life imprisonment may pursue, and indeed achieve, the life-long incapacitation of the offender (negative special prevention), the presumption being that the offender’s specific dangerousness requires that he or she be kept away from the community for as long as possible , namely for the rest of his or her life.", "But this presumption is based on a faith in highly problematic prediction scales that are closer to a form of divinatory anticipation of the future than to a scientific exercise, as the experience of many “false positives” has shown. Moreover, the net-widening effect of the concept of dangerousness of the offender, which has gone so far as to include “personality disorder”, “mental abnormality” or “unstable character”, blurs the borderline between responsible mentally fit offenders and irresponsible mentally unfit offenders, with the serious risk of mislabelling offenders[14]. Worse still, this presumption borders on arbitrariness in the case of automatic or mandatory penalties, such as in the case of automatic application of life sentence to certain types of offences, regardless of the particular circumstances of the offender, or to certain types of repetitive offenders, regardless of the specific gravity of the crimes committed. The goal of eliminating arbitrariness and discrimination from criminal law enforcement can never be achieved without securing a fundamental component of fairness: individualised sentencing. Automatic or mandatory penalties are the opposite of an individualised response to crime.", "7. If life imprisonment conflicts with the purpose of resocialisation of the offender and the basic principle of individualised sentencing, the next question to be put is whether pure incapacitation of the offender is tolerable in a democratic society. The question is not rhetoric. Life imprisonment may work, and indeed has worked in the past, as a privileged instrument of abuse of civil liberties. Montesquieu rightly argued that the length of prison penalties is in direct correlation to the more or less liberal nature of State: “Il serait aisé de prouver que, dans tous ou presque tous les Etats d’Europe, les peines ont diminué ou augmenté à mesure qu’on s’est plus approché ou plus eloigné de la liberté.” (“It would be an easy matter to prove, that, in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favoured or discouraged liberty.”) Labelling political opponents as “public enemies” and punishing them with life imprisonment has been an irrefutable temptation in many States in the past, and still is today.", "Recent history provides two good examples. “Preventive detention” (Sicherungsverwahrung), which provides for the extension of the prison term imposed on mentally fit offenders in accordance with their dangerousness, was introduced into German law by the Nazi regime, and was used and abused to target all those who opposed the regime or simply did not fit into the Nazi pattern of a lawful citizen. The other universally known example is former President Nelson Mandela, who in 1962 was convicted of conspiracy to overthrow the State and sentenced to life imprisonment in the Rivonia Trial. But political opponents are not the sole target of a penal policy aimed at long-term incarceration of those considered as “highly dangerous to society”. History has also taught that many other social groups, like members of racial, ethnical and religious minorities have felt particularly severely the detrimental effects of punitive policies centred on life-long imprisonment.", "The over-representation of these groups in the prison population serving life sentences is a clear sign of a disproportionate State reaction to crime. And this temptation is not the monopoly of totalitarian regimes. Democracies have also been mesmerised by the populist rhetoric of life sentence as the only effective means of the fight against the “worst of the worst” [15]. 8. Finally, pure retribution is presented as the ultimate purpose of life imprisonment.", "Under the assumption that the offence is so heinous that it can never be atoned for, the only way to punish the offender is to deprive him or her of liberty for the rest of his or her natural life[16]. The heinousness of the crime calls for life-long retribution. The community indulges its thirst for revenge by imposing a sentence on a par with or worse than death itself[17]. The state declines any interest in human life other than the prisoner’s strict bodily survival. Being seen as a “beast”, a “predator” or a “monster” who should “rot in jail”, the prisoner is compared, subliminally and sometimes even explicitly, to an animal, a being “unfit for or beyond rehabilitation”.", "Infinity is not enough jail time for him or her. The impulse to impose life imprisonment converges, in its blind retributivism, with the impulse to impose the death penalty. To put it bluntly, the life prisoner suffers “civil death”[18]. Life imprisonment is justified in the “delayed death penalty” logic, thus reducing the prisoner to a mere object of the executive’s power[19]. 9.", "This reasoning is not tolerable in a democratic society. Neither the “exceptionally high dangerousness” of the offender nor the “heinousness of the crime” provides a legitimate ground for life imprisonment. Any State interference with liberty must be limited by the principles of proportionality and necessity, of which the principle of the least intrusive interference is one of the corollaries[20]. Prison is, precisely, the ultima ratio state instrument of interference with the liberty of citizens. It must be used when no other state measure is adequate, to the least extension possible both in its length and severity, and in proportion to the gravity of the actus reus and the mens rea[21].", "The gravity of the offender’s objective conduct and the degree of his personal culpability are the absolute limits of proportionate sentencing, and the calibration of any penalty must match these limits. If this moderate form of retributivism is still commensurate with a democratic society, life imprisonment is not, since it is an unrestrained, unnecessary and disproportionate State reaction to crime. The conclusion is not different in the case of a reducible life sentence, in so far as the sentence service only terminates on his or her death, and he or she may be recalled to prison many decades after release. 10. A categorical rule against life imprisonment is demanded by the universal acknowledgement of the principle of resocialisation of offenders sentenced to prison and the emerging consensus on the prohibition of life imprisonment.", "This rule would not only avoid the proven pernicious consequences of life imprisonment, but would also constrain states to take seriously their international obligation to enable prisoners to serve their prison sentence in a constructive, rehabilitative manner, and accordingly to guarantee the necessary financial and human resources for doing so[22]. Such categorical rule, while reflecting the inherent human dignity of every human being and the “evolving standards of decency that mark the progress of a maturing society”[23], would affirm the moral superiority of a democratic society over those offenders who do not respect its basic tenets, precisely when such moral superiority is most needed, i.e. when faced with the most vicious acts that humans are capable of. As Justice Stevens put it in his concurring opinion in Graham, “punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time”[24]. That time has come for life imprisonment.", "Recognition of the right to parole in international law 11. In the light of Vinter, States must establish a mechanism to review the justification of continued imprisonment according to the penological needs of the prisoner sentenced to a “whole life order”. If a parole mechanism must be available to those convicted of the most heinous crimes, it must a fortiori be available to the other prisoners. In other words, the Convention guarantees a right to parole, including for those convicted of the most serious crimes[25]. This means that prisoners have a vested and enforceable right to be paroled if and when the legal requisites of parole are present, not that all prisoners should necessarily be granted parole.", "Moreover, parole is not a release from the sentence, but a modification of the form of state interference with the sentenced person’s liberty, by way of supervision of his or her life at large. And this supervision may take a very stringent form, with strict conditions attached, according to the needs of each paroled person. 12. While the Contracting Parties to the Convention do have some discretion in regulating the parole mechanism, their margin of appreciation must remain under the Court’s supervision. Otherwise, unrestrained discretion could provide a practical way of nullifying their international obligation to guarantee the possibility of parole.", "There are thus three basic requirements for effective protection of the prisoner’s right to parole under the Convention. First of all, the parole mechanism must be placed under the authority of a court or at least under full judicial review both of the factual and the legal elements of the decision. Any parole mechanism that gives a governmental or administrative authority the last word on the review of the sentence would put the liberty of the prisoner in the hands of the executive and devoid the judiciary of its ultimate responsibility, thus entrusting judicial powers to the executive and breaching the principle of separation of powers. That would fly in the face of a democratic system where deprivation of liberty is the most important task of judges, not the executive. Hence, a review by a minister or any subordinate official of the administration is not sufficiently independent to comply with both universal and European human rights standards[26].", "Moreover, decisions to keep prisoners in or recall them to prison must be taken with all procedural guarantees, including affording prisoners the right to an oral hearing and to adequate access to their files[27]. 13. Secondly, the parole review must take place within a pre-determined, reasonable timeframe[28]. The legal regime for sentence reducibility must be in place at the time of imposing the prison sentence. Where the law does not establish a “minimum term” (or tariff) of service of the penalty before parole is considered, the trial court is required to set it, but this period must not be so long as to be tantamount to a de facto bar on the review of the prisoner’s sentence during his or her natural life.", "Neither the law nor the courts may establish a minimum term to be served such as to turn the reducible sentence into a disguised form of irreducible life sentence, such as, for example, a whole or natural life tariff. Where parole is not granted in the first review, the prisoner’s situation should be reviewed at reasonable, fairly frequent intervals[29]. For the same reason, recalled prisoners should also benefit from the same review at regular intervals[30]. 14. Thirdly, the criteria for assessing the appropriateness of parole must be established by law in a clear and foreseeable manner and be based primarily on special preventive considerations, and secondarily on general preventive considerations[31].", "Considerations of general prevention alone should not be used to justify refusal of parole or recall to prison. The criteria should not be limited to the prisoner’s mental or physical infirmity or closeness to death. Such “compassionate grounds” are clearly too restrictive[32]. That was the case with section 30 of the Crime (Sentences) Act 1997 and the indeterminate sentence manual (“lifer manual”). Recently, the Court of Appeal of England and Wales found that the Court did not prevent imposition of whole life orders for “heinous crimes”, since the law of England and Wales did provide for reducibility as the conditions set out in the lifer manual, although “exceptional”, were not too restrictive and indeed had a “wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.", "In other words, the Court of Appeal held that the Grand Chamber was wrong in its interpretation of section 30 of the Crime (Sentences) Act 1997 and the lifer manual[33]. This opinion raises rather serious linguistic, logical and legal questions: what does “compassion” have to do with “risk assessment”, the “prospect of the offender’s resocialisation” or the “lack of continuing penological grounds for continued imprisonment”? Is the “wide meaning” of compassionate grounds so wide that is has no connection with the plain meaning of the word “compassion”? What can be more unpredictable than a discretionary legal provision to release in exceptional circumstances which is converted into an obligation to release with a “wide meaning”? What can be more unclear than “exceptional grounds” with a “wide meaning”?", "It is evident that the review mechanism provided for by section 30 of the Crime (Sentences) Act 1997 and the lifer manual in the interpretation of the Court of Appeal is not “a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds”[34]. The existence of a clear and predictable legal framework which enshrines the right to parole of all prisoners, including those who have committed the most “heinous crimes”, is an international obligation of member States, and compliance with international human rights law does not hinge on how shocking the factual circumstances of each case are. Hence, the Court of Appeal’s final statement, namely “our decision on each case turns on its specific facts and cannot be seen as a guide to any similar case”, does not absolve the State from the international obligation to respect the Court’s judgments. To think otherwise would have seismic repercussions. The Convention is not an à la carte commitment, and the European system of protection human rights would collapse if it started to be understood that way.", "The applicant’s life imprisonment 15. The applicant suffered over ten years of extremely strict solitary confinement, from February 1999 to November 2009[35]. The applicant’s prison regime included complete isolation from other prisoners[36], lack of any specific labour, educational or recreational activities, prohibition of correspondence, telephone communication and television, censorship of literature and newspapers, prohibition of Kurdish newspapers, prohibition of visits other than by some family members and lawyers and prohibition of the use of the Kurdish language during visits. When serving successive disciplinary penalties of solitary confinement, he had no access to visits[37]. In its 2008 report, after describing the dramatic effects on the psychological situation of the prisoner, the CPT concluded that to “keep detained a person in these conditions for 8 and half years does not have any justification”[38].", "In its 2010 report, the CPT acknowledged that the situation was better, but the new conditions were a “very modest step in the right direction”, and it particularly criticised the prohibition of all contact with other prisoners during outdoor exercise, the exclusion from receiving “table visits” from members of his family, the prohibition of accumulating unused visiting periods and the prohibition of telephone contact with his relatives. [39] It noted that the applicant’s prison regime was much more severe than the one applied to other prisoners of the same category incarcerated in F-type prisons. The applicant’s discriminatory prison regime was exacerbated by the fact that most of the requested visits by his relatives and lawyers had been rejected. 16. On the specific topic of medical care, the CPT noted that “various specific recommendations repeatedly made by the Committee concerning the provision of health care remain unimplemented.”[40] Firstly, the applicant was subjected to a superficial medical check every day, “which is not only unnecessary but also potentially counterproductive.” Secondly, the establishment of a meaningful doctor/patient relationship remained impossible due to the constantly changing visiting doctors.", "In practice, the general practitioners changed weekly and were never the same. Further, during a period of nine months prior to the CPT visit, there had been twelve psychiatric consultations by five different psychiatrists and eleven visits by eleven different specialists in internal medicine, as well as a number of additional visits by various other specialists. Thus, it was possible that the applicant had been seen by almost 90 different doctors in a year. Thirdly, it was particularly worrying that the visiting doctors did not communicate with each other, and that there was no co-ordination of medical consultations whatsoever. Usually, doctors wrote a report at the end of each visit which was then simply forwarded to the prison director.", "This, moreover, constituted a “breach of medical confidentiality”, the CPT concluded. 17. The respondent State has effectively made an effort to accommodate some of the CPT critiques, especially concerning the material conditions of the prison. Yet the criticism in the CPT’s 2010 report regarding poor access to natural light in all the cells has not yet been dealt with[41]. 18.", "Based on the factual findings referred to, I conclude that throughout the period under scrutiny, the applicant’s solitary confinement regime combined with his extremely limited contact with the outside world and in particular the scant access to his relatives and deficient medical care has reached such a degree of severity as to be in breach of Articles 3 and 8[42]. The applicant’s access to lawyers 19. Any detained or imprisoned person has three basic rights from the very beginning of incarceration: the rights of access to a lawyer and to a doctor and the right to have the fact of one’s detention notified to a relative or another third party of one’s choice. The right of access to a lawyer must include the right to talk to him in private, although this should not prevent the replacement of a lawyer who acts criminally, participates in a criminal act or impedes the proper conduct of the proceedings. Similarly, the right of access to a lawyer should apply no matter how “serious” the offence of which the person detained is suspected.", "Indeed, persons suspected of particularly serious offences can be among those most at risk of ill-treatment, and therefore most in need of access to a lawyer. Consequently, the question whether restrictions on the right of access to a lawyer are justified should be assessed on a case-by-case basis, not determined by the category of offence involved[43]. If lawyers are essential during the investigation and the trial of a case, they are even more so during the execution of the sentence. Access to lawyers is crucial in the phase of the service of the prison sentence, because they can provide independent supervision of the prison regime applied, the disciplinary sanctions imposed and the special measures of restraint and security adopted and the whole panoply of prohibitions, restrictions and obligations attached to the condition of an inmate, and when necessary act in order to reinstate the human rights of the prisoner. Lawyers are indispensable guarantors of human-rights-compliant service of prison terms.", "20. Like the requests for family visits, the majority of requests for visits by the applicant’s lawyers have been refused with the following reasons: either bad weather or no boat connection to the island available. The applicant’s lawyers have also faced another ground for refusal of visit requests: suspicion of terrorist complicity by lawyers[44]. Lawyers’ visits have often been interrupted and conversations between the applicant and his lawyers recorded. Documents and other material exchanged between the applicant and his lawyers have been controlled and lawyer’s notes confiscated.", "Mail between the defendant and his lawyers has been censored. Lawyers have been denied access to the applicant’s disciplinary proceedings and to the relevant files. Finally, lawyers have even been prohibited from representing the applicant for long periods of time; some were even detained and others had their offices searched and professional files apprehended[45]. 21. According to section 59 of Law no.", "5275, in conjunction with section 84 of the relevant Regulation of 6.4.2006, the examination of documents, files, notes or records of lawyers is decided by a judge, this decision being open to appeal. There is no specific provision for eavesdropping on or recording conversations between the lawyer and the prisoner[46]. Article 151 of the Code of Criminal Procedure as amended by Law no. 5353 of 2005 provides for the prohibition of a lawyer for one or even two years, and his or her replacement by another lawyer appointed by the Bar Association. The broad, vague wording of the provision raises problems, but even accepting it for the sake of argument, no evidence has been submitted to the Court that the applicant’s lawyers were involved in any such criminal activities such as to justify their prohibition, let alone any conviction of his lawyers on that account.", "With regard to access to the disciplinary file, and specifically to the prisoner’s written defence submissions during the appeal proceedings, the competent judicial authorities have rejected such requests on the basis of Article 153 § 2 of the Code of Criminal Procedure, which provides that access to the case file and the possibility of receiving a copy of the file may be restricted when detrimental to the ongoing investigation. This provision of criminal procedure is designed to protect the interests of criminal investigations, and its use in a disciplinary context is unacceptable. 22. Finally, with regard to the difficulties of access to the island, the Government have two choices: if they want to detain the applicant on an island, they have to provide the necessary means of transport, possibly including more boats when the existing ones are not available, or a helicopter in the event of adverse sea conditions[47]; if the Government cannot or do not want to provide these additional means of transport, then they have to place the applicant in the continent. What they cannot do is to keep him on an island without providing the means of access to it.", "23. In sum, the above-mentioned violation of Article 3 is aggravated by the prohibition on the applicant’s lawyers’ acting on his behalf or contacting him, the systematic prohibition of confidential contact with lawyers, the systematic recording of all conversations between the applicant and his lawyers without a clear legal basis, the systematic prohibition of lawyers’ access to the disciplinary proceedings and the disciplinary files, depriving the applicant of any legal assistance, and the confiscation of records of interviews between the applicant and his lawyers written by the lawyers[48]. Conclusion 24. Prisons should not be like the gates of Hell, where the words of Dante come true: Lasciate ogne speranza, voi ch’intrate (“Abandon all hope, ye who enter here”). The Convention requires an approach to resocialisation and parole based on prisoners’ rights, in so far as their rights to resocialisation and parole go hand in hand with the States Parties’ obligations to pursue the former and guarantee the latter.", "The applicant has been serving a life sentence without parole since 1999. In the period of time under scrutiny in this judgment (May 2005 to March 2012), the applicant’s life sentence has been implemented with extreme severity, infringing the applicant’s rights under Articles 3 and 8. In order to make good these breaches of the Convention, the respondent State must not only improve the applicant’s prison regime, improve access to family and lawyers and provide proper medical care in line with the CPT’s recommendations, but also introduce a legal mechanism of parole for prisoners in the same situation as the applicant, which provides for a regular, judicial review of incarceration on the basis of their penological needs. But Turkey could go a step further, by joining those countries which have long ago abolished life imprisonment for mentally fit offenders. In so doing, Turkey would be setting a powerful example for all mankind.", "[1] The subject of this opinion therefore does not cover any form of life internment of offenders who are not responsible for their actions, i.e. persons who are not mentally capable or “insane”. [2] See Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, 9 July 2013. [3] I regret that the applicant’s four applications lodged before the Court in 2003, 2004, 2006 and 2007 were joined and that it took the Court more than ten years to deal with these joined applications.", "The Court’s procrastination, combined with the decision to join the applications not only made it extremely difficult to assess facts which had occurred a long time ago, but indeed allowed for serious ongoing violations whose prolongation could have been avoided. Having regard to the fact that the majority considered that the period of time under assessment by this Court started on the date of delivery of the judgment proffered on the application no. 46221/99 and only ended with the last observations submitted to the Court in the present joined case, the Court was faced with the Herculean task of evaluating how the prison authorities and the competent appellate courts of the respondent State dealt with the applicant for seven years, from May 2005 to March 2012 (see para. 96 of the judgment). [4] Öcalan v. Turkey, no.", "46221/99, ECHR 2005-IV. [5] In its decision of inadmissibility of 6.7.2010, on application no. 5980/07, the Court held that it lacked jurisdiction. Prior to that decision, the Committee of Ministers had already decided to close its examination under Article 46, para. 2, although it also stated that this decision in no way prejudged the Court’s examination of new complaints (Resolution CM/ResDH(2007)1).", "[6] On the Court’s and the Committee of Ministers’ shared responsibility for controlling the execution of the Court’s judgments, see my separate opinion in Fabris v. France, no. 16574/08, 7 February 2013. [7] The Grand Chamber explicitly accepted the German Federal Constitutional Court’s understanding of resocialisation as a sine qua non of prison sentences, including life imprisonment (see Vinter, cited above, paras. 113-118; see the Federal Constitutional Court judgment of 21.6.1977, and along the same lines, the Italian Constitutional Court Judgment No. 274 of 27.9.1987 and the French Constitutional Court Decision No.", "93-334 DC of 20.1.1994). [8] Consequently, an individual sentence plan, with a comprehensive and updated risk and needs assessment, for inmates sentenced to life or long-term imprisonment (that is, a prison sentence or sentences totalling five years or more) is an international positive obligation of States Parties under Article 3 of the Convention (see my separate opinion in Taukus v. Lithuania, no. 29474/09, 27 November 2012). [9] See Graham v. Florida, 560 U.S. 48 (2010). Although the argument was used for minors, it has exactly the same legal and moral strength when applied to responsible adult offenders.", "[10] On the history of prison reform in Portugal in comparison with other European countries, see my book “Portuguese and European Prison Law” (in Portuguese), Coimbra, 2006, and specifically on the 1884 reform, see pages 82 to 90. Portugal was presented to the world as a model by British prison reformer and secretary of the Howard Association, William Tallack, in his far-sighted “Penological and preventive principles”, 1889, pages 162 and 163. In its comments on the second edition of this work, the American Journal of Sociology, volume I, 1895, page 791, considered that “The author is most favourably situated for catching the best thought of the age.” [11] See for example the UNODC Homicide Statistics 2013. [12] Norway cannot be counted among these countries. Life imprisonment in peace time was abolished in 1981 and was replaced by imprisonment for a maximum of 21 years.", "Furthermore, certain dangerous offenders may be punished with preventive detention, which cannot exceed 21 years (Article 39 e of the Civil Criminal Code). However, the court may prolong this penalty by up to five years at a time where the convict is still considered dangerous. This means that life incarceration may be applied in the case of repeated five-year prolongations. [13] In Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI, the Court attached “less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend”, quoting the legal situation in non-European countries.", "[14] As Justice Blackmun once said, there is no equitable system to identify effectively the “worst of the worst” (Collins v. Collins, 510 US 1141 (1994). The argument was made with regard to those deserving the death penalty, but it could also be applied to those sentenced to life imprisonment. In fact, Justice Blackmun’s excellent opinion could be transposed wholesale to the case of life imprisonment. [15] Again, see the remarkable argumentation of Justice Blackmun in his dissent joined to Collins v. Collins, 510 US 1141 (1994), where he referred to a disproportionate capital sentencing policy “infected by racial prejudice”. Justices Potter Stewart, Byron White and William O. Douglas had already stressed the same point in Furman v. Georgia, 408 U.S. 238 (1972).", "Justice Stewart even talked about “legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” These strong statements against the death penalty could also be made against life imprisonment. [16] That was precisely the approach taken by the England and Wales Court of Appeal in its judgment of 14.2.2014, paragraphs 49 and 50: “A court must only impose a whole life order if the seriousness is exceptionally high and the requirements of just punishment and retribution make such an order the just penalty.” [17] This line of reasoning is as old as mankind: “He who is kind to the cruel is cruel to the kind.” Solon observed that true justice will not be achieved until those who have not been victimised by crime are just as indignant as those who were victimised. This vision overlooks the fact that prison is not a place to treat people indignantly and cruelly. And by concentrating on the need for revenge and resent, it distracts from the state obligation to provide the proper means for victims of crime to recover from their loss. [18] Here are two illustrations: New York’s statute provides that “[a] person sentenced to life imprisonment is civilly dead.” (New York Code, § 79-a) and the Rhode Island’s statute that “Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.” (Rhode Island General Laws, § 13-6-1 (2002)).", "[19] As Beccaria has said long ago, a life sentence is a punishment worse than death itself: “If it be said that permanent penal servitude is as grievous as death, and therefore as cruel, I reply that, if we add up all the unhappy moments of slavery, perhaps it is even more so” (On Crimes and Punishments, 1764). The argument was repeated by John Stuart Mill, in his infelicitous speech in favour of capital punishment, of 21.4.1868. It should be added that Mill’s ideas evolved and later on he rejected both life imprisonment and the death penalty. [20] For example, section 153 (2) of the English Criminal Justice Act 2003. [21] “All punishments which, by their excessive length or severity, are greatly disproportioned to the offences charged”, in Weems v. United States, 217 U.S. 371, 349 (1909).", "Or as the South African Constitutional Court elaborated in S. v. Dodo, 2001 (3) SA 382 (CC) 303 (S. Afr. ), “Where the length of the sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offense, the offender is being used essentially as a means to another end and the offender’s dignity is assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits.” [22] Human Rights Committee General Comment no. 21 (1992), para.", "10, that “No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.”; Rules 57, 60, 61 and 65 of the U.N. Standard Minimum Rules for the Treatment of Prisoners (1957, amended 1977), Principle no. 10 of the U.N. Basic Principles for the Treatment of Prisoners (1990), and Principle no. 6 of the Committee of Ministers Recommendation Rec(2006)2. It should be added that today resocialisation is not understood, as in the classical medical analogy, as a “treatment” or “cure” of the prisoner which aims at the reformation of the prisoner’s character, but as a less ambitious, yet more realistic task: his or her preparation for a law-abiding life after prison.", "There are three reasons for this: firstly, it is problematic that states have the constitutional power to “reform” the character of an adult; secondly, it is doubtful that such reform is feasible, and thirdly, it is even more uncertain that such reform can be established. [23] This felicitous expression is from Chief Justice Warren writing for the majority in Trop v. Dulles, 356 U.S. 86 (1958) and has been repeated, among others, by Justice Thurgood Marshal, also writing the opinion of Court in Estelle v. Gamble, 429 U. S. 97, 102 (1976). [24] Graham v. Florida, 560 U.S. 48 (2010). See along the same progressive line of reasoning President Costa’s opinion in Léger v. France, no. 19324/02, 11 April 2006, President Bratza’s opinion in Kafkaris v. Cyprus (GC), no.", "21906/04, 12 February 2008, and President Spielmann’s opinion in Léger v. France (GC), no. 19324/02, 30 March 2009. [25] That is exactly the meaning of Principle 4.a of the Committee of Ministers Recommendation 2003(22) of 24.9.2003. In other words, Vinter in fact overruled the previous case-law of the Court according to which the Convention does not confer a right to parole (see Szabo v. Sweden (dec.), no. 28578/03, ECHR 2006-VIII, and Macedo da Costa v. Luxembourg (dec.), no.", "26619/07, § 22, 5 June 2012). [26] See, at the European level, Weeks v. the United Kingdom, no. 9787/82, §§ 58 and 69, 2 March 1987, and T. v. the United Kingdom, no. 24724/94, § 121, 16.12.1999; the Committee for the Prevention of Torture (CPT) Report (2007) 55, of 27.6.2007; and Judgment no. 204/1974 of the Italian Constitutional Court of 27.6.1974.", "At the universal level, see Article 110 (4) and (5) of the Rome Statute and Rules 223 and 224 of the Rules of Procedure and Evidence. [27] See paragraph 32 of Committee of Ministers Recommendation 2003(22) of 24.9.2003, and Osborn v Parole Board [2013] UKSC 61. [28] See para. 9 of the Committee of Ministers Resolution 76(2) of 17.2.1976, and para. 5 of the Committee of Ministers Recommendation 2003(22) of 24.9.2003.", "[29] See Weeks, cited above, § 58, Committee of Ministers Resolution 76(2) of 17.2.1976, para. 12; Committee of Ministers Recommendation 2003(22) of 24.9.2003, para. 21; CPT report on Hungary, February 2007, para. 33, Life imprisonment, UN Crime Prevention and Criminal Justice Branch’s Report (1994), UN Document ST/CSDHA/24, para. 49; and the Committee on the Rights of the Child General Comment no.", "10, para. 77. [30] See Report CPT (2007) 55 of 27.6.2007. [31] See Committee of Ministers Resolution 76(2) of 17.2.1976, para. 10; Committee of Ministers Recommendation 2003(22) of 24.9.2003, paras.", "3, 4 and 20; and Committee of Ministers Recommendation 2003(23) of 9.10.2003, para. 34. [32] See Report CPT (2007) 55, of 27.6.2007. [33] See para. 29 of the Court of Appeal’s judgment of 14.2.2014.", "To put it bluntly, the Court of Appeal is saying that it was right in Bieber and that the Court was wrong in Vinter. [34] See para. 119 of the Vinter Grand Chamber judgment. In fact, the relevant provision is headed “Compassionate release on medical grounds”, which plainly shows what section 30 was intended for. The Court of Appeal’s interpretation of this provision simply does not square with the meaning of the concept of “compassion” in Western culture (see the Oxford dictionary’s definition of compassion as “the sympathetic pity and concern for the sufferings or misfortunes of others”, based on the Latin compassio, or suffer with).", "Indeed, the Court of Appeal’s contention that the “wide meaning” of compassion encompasses “legitimate penological reasons” has already been presented by the Government to the Court and explicitly rejected by the Grand Chamber in para. 129 of the Vinter judgment. [35] The lack of exhaustive and reliable information on the applicant’s prison regime made a conscious judicial evaluation of the real situation on the ground very complicated. In fact, the majority’s reasoning is full of assumptions and presumptions based on parsimonious documentary evidence produced by the respondent Government. The Court was given no clear and exact picture of the number of hours the applicant actually spent with other prisoners or engaging in leisure and sports activities, the number of visits by family members, lawyers and medical doctors requested, effected and refused, the modus operandi of these visits, how often conversations between the applicant and his lawyers were interrupted and lawyers were prevented from exchanging documents/notes with the applicant, the number of lawyers prohibited from acting on behalf of the applicant and contacting him and the reasons therefor, the number of phone conversations between the applicant and people outside the prison requested, effected and refused, how often the applicant’s correspondence was censured or even interrupted, or the number of disciplinary sanctions and security measures imposed, appealed against, upheld, quashed and enforced.", "In any case, the Court did dispose of some reliable evidence. In view of the fact that the applicant repeatedly contested the documents of the prison authorities, I consider that the only credible evidence before the Court is the one provided by the CPT, and the Government’s evidence when supported by CPT reports. [36] In fact, the applicant was the only inmate of the Imrali prison until November 2009, when five other prisoners were transferred to that prison. The applicant had one hour’s conversation with the other prisoners per week. Later on, this allowance was increased to three hours per week.", "[37] The Government admit that there is no difference between solitary confinement and the normal confinement other than the visits by relatives and lawyers. [38] CPT 2008 report, para. 33. [39] CPT 2010 report, paras. 19, 21, 25 and 28.", "Most of these facts had already been referred to in the CPT reports of 2008 and 2003. [40] CPT 2010 report, para. 33. Previous critiques on the medical care provided to the applicant were made in the CPT’s 2007 report, para. 33.", "[41] CPT 2010 report, para. 10. Previous remarks on this subject can be found in CPT 2006 report, paras. 48-51, and the CPT 2008 report, paras. 11-12.", "[42] Para. 149 of the majority’s reasoning does explicitly recognise the insufficiency of the prison regime and the contacts with the outside world after 17.11.2009, but falls short of a finding of a violation of article 3. Worse still, the majority’s conclusion of no violation of Article 8 and its reasoning in para. 163 contradict its conclusion in para. 146, where it took account, precisely, of the “major” restrictions on the access to the applicant’s relatives as a ground for finding a violation of Article 3.", "[43] See the 21st General Report (CPT/Inf (2011) 28, paras. 18-25, and the Committee of Ministers Recommendation Rec(2006)2, paras. 23.4 and 23.5. [44] The majority did not address several thorny questions put explicitly by the applicant and communicated by the Court to the respondent Government, such as the alleged prohibition of the applicant’s lawyers from acting on his behalf and contacting him. [45] 2010 CPT report, para.", "26, and 2008 CPT report, para. 24. [46] The Government’s contention that section 59, no. 4, of Law no. 5275, as amended in 2005, provides for this, is not convincing, in view of the clear letter of the law.", "[47] There is a helicopter to the island available for State officials, but not for lawyers. [48] See Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 630-649, 25 July 2013. Comparing the restrictions imposed on the relationship between the applicant Öcalan and his lawyers by the Turkish State with those applied in the relationship between the applicants Khodorkovskiy and Lebedev and their lawyers by the Russian State, one cannot but conclude that the former were much more severe than the latter." ]
[ "FIFTH SECTION CASE OF BONDARENKO AND OTHERS v. UKRAINE (Applications nos. 27052/09 and 11 others - see appended list) JUDGMENT STRASBOURG 28 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Bondarenko and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Yonko Grozev, President,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 7 June 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.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6.", "The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading 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. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10.", "These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. Some applicants 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) and Kharchenko v. Ukraine (cited above). IV. REMAINING COMPLAINTS 12.", "In applications nos. 78459/12 and 76741/13, the applicants raised other complaints respectively under Articles 6 § 1 and 13 of the Convention, and under Article 5 of the Convention. 13. The Court, having examined all the materials submitted to it and having regard to its case-law on the subject (see, for example, Merit v. Ukraine, no. 66561/01, 30 March 2004), considers that these complaints are inadmissible since the length of the proceedings in application no.", "78459/12 was not excessive or unreasonable. In application no. 76741/13, the complaints concerning the absence of grounds for the applicant’s detention and unlawfulness of his detention during the period from 24 to 27 July 2012 were submitted to the Court outside the six-month time-limit. In view of the above, the Court finds that these complaints are inadmissible and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table. 16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 78459/12 and 76741/13 inadmissible; 3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted, except for applications nos. 52951/11 and 62419/12, into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 28 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtYonko Grozev Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention(excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 27052/09 17/04/2009 Borys Mykolayovych Bondarenko 10/12/1962 Oleg Valeriyovych Bordyug Zaporizhya 23/10/2006 to 20/08/2010 3 years, 9 months and 29 days Art.", "5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: 1) 23/10/2007 – 25/03/2008 - detention without court order; 2) 27/11/2008 - 23/12/2008 - detention without court order; 3) 23/12/2008 - 20/08/2010 - detention without time limits. 5,900 49690/10 14/05/2010 Oleg Valentinovich Galimon 09/04/1968 14/02/2007 to 02/11/2007 04/08/2009 to 25/10/2010 8 months and 20 days 1 year, 2 months and 22 days 1,200 2517/12 30/12/2011 Sergey Sergeyevich Kukhtin 02/06/1978 Sergiy Anatoliyovych Zayets Irpin 07/11/2010 to 06/12/2011 1 year and 1 month Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - Court decision of 03/02/2011 did not set any time limits for the applicant’s detention; detained solely on the basis of the fact that a bill of indictment had been submitted to the trial court from 07/01/2011 to 03/02/2011. 5,900 52951/11 11/08/2011 Gleb Eskovich Zelenov 03/01/1981 08/02/2008 to 09/08/2010 15/02/2011 to 05/06/2012 2 years, 6 months and 2 days 1 year, 3 months and 22 days Art. 6 (1) - excessive length of criminal proceedings: 4 years and 9 months 2 levels of jurisdiction 3,100 40818/12 14/06/2012 Vadim Nikolayevich Tokunov 13/10/1962 22/09/2009 to 22/07/2014 4 years, 10 months and 1 day Art.", "6 (1) - excessive length of criminal proceedings: 4 years and 10 months 1 level of jurisdiction 4,000 62419/12 28/09/2012 Oleg Fedorovich Volokin 03/01/1967 Yelena Anatolyevna Telyatyeva Moscow -Zelenograd 03/07/2008 to 27/07/2009 04/11/2009 to 28/03/2012 17/09/2012 to 15/11/2013 1 year and 25 days 2 years, 4 months and 25 days 1 year, 1 month and 30 days Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: lack of reasoning of court orders on the applicant’s detention. 5,900 65226/12 26/09/2012 Tamara Aleksandrovna Nekrasova 22/12/1973 02/03/2012 to 23/09/2015 3 years, 6 months and 22 days Art. 5 (1) (c) - unlawful pre-trial detention: - no duration of detention was indicated by the courts in their decisions of 27/01/2014, 22/05/2014 and 16/06/2015 by which the applicant’s pre-trial detention was extended; - lack of reasoning in the courts’ decisions extending the pre-trial detention – mostly “gravity of charges” 5,900 78459/12 19/11/2012 Aleksandr Aleksandrovich Grebeshkov 12/05/1971 21/09/2009 to 16/12/2010 26/04/2011 to 13/03/2012 10/07/2012 to 21/12/2012 11/03/2014 to 19/06/2014 1 year, 2 months and 26 days 10 months and 17 days 5 months and 12 days 3 months and 9 days Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention: the applicant complains about absence of compensation for the unlawful detention.", "2,400 15202/13 04/02/2013 Gennadiy Vasilyevich Chernov 15/12/1962 26/08/2005 to 15/12/2008 20/05/2010 to 10/06/2014 3 years, 3 months and 20 days 4 years and 22 days Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: period 26/10/2005 – 07/11/2005 was not covered by any court order. Art. 6 (1) - excessive length of criminal proceedings : 8 years, 9 months and 16 days 2 levels of jurisdiction 5,900 42850/13 25/06/2013 Oleksandr Vasylyovych Kharkiv 17/09/1985 09/08/2010 to 27/09/2012 01/03/2013 to 26/06/2015 2 years, 1 month and 19 days 2 years, 3 months and 26 days Art. 6 (1) - excessive length of criminal proceedings : 5 years and 2 months 2 levels of jurisdiction 3,600 48549/13 08/07/2013 Aleksandr Sergeyevich Tverdokhleb 06/07/1971 01/03/2011 to 25/06/2013 2 years, 3 months and 25 days 1,400 76741/13 20/11/2013 Andriy Valeriyovych Yolkin 28/05/1988 24/07/2012 - pending More than 5 years and 9 months Art.", "5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: lack of reasoning of the rulings on extension of detention. Art. 5 (4) - excessive length of judicial review of detention: - the domestic courts failed to address the applicant’s arguments advanced in his numerous requests for release; - court hearings regarding extension of the applicant’s detention on 09/12/2014, 04/05/2015 and 30/04/2015 were held in absence of the applicant or his representative. Art. 6 (1) - excessive length of criminal proceedings : More than 5 years and 9 months 1 level of jurisdiction 5,900 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF KHOLODENKO v. RUSSIA (Application no. 33617/04) JUDGMENT STRASBOURG 18 September 2008 FINAL 18/12/2008 This judgment may be subject to editorial revision. In the case of Kholodenko 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 28 August 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33617/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Ivanovich Kholodenko (“the applicant”), on 30 July 2004.", "2. The Russian Government (“the Government”) were represented first by Mr P. Laptev and subsequently by Mrs V. Milinchuk, the former Representatives of the Russian Federation at the European Court of Human Rights. 3. On 29 August 2006 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1956 and lives in Volzhskiy, a town in the Volgograd Region. 5. The applicant sued the Volgograd Regional Department of the Judiciary, the Ministry of Justice, and the Treasury for damages caused by a negligent enforcement of a civil judgment.", "On 27 February 2003 the Voroshilovskiy District Court of Volgograd awarded the applicant 661,593.17 Russian roubles (RUB). This judgment became binding on 23 July 2003 and was enforced on 25 April 2006. II. RELEVANT DOMESTIC LAW 6. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.", "Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 7. The applicant complained under Articles 6 and 13 of the Convention, and Article 1 of Protocol No.", "1 about the delayed enforcement of the judgment. The Court examined this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Insofar as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 8. The Government made no comment on the admissibility of the application. 9. The applicant submitted that the delayed enforcement had been caused by administrative disorganisation.", "10. 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 11. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what the nature of the award was (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "12. In the case at hand the enforcement lasted two years and nine months. This period is prima facie incompatible with the requirements of the Convention, and the Government have not put forward any plausible justification for the delay. 13. There had, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 15.", "The applicant claimed RUB 668,770 in respect of pecuniary damage. He submitted that he had planned to spend the judgment money on a flat, and that the above sum would compensate his loss caused by rising real estate prices. 16. The Government argued that this claim had been excessive and unsubstantiated. 17.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. 18. The applicant also claimed RUB 35,000 in respect of non-pecuniary damage. 19.", "The Government argued that this claim had also been excessive and unsubstantiated. 20. The Court accepts that the applicant must have been distressed by the delayed enforcement of the judgment. Making its assessment on an equitable basis, the Court awards EUR 1,500 under this head. B.", "Costs and expenses 21. The applicant also claimed RUB 9,068.80 for the costs and expenses incurred before the domestic courts and the Court. 22. The Government argued that this claim had been partly unsupported by evidence, and that the expenses incurred had been partly irrelevant. 23.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects this claim. C. Default interest 24. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 18 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF OLSBY v. SWEDEN (Application no. 36124/06) JUDGMENT STRASBOURG 21 June 2012 FINAL 21/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Olsby v. Sweden, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Karel Jungwiert,Mark Villiger,Ann Power-Forde,Ganna Yudkivska,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36124/06) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, Mr Ralf Gunnar Olsby (“the applicant”), on 23 August 2006. 2. The applicant was represented by Mr P. Cronhult, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs. 3.", "The applicant alleged that he had been deprived of effective access to court in contravention of Article 6 § 1 of the Convention. 4. On 30 September 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.", "On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above application was assigned to the newly composed Fifth Section. 6. The Government submitted a unilateral declaration which did not offer sufficient basis for finding that respect for human rights as defined in Article 37 § 1 the Convention had been fulfilled (Prencipe v. Monaco, no. 43376/06, §§ 62-63, 16 July 2009). The Court was therefore required to continue the examination of the case.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lives in Sundbyberg. 8. By letter dated 9 August 2005, the Enforcement Authority (Kronofogdemyndigheten) informed the applicant that its representative would come to his home on 17 August 2005 to attach property to secure his tax debts amounting to SEK 979,503 (approximately EUR 110,000).", "It noted that he had previously been informed about his debts but that, since he had not paid, an attachment would be carried out. It is not known when the letter was sent or when the applicant received it. 9. On 19 August 2005 the Enforcement Authority attached SEK 9,128 (approximately EUR 950) from a bank account belonging to the applicant. A document called Proof of Attachment (bevis om utmätning) was sent to the applicant confirming this and advising him how to go about appealing against the decision and that this had to be done within three weeks from the date that the decision was served on him.", "The applicant, who was on holiday at the time, did not receive the Proof of Attachment until he returned home on 8 September 2005 and was formally served the decision. 10. In a decision of 24 August 2005 the Enforcement Authority distributed and paid the attached money to the creditor, in this case, the State itself. The decision was open to appeal within three weeks from the date of the decision. 11.", "On 20 September 2005 the applicant requested the Enforcement Authority to rectify (besluta om rättelse) the decision concerning attachment as he considered it to be incorrect. The Enforcement Authority, in a decision of the same day, rejected the applicant’s request for rectification on the ground that it had been submitted too late. It further stated that it was not possible to appeal against the decision in that part and that, as regarded its other decisions, appeals were possible within the time-frames of which the applicant had previously been notified. 12. On 22 September 2005 the applicant appealed against the attachment decision to the District Court (tingsrätten) of Stockholm.", "He mainly objected that the Enforcement Authority had not sufficiently taken into account, and made deductions for, the need to cover his basic living expenses. 13. In a comment (yttrande) by the Enforcement Authority in connection with the appeal, it stated that the appeal had been made within the stated time-limit but that, since the decision as regards the distribution and payment of the funds had gained legal force, the applicant’s appeal could not be tried by the court. 14. On 19 October 2005 the District Court dismissed the appeal after first having noted that the decision as regarded the payment of the attached funds had gained legal force on 15 September 2005 and that the applicant had appealed against the attachment decision on 22 September 2005.", "Thereafter the court, with reference to case-law from the Supreme Court, stated that an appeal against an attachment decision that was lodged after a decision regarding the payment of the attached funds had gained legal force could not be considered by the court. 15. The applicant appealed against the decision to the Svea Court of Appeal (hovrätten) requesting that it quash the lower court’s decision. The applicant submitted that he had not been aware of the attachment decision until 8 September 2005, when he was formally served the Proof of Attachment, and that he had never been notified of the fact that the Enforcement Authority, five days after the attachment decision, had distributed and paid the attached money. In his view, it should not have been permitted to distribute attached money until the actual attachment decision had gained legal force.", "16. On 16 December 2005 the Court of Appeal upheld the District Court’s decision in full. 17. The applicant appealed to the Supreme Court (Högsta domstolen) which, on 28 February 2006, refused leave to appeal. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Enforcement proceedings 18. Domestic provisions of relevance to the present case are found mainly in the Enforcement Code (Utsökningsbalken; 1981:774) and the Enforcement Ordinance (Utsökningsförordningen; 1981:981). The Enforcement Authority is responsible for enforcement of judgments or other enforcement titles (exekutionstitel) comprising an obligation to pay or some other obligation. Enforcement cases are dealt with as public cases (allmänna mål), as in the applicant’s case, or private cases (enskilda mål; cf.", "Chapter 1, Article 6 of the Enforcement Code). Public cases are, for example, imposition of fines, taxes, and other funds to which the State is entitled. 19. According to Chapter 3, Article 1, of the Enforcement Code, an enforcement title may consist of a court judgment, but also of a decision of an administrative authority that may be enforced in accordance with a special regulation. Moreover, according to Article 23 of the same Chapter, enforcement titles in public cases may be enforced before they have gained legal force, if this has been specially prescribed.", "In this respect, Chapter 2, Article 19 of the Enforcement Code stipulates that a decision of the Enforcement Authority applies immediately, and the enforcement continues even if the decision is appealed against, unless otherwise prescribed by the Enforcement Code or ordered by a court. 20. In line with Chapter 4, Article 9 of the Enforcement Code, the Enforcement Authority shall investigate the debtor’s employment and income situation and whether he or she has attachable property. Attachment shall take place as soon as possible after the necessary documents have been received by the Enforcement Authority (Chapter 4, Article 10). With some exceptions, notification shall be sent to the debtor by post or given in an appropriate manner within such time that the debtor can be expected to have sufficient time to protect his or her rights (Chapter 4, Article 12).", "Chapter 6, Article 9 of the Enforcement Ordinance stipulates that the debtor shall be notified in writing and the notification is to be served, unless it is known that the debtor cannot be found. Moreover, the Enforcement Authority shall, as a rule, notify the interested parties about its decision of distribution of funds (Chapter 13, Article 11 of the Enforcement Ordinance). The debtor is generally not notified about distribution of funds and payment to the creditors and the enclosure to the attachment order does not contain any such information. 21. The attachment of bank funds is safeguarded by a notification prohibiting the bank from fulfilling its obligations to others than the Enforcement Authority, and the bank is, as a rule, requested to pay the attached funds to the Enforcement Authority (Chapter 6, Article 3 and Chapter 9, Articles 11-12 of the Enforcement Code).", "22. Decisions regarding attachment and all subsequent decisions, such as the decision to distribute and pay the attached funds to the creditor, are taken by the Enforcement Authority and may be appealed against to the District Court, and further to the Court of Appeal and the Supreme Court. The rules regarding appeal against decisions taken by the Enforcement Authority are to be found in Chapter 18 of the Enforcement Code. Article 7, paragraph 2, of that Chapter stipulates that an attachment decision of the type in question shall be appealed against by a party within three weeks from the date when the decision was served on him. Article 7, paragraph 3, states that a decision on distribution or payment of funds shall be appealed against within three weeks of the decision.", "Article 14 of the same Chapter stipulates that, in the event of the grant of an appeal against a particular decision, a later decision in the case may also be revoked, if this can be done, provided the decision is connected with the former decision and that it had not gained legal force against the appellant at the time when he appealed against the first decision. 23. In its judgment of 26 March 1990 (NJA 1990 p. 166), the Supreme Court found that a prerequisite to trying an appeal against a decision regarding attachment is that no subsequent decision regarding the payment of the attached funds has gained legal force. In reaching its decision, the Supreme Court had regard to Chapter 18, Section 14 of the Enforcement Code as well as the preparatory works to that provision (Government Bill 1980/81:8, p. 1239). 24.", "In its comments on the above case, the National Tax Board (Riksskatteverket, formerly in charge of tax administration and enforcement service in Sweden), stated, inter alia, the following: “In public cases, the funds are accounted for immediately, unless the official in charge of the matter has given special instructions. In cases concerning attachment of bank funds, it may take a while for the bank to account for the funds received. Once received by the Enforcement Authority, the funds are accounted for promptly to the creditors. Several weeks may elapse between the attachment day and the accounting day. The appeals provisions in Chapter 18, Section 7 of the Enforcement Code do not seem to be coordinated in the sense that the funds are to be accounted for after the appeal period has elapsed, and there is no support for such an interpretation of the Enforcement Code.” B.", "Compensation for violations of the Convention 25. Please see Eriksson v. Sweden (no. 60437/08, §§ 27-36, 12 April 2012) or Eskilsson v. Sweden ([dec.], no. 14628/08, 24 January 2012) for a comprehensive summary of this issue. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 26. The applicant complained that, even though he had appealed against the decision within the prescribed time-limit, his case was dismissed by the national courts and he was effectively refused access to court, in contravention of Article 6 § 1 of the Convention, which in relevant parts 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. ...” 27. The Government left it to the Court’s discretion whether the case revealed a violation of Article 6 § 1 of the Convention.", "A. Admissibility 28. The Government submitted that the application was inadmissible on the ground that the applicant had not exhausted domestic remedies. In this respect, they referred in particular to the Swedish Supreme Court’s judgments dated in 2005 and 2007 in which the court had awarded individual compensation for pecuniary and non-pecuniary damage concerning the violation of different Articles of the Convention. In the Government’s opinion, these showed that Swedish law now provided a remedy in the form of compensation for both pecuniary and non-pecuniary damage in respect of any violation of the Convention, including violations under Article 6 § 1 of the Convention. Although the Government acknowledged that the legal position on this matter under domestic law had been less clear prior to the Supreme Court’s judgment in 2005, they submitted that following this judgment the legal position must have been considered sufficiently clear.", "Therefore, since the applicant lodged his application with the Court on 23 August 2006, he should have been aware of the Supreme Court judgment and that there was an effective domestic remedy available to him which he should have been obliged to exhaust prior to examination of the case by the Court. 29. In any event, they noted that the limitation period in respect of compensation claims against the State is ten years from the point in time when the damage occurred (Section 2 of the Limitation Act, preskriptionslagen, 1981:130), for which reason he could still file a claim against the State in Sweden and should do so before the Court examined his case. 30. The applicant disagreed and maintained that he had exhausted all domestic remedies required of him, noting in particular that his case had already been before the Supreme Court and that it thus had had the opportunity to set things right.", "31. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.", "Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references). 32. However, the only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no.", "57220/00, § 15, ECHR 2002‑VIII; Leandro Da Silva v. Luxembourg, no. 30273/07, §§ 40 and 42, 11 February 2010; and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). 33. In the present case, the applicant complained in substance about the lack of effective access to court before the Court of Appeal and the Supreme Court.", "He thus did what was required of him in order to afford the national authorities the opportunity to remedy the violation alleged by him. 34. The Government claimed, however, that the applicant had failed to avail himself of available remedies capable of affording him sufficient redress in the form of compensation for the alleged violation. In this respect, the Court notes that, of the final domestic judgments and the decision referred to by the Government, only one was delivered before the introduction of the present application, in a case relating to length of criminal proceedings, whereas the present case concerns effective access to court. In these circumstances, in the Court’s view, it has not been shown that, at the time of introduction of the present application before the Court on 23 August 2006, there existed a remedy in Sweden which was able to afford redress in respect of the violation alleged by the applicant (see, Fexler v. Sweden, no.", "36801/06, § 43, 13 October 2011, and Eriksson, cited above, § 45). 35. The Government further claimed that, in any event, the applicant had still had the opportunity to claim compensation before the Swedish courts and should be obliged to use this remedy. The Court observes that the proceedings about which the applicant is complaining were terminated on 28 February 2006 and that the alleged violation of effective access to court thus must be considered to have occurred at this point in time. Consequently, in accordance with Section 2 of the Limitation Act, the applicant has the possibility to claim compensation from the Swedish State in relation to this alleged damage until 28 February 2016.", "36. The Court would like to reiterate that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see, for example, Baumann v. France, no. 33592/96, § 47, 22 May 2001, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX, and Andrei Georgiev v. Bulgaria, no.", "61507/00, § 78, 26 July 2007). 37. In the case at hand, the Court notes that the applicant lodged his application with the Court already in August 2006 at a time when, as established above, there was no effective remedy in Sweden for his complaint. It further considers that there are no particular circumstances in this case to justify departing from the general rule that the assessment of whether domestic remedies have been exhausted is carried out with reference to the date on which the application was lodged with the Court. Consequently, the Court finds that, in the instant case, it could not be required of the applicant to pursue the remedy invoked by the Government.", "The Government’s objection as to the exhaustion of domestic remedies must therefore be dismissed. 38. The Court further 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 39. The applicant maintained that he had not been granted effective access to court. In his view, it was unreasonable that an individual who followed the legal provisions about time-limits to submit an appeal as well as the appeal instructions in the Enforcement Authority’s decision could nevertheless find himself precluded from having his appeal tried by a court. 40.", "He noted that, in general, the debtor was served an attachment order through ordinary mail. However, decisions about the distribution or payments of attached funds were generally not notified to, and certainly not served on, the debtor. Still, such decisions should be appealed against within three weeks from the date of the decision. According to the applicant, it was not uncommon for the attachment order, the attachment itself and the distribution and payment of the attached funds to be executed almost simultaneously. 41.", "Having regard to the Supreme Court’s judgment in 1990 (see above § 21), that an appeal against an attachment order could only be tried by a court if no subsequent decision regarding payment of the attached funds had gained legal force, and given that only the attachment order was served on the debtor, the time-limit for appeal of the distribution or payment of the attached funds was likely to expire before the time-limit for appeal of the attachment order. The appeal instructions given with the attachment order were therefore misleading as the actual time for appeal was shorter than the stipulated three weeks from when the attachment order was served. The applicant submitted that, in fact, the actual time-limit for appeal could already have expired before the debtor was served, or even informed of, the attachment order. 42. The applicant argued that this was a lacuna in the right to access to court and that the Government must have been aware of it since the Supreme Court judgment of 1990.", "Consequently, he insisted that he had been deprived of effective access to court in violation of Article 6 § 1 of the Convention. 43. The Government admitted that the attachment order concerning the applicant’s funds had not been tried by a court and that it was not due to a failure by the applicant to comply with the procedural rules but a result of the Supreme Court’s 1990 judgment which, in turn, had been based mainly on Chapter 18, Article 14 of the Enforcement Code. However, they noted that the right to access to court was not an absolute right but could be subjected to limitations although the limitations applied should 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 was impaired. 44.", "In the present case, the Government submitted that it was clear that the domestic courts’ decisions had had a legal basis in Swedish law and that they did not disclose any arbitrariness. They did not dispute, however, that the applicant had received instructions stating that an appeal against the attachment order had to be made within three weeks from the date when the decision had been served on him and that by lodging his appeal on 22 September 2005 he had complied with these instructions as well as with the relevant provision in the Enforcement Code. In the light of this, the Government acknowledged that some doubt could arise as to whether the relevant appeals provisions could be considered sufficiently clear or sufficiently attended by safeguards to prevent misunderstanding regarding procedures for making use of the available remedies, as required by the Court’s case-law (such as F.E. v. France, 30 October 1998, § 47, Reports of Judgments and Decisions 1998‑VIII). 45.", "In the Government’s view, the limitation of the applicant’s access to court had pursued legitimate aims, namely the proper functioning of the legal system as well as legal certainty. They argued that attachment of property was a coercive measure aiming at executing an enforcement title and was carried out in the interest of the creditors. The proper functioning of the legal system, as well as the financial and economic system in general, required not only that creditors had access to the judiciary to obtain an enforcement title, but also that they were offered the possibility of enforcing their rights speedily and efficiently, thereby preventing the debtor from withholding property. Moreover, the limitation to appeal once a decision on the distribution and payment of attached funds had gained legal force was intended to create certainty and predictability as to the legal effects of that latter decision and for the creditors involved. 46.", "Lastly, the Government reiterated that States were afforded a certain margin of appreciation in balancing the means employed and aim sought to be achieved. In this respect, they stressed that an attachment order could only concern debts that had already been established by a court or a public authority, such as in the present case, the Tax Authority. Thus, in principle, a defendant’s objections to an attachment order could not bear upon the correctness of the enforcement title as such but were limited to issues which could constitute impediments to the attachment, for example as in the applicant’s case, that the Enforcement Authority had not sufficiently considered what the debtor needed for his basic living expenses. Here the Government considered that there was nothing to indicate that there had been any impediments to the attachment of the applicant’s funds. 47.", "Consequently, the Government held that there were several arguments in favour of the conclusion that the limitation of the applicant’s right of access to court had been proportionate but that it could be questioned whether the limitation had been clear enough. They therefore left it to the Court to decide whether there had been a breach of Article 6 § 1 of the Convention in the present case. 2. The Court’s assessment 48. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his or her 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 (see Golder v. the United Kingdom, 21 February 1975, §§ 35-36, Series A no. 18). 49. However, the Court observes that the right of access to a court is not absolute and may be subject to legitimate restrictions, particularly regarding the conditions of admissibility of an appeal. Where an individual’s access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation does not impair the very essence of the right and where it pursues a legitimate aim, and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, § 57, Series A no.", "93 and F.E., cited above, § 44). 50. Moreover, the Court notes that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal are aimed at ensuring the proper administration of justice and compliance with the principle of legal certainty for all parties involved in a dispute. These are, as noted by the Government, legitimate aims for regulating the access to court. However, these aims are directed not only to protect creditors but also to protect the debtors.", "Thus, while the Court agrees with the Government that creditors have an interest to enforce their rights speedily and efficiently, it also considers that the debtors have to be able to protect correctly their interests. In principle, this does not rule out that once a decision on the distribution and payment of attached funds has gained legal force, certain limitations on appeal of the actual attachment decision may be imposed in order to create certainty and predictability as to the legal effects of the decisions. 51. A distinction has to be made though, between imposing certain limitations and effectively hindering an appeal on the merits. In this respect, the Court observes that for the right of access to court to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights (see F.E., cited above, § 46).", "In the Court’s view, this includes the need for legal certainty for the debtor to be able to trust that the time-limit for appeal given in the law and expressly mentioned in a decision is valid and not open to exceptions, unless those exceptions are explicitly mentioned. Otherwise, trust in the legal system and instructions given by the authorities would be eroded. 52. Furthermore, as the Court has established in earlier cases, the parties to a dispute must be able to avail themselves of the right to bring an action or to lodge an appeal from the moment they can effectively apprise themselves of court decisions imposing a burden on them or which may infringe their legitimate rights or interests (see for example Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, §§ 33 and 37, ECHR 2000‑I).", "53. Turning to the case at hand, the Court notes from the outset that the applicant’s formal right to access to court was guaranteed in law, namely through Chapter 18, Article 7, paragraph 2, of the Enforcement Code which stated that he had three weeks to appeal against the attachment order from the date when the decision was served on him. Moreover, it is undisputed that the applicant lodged his appeal to the District Court within the time‑limit prescribed. 54. However, in the present case, this right was circumvented by the rapid payment of the attached funds to the creditor, namely, the State.", "Thus, the attachment took place on 19 August 2005 and the attached funds were paid to the creditor on 24 August 2005 while the applicant was only served the decision of the attachment order on 8 September 2005, when he returned from vacation. Consequently, the decision of distribution and payment of funds gained legal force on 15 September 2005, whereas the time-limit for appeal against the attachment order expired on 29 September 2005. Since the Supreme Court’s 1990 judgment, with reference to Chapter 18, Article 14, of the Enforcement Code, had established that an appeal against an attachment decision that was lodged after a decision regarding the payment of the attached funds had gained legal force could not be considered by the court, the applicant was in reality blocked from having his appeal tried, despite having followed the instructions about appeal in the attachment decision. Moreover, since he had not been informed about the distribution and payment of the attached funds, he was not aware of this limitation. To the Court, this cannot be considered satisfactory and it is of the opinion that the national system lacked safeguards to avoid such a situation.", "55. The Court further notes that, in accordance with the Enforcement Code (see above § 20), the attachment of bank funds is safeguarded by a notification prohibiting the bank from fulfilling its obligations to others than the Enforcement Authority and the bank is, as a rule, requested to pay the attached funds to the Enforcement Authority. In these circumstances, the Court considers that the creditor’s interest must be considered to have been sufficiently secured once the attachment was carried out since the applicant could then no longer administer his funds. It must then have been for the applicant also to be able to protect his interests. 56.", "The foregoing considerations are sufficient to enable the Court to conclude that the applicant did not have a clear practical opportunity to challenge the attachment order and that the very essence of his right to effective access to court was thereby impaired. 57. There has accordingly been a violation of Article 6 § 1 of the Convention. II. 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 EUR 10,000 in respect of non-pecuniary damage. 60. The Government argued that the finding of a violation would in itself constitute sufficient just satisfaction.", "In any event, they regarded the sum claimed as excessive in comparison with sums awarded by the Court in similar cases and considered that any compensation should not exceed EUR 1,000. 61. The Court considers that the applicant must have suffered some non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 6 § 1. Ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 62. The applicant did not claim compensation for costs and expenses incurred before the Court. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 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 amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 21 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President" ]
[ "FIFTH SECTION CASE OF MURUKIN v. UKRAINE (Application no. 15816/04) JUDGMENT STRASBOURG 2 September 2010 FINAL 02/12/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Murukin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva,Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 June 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15816/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Valentin Borisovich Murukin (“the applicant”), on 31 March 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. The applicant alleged, in particular, that his detention in custody had been unlawful.", "4. On 8 June 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 FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1961 and lives in Dnipropetrovsk. 6. On 3 July 2002 the applicant manoeuvred his car negligently in the street and crashed into another car which was being driven by a Ms Kh. As a result of the incident, Ms Kh. sustained concussion and injuries of medium severity.", "7. Following the incident, the applicant was charged with the crime, set out in Article 286 § 1 of the Criminal Code, of breaching traffic rules resulting in injuries of medium severity to the victim. As a preventive measure, the applicant signed a written undertaking not to abscond. 8. On 5 June 2003 the Dnipropetrovskyy District Court (“the District Court”), taking note of the fact that the applicant had failed to appear at the hearing of his case, scheduled for that day, replaced the written undertaking by the applicant for his detention in custody.", "9. Between 19 and 23 June 2003, the applicant was undergoing medical treatment in Dnipropetrovsk no. 7 City Hospital. According to the applicant, he was visited there by police officers who handcuffed him and guarded him until the end of the medical treatment. The officers allegedly did not allow him to use the toilet and prevented him from seeing his relatives and friends.", "The applicant did not complain to the investigating authorities on account of the conduct of the police officers. 10. On 23 June 2003 the applicant was arrested and placed in a cell at the Dnipropetrovsk District Police Department. 11. On 25 June 2003 the Dnipropetrovsk Regional Court of Appeal (the “Court of Appeal”) rejected the applicant's appeal against the decision of 5 June 2003 of the District Court, stating that, under domestic law, the decision was not subject to appeal.", "12. On 27 June 2003 the applicant was transferred to the Dnipropetrovsk no. 3 Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”). 13. On 3 July 2003 the District Court found the applicant guilty of a crime under Article 286 § 1 of the Criminal Code and sentenced him to two years' “restriction of liberty” and a one-year driving ban.", "It further stated that the sentence should be calculated from 23 June 2003 and maintained the preventive measure (detention in custody) in respect of the applicant. 14. On 14 and 15 July 2003 the applicant complained to the President of the Court of Appeal and the President of the Supreme Court, alleging that his detention in custody had been unlawful. The complaints were unsuccessful. 15.", "On 21 July 2003 the applicant appealed against the judgment of 3 July 2003, alleging specifically that his detention had been unlawful since, first, under the provisions of Article 155 of the Code of Criminal Procedure the crime he was charged with did not entail the possibility of pre-trial detention, and, secondly, Article 342 of the same Code provided that he should have been released immediately after the court hearing of 3 July 2003. 16. On 6 October 2003 the Court of Appeal dismissed the applicant's appeal as unfounded and upheld the judgment of 3 July 2003, which then came into effect. The Court of Appeal ordered that the period of the applicant's detention in custody should be reckoned as a part of the applicant's sentence. 17.", "On 19 December 2003 the applicant was released from the Dnipropetrovsk SIZO, and moved to no. 133 Correctional Centre to serve his sentence. 18. On an unspecified date the applicant lodged a cassation appeal against the judgment of 3 July 2003, contending, in particular, that his detention in custody had been contrary to Articles 155 and 342 of the Code of Criminal Procedure and Article 107 of the Correctional Labour Code. 19.", "On 23 December 2004 the Supreme Court dismissed the applicant's cassation appeal as unfounded. It noted, inter alia, that the period of the applicant's detention in custody had been reckoned as a part of his sentence and therefore the procedural shortcomings complained of, namely, the application of the preventive measure of detention did not necessitate the quashing of the judgments of the lower courts. II. RELEVANT DOMESTIC LAW A. Criminal Code of Ukraine, 5 April 2001 20.", "The relevant provisions of the Code read as follows: Article 51: Types of punishment “The following types of punishment may be imposed on persons who are found guilty of crimes: ... 8) arrest; 9) restriction of liberty; ... 11) imprisonment for a defined term; 12) life imprisonment.” Article 61: Restriction of liberty “Restriction of liberty is a type of punishment which consists in holding a person under supervision in an open-prison-type establishment without isolating such a person from society and including an obligation on him or her to work. ...” Article 286: Violation of traffic safety rules or misuse of vehicles by drivers “1. Violation of traffic safety rules or misuse of a vehicle by a driver, if this results in injuries of medium severity to the victim, – shall be punished either by a fine in an amount of up to one hundred times the tax -free monthly income, or by correctional work for up to two years, or by arrest for up to six months, or by restriction of liberty for up to three years, combined, if required, with a driving ban for up to three years. ...” B. Code of Criminal Procedure, 28 December 1960 21.", "Chapter 13 of the Code deals with preventive measures that can be applied in the course of criminal proceedings. The relevant provisions of that Chapter of the Code read as follows: Article 149: Preventive measures “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal guarantee; (3) the guarantee of a public organisation or labour collective; (3-1) bail; (4) detention in custody; (5) supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” Article 155: Detention in custody “Detention in custody as a preventive measure shall be applied in cases concerning crimes for which the law envisages a punishment of more than three years' imprisonment. In exceptional circumstances this preventive measure can be applied in cases concerning crimes for which the law envisages a punishment of up to three years' imprisonment. ...” Article 288: Consequences of a defendant's failure to appear “If a defendant fails to appear at a court hearing in a case in which his appearance is obligatory, without a valid reason, ... the court shall adjourn consideration of the case ...", "In addition, the court ... may order the defendant's compulsory appearance and apply a more severe preventive measure ...” Article 342: Release of a defendant from custody under the court's judgment “Upon the acquittal of the defendant, or his release from sentence, or the imposition on him of a punishment other than imprisonment, the court shall immediately release the defendant from custody in the courtroom if he or she is in detention.” Article 343: Application of preventive measures for the period before the court's judgment comes into effect “When adopting a judgment by which the defendant is sentenced to a certain type of punishment, the court should consider the question of applying the preventive measure for the period before the judgment comes into effect, and has the right to apply new preventive measures, or quash, change, or maintain the preventive measures that have been applied earlier. Application of such a preventive measure as detention in custody shall be permissible only on the grounds set out in relevant Articles of Chapter 13 of this Code.” C. Correctional Labour Code, 23 December 1970 (in force at the relevant time) 22. The relevant provisions of the Code read as follows: Article 106: Places of punishment by restriction of liberty “Persons sentenced to restriction of liberty shall undergo their punishment in open-prison-type establishments (“correctional centres”) ...” Article 107: Movement of persons sentenced to restriction of liberty to the places where they are to serve their sentences “Persons sentenced to restriction of liberty shall personally relocate to the places in which they are to serve their sentences. ... If a person sentenced to restriction of liberty is detained, he or she shall be released from the detention centre when the sentence comes into effect.", "... Having regard to the personality of the sentenced person and to the other circumstances of the case the court may order that the sentenced person, who is detained in custody until the judgment comes into effect, be moved to the place where they must serve their sentence in accordance with the procedure for persons sentenced to imprisonment. In the latter case the sentenced person shall be released from custody upon his or her arrival at the place of serving the sentence. ...” Article 107-2: Order and conditions of undergoing punishment by restriction of liberty “Persons sentenced to restriction of liberty shall be entitled: ...to have unlimited short-term visits and long-term visits (of up to three days) once a month; to leave the correctional centre for short periods of time, with appropriate permission ... Persons sentenced to restriction of liberty shall be obliged: ...to work diligently at the designated place; to remain under supervision in the correctional centre and to leave it only by special permission issued by the administration of the correctional centre... to live, as a rule, in special dormitories ... After six months of the sentence has been served, those persons who have not violated disciplinary rules may be allowed to live outside the dormitories with their families ... Those persons shall appear at the correctional centre for registration not more than four times a week. ...” D. Pre-Trial Detention Act, 30 June 1993 23.", "Section 7 of the Act reads as follows: Section 7: Pre-trial detention regime “... The basic requirements of the pre-trial detention regime are the isolation of detainees, the full supervision of them and separation from each other, as provided by Section 8 of this Act ...” 24. The other relevant provisions of this Act describing the pre-trial detention regime can be found in the judgment in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 33-36, 12 October 2006). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 25. The applicant complained that his detention in custody had been unlawful. He relied on Article 7 of the Convention. 26. The Court considers that the matters complained of fall under Article 5 § 1 of the Convention, which reads, in so far as relevant, as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 27. The Court notes that until 3 July 2003 the applicant was detained for the purpose of bringing him to justice for the crime he had committed. On 3 July 2003 the applicant was convicted by the first-instance court on account of that crime. Accordingly, the period of the applicant's detention preceding 3 July 2003 should be examined under Article 5 § 1 (c) of the Convention.", "Given that the application was submitted to the Court on 31 March 2004, the applicant's complaint concerning the alleged unlawfulness of his detention in that period has been submitted too late (see, for example, Nadrosov v. Russia, no. 9297/02, § 48, 31 July 2008). The Court therefore rejects this part of the application in accordance with Article 35 §§ 1 and 4 of the Convention. 28. The Court further notes that the complaint concerning the alleged unlawfulness of the applicant's detention in custody in the subsequent period is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 29. The applicant contended that after the District Court's judgment of 3 July 2003, he had been unlawfully detained in custody.", "He insisted that on the date of that judgment he should have been released in accordance with the requirements of Article 342 of the Code of Criminal Procedure. He further claimed that as from 6 October 2003, that is, when the District Court's judgment of 3 July 2003 came into effect, his detention was also in contravention of Article 107 of the Correctional Labour Code. 30. The Government reminded the Court of its subsidiary role regarding the interpretation of domestic legislation and maintained that the applicant's detention from 3 July to 19 December 2003 had been based on court orders and had been justified under Article 5 § 1 (a) of the Convention. In particular, they contended that the sentencing court had expressly ordered that the preventive measure applied to the applicant on 5 June 2003 should remain in force.", "31. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65, and Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 16, § 37).", "Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑...). 32. 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 (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 22, § 40), save in accordance with the conditions specified in paragraph 1 of Article 5.", "The list of exceptions set out in Article 5 § 1 is an exhaustive one 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 Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 848, § 42; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000-IV; and Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004‑II). 33. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof.", "Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, p. 753, § 41, and Assanidze, cited above, § 171). 34. However, the “lawfulness” of detention under domestic law is the primary but not always the decisive element. The Court must, in addition, be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. Moreover, the Court must ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among many other authorities, Winterwerp, cited above, pp.", "19-20, § 45, and Baranowski v. Poland, no. 28358/95, § 51, ECHR 2000‑III). 35. On this last point, the Court stresses that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention - a standard which requires that all legislation be sufficiently precise to allow an individual – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54).", "36. Turning to the instant case, the Court notes that on 3 July 2003 the District Court sentenced the applicant to “restriction of liberty” and decided to maintain the applicant's detention in custody as a preventive measure. As a result, the applicant was held in custody until 19 December 2003. 37. However, by virtue of Article 342 of the Code of Criminal Procedure, the District Court was under an unconditional obligation to release the applicant from custody immediately on the date of judgment since it had imposed a punishment other than imprisonment on the applicant.", "Accordingly, the court order, authorising the applicant's detention after 3 July 2003, was not adopted in line with the above provision of the domestic law. 38. Even assuming that the applicant's detention between 3 July and 6 October 2003 (the date when the sentence entered into force) could be justified under Article 107 § 1 of the Correctional Labour Code, which admitted a possibility of detaining the applicant between the date of sentence and the date of its entrance into force, then the domestic law was not sufficiently clear as to the moment when the applicant had to be released. In that case the applicant's detention in that particular period was not based on a law complying with the standard of “foreseeability” for the purpose of Article 5 § 1 of the Convention. 39.", "As to the period from 6 October 2003, the Court notes that the domestic courts did not make an order under the second paragraph of Article 107 of the Correctional Labour Code, with the result that for that period Article 107 cannot, even by way of assumption, have justified the applicant's detention. As the applicant's detention was otherwise not in accordance with domestic law (see paragraph 37 above), there was therefore an unequivocal obligation from 6 October 2003 to release the applicant. Nevertheless, the applicant remained in custody till 19 December 2003. The Court cannot find any justification for the detention beyond 6 October 2003. 40.", "In view of the above considerations the Court holds that the applicant's detention in custody from 3 July to 19 December 2003 was not “lawful” within the meaning of Article 5 § 1 of the Convention. Accordingly, that period of detention was not justified under the subparagraph (a) of Article 5 § 1, as contended by the Government, or under any other subparagraph of that provision. 41. There has therefore been a violation of Article 5 § 1 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42. The applicant complained under Article 3 of the Convention that from 19 to 23 June 2003 he was ill-treated by the police officers who visited him in hospital. He further complained under Article 7 of the Convention that the period of his stay in the hospital from 19 to 23 June 2003 was not included in the overall length of his sentence. 43. The Court has examined those 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 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45.", "The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage and EUR15,000 in respect of non-pecuniary damage. 46. The Government considered these claims unsubstantiated. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, it awards the applicant EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 48. The applicant also claimed EUR 1,770 for the costs and expenses incurred before the domestic courts and the Court. 49.", "The Government contended that this claim was not supported by any documents. 50. 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, having taken into account the information in its possession and the above criteria, the Court rejects the applicant's claim under this head. C. Default interest 51.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 5 § 1 of the Convention concerning the applicant's detention between 3 July to 19 December 2003 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 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 2 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF SIDORENKO v. RUSSIA (Application no. 3519/05) JUDGMENT STRASBOURG 26 July 2007 FINAL 26/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sidorenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD.", "Spielmann, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3519/05) 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 Mikhail Mikhaylovich Sidorenko (“the applicant”), on 18 December 2004. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. On 24 March 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1961 and lives in Udachnyy, a town in the Sakha (Yakutiya) Republic of the Russian Federation.", "5. The applicant brought a civil action against the Ministry of Finance of the Russian Federation, seeking to recover the monetary value of state promissory notes for purchase of a Russian-made car. 6. On 2 April 2003 the Mirninskiy District Court of the Republic of Sakha (Yakutiya) found for the applicant and awarded him 138,967 Russian roubles. 7.", "By a decision of 14 May 2003 the Supreme Court of the Republic of Sakha (Yakutiya) rejected an appeal by the Ministry of Finance and upheld the judgment. On the same date the judgment of 2 April 2003 acquired legal force but it has never been enforced. 8. On 16 July 2004 a judge of the Supreme Court of the Republic of Sakha (Yakutiya) referred the case to the Presidium of the Supreme Court of the Republic of Sakha (Yakutiya), upon the defendant's application for supervisory review. 9.", "On 12 August 2004 the Presidium quashed the judgment of 2 April 2003, as upheld by the decision of 14 May 2003, and dismissed the applicant's claim in full. In so deciding, the Presidium noted that the courts had failed to take into account the provisions of the Federal Law on State Promissory notes of 1 June 1995, as amended on 2 June 2000, which extended the period of redemption of the state promissory notes until 31 December 2004. In the Presidium's assessment, that failure amounted to a substantial violation of the material law warranting a re-examination of the case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT'S FAVOUR 10. The applicant complained about the quashing, by way of supervisory review, of the judgment of 2 April 2003. He referred to Article 6 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... 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 11. 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. Article 6 § 1 of the Convention 12. The Government submitted that on 12 August 2004 the Presidium of the Supreme Court of the Republic of Sakha (Yakutiya) acted in accordance with domestic law and procedure. It quashed the judgment of 2 April 2003, as upheld by the decision of 14 May 2003, because the lower courts had made an error in the application of substantive law.", "In particular, they had failed to take into account the provisions of the Federal Law on State Promissory notes of 1 June 1995 which extended the period of redemption of the state promissory notes until 31 December 2004. They concluded that there had been no violation of the principle of legal certainty. 13. The applicant maintained his complaint. 14.", "The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61). 15. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts' power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination.", "The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X; and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). 16.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 51-56). 17. The Court observes that on 2 April 2003 the Mirniskiy District Court of the Republic of Sakha (Yakutiya) granted the applicant's action against the Ministry of Finance and awarded him a sum of money.", "The judgment was upheld on appeal on 14 May 2003 and acquired legal force on the same date. On 12 August 2004 the judgment was quashed by way of supervisory review on the ground that the lower courts had erroneously applied substantive law. 18. The Court reiterates that it has found a violation of an applicant's “right to a court” guaranteed by Article 6 § 1 of the Convention in many Russian cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court on an application by a State official or a party to the proceedings, especially when a particularly long period of time, as in the present case, lapsed from the date the judgment in the applicant's favour had become binding to the date the supervisory-review proceedings were instituted (see Ryabykh, cited above, §§ 51-58; Volkova v. Russia, no. 48758/99, §§ 34-37, 5 April 2005; Roseltrans v. Russia, no.", "60974/00, §§ 27-28, 21 July 2005; Borshchevskiy v. Russia, no. 14853/03, §§ 46-50, 21 September 2006; and Nelyubin v. Russia, no. 14502/04, §§ 28-30, 2 November 2006). Furthermore, in the case of Kot v. Russia (no. 20887/03, § 29, 18 January 2007) the Court found as follows: “It is unavoidable that in civil proceedings the parties would have conflicting views on application of the substantive law.", "The courts are called upon to examine their arguments in a fair and adversarial manner and make their assessment of the claim. The Court observes that before an application for supervisory review was lodged, the merits of the applicant's claim had been examined... by the first-instance and appeal courts. It has not been claimed that the courts acted outside their competences or that there was a fundamental defect in the proceedings before them. The fact that the Presidium disagreed with the assessment made by the first-instance and appeal courts was not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant's claim.” 19. Having examined the materials submitted to it, the Court observes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Accordingly, the Court finds that by quashing the judgment of 2 April 2003, by way of supervisory review, the Presidium of the Supreme Court of the Republic of Sakha (Yakutiya) infringed the principle of legal certainty and the applicant's “right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article. 2. Article 1 of Protocol No. 1 20.", "The Government submitted that the quashing of the judgment of 2 April 2003 had not amounted to an interference with the applicant's rights under Article 1 of Protocol No. 1. 21. The applicant maintained his complaint. 22.", "The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74; and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 23.", "The Court observes that the applicant obtained a binding and enforceable judgment in his favour, by the terms of which the Ministry of Finance was to pay him a substantial amount of money. He was prevented from receiving the award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgment in the applicant's favour by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of the Protocol No. 1.", "There has therefore been a violation of that Article. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT OF 2 APRIL 2003 24. The applicant complained about the non-enforcement of the judgment of 2 April 2003, as upheld on 14 May 2003.", "He relied on Article 6 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions are cited above. A. Admissibility 25. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26. The Government submitted that the judgment of 2 April 2003 had not been enforced because it had been quashed by the Presidium of the Supreme Court of the Republic of Sakha (Yakutiya) on 12 August 2004.", "The Presidium issued a new decision in the applicant's case by which rejected his claims in full. 27. The applicant maintained his complaint. 28. The Court observes that on 2 April 2003 the applicant obtained a judgment by which the Ministry of Finance was to pay him a substantial amount of money.", "On 14 May 2003 the judgment was upheld on appeal and became legally binding and enforceable. From that moment, it was incumbent on the debtor, a state body, to comply with it. On 12 August 2004 the Presidium of the Supreme Court of the Republic of Sakha (Yakutiya) quashed the judgment of 2 April 2003. 29. It follows that at least from 14 May 2003 to 12 August 2004 the judgment of 2 April 2003 was enforceable and it was incumbent on the State to abide by its terms (cf.", "Velskaya v. Russia, no. 21769/03, § 18, 5 October 2006). 30. The Government cited the initiation of the supervisory review proceedings in respect of the judgment of 2 April 2003 as the sole reason for its non-enforcement. In this respect, the Court reiterates that it has recently addressed and dismissed the same argument by the Government in the case of Sukhobokov v. Russia (no.", "75470/01, 13 April 2006). In particular, the Court held that “the quashing of the judgment, which did not respect the principle of legal certainty and the applicant's “right to a court”, cannot be accepted as a reason to justify the non-enforcement of the judgment” (see Sukhobokov, cited above, § 26, and Velskaya v. Russia, cited above, § 19). 31. Having examined the material submitted to it and taking into account its findings in paragraphs 19 and 23 above, the Court notes that the Government did not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case. Nor did they advance any other justification for the failure to enforce the judgment of 2 April 2003.", "Having regard to its case-law on the subject (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III; and, more recently, Reynbakh v. Russia, no. 23405/03, 29 September 2005, Denisov v. Russia, no. 21823/03, 25 January 2007), the Court finds that by failing for a substantial period to comply with the judgment in the applicant's favour, the domestic authorities violated his right to a court and prevented him from receiving the money he was entitled to receive. 32.", "The Court finds accordingly that there was a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment of 2 April 2003. 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.” 34.", "The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 35. In the instant case, on 20 July 2006 the applicant was invited to submit his claims for just satisfaction. He failed to submit any such claims within the required time-limit. 36.", "In these circumstances, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 2 April 2003; 3.", "Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment of 2 April 2003; 4. Decides to make no award under Article 41. Done in English, and notified in writing on 26 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "SECOND SECTION CASE OF ATEŞ v. TURKEY (Application no. 28292/95) JUDGMENT (Friendly settlement) STRASBOURG 22 April 2003 This judgment is final but it may be subject to editorial revision. In the case of Ateş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of MrJ.-P. Costa, President,MrA.B. Baka,MrK. Jungwiert,MrV.", "Butkevych,MrsW. Thomassen,MrM. Ugrekhelidze, judges,MrF. Gölcüklü, ad hoc judge,and Mr. T. L. Early, Deputy Section Registrar, Having deliberated in private on 1 April 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28292/95) 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 a Turkish national, Hüseyin Ateş (“the applicant”), on 3 March 1995. 2. The applicant was represented by Ms A. Stock, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. Relying on Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained about his and his family’s alleged eviction from their village and the destruction of their home and possessions by security forces in the state of emergency region of Turkey. 4. Following communication of the application to the Government by the Commission, the case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No.", "11 to the Convention. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court). 5. On 30 May 2000, having obtained the parties’ observations, the Court declared the application admissible in so far as it had been communicated to the Government.", "6. On 29 April 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. 7. On 28 February 2003 and on 4 March 2003 the Government and the applicant respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 8.", "The applicant was born in 1939 and lives in Hozat district of Tunceli. A.Applicant’s version of the facts 9. On 7 October 1994 military units arrived in the applicant’s village of Kozluca. The security forces surrounded the village and set up a camp around the village. The Gendarme Commander of the village told the villagers to vacate their houses and to leave the village as the security forces were going to burn the houses.", "10. The villagers left the village and moved to Hozat, where the District Governor placed the applicant and his family in the municipal wedding hall. Other villagers were housed in tents. After they left their village the soldiers burned the houses. 11.", "On 14 November 1994 the applicant filed petitions with the Prime Minister’s office, the Tunceli Provincial Governor’s office, the State of Emergency Region Governor’s office and the Welfare and Housing Minister’s office, complaining about the destruction of his home and requesting housing under the provisions of Housing Law no. 2150. 12. On 12 January 1995 the Deputy Governor, wrote a letter in reply to the applicant, informing him that residences demolished as a result of terrorist raids do not come within the scope of the Law on Disasters (Law no. 7629 - 1051).", "For this reason, the applicant was not able to benefit from the Housing Law. 13. The applicant did not pursue any other domestic remedy. B. Government’s version of the facts 14. In 1994 security forces took action against PKK terrorists in the province of Tunceli.", "The PKK terrorists began to threaten and attack villages in order to meet their needs. As a result of the pressure exerted by the PKK, the inhabitants left their villages and fled to larger settlement areas. 15. The applicant left his village along with other villagers and moved to Hozat. The authorities there lodged him and his family in the wedding hall of the Hozat District Municipality.", "The applicant received financial aid between 1994 and 1996 for food, heating and health-related expenditure. 16. On an unspecified date the inhabitants of the Kozluca village lodged criminal complaints with the Chief Public Prosecutor’s office in Hozat. They complained that the security forces in the region had burned their houses. As the case concerned an investigation of acts allegedly committed by the security forces, the public prosecutor issued a decision of non-jurisdiction and referred the investigation file to the Hozat District Governor’s office in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).", "17. The Hozat District Governor decided to discontinue the investigation on the grounds that the villagers could not identify the perpetrators and the evidence contained in the investigation file led to the conclusion that the village had been burned by PKK terrorists. THE LAW 18. On 28 February 2003 the Court received the following declaration from the Government: “1. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of EUR 49,000 (forty nine thousand euros) with a view to securing a friendly settlement of his application registered under No 28292/95.", "This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros to a bank account named by the applicant and/or his duly authorised representative. This sum shall be payable within three months from the date of the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. 2. The Government regret the occurrence of individual cases of destruction of home, property and possessions resulting from the acts of agents of the State in south-east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, as in the case of the applicant, Hüseyin Ateş, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures.", "3. It is accepted that such acts and failures as claimed in the applicant’s case constitute a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 and, given the circumstances of the destruction and the emotional suffering entailed, of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the individual rights guaranteed by these Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of destruction of property in circumstances similar to those of the instant application and in more effective investigations being carried out.", "4. The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place. 5. Finally, the Government undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment.” 19.", "On 4 March 2003 the Court received the following declaration signed by the applicant’s representative: “1. I note that the Government of Turkey are prepared to pay me ex gratia the sum of EUR 49,000 (forty nine thousand euros) with a view to securing a friendly settlement of my application registered under no. 28292/95. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros to a bank account named by me. The sum shall be payable, free of any taxes which may be applicable, within three months from the date of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights.", "2. 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. 3. This declaration is made in the context of a friendly settlement which the Government and I have reached.", "4. I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgment.” 20. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 21.", "Accordingly, the case should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2. Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 22 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T. L. EarlyJ.-P. CostaDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF SOBOLEV AND OTHERS v. RUSSIA (Applicatiosn nos. 45057/06 and 6 others - see appended list) JUDGMENT STRASBOURG 9 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Sobolev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 19 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6.", "The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.", "9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.", "III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. Some applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.", "Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Yevdokimov and Others v. Russia (nos. 27236/05 and 10 others, §§ 49-53, 16 February 2017, regarding absence of an effective opportunity for detainees to attend hearings in their civil cases) and Yudayev v. Russia (no. 40258/03, § 81, 15 January 2009, concerning a lack of procedural guarantees during the examination of the detention matter in view of the applicant’s and/or his lawyer’s absence from the proceedings). IV. REMAINING COMPLAINTS 12.", "In applications nos. 45057/06 and 9663/10, the applicants also raised other complaints under various Articles of the Convention. 13. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications nos.", "45057/06 and 9663/10 must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.", "16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications nos.", "45057/06 and 9663/10 inadmissible; 3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 9 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 45057/06 15/06/2006 Sergey Aleksandrovich Sobolev 11/02/1960 19/04/2006 to 18/08/2006 4 month(s) Art. 5 (4) lack of procedural guarantees during the examination of a detention matter - neither the applicant nor his defence lawyer were present at the appeal hearing of 10/05/2006 held by the Krasnodar Regional Court concerning the applicant’s detention 1,300 9663/10 11/01/2010 Yevgeniy Dmitriyevich Zakharov 18/06/1977 21/07/2007 to 15/06/2010 2 year(s) and 10 month(s) and 26 day(s) 3,100 15191/10 11/02/2010 Aleksandr Aleksadnrovich Melnikov 01/01/1974 30/09/2009 to 05/04/2010 6 month(s) and 7 day(s) 1,000 72052/11 24/10/2011 Eres Saryg-Oolovich Badynam 18/12/1980 13/03/2011 to 14/06/2012 1 year(s) and 3 month(s) and 2 day(s) Art. 6 (1) - absence of detainees from civil proceedings - first-instance court hearings, in which the applicant was absent despite of his request to appear - Kyzyl Town Court of the Tyva Republic - 27/07/2011; Appeal hearings - the Supreme Court of the Tyva Republic - 06/12/2011 1,800 43052/16 11/07/2016 Andrey Gennadyevich Krasnov 24/05/1979 11/04/2016 to 28/12/2016 8 month(s) and 18 day(s) 1,000 56799/16 21/09/2016 Artem Dmitriyevich Mamotko 29/03/1984 Kondratyev Aleksey Borisovich Moscow 18/01/2013 pending More than 4 year(s) and 8 month(s) and 11 days 4,900 63096/16 21/10/2016 Radik Nailevich Khamidullin 29/01/1985 12/10/2013 to 30/06/2015 10/02/2016 pending 1 year(s) and 8 month(s) and 19 day(s) More than 1 year(s) and 7 month(s) and 19 day(s) 3,500 [1]. Plus any tax that may be chargeable to the applicants." ]
[ "SECOND SECTION CASE OF LYUTYKH v. UKRAINE (Application no. 22972/02) JUDGMENT STRASBOURG 13 September 2005 FINAL 13/12/2005 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 Lyutykh 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,MrM. Ugrekhelidze,MrsA. Mularoni,MsD. Jočienė,MrD. Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 25 August 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 22972/02) 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, Ms Valentina Aleksandrovna Lyutykh (“the applicant”), on 18 May 2002. 2. The applicant was represented by Ms T. Skiba, a lawyer practising in Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.", "3. On 9 September 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 1952 and currently resides in the town of Pervomayskiy, the Kharkiv region, Ukraine. 5. On 26 March 2001 the Pervomayskiy Town Court ordered the Khimprom State Enterprise to pay the applicant UAH 3,923.4 (around 640 euros –“ EUR”) in salary arrears. 6. In August 2001 the applicant instituted proceedings in the Pervomayskiy Town Court against the Pervomayskiy Bailiffs' Service for failure to enforce the judgment in her favour.", "On 7 September 2001 the court found against the applicant, finding no fault on the part of the Bailiffs. On 19 November 2001 and 10 April 2002, respectively, the Appellate Court of the Kharkiv Region and the Supreme Court of Ukraine upheld the decision of the first instance court. 7. The enforcement proceedings were suspended from 18 July 2001 until 10 September 2001 pending the proceedings against the Bailiffs' Service instituted by the applicant in the Pervomayskiy Town Court. 8.", "On 18 June 2001 the procedure for the forced sale of the debtor's assets was suspended due to the moratorium on the forced sale of property belonging to State enterprises introduced by the President. 9. The enforcement proceedings were also suspended from 4 September 2003 until 13 January 2004 pending the bankruptcy proceedings initiated against the debtor. 10. On 24 June 2004 the applicant was informed by a letter from the Bailiffs' Service that the judgment in her favour was not executed due to the substantial number of enforcement proceedings against the debtor and the latter's lack of funds.", "11. The judgment of 26 March 2001 remains unenforced. II. RELEVANT DOMESTIC LAW 12. 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 13. The applicant complained of an alleged failure by the State authorities to enforce the judgment of the Pervomayskiy Town Court of 26 March 2001 given in her favour. She 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.” A.", "The Government's preliminary objections 14. The Government submitted that the applicant is not a victim of a violation of Articles 6 § 1 and 13 of the Convention, as the length of the enforcement proceedings in the applicant's case had been caused by the critical financial situation of the debtor enterprise and the pending bankruptcy proceedings against it. The State authorities could not therefore be held responsible for this delay in the proceedings. The Government noted that the applicant had challenged the alleged omissions and inactivity of the Bailiffs before the domestic courts. The courts, however, found that the Bailiffs were not responsible for the delay in execution.", "15. The Court recalls that it has already dismissed such contentions in similar cases (see, for instance, Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003, and the judgment in the same case, §§ 30 – 37, 26 April 2005) and finds no reason to reach a different conclusion in the present case. Accordingly, it dismisses the Government's preliminary objections. B.", "Other complaints 16. The applicant further complained about a violation of Articles 3, 4 and 17 of the Convention on account of the non-enforcement of the judgment in her favour. 17. 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. C. Conclusion 18.", "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 complaint under Article 6 § 1 of the Convention 19. The Court notes that the judgment of the Pervomayskiy Town Court of 26 March 2001 remains unenforced for more than four years. 20. The Court recalls that it has frequently found violations of Articles 6 § 1 and 13 of the Convention in cases raising similar issues to the present application (see, for example, the aforementioned Sokur judgment, and the judgments in Voytenko v. Ukraine, no. 18966/02, §§ 43 and 48, 29 June 2004, and Romashov v. Ukraine, no.", "67534/01, § 46 and 47, 27 July 2004). 21. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that by delaying for the period of more than four years the enforcement of the judgment in the applicant's favour, the State authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. There has, accordingly, been a violation of Article 6 § 1 of the Convention.", "B. The applicant's complaint under Article 13 of the Convention 22. The Court refers to its findings (at paragraph 15 above) concerning the Government's argument regarding domestic remedies. For the same reasons, the Court finds 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 enforcement proceedings. Accordingly, there has also been a breach of this provision.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed UAH 20,000 (EUR 3,253.97) in respect of pecuniary damage.", "This amount included the judgment debt, EUR 640, and compensation for the delay in payment. The applicant further claimed EUR 1,500 in respect of non-pecuniary damage. 25. The Government maintained that the applicant had not substantiated the amounts claimed and submitted that the finding of a violation would constitute sufficient just satisfaction. 26.", "The Court notes that the applicant did not substantiate the whole amount claimed in respect of pecuniary damage. In so far as the applicant claimed the amount awarded to her by the judgment at issue, the Court notes that the State's outstanding obligation to enforce that judgment is not in dispute. Accordingly, the Court considers that, if the Government were to pay the debt owed to the applicant, it would constitute full and final settlement of the case. Therefore, the Court awards EUR 640 in respect of pecuniary damage. 27.", "As for non-pecuniary damage, the Court considers that the applicant has suffered distress as a result of the violations found which cannot be made good by the Court's mere finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the requested sum of EUR 1,500 in respect of non-pecuniary damage. B. Costs and expenses 28. The applicant also claimed UAH 750 (EUR 122.02) in relation to her representation, translation and postal expenses incurred both in the domestic and Convention proceedings.", "The Government did not comment on this specific point. Having regard to the information in its possession, the Court awards the applicant EUR 100 in respect of cost and expenses. C. Default interest 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY: 1.", "Declares the applicant's complaints under Articles 6 § 1 and 13 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 that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, 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 640 (six hundred and forty euros) in respect of pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage; (iii) EUR 100 (one 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; 5. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 13 September 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]
[ "FIFTH SECTION CASE OF PALCHIK v. UKRAINE (Application no. 16980/06) JUDGMENT STRASBOURG 2 March 2017 FINAL 03/07/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Palchik 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,Yonko Grozev,Síofra O’Leary,Carlo Ranzoni, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 31 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "16980/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Alekseyevich Palchik (“the applicant”), on 27 March 2006. 2. The applicant was represented by Mr S. Shpilyov, a lawyer practising in Kostyantynivka, the Donetsk Region. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna. 3.", "On 11 January 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and is currently residing in Kostyantynivka. Before his arrest the applicant was the managing director of a private company, A.", "5. A. concluded a contract with E., a Russian company, undertaking to export a certain amount of ferromanganese to Russia. 6. During the period from March 2000 to April 2001 the applicant, in his capacity as the director of A., concluded contracts with four Ukrainian companies, F., T., M. and Sh. (“the seller companies”) According to those contracts A. would buy the goods from the companies and pay them sums which included value added tax (VAT).", "7. On a number of occasions between March 2000 and April 2001 A. exported ferromanganese to Russia, delivered it to E. and received payment for it. Subsequently, A. claimed and, in April 2002, received from the Ukrainian authorities a refund of the VAT mentioned in the contracts with the seller companies. 8. In 2002 criminal proceedings were instituted against the applicant.", "According to the investigating authorities, the contracts which A. had concluded with the four seller companies were fictitious and had been concluded for the sole purpose of obtaining export VAT refunds. In fact those companies had not sold ferromanganese to A. Instead, the applicant and his co-defendants had bought the ferromanganese from private persons, without concluding any contracts with them and without paying VAT on those transactions. The applicant had then forged certificates of quality and fraudulently obtained certificates of origin for the goods. Using all the above documents, A. had exported the goods to Russia.", "He had then obtained or applied for VAT refunds based on the fictitious documents. 9. The applicant stated that the contracts had not been fictitious and the certificates had not been forged. A. had legally bought ferromanganese from the private companies, exported it to Russia and received tax refunds. 10.", "During the pre-trial investigation, the investigating authorities questioned managers of the four seller companies and the owner of a lorry which had been used for transporting the goods. They made certain statements the domestic courts subsequently found to be incriminating. In particular, managers of the four seller companies said that the contracts had been either forged or fictitious and that no actual shipments of the goods had taken place. Some of the managers repeated those statements in the course of confrontations with the applicant conducted in the course of the pre-trial investigation. Detailed information about the statements of the witnesses and confrontations can be found in the Table set out in paragraph 17 below.", "11. On an unspecified date the investigation was completed and the case was referred to the Kostyantynivka Court for trial. 12. On at least five occasions between 28 November 2003 and 27 August 2004 the court ordered the Donetsk regional police to bring the witnesses listed in the Table below to court hearings, but the police failed to do so for various reasons. 13.", "On 27 August 2004 the police informed the court, in response to its latest order to bring the witnesses to court, that S., K. and R. (see Elements 1-3 in the Table below) were away from Donetsk on holiday. 14. At the court hearing held on the same day the prosecutor, in the light of the above-mentioned information from the police, asked the court to read out the pre-trial statements of the witnesses who had failed to appear, including all those listed in the Table below. The defence did not object and the statements were read out. The court then proceeded to examine the documents in the file.", "15. On 29 September 2004 the applicant’s lawyer requested the court to summon S., K. and R. again (see Elements 1-3 in the Table below), because the examination of documents had revealed inconsistencies in their pre-trial statements and because the reasons for their failure to appear had not been established. The trial court refused the request on the grounds that the statements of those witnesses had already been read out at the trial. 16. On 24 December 2004 the court found the applicant guilty of smuggling (export of ferromanganese based on forged documents), misappropriation accompanied by abuse of office (receipt of tax refunds on the basis of fictitious and forged documents), abuse of office, and forgery of documents.", "For the charge of misappropriation accompanied by abuse of office the applicant was sentenced under the Criminal Code of 2001 to seven years and six months’ imprisonment with a ban on holding managerial positions for two years. He was also sentenced to various other more lenient punishments under the Criminal Code of 2001, but the court held that the most severe of the applicant’s punishments absorbed the more lenient ones. The final sentence was thus seven years and six months of imprisonment with a ban on holding managerial positions for two years. 17. In convicting the applicant the court relied, in particular, on the statements of a number of witnesses given during the pre-trial investigation, as shown in the below Table: Table.", "Witness evidence Element of the applicant company’s operations to which witness evidence related Witnesses, their status and the tenor of their evidence Corroborating evidence, if any, in respect of the relevant element of the applicant’s operations Was a confrontation conducted during the investigation? Did the applicant insist that the witness be called and examined (paragraphs 14 and 15 above) Element 1. Operations with company Sh. S., director: contract was forged None since company Sh. had been wound up and its documentation destroyed Confrontation conducted.", "Insisted on examination Element 2. Operations with company T. K., director: contract was fictitious The company which was supposed to supply the goods to company T. was deemed by the tax authorities to be fictitious Confrontation conducted. Insisted on examination Element 3. Operations with company М. R., director: contract was fictitious The modus operandi used with company M. was the same as that for other companies. No other corroboration since company M. had been wound up No confrontation conducted.", "Insisted on examination Element 4. Operations with company F. N., deputy director: contract was fictitious The company which was supposed to supply the goods to company F. was deemed by the tax authorities to be fictitious Confrontation conducted. Did not insist on examination P., director: confirmed N.’s statement No confrontation conducted. Did not insist on examination Element 5. Transportation of the goods Zh., owner of a lorry – the lorry was lent to one of the applicant’s co-defendants Not relevant No confrontation conducted.", "Did not insist on examination 18. The trial court also relied on certain inconsistencies between the official records of the applicant’s company and the shadow accounting records discovered by the authorities. 19. The applicant and his lawyer appealed. They stated, inter alia, that the trial court had relied on the evidence of witnesses who had not been examined at the trial and that he should have been tried for smuggling under the Criminal Code of 1960.", "20. On 4 March 2005 the Donetsk Regional Court of Appeal held that the applicant should be deemed to have been convicted for smuggling under the Criminal Code of 1960 instead of the Criminal Code of 2001. Otherwise, the Court of Appeal upheld the findings of the first-instance court and the applicant’s sentence. 21. According to the applicant, the appellate court did not give him a copy of the decision of 4 March 2005, despite his numerous requests.", "22. In March 2005 the applicant’s lawyer appealed on points of law to the Supreme Court against the decisions of 24 December 2004 and 4 March 2005 and enclosed copies of those decisions with her appeal. In May, June and August 2005 the applicant lodged his own appeals with the Supreme Court, stating, inter alia, that the trial court had relied on evidence of witnesses who had not been examined at the trial. The applicant also stated that he should have been tried for misappropriation, abuse of office and forgery under the Criminal Code of 1960, rather than the Code of 2001, but did not provide any details. 23.", "On 6 September 2005 the Supreme Court heard the case in the presence of the prosecutor but in the absence of the applicant and his lawyer, who were not informed of the date and time of the hearing. The Supreme Court dismissed the appeals lodged by the applicant and his lawyer, stating that the lower courts’ findings had been based on a substantial amount of evidence, in particular the statements of the directors of the seller companies made at the investigation stage. 24. On 15 May 2009 the applicant was released from detention following a presidential pardon. II.", "RELEVANT DOMESTIC LAW 25. The relevant provisions of the Code of Criminal Procedure of 1960 governing the review of criminal cases in proceedings before the Supreme Court and the summoning of witnesses at the material time can be found in Zhuk v. Ukraine (no. 45783/05, §§ 18-20, 21 October 2010), and Karpyuk and Others v. Ukraine (nos. 30582/04 and 32152/04, §§ 77-80, 6 October 2015) respectively. The relevant provisions of domestic law governing the reopening of criminal proceedings can be found in Zakshevskiy v. Ukraine, no.", "7193/04, §§ 50 and 51, 17 March 2016). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 26. The applicant complained of a number of violations of Article 6 of the Convention, which reads, in so far as relevant, 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; ...” A. The parties’ submissions 27. The applicant submitted that there had been a violation of Article 6 of the Convention in that the Supreme Court had examined his appeal on points of law in his and his lawyers’ absence, having failed to summon them to the hearing. 28. The applicant further submitted that there had been a violation of Article 6 § 3 (d) of the Convention in that witnesses listed in the Table above, whose statements had been used for the applicant’s conviction, had not been examined at the trial and that five others witnesses had not been called.", "29. The Government submitted that the higher courts had upheld the lower courts’ decisions in the applicant’s case and that there had been no violation of Article 6 §§ 1 and 3 of the Convention. B. The Court’s assessment 1. Alleged violation of Article 6 of the Convention in the proceedings before the Supreme Court (a) Admissibility 30.", "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 31. The Court has previously found violations in similar cases against Ukraine (see Zhuk, cited above, §§ 29-35; Korobov v. Ukraine, no.", "39598/03, § 92, 21 July 2011; and Kuzmina v. Ukraine, no. 11984/06, §§ 14-16, 16 June 2016). It considered that the prosecutor had had the advantage of being present at the hearings before the Supreme Court and, unlike the defendant, had been able to make oral submissions, which were intended to influence the court’s opinion. The Court concluded that procedural fairness required that the applicants should also have been given an opportunity to make oral submissions in reply. 32.", "Having regard to the circumstances of the present case, the Court sees no reason to reach a different conclusion and finds that the principle of equality of arms has not been respected in the present case. 33. Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine. 2. Alleged violation of Article 6 § 3 (d) 34.", "The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision (see Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011); it will therefore consider the applicant’s complaint under both provisions taken together (see Windisch v. Austria, 27 September 1990, § 23, Series A no. 186, and Lüdi v. Switzerland, 15 June 1992, § 43, Series A no. 238). 35.", "The Court formulated the general principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence in Al-Khawaja and Tahery, cited above, and Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015), and applied them recently in Paić v. Croatia (no. 47082/12, §§ 27-31, 29 March 2016). (a) Admissibility (i) Witnesses P., N. and Zh. 36.", "As to witnesses N., P. and Zh. (see Elements 4 and 5 in the Table above), neither the applicant nor his lawyer objected to their statements being read out at the trial (see paragraph 14 above). Thereafter, unlike for witnesses S., K. and R. (see Elements 1-3 in the Table above) the defence did not reiterate their request that N., P. and Zh. be summoned (see paragraph 15 above). As to the proceedings on appeal, there is no indication that the applicant specifically requested the Court of Appeal to summon those witnesses at the appeal stage (contrast Gabrielyan v. Armenia, no.", "8088/05, § 85, 10 April 2012), even though the Court of Appeal had the power to do so (see Karpyuk and Others v. Ukraine, nos. 30582/04 and 32152/04, § 139, 6 October 2015). The applicant, therefore, must be deemed to have waived his right to examine N., P. and Zh. at the trial (compare Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07, 32786/10 and 34278/10, § 87, 12 May 2016).", "(ii) Other witnesses 37. The applicant also submits that the domestic court failed to examine five other witnesses (Ko., N.A., N.E., Sho. and V.). However, he has failed to specify why it could have been important for the courts to examine them and what questions he wished to put to them. There is nothing in the material before it to allow the Court to elucidate that question.", "(iii) Conclusion as to admissibility 38. It follows that the applicant’s complaint concerning the failure to examine witnesses N., P. and Zh. and Ko., N.A., N.E., Sho., V. at the trial is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 39. At the same time, the Court considers that the applicant’s complaint under Article 6 §§ 1 and 3 (d) in respect of witnesses S., K. and R. (see Elements 1-3 in the Table above) is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) Whether there was a good reason for the non-attendance of the witnesses 40. The case file shows that the trial court went to considerable lengths to summon S., K. and R. (hereinafter “the witnesses”). They attempted to summon them and ordered the police to bring them to the hearings on at least five occasions between November 2003 and August 2004 (see paragraph 12 above), but were unsuccessful in their efforts.", "However, the Court is struck by the reasons given by the police for their failure to comply with the trial court’s latest order, on 27 August 2004. The police reported to the court that at the time the witnesses were on holiday outside the region covered by the relevant police department (see paragraph 13 above). 41. The fact that the police were able to obtain such information not only demonstrated that the witnesses’ actual addresses were known to the authorities but also implied that they would be absent for a short time only. Moreover, the contents of the police report give the impression that the relevant police department limited its search for the witnesses merely to the finding that they were, for a short period of time, outside of that particular department’s territorial jurisdiction.", "In such circumstances, it is unclear why the trial court failed to follow up the matter. It is true that at the hearing of 27 August 2004 the defence did not object to those witnesses’ statements being read out. However, at the hearing of 29 September 2004, in the light of the documentary evidence examined, the defence pointed out that the reason for their absence had not been established and asked that they be called again. In rejecting that request, the domestic court limited itself to stating that their statements had already been read out (see paragraph 15 above and compare Kostecki v. Poland, no. 14932/09, § 65, 4 June 2013).", "It does not appear, therefore, that the trial court subjected the reasons given for the non-appearance of the witnesses to careful scrutiny (see Schatschaschwili, cited above, § 122). 42. In those circumstances, the Court finds that no good reason was convincingly shown for the non-attendance of the witnesses. 43. However, the absence of a good reason is not the end of the matter.", "This is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations (see Schatschaschwili, cited above, § 113, and Constantinides v. Greece, no. 76438/12, §§ 40 and 52, 6 October 2016, not yet final as of the time of writing). (ii) Whether the evidence of the witnesses was the sole or a decisive basis for the conviction 44. The three witnesses (S., K. and R.) were managing directors of the three out four of the seller companies the applicant dealt with in purchasing, according to the domestic findings fictitiously, the goods for subsequent export. 45.", "The crux of the domestic courts’ findings was that the nature of the relationship between the applicant’s company and those of the witnesses had been fictitious. In reaching that finding they relied heavily on the witnesses’ statements. It is revealing that in affirming the applicant’s conviction and briefly summarising the evidence against him, the Supreme Court first named the statements of the directors of the seller companies (see paragraph 23 above). 46. Therefore, the Court is satisfied that witnesses’ statements were “decisive” for the applicant’s conviction in respect of his company’s operations with the companies of which the witnesses were directors.", "(iii) Whether there were sufficient counterbalancing factors to compensate for the handicap under which the defence laboured 47. The Court first notes that it perceives only three potential counterbalancing factors in the proceedings (see ibid., §§ 126-30, for a discussion of possible counterbalancing factors): (i) the opportunity, which the applicant enjoyed in the course of the domestic proceedings, to give his own version of the events and to cast doubt on the credibility of the absent witnesses and point out any incoherence in their statements; (ii) the availability of further corroborative evidence; (iii) the fact that the applicant participated in confrontations with S. and K. in the course of the pre-trial investigation. This could provide another counterbalancing factor in respect of those witnesses. 48. As to the first factor, the Court has held in some cases that such an opportunity to challenge and rebut the absent witnesses’ statements could not, of itself, be regarded a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured (compare Trampevski v. the former Yugoslav Republic of Macedonia, no.", "4570/07, § 49, 10 July 2012, and Riahi v. Belgium, no. 65400/10, § 41, 14 June 2016). The Court finds that this was also the case here and the impact of this factor on the overall fairness of proceedings depends on whether other factors sufficiently complemented it. 49. As to the second factor, the Court observes that a general corroboration that the applicant’s operations were fictitious came from contradictions between the official and the shadow accounting kept by the defendants (see paragraph 18 above).", "They appeared to corroborate, at least indirectly, the statements of all three of the witnesses. As to S. and R., the only other element of corroboration of their statements came from the fact that the applicant and his co-defendants used the same modus operandi with all four companies with which they dealt. In its case-law the Court has recognised that where there are strong similarities between the absent witness’s description of the alleged offence and the description given by another witness with whom there was no evidence of collusion, of a comparable offence by the same defendant, this constitutes an important corroborative factor. However, such corroboration is necessarily less weighty where that other witness himself did not testify at the trial (see Schatschaschwili, cited above, § 128). As to K., his pre-trial statement was further corroborated by the fact that the company which was supposed, according to the contract, to supply the goods to K.’s company for further sale to the applicant was itself considered by the tax authorities to be a fictitious business (see Element 2 in the Table above).", "50. As to the third factor, which concerns witnesses S. and K. only, that is the confrontations between them and the applicant in the course of the pre-trial investigation, the Court has held that the ability to confront a witness for the prosecution at the investigation stage is an important procedural safeguard which can compensate for the handicaps faced by the defence on account of absence of such a witness from the trial (see Schatschaschwili, cited above, § 130; Chmura v. Poland, no. 18475/05, §§ 56 and 57, 3 April 2012; Aigner v. Austria, no. 28328/03, §§ 41-46, 10 May 2012; and Gani v. Spain, no. 61800/08, §§ 48-50, 19 February 2013).", "The applicant did not allege that, in the course of those confrontations, defence did not have an opportunity to put questions to those witnesses or that his rights had been restricted in other ways (contrast, for example, Nechto v. Russia, no. 24893/05, § 123, 24 January 2012). In such circumstances the Court must conclude that the applicant had an opportunity to confront S. and K. in the course of the investigation. (iv) Overall fairness assessment 51. Assessing the proceedings overall, the Court considers that the opportunity the applicant had to put questions to S. and K. in the course of the investigation, combined with the availability of some corroborating evidence, and the possibility he had to challenge and rebut the absent witnesses’ statements in adversarial proceedings before domestic courts at three levels of jurisdiction, provided adequate counterbalancing factors which compensated for the handicap under which the defence laboured on account of S. and K.’s absence from the trial.", "Those factors, in particular the pre-trial confrontations, persuade the Court that the fairness of proceedings was not undermined despite the absence of a convincingly established good reason for those two witnesses’ absence. However, as far as R. is concerned, the applicant did not have an opportunity to put questions to him at any stage in the proceedings and the Court considers that the other factors examined above did not compensate for the handicap under which the defence laboured on account of R.’s absence from the trial. This undermined the fairness of the proceedings against the applicant as far as they concerned the operations between his company and R,’s company. 52. The Court finds, therefore, that: (i) there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of the statements of S. and K. as evidence; (ii) there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of the untested statement of R. as evidence.", "3. Other alleged violations of Article 6 53. The applicant complained that the proceedings against him had been unfair in that the domestic courts had refused his requests for forensic examinations and had not examined all the relevant documents. 54. The Court reiterates that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, in respect of the decisions taken by domestic courts.", "It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, the domestic courts are best placed to assess the relevance of evidence to the issues in the case (see, amongst many authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B, and Dulskiy v. Ukraine, no. 61679/00, § 93, 1 June 2006). 55.", "The Court notes that there is no proof that the applicant lodged any requests for forensic examinations or that the courts did not examine any documents which were important for consideration of the case. 56. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 57.", "The applicant complained of a violation of 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.” 58. The applicant complained under Article 34 that for a considerable period of time he could not receive the appellate court’s decision of 4 March 2005. He admitted that his lawyer had been provided with a copy of that decision. 59.", "The Government stated that the applicant’s lawyer had been given a copy of the decision. Moreover, the applicant and his lawyer had had access to the case file. 60. The Court notes that it has not been disputed by the parties that the applicant’s lawyer was given a copy of the Court of Appeal’s decision of 4 March 2005 and that in April 2005 she enclosed it with her appeal on points of law to the Supreme Court. There is no reason to believe that the applicant could not have asked the lawyer to provide him with a copy of that decision.", "61. In such circumstances, the Court cannot conclude that the State has failed to fulfil its obligation under Article 34 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 62. Under Article 7 of the Convention the applicant complained that his conviction for misappropriation, abuse of office and forgery had been based on the provisions of the Criminal Code of 2001, which entered into force after he had committed the actions for which he had been convicted.", "However, the applicant did not specify in his submissions either before the Supreme Court or before this Court under which provisions of the old Code he should have been sentenced and why he believed them to be applicable and more favourable to him. It is not for the Court to speculate as to which provisions should have been applied without the benefit of the applicant’s specific submissions on this point at any level and, as a consequence, without the benefit of the domestic courts’ analysis on this issue. Accordingly, this complaint is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 63. Lastly, the applicant also complained of a violation of Article 1 of Protocol No.", "1, stating that as a result of his criminal prosecution, his company had been ruined. He also referred to Article 17 of the Convention. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 300,000 Ukrainian hryvnias (UAH) in respect of pecuniary damage and 3,000,000 euros (EUR) in respect of non‑pecuniary damage. 66.", "The Government did not comment on the applicant’s claims. 67. 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, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage. B.", "Costs and expenses 68. The applicant also claimed UAH 75,000 for legal fees incurred before the Court. 69. The Government did not comment on the applicant’s claims. 70.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600 for the proceedings before the Court. C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints under Article 6 § 1 of the Convention concerning the observance of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine and under Article 6 §§ 1 and 3 (d) of the Convention concerning the admission of S., K. and R.’s statements as evidence 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 breach of the principle of equality of arms in the proceedings before the Supreme Court of Ukraine; 3. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of the statements of S. and K. as evidence; 4. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the admission of the untested statement of R. as evidence; 5. Holds that the respondent State has not failed to fulfil its obligation under Article 34 of the Convention; 6.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 600 (six 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF LASKA AND LIKA v. ALBANIA (Applications nos. 12315/04 and 17605/04) JUDGMENT STRASBOURG 20 April 2010 FINAL 20/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Laska and Lika v. Albania, 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 Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2010 and on 23 March 2010, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in two applications (nos.", "12315/04 and 17605/04) 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 two Albanian nationals, Mr Vladimir Laska and Mr Artur Lika (“the applicants”), on 8 March 2004. 2. The applicants were represented by Mr A. Dobrushi of the European Roma Rights Centre and were later co-represented by the Albanian Helsinki Committee. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Meneri, and, following the submission of their comments on the applicants' claim for just satisfaction, by their Agent, Mrs E. Hajro. 3.", "The applicants complained under Article 3 of the Convention that they were subjected to ill-treatment during police questioning in order to force them to confess to the alleged offences. They also relied on Article 6 § 1 of the Convention to complain about the unfairness of the proceedings. 4. On 10 October 2007 the Vice-President of the Section to which the case was allocated 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 applications at the same time as their admissibility.", "5. The applicants and the Government each submitted further written observations (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were both born in 1980 and are currently serving prison sentences in Burrel Prison, Albania.", "A. The applicants' arrest 7. On 31 March 2001, at dawn, three persons wearing blue and white balaclavas robbed a minibus on the line between Tirana and Kukës. The aggressors were armed with two Kalashnikovs and a knife. Having taken the passengers' money and jewellery, they left the scene without causing casualties.", "8. Some hours after the event, the police searched houses near the scene of the crime, including that of Mr Lika (“the second applicant”), where he was having lunch with his father, his brother, B.L., and his friend, Mr Laska (“the first applicant”). 9. The police officers conducted the said search in the absence of the applicants' lawyer. 10.", "According to the police report of the search, the police found in the pocket of the first applicant's jacket two white T-shirts and a blue cloth, made into balaclavas. Moreover, near the house they found some grenades, but failed to find the stolen goods or the weapons that had been in the possession of the aggressors. 11. The applicants, B.L, and the father were escorted to the police station for questioning. The first applicant requested, but was refused, the presence of his lawyer (H.B).", "He disputed having had in his possession a balaclava or other form of mask and accused the police of manipulating the evidence. 12. On the same day, the police officers in charge of the investigation proceeded to the identification of persons and items by the victims of the robbery, pursuant to Articles 171 and 172 of the Code of Criminal Procedure (“CCP”). The applicants' lawyer was not present. 13.", "As to the identification of persons, the applicants and B.L., wearing blue and white home-made balaclavas, and two other persons, wearing black balaclavas, were put in a row in the same room in order to be identified. Notwithstanding the fact that the police changed the position of the persons in the room, the victims consistently identified the persons wearing blue and white balaclavas as the aggressors, that is to say the applicants and B.L.. 14. As to the identification of objects, the victims were asked to identify the balaclavas used by the aggressors, choosing among two black balaclavas, two white balaclavas and a blue one. The victims identified the white and blue balaclavas as those worn by the aggressors. 15.", "At 9.30 p.m. on the same day the applicants and B.L. were arrested on suspicion of armed robbery. They were questioned by the police in the absence of a lawyer, notwithstanding the fact that B.L. was a minor at the time and that the applicants had explicitly requested a lawyer to be present. The first applicant accepted that he had in his possession a white T-shirt, transformed by F.N, a police officer in charge of the investigations, into a home-made balaclava.", "The second applicant stated that the white T-shirt which had been found in the possession of the first applicant was not his. 16. On 2 April 2001 the applicants and B.L. were charged with one count of armed robbery and one count of illegal possession of arms. On the same day they were questioned by the prosecutor.", "The first applicant asked to be represented by H.B. The second applicant sought to be defended by counsel. B. Criminal proceedings against the applicants 17. On 29 June 2001 the General Prosecutor's Office (GPO) requested to inspect the criminal investigation file in respect of the second applicant.", "On 10 September 2001 the GPO consented to the case being committed to trial. 18. On 11 September 2001, the prosecutor committed the applicants and B.L. to trial on charges of armed robbery and illegal possession of weapons. 19.", "During the hearing of 26 November 2001 before the Puke District Court, (“the District Court”), the applicants contested the charges against them and requested the domestic court to declare null and void the identification carried out by the police of persons and objects, as it had been in breach of the relevant provisions of the CCP. Moreover, they accused the police officers in charge of the investigation of manipulating the evidence against them: the applicants therefore requested the court to summon the police officers as witnesses and to produce at the trial the items considered by the police to be balaclavas, but which were, in their view, simple T-shirts. The applicants requested the domestic court to exclude the illegal evidence against them. As to the charge of illegal possession of arms, the applicants maintained that the investigation had failed to find the weapons used by the offenders during the robbery and it had not been proved that the grenades found had been in their possession. Both applicants were represented by the same counsel, P.Gj.", "20. On 24 May 2002 the District Court dismissed the applicants' request to summon the police officers as witnesses, without giving reasons. Notwithstanding the fact that the court noticed certain irregularities during the investigation stage (such as the absence of a lawyer during the applicants' questioning and during the identification of persons and objects), the court found the applicants guilty of armed robbery on the basis of the eyewitnesses' identification of the applicants as the offenders. Moreover, the court found the applicants guilty of illegal possession of two Kalashnikovs and B.L guilty of possession of a knife. No weapons having been found, the applicants' conviction was based on eyewitness statements.", "The court sentenced the applicants to thirteen years' imprisonment and B.L. to five years' imprisonment. The applicants were ordered to serve their sentences in a high-security prison. 21. On 29 May 2002 the applicants appealed to the Shkoder Court of Appeal, (“the Court of Appeal”), on the grounds that the District Court's judgment was the result of unfair proceedings.", "They argued that the identification had been conducted in flagrant breach of Articles 171-175 of the CCP as they had worn the same balaclavas during the identification parade. Their lawyers' request about the nullity of the acts concerning identification had been rejected by the trial court. They also stated that none of the material evidence (balaclavas), as requested by themselves, had been produced at the trial proceedings. Moreover, the authorities had failed to find the money and the weapons that had been used in the robbery. 22.", "On 9 September 2002, the Court of Appeal upheld the District Court's judgment. 23. On 7 October 2002 the applicants appealed to the Supreme Court. They relied on the same grounds of appeal as before the Court of Appeal. They also alleged that both of them had been represented by the same counsel before the lower courts, at a time when there were inconsistencies in their testimonies given during the criminal investigation.", "24. On 26 December 2002 the Supreme Court declared the appeal inadmissible as its grounds fell outside the scope of Article 432 of the CCP. 25. On an unspecified date the first applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He relied on the same grounds as raised before the Court of Appeal and the Supreme Court.", "26. On 17 September 2004 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaints did not raise any fair trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts. C. Allegation of ill-treatment at the hands of the police 27. The applicants alleged that they had been ill-treated by F.N.", "and other police officers during police questioning. They alleged that they had been tied up with ropes, beaten and hosed with cold water during the interrogations. 28. At the hearings of 26 November 2001 before the District Court, the applicants alleged that they had been ill-treated by the police officers in charge of the investigation, in that the latter had attempted to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used. B.L and the applicants gave the same description of the alleged ill-treatment.", "29. On 24 May 2002 the District Court rejected the applicants' requests on the ground that they had been submitted outside the six-month time-limit. No legal basis was mentioned in the judgment. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.", "Relevant domestic law and practice 1. Code of Criminal Procedure 30. The Albanian Code of Criminal Procedure (“CCP”) in its relevant parts reads as follows: Article 171: Identification of persons 1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must do the identification to describe the person (to be identified), relating all the signs he/she remembers and that person is asked whether he/she has been previously summoned to do the identification and about other circumstances, which may contribute to the accuracy of the identification. 2.", "Actions provided for by paragraph 1 and statements made by the person who does the identification are entered in the records. 3. Non-compliance with the provisions of paragraphs 1 and 2 is a cause for the invalidity of the identification. Article 172: Performing identification 1. The proceeding authority, after taking away the person who will do the identification, ensures the presence of at least two persons, looking as alike as possible, to the person to be identified.", "It invites the latter to choose his/her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he/she would have been seen by the person called to do the identification. After the person who will do the identification appears, the court asks the latter whether he/she knows anyone among those presented for identification, and if yes, to point out the person he/she knows and to specify whether he/she is sure. 2. When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified, the proceeding authority orders the act to be performed without the latter seeing the former. 3.", "The records must describe how the identification was performed. Failure to do so invalidates the identification. The proceeding authority may order, for records purposes, that the performance of the identification be photographed or filmed. Article 173: Identification of items 1. When the identification of material evidence or other items relevant to the criminal offence must be performed, the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable.", "2. After finding, when possible, at least two similar items to the one to be identified, the proceeding authority asks the person called to identify whether he/she recognises any of them and, if the answer is yes, invites him/her to state which of them he/she recognised and to specify whether he/she is sure. 3. The records must describe how the identification was performed. Failure to do so invalidates the identification.", "Article 175: Identification of or by several persons 1. When several persons are called to do the identification of the same person or item, the proceeding authority performs it one by one separately, prohibiting any communication between the one who has done the identification and those who will do it subsequently. 2. When a person must identify several persons or items, the proceeding authority orders the person or item to be identified to be placed among different persons or items. 3.", "The provisions of Articles 171, 172 and 173 of the CCP are applicable. Article 205: Search of premises 1. The defendant, when present, and the person in possession of the premises subject to the search, is handed a copy of the search order, informing them of the right to request the presence of a person they rely on. 2. When the persons stipulated in paragraph 1 are absent, a copy of the order is handed over to a relative, neighbour or to a colleague.", "3. The proceeding authority may search the persons present when it judges that they may conceal material evidence or items relating to the criminal offence. It may order that the persons present may not leave prior to the conclusion of the search and may use force to retain those who leave. Article 256: The questioning of the arrested or the detained The prosecutor questions the arrested or the detained person in the presence of the chosen or appointed lawyer. He shall notify the arrested or the detained person of the facts for which he is being prosecuted and of the reasons for the interrogation, making known the information available about the charge and, when the investigation would not be impaired, even the sources.", "Article 380: Evidence used by the court In taking a decision the court shall not make use of evidence other than that obtained or confirmed during the trial. 31. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453).", "Supreme Court Joint Benches' judgment no. 6 of 11 October 2002 32. In an effort to harmonise the legal practice, the Supreme Court Joint Benches examined the institution of judicial review in its judgmentno. 6 of 11 October 2002. The relevant parts of the judgment read: “(...) It is acknowledged that the review of final judgments is an extraordinary remedy, the only one, that has been envisaged by the lawmaker in the CCP in order to put right any judicial mistakes (in respect of final court judgments).", "The trial that occurs, as a result of the review [proceedings], is not limited to a mere review (in the strictest sense of the word) of the previous trial. In its conclusion, the court, having examined the facts, circumstances and evidence submitted by the parties, taken together and in concert with the evidence, circumstances and facts administered and examined during the previous trial, can reach a different outcome, going as far as delivering a judgment in total contradiction to the previous one. (...) This is the reason why the lawmaker allowed for a review in strictly defined instances, which have been explicitly laid down in a special provision of the CCP, notably in Article 450 (...). According to this provision, the review can be sought by the parties only if there exists one of the requirements explicitly provided therein.” B. Relevant international law 1.", "Recommendation No. R (2000) 2 of the Committee of Ministers of the Council of Europe to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights 33. On 19 January 2000, at the 694th meeting of the Ministers' Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter \"the Convention\"); Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms (\"the Convention\") the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (\"the Court\") in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum; I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum; II.", "Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” 34. The explanatory memorandum on Recommendation R (2000) 2 provides, in so far as relevant, that: “... Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...” 2. Obligations on States under general international law 35.", "Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows: Article 35: Restitution “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.” THE LAW 36. The applicants complained under Article 3 of the Convention that they were subjected to ill-treatment during police questioning in order to force them to confess to the alleged offences. Article 3 of the Convention reads as follows: ““No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 37. They also complained about the unfairness of the proceedings against them under Article 6 § 1 of the Convention.", "Article 6 § 1 of the Convention, in so far as relevant, reads: ““In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” I. JOINDER OF THE APPLICATIONS 38. Given that the two applications concern the same facts, complaints and domestic courts' proceedings, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ADMISSIBILITY OF THE COMPLAINTS A. The complaint about the alleged ill-treatment by police officers 39.", "The Government submitted that the applicants had not reported their allegations about ill-treatment to the authorities during the criminal investigation. Nor had they voiced this complaint in their appeals to the Court of Appeal or the Supreme Court. 40. The applicants maintained that, in the circumstances of the case, a mere reference to non-exhaustion cannot absolve the Government from its obligations under the Convention or be invoked as a credible argument before this Court. 41.", "The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24). The complaints should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). 42.", "The Court observes that on 24 May 2002 the District Court rejected the applicants' complaint about the alleged ill-treatment as being time-barred. It transpires from the case file that the applicants did not appeal against that decision. Nor did they raise this complaint, at least in substance, in their appeals to the Court of Appeal and the Supreme Court. The Court concludes that the applicants failed to exhaust domestic remedies offered by the domestic legal system. It therefore rejects the applicants' complaint in accordance with Article 35 §§ 1 and 4 of the Convention.", "a. As regards the second applicant's failure to lodge a constitutional appeal 43. The Government submitted that the second applicant had not appealed to the Constitutional Court in relation to his complaint concerning the unfairness of the proceedings. They requested the Court to declare his complaint inadmissible for non-exhaustion of domestic remedies. 44.", "The second applicant submitted that there was no reasonable prospect of success before the Constitutional Court given the fact that the first applicant's appeal had been dismissed. 45. The Court observes that under Article 35 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI). 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 (see Kleyn and Others v. the Netherlands [GC], nos.", "39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003‑VI). 46. The Court notes that the first applicant lodged a complaint with the Constitutional Court. He relied on the same grounds of appeal as lodged with the Court of Appeal and the Supreme Court by both applicants. The first applicant's complaint was declared inadmissible by the Constitutional Court (see paragraphs 25–26 above).", "47. Having regard to the fate of the first applicant's appeal to the Constitutional Court, the Court considers that any appeal filed by the second applicant with the Constitutional Court, who would have relied on the same grounds of appeals as raised by the first applicant, would have had little or virtually no reasonable prospects of success. The complaint of the second applicant cannot therefore be rejected for failure to lodge it with the Constitutional Court within the meaning of Article 35 § 1 of the Convention. 48. The Court therefore dismisses the Government's objection.", "b. As regards the possibility for the applicants to seek a review of their final judgment 49. In their further comments on the applicants' observations, the Government submitted a GPO's letter of 16 April 2008 stating that “following verifications of the [applicants'] criminal investigation file, procedural irregularities were observed in the conduct of some investigative actions.” The Government contended that the applicants should be required to seek a review of their final judgment in accordance with Article 450 of the CCP, in the light of the prosecutor's letter. 50. The Court reiterates that an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see also, Williams v. the United Kingdom (dec.), no.", "32567/06, 17 February 2009). 51. The Court notes that the review of a final court judgment pursuant to Article 450 of the CCP constitutes an extraordinary remedy (see paragraph 32 above). In these circumstances, the Court considers that the applicants are not required to exhaust this remedy. 52.", "Were the Government's submission to be interpreted to the effect that the applicants lacked “victim” status, the Court observes that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, for example, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case, the Government did not submit any declaration to acknowledge any breach of the Convention. Nor is the authorities' letter of 16 April 2008, for the reasons mentioned in the preceding paragraphs, capable of affording the necessary and required redress.", "53. The Court therefore dismisses the Government's objection. c. Conclusion 54. The Court considers that the applicants' complaints under Article 6 of the Convention raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring them inadmissible have been established.", "The Court therefore declares them 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. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The parties' submissions 55.", "The applicants reiterated their position that the procedure followed by the domestic courts constituted a denial of their right to a fair trial. They stated that the refusal of the courts to produce the evidence, on the basis of which they were convicted (balaclavas), was in breach of the domestic provisions. They also contested the regularity of the identification procedure that was used by the domestic authorities. 56. The Government submitted that the identification procedure had been conducted in accordance with the procedures prescribed by the law and that the domestic courts had properly assessed all evidence.", "1. The general principles applicable in this case 57. 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 the accused seeks to adduce. The Court must however determine whether the proceedings considered as a whole, including the way in which evidence was taken, were fair as required by Article 6 § 1 of the Convention (see Balliu v. Albania, no. 74727/01, § 42, 16 June 2005).", "58. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence (see Jasper v. the United Kingdom [GC], no. 27052/95, § 51, 16 February 2000). 59. The right to an adversarial trial means in principle the opportunity for the parties to a criminal trial to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the courts' decision (see Vermeulen v. Belgium, 20 February 1996, § 33, Reports of Judgments and Decisions 1996‑I).", "60. The principle of equality of arms requires “a fair balance between the parties”, each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Batsanina v. Russia, no. 3932/02, § 22, 26 May 2009). 61. In addition to being specifically mentioned in Article 6 § 2 of the Convention, a person's right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her forms part of the general notion of a fair hearing under Article 6 § 1 (see Phillips v. the United Kingdom, no.", "41087/98, § 40, ECHR 2001‑VII). 62. 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 (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275). In order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no.", "36391/02, §§ 50 and 55, 27 November 2008). 2. Application of the above principles in the present case 63. In the instant case, the applicants complained that the way in which the identification parade had taken place was unfair. They further alleged that the domestic courts never acceded to their requests to have the material evidence (balaclavas) examined at the public hearings in their cases.", "The Court will consider in turn the two grounds of complaint before it. 64. The Court observes that the applicants were found guilty essentially on the strength of eyewitnesses' submissions obtained during the identification parade. It notes that the eyewitnesses' evidence resulting from the identification was the key evidence supporting the prosecution's case against the applicants. 65.", "The Albanian CCP clearly regulates the organisation of an identification parade. The Court will examine whether the manner in which the identification parade in the applicants' case was conducted was in accordance with Article 6 fairness requirements. 66. In the first place, the applicants and B. L were required to stand in the line-up wearing white and blue balaclavas, similar in colour to those worn by the authors of the crime. The other two persons in the line-up wore black balaclavas, in stark contrast to the white and blue balaclavas worn by the applicants and B.L who were accused of committing the offence.", "The change of position of the persons in the line-up did not result in any different outcome for the applicants, as they were consistently required to wear the same colour (white and blue) balaclavas (see paragraph 13 above). The Court finds that the identification parade was tantamount to an open invitation to witnesses to point the finger of guilt at both applicants and B.L. as the perpetrators of the crime. 67. Moreover, the identification parade was held in the absence of the applicants' lawyers.", "It does not transpire from the case file that the applicants waived of their own free will, either expressly or tacitly, the entitlement to legal assistance at the time of the identification parade (see, by contrast, Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). 68. The Court notes in this connection that even though the District Court accepted that there had been irregularities at the investigation stage, in convicting the applicants it relied on the positive identification of the applicants made by eyewitnesses at the identification parade. However, neither the assistance provided subsequently by a lawyer nor the adversarial nature of ensuing proceedings could cure the defects which had occurred during the criminal investigation (see Salduz, cited above, § 58).", "69. There was no independent oversight of the fairness of the procedure or opportunity to protest against the blatant irregularities. The Court finds that the manifest disregard of the rights of the defence at this stage irretrievably prejudiced the fairness of the subsequent criminal trial. 70. Finally, the Court notes that it has not been explained why the applicants' requests to have the balaclavas used during the identification parade produced before the court were refused.", "While it is true that the right to disclosure of relevant evidence is not absolute, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings, equality of arms and incorporated adequate safeguards to protect the interest of the accused (see Jasper, cited above, §§ 52-53). 71. The Court considers that in the circumstances of the applicants' case, fairness demanded that they be enabled to argue that the balaclavas they were required to wear at the identification parade, which constituted the decisive evidence for the applicants' conviction, were entirely different from those worn by the robbers. However, they were denied an opportunity at the trial to redress the irregularities which occurred at the identification parade. In this connection, the Government did not invoke any public interest grounds for withholding such evidence, and no such grounds are apparent from the domestic proceedings.", "72. In conclusion, having regard to the above findings, the Court concludes that the proceedings in question did not satisfy the requirements of a fair trial. There has accordingly been a violation of Article 6 § 1 in the present case. IV. APPLICATIONS OF ARTICLES 46 AND 41 OF THE CONVENTION A.", "Article 46 of the Convention 73. Article 46 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.” 74.", "In the instant case, the Court found that the applicants' right to a fair trial had been seriously breached by the domestic authorities. The Court observes that when an applicant has been convicted in breach of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Caka v. Albania, no. 44023/02, § 122, 8 December 2009; Salduz, cited above, § 72; Xheraj v. Albania, no. 37959/02, § 82, 29 July 2008; Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV).", "75. The Court accordingly considers that, in the instant case, a retrial or the reopening of the case, if requested by the applicant, represents in principle an appropriate way of redressing the violation. This is in keeping with the guidelines of the Committee of Ministers, which in Recommendation No. R (2000) 2 called on the States Parties to the Convention to introduce mechanisms for re-examining the case and reopening the proceedings at domestic level, finding that such measures represented “the most efficient, if not the only, means of achieving restitution in integrum” (see paragraph 33 above). This also reflects the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation which existed before the wrongful act was committed (Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts – see paragraph 35 above, and, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no.", "2) [GC], no. 32772/02, §§ 85-86, ECHR 2009‑...). 76. The Court notes that the respondent State's criminal legal system does not provide for the possibility of re-examining cases, including reopening of domestic proceedings, in the event of this Court's finding of a serious violation of an applicant's right to a fair trial. It is not for the Court to indicate how such a possibility is to be secured and what form it is to take.", "The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85), provided that such means are compatible with the conclusions set out in the Court's judgment and with the rights of the defence (see Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX). 77. Nevertheless, the Court considers that it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicants' situation from being adequately redressed (see, amongst other authorities, Karanović v. Bosnia and Herzegovina, no.", "39462/03, § 28, 20 November 2007) or introduce a new remedy that would enable the applicants to have the situation repaired. Moreover, the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention. This principle also applies to the reopening of proceedings and the re-examination of the applicants' case (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 97.) B.", "Article 41 of the Convention 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 79. The applicants sought payment of 12,000 euros (EUR) each in respect of the pecuniary damage they had sustained. This was based on a calculation of lost earnings in accordance with the minimum wage in Albania. They sought EUR 20,000 each in respect of non-pecuniary damage.", "80. The Government requested the Court to reject the applicants' claim for just satisfaction. A. Damage 81. As to the pecuniary damage allegedly caused, the Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention (see, among others, Dybeku v. Albania, no.", "41153/06, § 65, 18 December 2007). 82. The Court, having regard to its findings concerning the applicant's complaints under Article 6 § 1, considers that no causal link has been established between the damage alleged and the violations it has found. The Court cannot speculate as to what the outcome of the criminal proceedings against the applicant might have been if the violation of the Convention had not occurred (see Polufakin and Chernyshev v. Russia, no. 30997/02, § 216, 25 September 2008).", "Therefore, the Court finds it inappropriate to award the applicants compensation for the alleged pecuniary damage. 83. As regards the claim for non-pecuniary damage, ruling on an equitable basis, the Court awards each applicant EUR 4,800, plus any tax that may be chargeable on these amounts. B. Costs and expenses 84.", "The applicants did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account. C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the applicants' complaint under Article 3 of the Convention inadmissible and the remainder of the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,800 (four thousand eight hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants' claim for just satisfaction; Done in English, and notified in writing on 20 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF SHAGIN v. UKRAINE (Application no. 20437/05) JUDGMENT STRASBOURG 10 December 2009 FINAL 10/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shagin 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,Mark Villiger,Mirjana Lazarova Trajkovska, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 17 November 2009, Delivers the following judgment: PROCEDURE 1. The case originated in an application (no.", "20437/05) 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 Russian national, Mr Igor Igorevich Shagin (“the applicant”), on 1 June 2005. 2. The applicant was represented by Ms Y. Lysak, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.. 3. The applicant alleged, in particular, that his trial had not been public and that certain statements by high-ranking public officials published in the media concerning his case had been incompatible with the principle of the presumption of innocence.", "4. On 27 March 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 (Article 29 § 3). The Russian Government did not wish to exercise their right to intervene under Article 36 § 1 of the Convention THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, Mr Igor Igorevich Shagin, is a Russian national who was born in 1970 and lives in Kyiv. A. The pre-trial investigations 6. On an unspecified date criminal proceedings were initiated on the suspicion that a network of private commercial enterprises, “Top-Service”, directed by the applicant, organized an armed group with conspiracy to kill State officials and businessmen who were allegedly obstructing its business. 7.", "On 28 April 2000 the Podilskyy District Court of Kyiv sanctioned the applicant for forcefully resisting police and placed him under twelve days' administrative arrest. 8. During the period of 28 April to 10 May 2000 the applicant was questioned and participated in a number of investigative activities as a witness in the criminal proceedings (see paragraph 6 above). 9. On 10 May 2000 the applicant was arrested as a suspect and on the following day he had his first meeting with lawyers.", "10. On 19 May 2000 the Kyiv Prosecutor's Office charged the applicant with banditism. Namely, he was charged with having created a gangster group suspected of having committed eight counts of murder, attempted murder and infliction of serious bodily injuries. 11. On 18 April 2001 the pre-trial investigation was declared completed and the applicant was given access to the case file.", "12. On 26 June 2001 the investigation was resumed and new charges were brought against the applicant: in addition to banditism, they included infringement on the life of a law-enforcement official and incitement to murder for profit, related to the victims' official duties and committed repeatedly by an organised group following orders. 13. On the same day the applicant's lawyer complained to the Kyiv Prosecutor's Office (“the Kyiv prosecutor”) that by reopening the investigation the investigator had in fact unlawfully prolonged the term of the applicant's detention and had violated his right to defence. 14.", "On 27 June 2001 the Kyiv prosecutor rejected the above complaints, having noted, in particular, that the reopening of the investigation had been necessitated by the need for additional investigative activities and that the applicant would be given the opportunity to study the case file again after the completion of the investigation. 15. On 29 January 2002 the Kyiv prosecutor found unsubstantiated the applicant's complaints that, inter alia, he had not had access to the schedule for studying the case-file and to certain documents, as he had signed a statement to the contrary. 16. On 13 February 2002 a new indictment was brought against the applicant.", "He was charged with additional counts of incitement to murder. 17. From 13 to 15 February 2002 the applicant, at his own request, submitted in writing his statements in respect of the new charges, in which he alleged that he himself had been a victim of banditism. However, on 15 February 2002 the investigator proposed that he answer his questions instead, as he claimed that the applicant's statements did not relate to the essence of the charges against him. The applicant explained that he would answer the questions as soon as he had finished writing his statements and asked not to be prevented from using that possibility fully.", "On the same day the investigator declared the investigation completed, having found the applicant's statements to be of no relevance for the investigation at issue. The applicant's lawyer complained about that to the Kyiv prosecutor, who upheld the investigator's actions. 18. On 30 September 2002 the case was referred to the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) for trial. The applicant continued to be represented by at least two professional lawyers.", "B. The trial 19. The proceedings in the Kyiv Court of Appeal, which acted as a first-instance court, lasted from 4 November 2002 until 16 March 2004. As the case had attracted public attention and no court room was big enough for all those wishing to attend, a cinema hall was rented by the court for this purpose. 20.", "However, on 23 May 2003 the court decided to hold hearings in camera, stating as follows: “... The hearing is constantly attended by a person, who, according to him, on the orders of Mr Shagin, audiotapes [the proceedings]. This person does not react to the repeated remarks of the Presiding Judge in this respect. Furthermore, this person has a pistol on him. The Court, bearing in mind the number of charges, with a view to avoiding disclosure of the statements of witnesses and victims, and in order to safeguard the security of the trial participants, according to the recommendations of Section 6 of Resolution No.", "10 of the Plenary of the Supreme Court of Ukraine of 18 June 1999 “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants', Articles 7 and 16 of the Law 'On the Protection of the Security of Persons Participating in Criminal Trials'”, RULED: to hold further hearings of the criminal case against Shagin Igor Igorevich and others in camera.” 21. In accordance with the procedural legislation this ruling was not subject to appeal. The applicant, who denied having instructed anyone to audiotape the hearings, unsuccessfully called for an investigation into the incident and requested the bench to reconsider its decision. 22. The hearings continued in camera in the cinema.", "23. As it follows from a letter of the Kyiv Court of Appeal to the local bar commission of 20 November 2003 on an unrelated issue, the security measures for the trial included the presence of at least seventy guards. 24. In the course of the trial some fifty-five witnesses and fifteen co-defendants gave evidence. The court examined the written statements of about one hundred witnesses who had been questioned during the pre-trial investigation but failed to attend the trial, as well as self-incriminating statements by the co-defendants obtained during the pre-trial investigation.", "The court further reviewed videotapes of several reconstitutions of events. It also examined a large quantity of written evidence and experts' opinions, which included: the registration and statutory documents of all the companies within the network; their contracts with other enterprises throughout the business chain; findings of the related investigation undertaken in Russia, Belarus, Latvia and Estonia under the inter-State legal aid scheme; findings of the investigation by Interpol; and numerous other documents. 25. During the trial the co-defendants withdrew their self-incriminating statements and pleaded innocent. They alleged that they had been forced to incriminate themselves and the applicant.", "The court examined their allegations of ill-treatment in police custody (of which the applicant did not complain) and found them unsubstantiated, having referred, inter alia, to the results of medical examinations they had undergone and the lack of any complaints on their part during the investigation. 26. In the course of the trial the applicant requested the court to summon certain witnesses: namely, one of the cofounders of the companies led by the applicant, Mr F., who had allegedly possessed more information than he had disclosed during the pre-trial investigation; certain customs officials; and the manager of one of the Russian companies, who could allegedly confirm his business relationship with the applicant. The court allowed his request concerning Mr F. and rejected the others. Mr F. was summoned by the court several times, but failed to appear.", "27. The trial court established that the applicant had managed a network of companies involved in fraudulent financial activities and that he had created a gangster group for the protection of its business interests. 28. On 15 March 2004 it found the applicant guilty of having formed a criminal organisation, three counts of incitement to murder, as well as incitement to inflict serious bodily injuries on a law-enforcement official and infringement on the life of a law-enforcement official, and sentenced him to life imprisonment. 29.", "The applicant's subsequent appeal in cassation challenged the above judgment on a number of points: the admissibility of the evidence admitted by the court, a lack of conclusive evidence for each count, the refusal of the investigator to continue questioning the applicant, and the court's failure to summon or to ensure attendance of certain witnesses. The applicant also complained that the high-ranking prosecution officials had publicly declared him guilty even before his first questioning as a suspect and that the court had also presumed him guilty from the outset. 30. On 14 December 2004 the Supreme Court of Ukraine, following a public hearing, upheld the applicant's conviction, having heard the arguments of the prosecution and the defence and having assessed the case file materials. Its ruling did not address any of the specific issues raised by the applicant in his cassation appeal.", "According to the applicant, the Supreme Court held only one hearing, which lasted for about four hours. C. The press conference of 10 May 2000 and its media coverage 31. On 10 May 2000, immediately following the applicant's arrest as a suspect in the criminal investigation, the Kyiv Prosecutor's Office organised a press conference, which received broad coverage in the media. 32. On 12 May 2000 the Segodnia daily newspaper published an article entitled “A gang of killers has been arrested in the capital (sensation)”, which contained the following statements: “The Kyiv Prosecutor Y. G., his first deputy V. S. and Deputy Head of the Kyiv Department of the Ministry of the Interior told journalists about the arrest of fourteen members of a gang which has been engaged in criminal activities in the city since 1997.", "... According to the law-enforcement authorities, the director of one of the “Top-Service” structures, Igor Shagin, is suspected of being a principal inciter. He is charged with eight incitements, including incitement to murder ... Shagin paid about 100,000 US dollars in cash to his accomplices to carry out the crimes. ... The Kyiv Prosecutor stressed that “the officials were persecuted by the gangsters exclusively on account of the scrupulous performance of their duties, which had interfered with the plans of the structure headed by Shagin ...” 33.", "On the same day the Fakty I Kommentarii daily newspaper published an article entitled “For the first time an organized group of killers, which executed murders of state officials, was arrested in Kyiv”. The article contained the following statements: “During yesterday's briefing, the Kyiv Prosecutor Y. G. told journalists that a series of ordered murders and attempted murders had been uncovered ... Fourteen members of the gang involved in the commission of those crimes have been arrested: six killers, three intermediaries, four inciters and one arms supplier. The head of the gang is also among the arrestees – it's Igor Shagin, one of the directors of a well-known trading company, “Top-Service”. The killers confessed that it was he who had incited the murders ...” 34. The article also quoted the First Deputy of the Kyiv Prosecutor V. S. as follows: “30 year old Igor Shagin ... was the inciter of eight out of twelve episodes established by us.", "... Shagin paid the killers a total of about 100,000 US dollars to carry out his orders ...” 35. On the same day the Den daily newspaper published an article under the headline “The criminal leader has been identified (eight crimes against Kyiv public officials are attributed to him)”, which contained the following: “Kyiv Prosecutor Y.G. reported yesterday at the press-conference that the director of “Top-Service”, the Russian national Igor Shagin, had incited eight crimes against State officials between 1997 and 2000...” 36. On the same day the Kievskie Vedomosti daily newspaper published an article entitled “Murderous Top-Service”, in which it quoted the First Deputy of the Kyiv Prosecutor, V. S., as follows: “According to our calculations, Shagin paid the killers a total of about 100,000 US dollars in cash to carry out his orders. ...", "In fact, Shagin was the leader of that group. His orders [to murder] were of a systematic nature.” 37. The aforementioned quotations of the First Deputy of the Kyiv Prosecutor V. S. also appeared on 16 May 2000 in the Vecherniye Vesti newspaper's article “Who is behind the killers”. 38. On 15 May 2000 the Svoboda (“Freedom”) newspaper published an article entitled “Bloody business”, where it announced that: “Sensational reports on the arrest of a large gangster group were disclosed yesterday by the Head of the State Tax Administration of Ukraine M. A. and Kyiv Prosecutor Y. G. According to the Deputy Minister of the Interior V. M., the twelve arrestees, including six professional killers, have a long record of notorious crimes ...", "Heads of the law-enforcement bodies assured that the ... governmental employees ... had become victims of the business appetites of Igor Shagin, who was the head of Kyiv “Top-Service” Ltd. Do you remember a nice commercial on TV “Oh, 'Top-Service', oh 'Top Service', people are nice here ...”? That nice man Shagin incited others to kill those who prevented him from implementing his plans.” 39. On 18 May 2000 the Yuridicheskaya Praktika (“Legal Practice”) weekly newspaper published an article under the headline “Ukrainian-style presumption of innocence”, in which it expressed a view that the statements made by the public officials concerning the applicant's case were incompatible with the principle of the presumption of innocence. The article contained the following quotations of the Kyiv Prosecutor Y. G.: “The killers are testifying that Shagin ordered several attempted murders”; “These crimes can be considered resolved even though the investigation is still going on”. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Public nature of the trial 40. Article 129 of the Constitution of Ukraine guarantees the public nature of a trial as one of the fundamental principles of the administration of justice. 41. Article 9 of the Law “On the Judiciary”, in so far as relevant, reads as follows: “The courts shall examine cases publicly, with the exceptions envisaged by the procedural legislation.", "(...) In camera hearings are possible upon a court's ruling in the cases envisaged by the procedural legislation.” 42. The Code of Criminal Procedure, in its relevant part, provides as follows: “Article 20. Public nature of court proceedings Judicial examination in all courts shall be public, unless the interests of security of the state or other secrets protected by law require otherwise. Hearing in camera can also be allowed by a reasoned court ruling in cases of crimes by minors, in cases of sexual crimes, and in other cases with a view to avoiding disclosure of the private information of the trial participants, or in cases when it is necessary for the security of persons under protection. ...” 43.", "The Law “On Protection of the Security of Persons Participating in Criminal Trials” provides for hearings in camera as a security measure (Article 7). Pursuant to its Article 16, hearings in camera may take place if ordered by a reasoned court ruling in cases where it is necessary for the security of persons under protection. 44. Section 6 of Resolution No. 10 of 18 June 1999 of the Plenary of the Supreme Court of Ukraine “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants'” reads as follows: “In order to avoid disclosure of incriminating statements of victims and witnesses, where there is a real danger of infringement on their life, home or property, courts may hold hearings in criminal cases (especially in cases of organized crime) in camera.” B.", "Presumption of innocence 45. The principle of the presumption of innocence is enshrined in Article 62 of the Constitution of Ukraine, which can be found in the judgment of Grabchuk v. Ukraine, no. 8599/02, § 26, 21 September 2006. Article 2 of the Criminal Code, in so far as relevant, reads as follows: “A person shall be presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved in compliance with the legally established procedure and established by a court's verdict of guilty”. 46.", "Resolution No. 5 of the Presidium of the Supreme Court of Ukraine of 20 February 2004 “On the situation with the administration of justice in 2003 and 2004” contained the following paragraph: “There have been numerous publications in the media in breach of Article 62 of the Constitution concerning persons not yet found guilty of having committed crimes by a court's verdict. Those included the publication of statements aimed at prejudging cases in favour of certain persons.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE TRIAL IN CAMERA 47. The applicant complained that his right to a public hearing had been violated as a result of the allegedly unjustified exclusion of the public from the proceedings by the Kyiv Court of Appeal from 23 May 2003 onwards.", "He relied on 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 ... public hearing ...” A. Admissibility 48. The Government contended that this part of the application was inadmissible as being submitted outside the six-month time-limit, which, according to them, had started running on 23 May 2003, when the trial court had ruled to hold further hearings in camera. 49. The applicant disagreed. 50.", "The Court underlines that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints which have been submitted within six months from the date of the “final” domestic decision. 51. It notes that the present complaint concerns an alleged violation of one of the elements of the right to a fair trial, in a trial which was completed by the final ruling of the Supreme Court on 14 December 2004. 52. Accordingly, the Court considers that the applicant complied with the six-month time-limit and dismisses the Government's objection.", "53. 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 54. The Government did not make any submissions on the merits of the case. 55. The applicant maintained his complaint. 56.", "The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. Administration of justice, including trials, derives legitimacy from being conducted in public. By rendering the administration of justice transparent, publicity contributes to fulfilling the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see Belashev v. Russia, no. 28617/03, § 79, 4 December 2008, with further references).", "57. The Court notes, however, that the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the provision that “the press and public may be excluded from all or part of the trial in the interests of ... national security in a democratic society, ... or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Thus, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (see B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR 2001‑III, with further references).", "58. The Court also observes that there is a high expectation of publicity in ordinary criminal proceedings, which may well concern dangerous individuals, notwithstanding the attendant security problems (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80). Moreover, security problems, although being a common feature of many criminal proceedings, rarely justify excluding the public from a trial (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000‑XII).", "59. Furthermore, the Court underlines the importance of a public hearing before the first-instance court in criminal proceedings where the scope of any subsequent review by the appellate court is limited; and thus even if the examination of the case on appeal is public, this will not necessarily remedy the lack of publicity during the trial (see, mutatis mutandis, Riepan, cited above, § 37). 60. Turning to the facts of the present case, the Court notes that initially the Kyiv Court of Appeal implemented unusual measures in order to ensure the attendance of the press and public – it rented a big hall where open hearings took place for the first six months, until it was decided on 23 May 2003 to exclude the public. The trial continued in camera for almost ten months.", "61. The Court's task in the present case is to establish, first of all, whether the exclusion of the public from the hearings before the Kyiv Court of Appeal, acting as a trial court, was justified for the purposes of any of the exceptions to the rule of the public hearing under Article 6 § 1 of the Convention. If no such justification is found, it will remain to be seen whether the lack of a public hearing before the trial court could have been remedied by its public examination by the Supreme Court. 62. The Court observes that the Kyiv Court of Appeal advanced the following two reasons for the exclusion of the public from the hearings in its ruling of 23 May 2003: the privacy of the witnesses and victims and the security of the trial participants.", "The only explanation given as to what had caused those concerns was a reference to the presence of an unidentified individual in the audience, who was allegedly armed and who had allegedly been audio-recording the hearings on the applicant's instruction and in disregard of the judges' remarks. 63. Given the nature and scope of the charges against the applicant and other co-defendants, as well as the broad media coverage of the criminal proceedings at issue, the Court is satisfied that this case was a matter of substantial interest to the public. 64. The Court further observes that the venue for the trial was well-suited to accommodate a large audience (see paragraph 19 above) and that adequate security measures seem to have been taken for ensuring order in the court room (see paragraph 23 above).", "65. The Court reiterates that security concerns may, if only rarely, justify excluding the public from a trial (see paragraph 58 above). However, any such security matters would have to be of substantial weight and fully explained. The only specific justification given by the trial court in the present case for excluding the public was the presence of a particular individual who was taping the proceedings and who was armed. However, it is not apparent why the presence of one individual called for exclusion of the public: any security issues raised by the individual could have been less far-reaching measures, such as removing him from the court-room.", "The trial court's other comments, a reference to the need to avoid disclosure of the statements of witness and victims and a general reference to the security of participants, were not put in context or otherwise explained either by the domestic courts or by the Government in the proceedings before the Court. The Court finds that no reasons have been given which could justify the exclusion of the public from the entirety of the first-instance proceedings. 66. The Court does not consider that the public examination of the case by the Supreme Court remedied its lack before the trial court. Thus, in practice its review was incomparably more limited than that of the first-instance trial, as there was no rehearing or examination of witnesses and only one hearing was held at that stage of the proceedings (see paragraphs 19, 24 and 30 above).", "67. Having regard to these considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the applicant's case. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 68. The applicant complained that public officials had made statements to the mass media asserting his guilt prior to his conviction by a court, thus influencing public opinion and prejudging the case against him.", "He relied on Article 6 § 2 of the Convention, which provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 1. Exhaustion of domestic remedies 69. The Government submitted that the applicant should have brought a civil action against the public officials involved seeking damages for his alleged defamation, which was in their opinion an effective remedy to pursue in the circumstances. 70. The applicant contested that view.", "71. The Court reiterates that the presumption of innocence, like the safeguards provided by Article 6 § 3, is viewed as a specific guarantee of a fair trial in the determination of a criminal charge against an individual (see paragraph 81 below). The Court observes that in the present case the applicant could and did raise this complaint before the courts dealing with his criminal case (for the facts, see paragraph 29 above; and for the case-law, see, a contrario, Ksenzov v. Russia (dec.), no. 75386/01, 27 January 2005, and Koval v. Ukraine (dec.), no. 65550/01, 10 December 2002).", "72. The Court does not exclude that the avenue advanced by the Government could have been an effective domestic remedy. However, where several remedies are available, the applicant is not required to pursue more than one (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009, with further references). 73.", "It follows that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies. 2. Compliance with the six-month time-limit 74. The Government asserted, alternatively to their non-exhaustion objection, that the applicant had introduced this complaint out of the six-month time-limit. The latter disagreed.", "75. Having regard to its findings in paragraphs 71 and 73 above, the Court considers that the six-month time-limit, for the purposes of Article 35 § 1 of the Convention, started running for the applicant with the final determination of the criminal charge against him by the Supreme Court on 14 December 2004. 76. The Court observes that the applicant introduced his application with the Court on 1 June 2005, which was within the time-limit. 77.", "Accordingly, the Court dismisses this objection by the Government as well. 78. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 79. Having raised the aforementioned objections as to the admissibility of this complaint, the Government did not make any submissions on its merits. 80. The applicant maintained his complaint.", "81. The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial guaranteed by Article 6 § 1 (see Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308). It does not only prohibit the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law, but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe that the suspect is guilty and prejudge the assessment of the facts by the competent judicial authority (for a recapitulation of the relevant case-law, see, for example, Khuzhin and Others v. Russia, no. 13470/02, § 93, 23 October 2008).", "It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty (see Böhmer v. Germany, no. 37568/97, § 54, 3 October 2002). In this regard the Court has emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X). Thus, a fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question (see Ismoilov and Others v. Russia, no.", "2947/06, § 166, 24 April 2008). Whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras, cited above, § 43). 82. Moreover, in determining whether an impugned statement by a public official amounts to a violation of Article 6 § 2, the Court does not attach crucial importance to the nature or outcome of any subsequent judicial proceedings. Thus, the Court held that there had been a violation of Article 6 § 2 of the Convention even in cases where the national courts had discontinued the criminal proceedings as time-barred, where the applicant had been acquitted, and where the domestic courts had not had to determine the question of guilt at all (see Allenet de Ribemont, cited above, § 35).", "83. The Court underlines that Article 6 § 2 of the Convention cannot prevent the authorities from informing the public about criminal investigations in progress, which would run counter to the principles of the freedom of expression enshrined in Article 10 of the Convention. However, it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38). At the same time, the investigation and police authorities cannot be held responsible for the actions of the media (see Y.B. and Others v. Turkey, nos.", "48173/99 and 48319/99, § 48, 28 October 2004). 84. Turning to the facts of the present case, the Court observes that some high-ranking prosecution, police and tax administration officials made statements concerning the criminal proceedings against the applicant at the very initial stage of those proceedings and in a context independent of them, namely at a press-conference organised by the Kyiv Prosecutor's Office. 85. As to the content of the impugned statements, and in the absence of any explanations from the Government, the Court can only base its judgment on a number of publications in the press, having in its possession neither the transcript of the aforementioned press conference nor any press releases which could have been issued by its organisers.", "In order to avoid mistaking the journalists' interpretations for the authentic statements of the public officials concerned, the Court will limit its assessment to the statement of the First Deputy of the Kyiv Prosecutor V. S., which was consistently quoted in three different newspapers (see paragraphs 34, 36 and 37 above). It was as follows: “According to our calculations, Shagin paid the killers a total of about 100 thousand US dollars in cash to carry out his orders. ... In fact, Shagin was the leader of that group. His orders [to murder] were of a systematic nature”.", "86. In the Court's view, the wording chosen indicates that the speaker considered it to be an established fact that the applicant had been ordering and paying for murders, while the only issue about which he was less confident was the exact amount paid for the killings. Accordingly, this statement, which had been made long before the applicant's indictment, amounted to a declaration of his guilt, which, first, encouraged the public to believe him to be guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. 87. There has therefore been a breach of Article 6 § 2 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Other alleged violations of Article 6 of the Convention 88. The applicant also complained under Article 6 § 1 of the Convention that his trial had not been truly adversarial and that his conviction had been largely based on evidence not examined during the hearings. He also complained, relying on Article 6 § 3 (a), (b), (c) and (d) of the Convention, that he had not been promptly informed about the charges against him, that he had not had access to a lawyer at the initial stages of the investigation, that he had been restricted in presenting his arguments to the investigator and in his study of the case file, and that he had not been able to examine some witnesses in court.", "89. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions the applicant relied on. 90. 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. B.", "Alleged violations of other provisions of the Convention 91. The applicant complained under Article 3 of the Convention that he had been ill-treated in police custody following his arrest on 28 April 2000. 92. The Court notes that this complaint was never raised before the domestic authorities in compliance with the procedural legislation and it therefore rejects it for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. 93.", "The applicant next complained under the same provision about the conditions of his detention between 28 April and 7 May 2000. 94. Even assuming, to the applicant's benefit, that he had had no effective remedies to pursue in regard of this complaint, the Court notes that the application was introduced about five years after the situation complained of had ceased to exist. It therefore rejects this complaint under Article 35 §§ 1 and 4 of the Convention as being out of the six-month time-limit. 95.", "Lastly, the applicant complained under Article 5 §§ 1 (c) and 4 of the Convention about the alleged unlawfulness and lack of judicial review of his detention during the period of 28 April to 10 May 2000. 96. The Court notes that the applicant was convicted by the first-instance court on 15 March 2004. Thereafter for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention and, consequently, ceased to be detained pending investigation and trial under Article 5 § 1 (c) (see Ivakhnenko v. Russia (dec.), no. 12622/04, 21 October 2008, with further references).", "The application was lodged with the Court on 1 June 2005, that is, more than six months after the applicant's detention pending trial, including that during the aforementioned period, had ended. 97. 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. 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 EUR 200,000 in respect of non-pecuniary damage. 100. The Government contested that claim.", "101. The Court considers that the applicant must have suffered non-pecuniary damage, in particular for the violation of the presumption of innocence, which cannot be sufficiently compensated by the finding of a violation alone. Ruling on an equitable basis, it awards him EUR 2,000 under that head. B. Costs and expenses 102.", "The applicant made no claim for costs and expenses. Accordingly, the Court makes no award. C. Default interest 103. 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 applicant's trial in camera and the alleged breach of his right to the presumption of innocence 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 lack of a public hearing; 3. Holds that there has been a violation of Article 6 § 2 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousands euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 10 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "SECOND SECTION CASE OF FAZLI DİRİ v. TURKEY (Application no. 4062/07) JUDGMENT STRASBOURG 28 August 2012 FINAL 28/11/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fazlı Diri v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 10 July 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4062/07) 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 Fazlı Diri (“the applicant”), on 9 January 2007. 2. The applicant was represented by Mr Nedim Şenol Çelik, a lawyer practising in Trabzon. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, that despite the suspension of criminal proceedings against him, wording employed subsequently by a domestic court had breached his right to the presumption of innocence within the meaning of Article 6 § 2 of the Convention. 4. On 26 September 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 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Trabzon. He used to work as a security guard in a security van for Akbank, a private bank in Turkey. 6. On 16 July 1998, on their return from one of the branches of the bank, the applicant and his two colleagues working in the same van realised that a sum of money (approximately 10,000 euros) was missing.", "A. Criminal proceedings against the applicant 7. On 23 July 1998 the applicant was questioned by the police and on 3 September 1998 the Trabzon prosecutor filed an indictment formally charging the applicant and his two colleagues with the offence of breach of trust. 8. On 22 December 2000, while the criminal proceedings against the applicant and his colleagues were in progress, Law No.", "4616 entered into force. Law No. 4616 provides for the suspension of criminal cases in respect of certain offences committed before 23 April 1999. 9. On 22 December 2003 the Istanbul Assize Court considered the following: “...[the applicant] has committed the offence of breach of trust.", "Nevertheless, the offence was committed before 23 April 1999 and it thus falls within the ambit of Law No. 4616. It is accordingly decided not to convict [the applicant] but to suspend the proceedings in accordance with Law No. 4616” 10. On 13 February 2004 the applicant appealed against the Assize Court’s decision, arguing that if the proceedings had not been postponed his innocence would have been proved.", "11. On 8 June 2006 the Court of Cassation decided that the Istanbul Assize Court’s decision was not appealable because it was not a decision containing a definitive conclusion. It considered, however, that the applicant’s appeal could be examined as an “objection” and forwarded it to the Court of Cassation’s prosecutor for the necessary action to be taken. 12. On 25 August 2006 the Istanbul Assize Court examined the objection and rejected it.", "B. Civil proceedings brought by the bank against the applicant 13. On 30 August 1998 lawyers representing Akbank lodged a claim with the Trabzon Labour Court for the return of the missing money from the applicant and the two colleagues who had been working with him on the day it went missing. 14. On 17 June 2004 the Trabzon Labour Court ordered the applicant and his two colleagues to repay the missing money to the bank together with the “highest rates of interest applicable”.", "It considered, on the basis of the Istanbul Assize Court’s decision of 22 December 2003, that the applicant and his colleagues had “committed the offence” in question and embezzled the money. The applicant appealed against the decision and drew the Court of Cassation’s attention to the fact that he had not been convicted of any offence by the Istanbul Assize Court, which, in fact, had decided to suspend the proceedings. 15. The Court of Cassation quashed the decision in so far as it concerned the rate of interest applicable. On 19 July 2005 the Trabzon Labour Court decided, in line with the Court of Cassation’s decision, that a lower rate of interest should apply.", "An appeal lodged against that decision by the applicant was rejected by the Court of Cassation on 26 September 2005. C. The proceedings brought by the applicant against the bank 16. On 30 October 1998 the applicant’s contract of employment was terminated by his employer. The applicant and his two colleagues brought a case against the bank before the Trabzon Labour Court claiming compensation for their dismissal. 17.", "On 21 September 2004 the Trabzon Labour Court rejected the applicant’s claim for compensation for his dismissal. It stated as follows: “The case concerns the compensation claim for the dismissal of the plaintiffs who worked for the respondent bank and who, instead of bringing [a sum of] money they had collected from one of the bank’s branches back to their branch of the bank, embezzled it...According to the Istanbul Assize Court’s decision of 22 December 2003, the plaintiffs committed the offence of breach of trust that the proceedings were suspended in accordance with Law No. 4616...” 18. The applicant appealed against the decision, arguing that the criminal proceedings against him had been suspended by the Istanbul Assize Court. He further argued that the proper course of action for the Labour Court would have been to collect its own evidence, hear witnesses, and reach its conclusion on the basis of that evidence.", "19. On 26 May 2005 the Court of Cassation quashed the Labour Court’s decision of 21 September 2004. It held that the Istanbul Assize Court’s decision had suspended the proceedings and not convicted the applicant. The Labour Court had erred in rejecting the applicant’s claim without hearing any of the witnesses proposed by him or obtaining expert reports, or even examining the Istanbul Assize Court’s case file. 20.", "On 13 October 2005 the Trabzon Labour Court reiterated its decision of 21 September 2004. In the opinion of the Labour Court, the applicant had caused financial losses to the bank by embezzling the money and knew that his employment had been terminated because of that. Any expectation on the part of the applicant of receiving compensation for his dismissal would therefore damage confidence in the judiciary and, for that reason, the Labour Court could not adhere to the Court of Cassation’s decision of 26 May 2005. 21. On 24 May 2006 an appeal lodged by the applicant against the Labour Court’s decision was rejected by the Court of Cassation, which considered that the Labour Court’s decision was in accordance with its decision of 26 May 2005.", "This decision was communicated to the applicant on 1 August 2006. II. RELEVANT DOMESTIC LAW 22. Law No. 4616, in so far as relevant, provides as follows: “4.", "In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years: - where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended; - where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended. If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached. In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated.", "...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 23. Relying on Article 6 of the Convention, the applicant complained that, notwithstanding the suspension of the criminal proceedings, the Istanbul Assize Court had stated in its decision that he was guilty. Furthermore, the evidence adduced by him during the proceedings before the Trabzon Labour Court had not been taken into account by that court, and his witnesses had not been heard. Under the same Article, the applicant also complained that the Trabzon Labour Court had relied on the decision suspending the criminal proceedings as if it had been a decision convicting him.", "24. The Court considers it appropriate to examine these complaints solely from the standpoint of Article 6 § 2 of the Convention, which provides as follows: “... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ...” 25. The Government contested that argument.", "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 that the wording used by both the Istanbul Assize Court and the Trabzon Labour Court in its two decisions had violated his right to the presumption of innocence. 28. The Government submitted that Law No. 4616 did not contain a provision to prevent national courts from expressing their opinions regarding the merits of cases when suspending them.", "In the view of the Government, such opinions expressed by national courts do not amount to definitive judgments. In the present case, although the Istanbul Assize Court had been of the opinion that the applicant had committed the offence with which he had been charged, it had confined itself to Law No. 4616 and suspended the proceedings. According to the Government, assessment by a national court of the evidence and its probative value and expressing an opinion by that court regarding the merits of the case, could not and should not be considered to be in breach of the right to the presumption of innocence within the meaning of Article 6 § 2 of the Convention. 29.", "The Government considered that issues relating to the presumption of innocence only arose in cases in which criminal proceedings were still pending. When those criminal proceedings were concluded, as was the case in the present application, the national court could express its opinion as to whether an accused was guilty or not. Hence, no mention could be made of a “presumption” in respect of the offence attributed to a defendant since his or her guilt would have been proven as an actual fact. 30. The Trabzon Labour Court had relied on the principle that a finding of a court to the effect that an offence has been committed is deemed to constitute strong evidence in any subsequent civil proceedings.", "31. The Court observes at the outset that the driver of the security van who was on duty together with the applicant at the time when the money went missing, and who was also one of the defendants in the criminal proceedings (see paragraph 7 above) and participated in the two sets of civil proceedings before the Trabzon Labour Court (see paragraphs 13 and 16 above), introduced a separate application with the Court and complained that his right to the presumption of innocence had been breached. In its judgment of 19 April 2011 the Court held that there had been a violation of Article 6 § 2 of the Convention on account of the language used by the Trabzon Labour Court (see Erkol v. Turkey, no. 50172/06, §§ 41-42, 19 April 2011). 32.", "In its Erkol judgment the Court noted that, beyond summarising the proceedings in their observations and submitting that “in view of those facts the Government are of the opinion that the applicant’s complaints must be rejected”, the respondent Government had not elaborated on Mr Erkol’s complaint (ibid. § 32). 33. In the present case, however, the Government made the above submissions and the Court has examined them. It observes that the points raised by the Government have already been examined by the Court in its Erkol judgment, and it considers that the Government have not advanced any arguments requiring the Court to depart from its findings in the Erkol judgment.", "To that end the Court refers, in particular, to its finding in the Erkol judgment that the Istanbul Assize Court’s decision was not a decision to convict the applicant (ibid. § 35). 34. The Court observes that the unambiguously drafted Law No. 4616 required national courts to suspend the adoption of a definitive finding on the merits in cases in which no definitive finding on the merits had been adopted or in which a definitive finding on the merits had not yet become final (see paragraph 22 above).", "Indeed, in accordance with that wording, domestic courts also regarded the criminal proceedings as “suspended” (see paragraphs 17 and 19 above). The Court cannot accept, therefore, the Government’s submissions that the criminal proceedings were “concluded” (see paragraph 29 above) in the applicant’s case and that the domestic court could thus regard him as guilty of the offence with which he had been charged. It notes in any event that even assuming the proceedings were “concluded” by the decision of the Assize Court, that decision did not convict the applicant of any offence. 35. As noted in the Erkol judgment, when examining the case brought by the applicant against the bank the Trabzon Labour Court not only stated that the applicant had committed the offence with which he had been charged (see paragraph 17 above) but also held that he had “embezzled” the money (see paragraph 20 above), an offence which the applicant had never even been charged with.", "36. The Court considers that by the language it used the Labour Court overstepped the bounds of a civil forum and went beyond its task of examining the case before it. Having regard to the wording employed by the Labour Court and the fact that it did not make a fresh assessment of the facts, the Court finds that that court did not only cast doubt on the applicant’s innocence of the criminal charge brought against him, but in essence found him guilty of an offence with which he had never been charged. 37. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s right to the presumption of innocence has been breached.", "There has accordingly been a violation of Article 6 § 2 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38. Lastly, without elaborating in what respect, the applicant alleged a violation of Articles 5 and 13 of the Convention and of Article 2 of Protocol No. 7.", "39. In the light of all the material in its possession, the Court finds that these submissions 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 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 50,000 euros (EUR) in respect of non-pecuniary damage. 42. The Government considered the sum claimed to be excessive and unsupported.", "43. The Court considers that the applicant must have suffered a degree of distress as a result of the Trabzon Labour Court’s finding, and awards the applicant EUR 3,000 in respect of non-pecuniary damage (see Erkol, cited above, § 51). B. Costs and expenses 44. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the Court.", "In support of his claim the applicant submitted to the Court a fee agreement with his lawyer in the amount of EUR 1,500. The remaining EUR 500 were claimed in respect of postal expenses and translation costs for which the applicant did not submit any documentary evidence. 45. The Government considered that the claim was not supported by documentary evidence. 46.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads. C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the complaint under Article 6 § 2 of the Convention concerning the applicant’s right to the presumption of innocence admissible and the remainder of the application inadmissible; 2. Holds by 6 votes to 1 that there has been a violation of Article 6 § 2 of the Convention; 3. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 August 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens PassosFrançoise Tulkens Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge A. Sajó is annexed to this judgment. F.T.F.E.P. DISSENTING OPINION OF JUDGE SAJÓ I could not follow the majority for the reasons explained in Erkol v Turkey, no. 50172/06, 19 April 2011." ]
[ "FOURTH SECTION CASE OF POCA AND OTHERS v. ROMANIA (Application no. 71601/14 and 17 other applications) JUDGMENT STRASBOURG 14 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Poca and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Georges Ravarani,Marko Bošnjak, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 23 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.", "2. The applications were communicated to the Romanian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4.", "The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table.", "The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 ‑141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012). 8.", "In the pilot case of Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS 11. The applicants in applications nos.", "77502/14, 3558/15, 8679/15, 10385/15, 13766/15, 18400/15, 20858/15, 28884/15, 32603/15, 32777/15, 33403/15, 34184/15 and 36047/15, also raised other complaints under Article 3 of the Convention. 12. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017), the Court considers it reasonable to award the sums indicated in the appended table. 15.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention, as set out in the appended table, admissible, and the remainder of the applications nos. 77502/14, 3558/15, 8679/15, 10385/15, 13766/15, 18400/15, 20858/15, 28884/15, 32603/15, 32777/15, 33403/15, 34184/15 and 36047/15, inadmissible; 3.", "Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtVincent A. De Gaetano Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No.", "Application no. Date of introduction Applicant name Date of birth/Date of registration Representative name and location Facility Start and end date Duration Sq. m. per inmate Specific grievances Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 71601/14 02/07/2015 Emil Poca 18/02/1958 Gherla Penitentiary 01/01/2009 to 29/08/2014 5 year(s) and 7 month(s) and 29 day(s) Bistrița Penitentiary 29/08/2014 to 20/12/2016 2 year(s) and 3 month(s) and 22 day(s) 1.6-2.7 m² 1.3-2.03 m² Overcrowding, mouldy or dirty cell, lack of or inadequate hygienic facilities, no or restricted access to warm water, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air. Overcrowding, mouldy or dirty cell, lack of or inadequate hygienic facilities, no or restricted access to warm water, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air. 5,000 77502/14 02/06/2015 Victor-Nicolae Luca 07/05/1975 Fuiorea-Drăgan Constantin Târgu-Jiu Târgu-Jiu Penitentiary 17/06/2013 to 28/06/2016 3 year(s) and 12 day(s) 1.1-2.6 m² Overcrowding, lack of fresh air, lack of or insufficient natural light, mouldy or dirty cell, infestation of cell with insects/rodents, poor quality of food, cell used as shoe repair workshop, lack of or inadequate hygienic facilities.", "3,000 78443/14 18/01/2015 Iulian-Costel Bardașu 02/08/1978 Grozavu Mirela Bacău Iași Penitentiary 09/09/2014 to 17/02/2015 5 month(s) and 9 day(s) 1.2-1.9 m² Overcrowding, poor quality of food, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, lack of or poor quality of bedding and bed linen, lack of toiletries. 1,000 3558/15 12/02/2015 Dumitru Sfetcu 29/09/1980 Penitentiaries of Rahova, Giurgiu, Gherla, Aiud and Arad 10/11/2009 to 24/08/2016 6 year(s) and 9 month(s) and 15 day(s) 1.9-2.4 m² Rahova Penitentiary: overcrowding, poor quality of food, lack of or poor quality of bedding and bed linen; Giurgiu Penitentiary: lack of or insufficient natural light, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, no or restricted access to shower, poor quality of food; Gherla Penitentiary: overcrowding, mouldy or dirty cell, no or restricted access to shower, poor quality of food, lack of or poor quality of bedding and bed linen; Aiud Penitentiary: mouldy or dirty cell, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, poor quality of food; Arad Penitentiary: poor quality of food, infestation of cell with insects/rodents, poor quality of potable water, lack of or restricted access to leisure or educational activities, no or restricted access to shower. 5,000 8679/15 04/05/2015 Ionel Zamfirache 12/02/1973 Galați Penitentiary 01/04/2014 to 02/02/2016 1 year(s) and 10 month(s) and 2 day(s) 2.4-2.6 m² Overcrowding, bunk beds, lack of or inadequate furniture and storage space, poor quality of food, lack of fresh air, poor quality of potable water, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, mouldy or dirty cell. 3,000 10385/15 30/03/2015 Cosmin-Isidor Nagy 28/10/1973 Baia Mare Penitentiary 30/10/2013 pending More than 3 year(s) and 10 month(s) and 24 day(s) 1.7-2.1 m² Overcrowding, bunk beds, poor quality of food, lack of or inadequate furniture and storage space, lack of fresh air, lack of or insufficient natural light, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to warm water, no or restricted access to shower, lack of toiletries. 3,000 13766/15 07/05/2015 Adrian Florian Cicortaș 07/02/1973 Cândea Claudia Nadina Daciana Timișoara Penitentiaries of Arad Vechi, Timișoara, Jilava, Gherla and Arad Nou 21/09/1999 pending More than 18 year(s) and 26 day(s) 1-2.3 m² Arad Vechi Penitentiary: overcrowding, bunk beds, lack of or poor quality of bedding and bed linen, lack of fresh air, lack of or insufficient natural light, inadequate temperature, mouldy or dirty cell, no or restricted access to shower, lack of or inadequate furniture and storage space, poor quality of food, lack of toiletries, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air; Timișoara Penitentiary: overcrowding, bunk beds, lack of or poor quality of bedding and bed linen, lack of fresh air, lack of or insufficient natural light, lack of toiletries, lack of or inadequate furniture and storage space, poor quality of food, infestation of cell insects/rodents, lack of or insufficient physical exercise in fresh air; Jilava Penitentiary: overcrowding, bunk beds, lack of or poor quality of bedding and bed linen, lack of fresh air, lack of or insufficient natural light, inadequate temperature, lack of or inadequate hygienic facilities, lack of or inadequate furniture and storage space, poor quality of food, poor quality of potable water, infestation of cell with insects/rodents, lack of toiletries; Gherla Penitentiary: overcrowding, lack of or poor quality of bedding and bed linen, lack of fresh air, lack of or insufficient natural light, inadequate temperature, mouldy or dirty cell, no or restricted access to shower, poor quality of food, lack of or inadequate furniture and storage space, lack of toiletries, lack of or insufficient physical exercise in fresh air; Arad Nou Penitentiary: mouldy or dirty cell, proximity to dump site, poor quality of food, lack of or poor quality of bedding and bed linen, lack of toiletries, infestation of cell with insects/rodents.", "5,000 14100/15 24/07/2015 Victor-Ionuţ Brumar 03/05/1986 Miercurea Ciuc Penitentiary 02/09/2013 to 30/10/2015 2 year(s) and 1 month(s) and 29 day(s) 1.2-2.6 m² Overcrowding, poor quality of food, lack of or inadequate furniture and storage space, no or restricted access to warm water, bunk beds, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air. 3,000 18400/15 29/06/2015 Ovidiu Alexandru Petconi 02/12/1981 Timiș Police Inspectorate 06/03/2015 to 10/03/2015 5 day(s) Timișoara Penitentiary 10/03/2015 to 19/04/2017 2 year(s) and 1 month(s) and 10 day(s) 2.6 m² Mouldy or dirty cell, lack of or insufficient natural light, infestation of cell with insects/rodents, no or restricted access to warm water, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air. Overcrowding, lack of or inadequate furniture and storage space, lack of or insufficient natural light, lack of fresh air, lack of toiletries, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, infestation of cell with insects/rodents. 3,000 20858/15 14/05/2015 Florin Constantin 12/10/1983 Constantin Cristina Bucharest Rahova Penitentiary 03/12/2013 pending More than 3 year(s) and 10 month(s) and 14 day(s) 1.6-2.4 m² Overcrowding, lack of fresh air, lack of or insufficient natural light, lack of or inadequate furniture and storage space, lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities. 3,000 21477/15 02/06/2015 Marius Teban 20/08/1974 Aiud Penitentiary 12/11/2014 to 24/04/2015 5 month(s) and 13 day(s) 1.9-2.6 m² Overcrowding, lack of sanitary facilities in the courtyard, lack or inadequate furniture, inadequate temperature, mouldy or dirty cell, poor quality of food.", "1,000 28884/15 03/07/2015 Anton Hamza 21/03/1985 Satu Mare Penitentiary 21/07/2005 to 12/09/2006 1 year(s) and 1 month(s) and 23 day(s) Oradea Penitentiary 12/09/2006 to 16/06/2014 7 year(s) and 9 month(s) and 5 day(s) Timișoara Penitentiary 19/06/2014 to 05/04/2017 2 year(s) and 9 month(s) and 18 day(s) 1.3-1.8 m² 1.6-2.8 m² 2.5-2.6 m² Overcrowding Overcrowding Overcrowding, lack of or inadequate furniture and storage space, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen. 5,000 32603/15 15/07/2015 Edmond-George Ghiulbenghian 12/02/1982 Peter Irina Maria Bucharest Rahova Penitentiary 23/10/2014 pending More than 2 year(s) and 11 month(s) and 24 day(s) 1.9-2.4 m² Overcrowding (save for the period of 01/04/2015 – 02/10/2015 and 27/10/2015 – 12/02/2016), lack of adequate space to serve meals, poor quality of food, infestation of cell with insects/rodents, no or restricted access to shower, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, no or restricted access to warm water. 3,000 32777/15 27/07/2015 Constantin-Vasile Ivan 13/09/1978 Peter Irina Maria Bucharest Giurgiu Police Inspectorate 06/03/2006 to 23/03/2006 18 day(s) Jilava Penitentiary Hospital and Giurgiu Police Inspectorate 23/03/2006 to 28/06/2006 3 month(s) and 6 day(s) Penitentiaries of Giurgiu and Jilava 28/06/2006 to 06/01/2007 6 month(s) and 10 day(s) Penitentiaries of Giurgiu and Craiova and Jilava Penitentiary Hospital 06/01/2007 to 25/07/2012 5 year(s) and 6 month(s) and 20 day(s) Jilava Penitentiary 25/07/2012 pending More than 5 year(s) and 2 month(s) and 11 day(s) 1.2-2.8 m² (Jilava Penitentiary) 2.06 m² (Craiova Penitentiary) 1.2-2.8 m² Infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of fresh air, lack of or insufficient natural light, no or restricted access to toilet. Mouldy or dirty cell, infestation of cell with insects/rodents. Overcrowding (Jilava Penitentiary), infestation of cell with insects/rodents, mouldy or dirty cell.", "Giurgiu Penitentiary: lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of fresh air, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen; Craiova Penitentiary: overcrowding, mouldy or dirty cell, infestation of cell with insects/rodents; Jilava Penitentiary Hospital: mouldy or dirty cell, infestation of cell with insects/rodents, poor quality of potable water. Overcrowding, bunk beds, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, poor quality of food and running water, no or restricted access to shower, lack of adequate space for serving meals, no or restricted access to toilet, lack of fresh air, lack of or insufficient natural light, mouldy or dirty cell, inadequate temperature. 5,000 33403/15 23/07/2015 Nicolae Lemnaru 14/08/1983 Peter Irina Maria Bucharest Prahova Police Inspectorate 09/07/2012 to 08/08/2012 1 month(s) Mărgineni Penitentiary 08/08/2012 to 20/02/2013 6 month(s) and 13 day(s) Ploiești Penitentiary 20/02/2013 to 27/06/2013 4 month(s) and 8 day(s) and 12/11/2015 pending More than 1 year(s) and 11 month(s) and 5 day(s) Găești Penitentiary 27/06/2013 to 12/11/2015 2 year(s) and 4 month(s) and 17 day(s) 1.7-2.1 m² 1.8-2 m² 1.3-2.1 m² 1.7 m² Overcrowding, infestation of cell with insects/rodents, lack of adequate space to serve meals, bunk beds, lack of or insufficient natural light, lack of privacy for toilet. Overcrowding, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of adequate space to serve meals, lack of or inadequate hygienic facilities, bunk beds, no or restricted access to shower, no or restricted access to warm water. Overcrowding, bunk beds, lack of or inadequate hygienic facilities.", "Overcrowding (save for the period of 20/01/2015 – 08/06/2015), lack of or inadequate hygienic facilities, lack of or inadequate furniture and storage space, insalubrious shower room, bunk beds, no or restricted access to shower. 5,000 34069/15 28/07/2015 Victor Sorin Miclea 28/03/1983 Bucharest 12th Police Section 07/03/2013 to 13/03/2013 7 day(s) Sălaj Police Inspectorate 13/03/2013 to 19/03/2013 7 day(s) Oradea Penitentiary 19/03/2013 to 22/04/2013 1 month(s) and 4 day(s) Baia Mare Penitentiary 25/04/2013 to 13/03/2014 10 month(s) and 17 day(s) Gherla Penitentiary 13/03/2014 to 03/06/2015 1 year(s) and 2 month(s) and 22 day(s) Satu Mare Penitentiary 03/06/2015 to 21/09/2015 3 month(s) and 19 day(s) 2.7 m² 1.8 m² 2.07-2.1 m² 1.2-1.9 m² 1.7-2.4 m² 1.3-1.4 m² Overcrowding, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of fresh air, lack of or insufficient natural light, poor quality of food, lack of or inadequate hygienic facilities, cell situated at the basement. Overcrowding, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, poor quality of food, lack of or insufficient physical exercise in fresh air, lack of fresh air, lack of or insufficient natural light, lack of or inadequate hygienic facilities, cell situated at the basement. Overcrowding, lack of privacy for toilet, lack of or poor quality of bedding and bed linen, lack of toiletries, poor quality of food, lack of or insufficient physical exercise in fresh air. Overcrowding, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of toiletries, poor quality of food, lack of adequate place for serving meal, lack of or inadequate hygienic facilities.", "Overcrowding, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of privacy for toilet, lack of toiletries, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities. Overcrowding, bunk beds, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, poor quality of food, lack of or insufficient physical exercise in fresh air. 3,000 34184/15 28/07/2015 Adrian-Mircea Lăpădat 15/01/1977 Miercurea Ciuc Penitentiary 17/07/2014 to 14/01/2016 1 year(s) and 5 month(s) and 29 day(s) 1.6-2.7 m² Overcrowding, lack of or inadequate furniture and storage space, insufficient and poor quality of food, lack of fresh air, lack of or insufficient natural light, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, bunk beds, lack of or insufficient physical exercise in fresh air. 3,000 36047/15 15/07/2015 Ion Picicurov 19/11/1978 Gîrjev Daniela Chișinău Vaslui Penitentiary 11/02/2014 to 17/02/2015 1 year(s) and 7 day(s) and 16/06/2015 pending More than 2 year(s) and 4 month(s) and 1 day(s) 1.9 m² Overcrowding 3,000 [1] Plus any tax that may be chargeable to the applicants." ]
[ "COURT (CHAMBER) CASE OF CREMIEUX v. FRANCE (Application no. 11471/85) JUDGMENT STRASBOURG 25 February 1993 In the case of Crémieux v. France[*], The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\")[*] and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges: Mr R. Bernhardt, President, Mr Thór Vilhjálmsson, Mr F. Matscher, Mr L.-E. Pettiti, Mr C. Russo, Mr N. Valticos, Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr L. Wildhaber, and also of Mr M.-A.", "Eissen, Registrar, and Mr H. Petzold, Deputy Registrar, Having deliberated in private on 24 September 1992 and 27 January 1993, 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 13 December 1991, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.", "It originated in an application (no. 11471/85) against the French Republic lodged with the Commission under Article 25 (art. 25) by a national of that State, Mr Paul Crémieux, on 11 March 1985. The Commission’s request referred to Articles 44 and 48 (art. 44, art.", "48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8, 6 para. 3 and 10 (art. 8, art.", "6-3, art. 10). 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).", "3. On 24 January 1992 the President of the Court decided, under Rule 21 para. 6 and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider the instant case and the cases of Funke and Miailhe v. France*. * Cases nos. 82/1991/334/407 and 86/1991/338/411.", "The Chamber to be constituted for this purpose included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On the same day, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr C. Russo, Mr N. Valticos, Mr J.M. Morenilla, Mr M.A.", "Lopes Rocha and Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para.", "5) and, through the Registrar, consulted the Agent of the French Government (\"the Government\"), the Delegate of the Commission and the applicant’s lawyer on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 16 June 1992 and the Government’s memorial on 19 June. On 17 July the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. On 24 July the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.", "5. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 September 1992. The Court had held a preparatory meeting beforehand. Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal who was unable to take part in the further consideration of the case (Rule 21 para. 5, second sub-paragraph).", "There appeared before the Court: - for the Government Mr B. Gain, Head of the Human Rights Section, Department of Legal Affairs, Ministry of Foreign Affairs, Agent, Miss M. Picard, magistrat, on secondment to the Department of Legal Affairs, Ministry of Foreign Affairs, Mr J. Carrère, magistrat, on secondment to the Department of Criminal Affairs and Pardons, Ministry of Justice, Mrs C. Signerinicre, Head of the Legal Affairs Office, Department of Customs, Ministry of the Budget, Mrs R. Codevelle, Inspector of Customs, Department of Customs, Ministry of the Budget, Mr G. Rotureau, Chief Inspector of Customs, Strasbourg Regional Head Office of Customs, Counsel; - for the Commission Mr S. Trechsel, Delegate; - for the applicant Ms C. Imbach, avocate, Counsel. The Court heard addresses by Mr Gain for the Government, Mr Trechsel for the Commission and Ms Imbach for the applicant. AS TO THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "Mr Paul Crémieux, a French citizen born in 1908, is retired and lives at his female companion’s home in Marseilles. At the material time he was chairman and managing director of SAPVIN, a wholesale wine firm, whose head office is in Marseilles. A. The house searches and seizures of documents 7. In October 1976, in the course of an investigation into the SODEVIM company, customs officers seized documents relating to business transactions between SAPVIN and foreign firms.", "8. Thereafter, from 27 January 1977 to 26 February 1980, the customs authorities carried out eighty-three investigative operations in the form of interviews and of raids on SAPVIN’s head office, on the applicant’s home and at other addresses of his and on the homes of other people, during which further items were seized. Each of the house searches was made under Articles 64 and 454 of the Customs Code (see paragraphs 19-20 below). They were conducted by officials from the National Customs Investigations Department (\"the DNED\") in the presence of a senior police officer (officier de police judiciaire); a report was made on each of them and they all led to Mr Crémieux’s being subsequently interviewed. 9.", "Several such searches were made on 23 January 1979. One of them began at 7 a.m. at the applicant’s Paris home, in his absence. The customs officers were received by Mr Crémieux’s son; they inspected the office and took away 518 documents, some of which, according to Mr Crémieux, had no connection with the customs investigation. The son initialled the inventory of documents. The applicant, who had arrived at 9.10 a.m., signed the report together with his son; he denied having been able, as the Government maintained, to go through the documents.", "Another search began at 8 a.m. at the home of Mr Crémieux’s female companion, whom, the applicant claimed, the DNED officials had followed into the bathroom when she said she wanted to put on a dressing-gown. Numerous personal papers were seized. Searches were also made of the homes of other people, who had business relations with the applicant and his company. 10. On 24 January and 17 May 1979 Mr Crémieux was questioned by customs officers.", "On 16 February 1979 they opened the private strongbox he had at SAPVIN’s head office and took seventeen documents from it. B. The court proceedings 1. The criminal proceedings against the applicant 11. On a complaint by the Mediterranean Interregional Head Office of Customs, the Marseilles public prosecutor’s office began a judicial investigation in respect of Mr Crémieux and seven other people and passed the case to a local investigating judge on 16 June 1981.", "12. On 29 November 1982 this judge charged the eight with offences against the legislation and regulations governing financial dealings with foreign countries. The customs agreed to compound with those charged (see paragraph 23 below) - Mr Crémieux was to pay 1,400,000 French francs (FRF) and SAPVIN FRF 20,000,000 - and the judge accordingly issued a discharge order on 16 June 1987. 2. The applicant’s proceedings to have the reports and seizures declared null and void (a) Before the Marseilles investigating judge 13.", "On 8 August 1983 and 4 and 11 April 1984 Mr Crémieux applied to the Marseilles investigating judge for a declaration that the customs officers’ reports on the facts and on the seizures were null and void. On 24 April 1984 the judge made an order that the file on the investigation in respect of Mr Crémieux and those charged with him should be sent to the Marseilles public prosecutor for an opinion. The customs authorities and the public prosecutor’s office submitted that the relevant reports were valid and the house searches lawful. (b) In the Indictment Division of the Aix-en-Provence Court of Appeal 14. On 22 June 1984 the investigating judge made an order whereby the case was referred directly to the Indictment Division of the Aix-en-Provence Court of Appeal for a decision on the lawfulness of the proceedings (Article 171 of the Code of Criminal Procedure).", "15. On 30 July 1984 the Indictment Division held that all the impugned reports were valid. In the terms set out below, it dismissed an application by Mr Crémieux for a declaration that Articles 454 and 64 of the Customs Code had ceased to have effect in the light of the principles laid down in the Constitutional Council’s decision of 29 December 1983 (Official Gazette (Journal officiel), 30 December 1983, p. 3871): \"Paul Crémieux relied on the fact that in this decision the Constitutional Council held that ‘in order expressly to satisfy the requirements not only of the liberty of the individual and the inviolability of the home but also of the fight against customs evasion, the provisions of Article 89 of the Budget Act 1984 should have been accompanied by provisions and clarifications precluding any improper interpretation or practice and, accordingly, could not, as they stood, be held to be constitutional’. The Indictment Division, however, cannot rule on the constitutionality of Articles 454 and 64 of the Customs Code in whatever form or context such unconstitutionality is pleaded. This is because Article 27 of the Criminal Code provides that ‘any judge ... who stays or suspends the application of a statute ...’ shall be guilty of criminal malfeasance in public office.\"", "The Indictment Division did not rule on the issue - raised by the applicant before the investigating judge - whether the disputed customs measures were compatible with Article 8 (art. 8) of the Convention. (c) In the Court of Cassation 16. Mr Crémieux appealed on points of law. In the first of his three grounds he relied on, inter alia, the Convention: \"Violation on account of the refusal to apply Articles 62 and 66 of the Constitution of 4 October 1958 and Article 8 (art.", "8) of the Convention ..., violation through improper application of Articles 64 and 454 of the Customs Code and of Article 593 of the Code of Criminal Procedure; In that the Court of Appeal in the judgment appealed against upheld the validity of the house searches made by customs officers accompanied by a senior police officer (officier de police judiciaire) between 27 January 1977 and 26 February 1980 under Articles 64 and 454 of the Customs Code, and in particular the one made on 23 January 1979 at the applicant’s home; On the grounds that the Indictment Division cannot rule on the constitutionality of Articles 454 and 64 of the Customs Code in whatever form or context such unconstitutionality is pleaded and that Article 127 of the Criminal Code indeed provides that ‘any judge ... who stays or suspends the application of a statute’ shall be guilty of criminal malfeasance in public office; Whereas, firstly, Article 66 of the Constitution of 4 October 1958 makes the right of State officials to search the home of an offender subject to prior judicial leave, and Articles 64 and 454 of the Customs Code, which did not provide for any such safeguard, before the promulgation of the Constitution of 4 October 1958, were thus implicitly but necessarily abrogated by the Constitution, which, by Article 62, is directly binding on the courts without that entailing any review of the constitutionality of legislation; and the Indictment Division therefore contravened the aforementioned provisions; Whereas, secondly, the provisions of Articles 64 and 454 of the Customs Code are incompatible with those of Article 8 (art. 8) of the Convention ..., which are directly binding on national courts, Article 8 (art. 8) providing for the inviolability of the home; and the Indictment Division thus also contravened the provisions of that treaty; Whereas, in the alternative, Articles 64 and 454 of the Customs Code, assuming that they remained in force after the promulgation of the Constitution of 4 October 1958, require, in accordance with the provisions of the Constitution, that when administrative officials search a person’s home they must have sought and obtained prior judicial leave; and that the report on the house search is null and void unless it mentions that this formality was complied with; on this account likewise the Indictment Division infringed the aforementioned provisions.\" 17. The Criminal Division of the Court of Cassation dismissed the appeal on 21 January 1985.", "In relation to the foregoing ground it held: \"Articles 454 and 64 of the Customs Code, as enacted by the Act of 28 December 1966, are legislative in nature and have never been repealed. It is accordingly not within the jurisdiction of the ordinary courts to review their constitutionality. Furthermore, the provisions they contain satisfy the requirements of Article 8 (art. 8) of the Convention ..., paragraph 2 (art. 8-2) of which allows interference by a public authority with an individual’s home where such interference is, inter alia, ‘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, [and] for the prevention of disorder or crime’.\"", "II. RELEVANT CUSTOMS LAW 18. The criminal provisions of customs law in France are treated as a special body of criminal law. A. Establishment of offences 1.", "Officials authorised to establish offences 19. Two provisions of the Customs Code are relevant as regards these officials: Article 453 \"The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries: 1. customs officers; 2. other officials of the Ministry of Finance with the rank of at least inspector; 3. senior police officers (officiers de police judiciaire). The reports made by senior police officers shall be forwarded to the Minister for Economic Affairs and Finance, who shall refer cases to the prosecuting authorities if he thinks fit.\" Article 454 \"The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in Article 64 of this code.\" 2.", "House searches (a) The rules applicable at the material time 20. When the house search was made (23 January 1979), Article 64 of the Customs Code was worded as follows: \"1. When searching for goods held unlawfully within the customs territory, except for built-up areas with a population of at least 2,000, and when searching in any place for goods subject to the provisions of Article 215 hereinafter, customs officers may make house searches if accompanied by a local municipal officer or a senior police officer (officier de police judiciaire). 2. In no case may such searches be made during the night.", "3. Customs officers may act without the assistance of a local municipal officer or a senior police officer (a) in order to make searches, livestock counts, and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and (b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone. 4. If entry is refused, customs officials may force an entry in the presence of a local municipal officer or a senior police officer.\" (b) The rules applicable later 21.", "The Budget Acts of 30 December 1986 (section 80-I and II) and 29 December 1989 (section 108-III, 1 to 3) amended Article 64, which now provides: \"1. In order to investigate and establish the customs offences referred to in Articles 414-429 and 459 of this code, customs officers authorised for the purpose by the Director- General of Customs and Excise may make searches of all premises, even private ones, where goods and documents relating to such offences are likely to be held and may seize them. They shall be accompanied by a senior police officer (officier de police judiciaire). 2. (a) Other than in the case of a flagrant offence (flagrant délit), every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated, or a judge delegated by him.", "Against such an order there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure; such an appeal shall not have a suspensive effect. The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order. The order shall contain: (i) where applicable, a mention of the delegation by the President of the tribunal de grande instance; (ii) the address of the premises to be searched; (iii) the name and position of the authorised official who has sought and obtained leave to make the searches. The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought. If, during the search, the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the premises searched and in which documents, goods or other items relating to the activities referred to in paragraph 1 above are likely to be found, they may, with leave given by any means by the judge who made the original order, immediately search the strongbox.", "Such leave shall be mentioned in the report provided for in paragraph 2(b) below. The judge shall take practical steps to check that each application for leave made to him is well-founded; each application shall contain all information in the possession of the customs authorities that may justify the search. He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress. The search shall be carried out under the supervision of the judge who has authorised it. Where it takes place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance in the jurisdiction of which the search is being made.", "The judge may go to the scene during the operation. He may decide at any time to suspend or halt the search. The judicial order shall be notified orally to the occupier of the premises or his representative on the spot at the time of the search, who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph 2(b) below. If the occupier of the premises or his representative is absent, the judicial order shall be notified after the search by means of a registered letter with recorded delivery. Notification shall be deemed to have been made on the date of receipt entered in the record of delivery.", "Failing receipt, the order shall be served as provided in Articles 550 et seq. of the Code of Criminal Procedure. The time-limits and procedures for appeal shall be indicated on notification and service documents. (b) Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative; if this is impossible, the senior police officer shall requisition two witnesses chosen from persons not under his authority or that of the customs.", "Only the customs officers mentioned in paragraph 1 above, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized. The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure; Article 58 of that code shall apply. The report, to which shall be appended an inventory of the goods and documents seized, shall be signed by the customs officers, the senior police officer and the persons mentioned in the first sub-paragraph of this section (b); in the event of a refusal to sign, mention of that fact shall be made in the report. Where an on-the-spot inventory presents difficulties, the documents seized shall be placed under seal. The occupier of the premises or his representative shall be informed that he may be present at the removal of the seals, which shall take place in the presence of the senior police officer; the inventory shall then be made.", "A copy of the report and of the inventory shall be given to the occupier of the premises or his representative. A copy of the report and the inventory shall be sent to the judge who made the order within three days of its being drawn up. 3. Customs officers may act without the assistance of a senior police officer (a) in order to make searches, livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and (b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone. 4.", "If entry is refused, customs officers may force an entry in the presence of a senior police officer.\" B. Prosecution of offences 22. Article 458 of the Customs Code provides: \"Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for Economic Affairs and Finance or one of his representatives authorised for the purpose.\" C. Compounding 23.", "The customs authorities may, in certain circumstances, compound with persons being prosecuted for customs offences or for offences against the legislation and regulations governing financial dealings with foreign countries (Article 350 of the Customs Code). PROCEEDINGS BEFORE THE COMMISSION 24. Mr Crémieux applied to the Commission on 11 March 1985, complaining of the searches and seizures made by customs officers at his home and at other addresses of his. He relied on three provisions of the Convention: Article 8 (art. 8) (infringement of his right to respect for his private life, his home and his correspondence); Article 6 para.", "3 (art. 6-3) (non-compliance with mandatory formalities); and Article 10 (art. 10) (failure to respect his freedom of expression). 25. The Commission declared the application (no.", "11471/85) admissible on 19 January 1989. In its report of 8 October 1991 (made under Article 31) (art. 31), the Commission expressed the opinion that there had been no breach of Article 8 (art. 8) (by eleven votes to seven), Article 6 para. 3 (art.", "6-3) (unanimously) or Article 10 (art. 10) (unanimously). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[*]. FINAL SUBMISSIONS TO THE COURT 26. In its memorial the Government asked the Court to dismiss all the complaints made by Mr Crémieux.", "27. Counsel for the applicant asked the Court to \"hold that there ha[d] been in the instant case a breach of Articles 8, 10 and 6 para. 3 (art. 8, art. 10, art.", "6-3) of the ... Convention ...; award just satisfaction under Article 50 (art. 50), having regard to the substantial non-pecuniary damage sustained, in the sum of FRF 500,000; award costs and expenses, to be paid by the French Republic, in the amount of FRF 100,000; ...\" AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 28. In the applicant’s submission, the house searches and seizures made in the instant case were in breach of Article 8 (art.", "8), 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.", "The Government’s preliminary objection 29. As they had done before the Commission, the Government raised an objection of inadmissibility on the ground that domestic remedies had not been exhausted in that Mr Crémieux had not complained in the ordinary courts of a flagrantly unlawful act (voie de fait) on the part of the customs officers and had not sought compensation for it. 30. Like the applicant and the Commission, the Court notes that Mr Crémieux brought proceedings to have customs reports on the facts and on the seizures declared null and void (see paragraphs 13-17 above) and pursued them to a conclusion, without omitting to plead Article 8 (art. 8).", "He cannot be criticised for not having made use of a legal remedy which would have been directed to essentially the same end, is hardly ever used and would in any case probably have been doomed to failure. The objection must therefore be dismissed. B. Merits of the complaint 31. The Government conceded that there had been an interference with Mr Crémieux’s right to respect for his private life, and the Commission additionally found that there had been an interference with his right to respect for his home.", "Like Mr Crémieux, the Court considers that all the rights secured in Article 8 para. 1 (art. 8-1) are in issue, except for the right to respect for family life. It must accordingly be determined whether the interferences in question satisfied the conditions in paragraph 2 (art. 8-2).", "1. \"In accordance with the law\" 32. The applicant contended that the interferences had no legal basis. As worded at the time, Article 64 of the Customs Code was, he claimed, contrary to the 1958 Constitution because it did not make house searches and seizures subject to judicial authorisation. Admittedly, its constitutionality could not be reviewed, since it had come into force before the Constitution had.", "Nevertheless, in the related field of taxation the Constitutional Council had rejected section 89 of the Budget Act for 1984, concerning the investigation of income-tax and turnover-tax offences, holding, inter alia: \"While the needs of the Revenue’s work may dictate that tax officials should be authorised to make investigations in private places, such investigations can only be conducted in accordance with Article 66 of the Constitution, which makes the judiciary responsible for protecting the liberty of the individual in all its aspects, in particular the inviolability of the home. Provision must be made for judicial participation in order that the judiciary’s responsibility and supervisory power may be maintained in their entirety.\" (Decision no. 83-164 DC of 29 December 1983, Official Gazette (Journal officiel), 30 December 1983, p. 3874) 33. The Government, whose arguments the Commission accepted in substance, maintained that in Article 64 of the Customs Code, as supplemented by a fairly substantial body of case-law, the power to search houses was defined very closely and represented a transposition to customs legislation and the regulations governing financial dealings with foreign countries of the power of search provided for in ordinary criminal procedure.", "Provision was first made for it in an Act of 6 August 1791 and subsequently in a legislative decree of 12 July 1934, and it had been widened in 1945 to cover investigations into exchange- control offences and confirmed on several occasions. In the Government’s submission, its constitutionality could not be put in doubt, any more than that of Article 454 of the same code, since review of the constitutionality of statutes took place between their enactment by Parliament and promulgation and was within the sole competence of the Constitutional Council, to the exclusion of all other courts. As to the \"quality\" of the national legal rules vis-à-vis the Convention, it was ensured by the precision with which the legislation and case-law laid down the scope and manner of exercise of the relevant power, and this eliminated any risk of arbitrariness. Thus even before the reform of 1986-89 (see paragraph 21 above), the courts had supervised customs investigations ex post facto but very efficiently. And in any case, Article 8 (art.", "8) of the Convention contained no requirement that house searches and seizures should be judicially authorised in advance. 34. The Court does not consider it necessary to determine the issue in this instance, as at all events the interferences complained of are incompatible with Article 8 (art. 8) in other respects (see paragraphs 40-41 below). 2.", "Legitimate aim 35. The Government and the Commission considered that the interferences in question were in the interests of \"the economic well- being of the country\" and \"the prevention of crime\". Notwithstanding the applicant’s arguments to the contrary, the Court is of the view that the interferences were in pursuit of at any rate the first of these legitimate aims. 3. \"Necessary in a democratic society\" 36.", "In Mr Crémieux’s submission, the interferences could not be regarded as \"necessary in a democratic society\". Their scope was unlimited and they had also been carried out in an unacceptable manner. In the first place, their sheer scale was, he said, striking: eighty- three investigative operations spread over three years, although the case was neither serious nor complex and ended with a composition; furthermore, none of the documents removed had proved that any exchange-control offence had been committed. The interferences further reflected a lack of discrimination on the part of the customs officers, who took possession of purely private papers and correspondence and lawyer’s letters and subsequently returned a very large number of the documents seized, which they deemed unnecessary for the investigation. Lastly, the interferences illustrated the authorities’ hounding of the applicant, with the customs searches (visites domiciliaires) being turned into thoroughgoing general searches (perquisitions).", "37. The Government, whose contentions the Commission accepted in substance, argued that house searches and seizures were the only means available to the authorities for investigating offences against the legislation governing financial dealings with foreign countries and thus preventing the flight of capital and tax evasion. In such fields there was a corpus delicti only very rarely if at all; the \"physical manifestation\" of the offence therefore lay mainly in documents which a guilty party could easily conceal or destroy. Such persons, however, had the benefit of substantial safeguards, strengthened by very rigorous judicial supervision: decision-making by the head of the customs district concerned, the rank of the officers authorised to establish offences, the presence of a senior police officer (officier de police judiciaire), the timing of searches, the preservation of lawyers’ and doctors’ professional secrecy, the possibility of invoking the liability of the public authorities, etc. In short, even before the reform of 1986-89, the French system had ensured that there was a proper balance between the requirements of law enforcement and the protection of the rights of the individual.", "As regards the circumstances of the case, the Government made two observations. Firstly, the composition agreed to by the authorities was tantamount to acknowledgement by Mr Crémieux of the offence committed; far from demonstrating that the case was of little importance, it was an efficient procedure commonly used by the customs to obviate more cumbersome proceedings with identical consequences. Secondly, the many house searches had been made necessary by the number of different places where Mr Crémieux might keep documents. 38. The Court has consistently held that the Contracting States have a certain margin of appreciation in assessing the need for an interference, but it goes hand in hand with European supervision.", "The exceptions provided for in paragraph 2 of Article 8 (art. 8-2) are to be interpreted narrowly (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and the need for them in a given case must be convincingly established. 39.", "Undoubtedly, in the field under consideration - the prevention of capital outflows and tax evasion - States encounter serious difficulties owing to the scale and complexity of banking systems and financial channels and to the immense scope for international investment, made all the easier by the relative porousness of national borders. The Court therefore recognises that they may consider it necessary to have recourse to measures such as house searches and seizures in order to obtain physical evidence of exchange-control offences and, where appropriate, to prosecute those responsible. Nevertheless, the relevant legislation and practice must afford adequate and effective safeguards against abuse (see, among other authorities and mutatis mutandis, the Klass and Others judgment previously cited, Series A no. 28, p. 23, para. 50).", "40. This was not so in the instant case. At the material time - and the Court does not have to express an opinion on the legislative reforms of 1986 and 1989, which were designed to afford better protection for individuals (see paragraph 21 above) - the customs authorities had very wide powers; in particular, they had exclusive competence to assess the expediency, number, length and scale of inspections. Above all, in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law, which were emphasised by the Government (see paragraph 37 above), appear too lax and full of loopholes for the interferences with the applicant’s rights to have been strictly proportionate to the legitimate aim pursued. 41.", "In sum, there has been a breach of Article 8 (art. 8). II. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 3 AND ARTICLE 10 (art.", "6-3, art. 10) 42. The applicant also relied on Article 6 para. 3 and Article 10 (art. 6-3, art.", "10). The alleged infringements of the rights of the defence and of freedom of expression relate to the same facts as those which the Court has held to have contravened Article 8 (art. 8); in the circumstances of the case, it is unnecessary to consider them separately. III. APPLICATION OF ARTICLE 50 (art.", "50) 43. Under Article 50 (art. 50), \"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\" A. Damage 44.", "Mr Crémieux claimed, firstly, that he had sustained non- pecuniary damage; he put this at 500,000 French francs (FRF) but left it to the Court to determine in its discretion and in the light of its case-law. The Government and the Delegate of the Commission expressed no opinion. 45. The Court considers that the applicant must have suffered non- pecuniary damage but that this judgment affords him sufficient compensation for it. B.", "Costs and expenses 46. Mr Crémieux also sought reimbursement of the costs and expenses he had incurred in the French courts and in the proceedings before the Convention institutions. He assessed these on a lump-sum basis at FRF 100,000; given that the case went back a long way in time and that his first counsel had died, he acknowledged that he was unable to provide a detailed statement of costs. The Government and the Delegate of the Commission did not put forward any view on the issue. 47.", "Applying its usual criteria, the Court awards the applicant FRF 50,000. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government’s preliminary objection; 2. Holds by eight votes to one that there has been a breach of Article 8 (art. 8); 3.", "Holds by eight votes to one that it is unnecessary to consider the case also under Article 6 para. 3 and Article 10 (art. 6-3, art. 10); 4. Holds unanimously, as regards the non-pecuniary damage sustained by the applicant, that the present judgment constitutes in itself sufficient just satisfaction for the purposes of Article 50 (art.", "50); 5. Holds unanimously that the respondent State is to pay the applicant, within three months, 50,000 (fifty thousand) French francs in respect of costs and expenses; 6. Dismisses unanimously the remainder of the applicant’s claims. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 February 1993. Rudolf BERNHARDT President Marc-André EISSEN Registrar In accordance with Article 51 para.", "2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of Mr Thór Vilhjálmsson is annexed to this judgment. R.B. M.-A.E.", "DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON I have voted against the finding of a violation of Article 8 (art. 8) of the Convention in this case. My reasons are much the same as those set out by the majority of the Commission in its report. [*] The case is numbered 83/1991/335/408. 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. [*] As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990. [*] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 256-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry." ]
[ "FIRST SECTION CASE OF PARTI NATIONALISTE BASQUE – ORGANISATION RÉGIONALE D’IPARRALDE v. FRANCE (Application no. 71251/01) JUDGMENT STRASBOURG 7 June 2007 FINAL 07/09/2007 In the case of Parti nationaliste basque – Organisation régionale d’Iparralde v. France, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Loukis Loucaides,Jean-Paul Costa,Françoise Tulkens,Nina Vajić,Anatoly Kovler,Elisabeth Steiner, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 15 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 71251/01) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association established under French law, Parti nationaliste basque – Organisation régionale d’Iparralde (“the applicant party”), on 25 April 2001. 2.", "The applicant party was represented before the Court by Mr J. Chalbaud, Mr I. Quintana and Mr A. Carballo, lawyers practising in Bilbao. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3. Having regard to the observations submitted by the respondent Government and those submitted in reply by the applicant party, and to the opinion adopted by the European Commission for Democracy through Law (Venice Commission) at its 66th plenary session (17-18 March 2006 – CDL-AD(2006)014), produced at the Court’s request (Rule A1 § 2 of the Rules of Court), the Chamber declared the application admissible by a decision of 5 October 2006. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant party is established as an association registered on the basis of the Associations Act of 1 July 1901. Its name in Basque is Euzko Alderdi Jeltzalea – Iparraldeko Erakundea (Basque Nationalist Party – Iparralde Regional Organisation), and its registered office is in Bayonne (France). “Iparralde” is the Basque designation for part of south-western France. Its constitution of 19 August 1996 states that it is “formed as a regional branch of the EAJ-PNB in the provinces of Laburdi (Labourd), Benafarroa (Lower Navarre) and Zuberoa (Soule)” and adopts “the national ideology of the EAJ-PNB” and “the traditional principles and modus operandi of the EAJ-PNB to the extent that they are compatible with the present Constitution”.", "The EAJ-PNV (Euzko Alderdi Jeltzalea – Partido Nacionalista Vasco; the French abbreviation is EAJ-PNB) is a political party established under Spanish law whose aim is to defend and promote Basque nationalism. 5. The applicant party states that its activities are the same as those of any political party: it devises political programmes, puts forward candidates for elections and takes part in election campaigns. 6. In order to be able to receive funds, in particular financial contributions from the EAJ-PNV, the applicant party formed a funding association in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988.", "On 16 September 1998 it applied to the National Commission on Election Campaign Accounts and Political Funding (Commission nationale des comptes de campagnes et des financements politiques – “the CCFP”) under section 11-1 of the same Act for authorisation of the funding association. On 22 January 1999 the CCFP rejected the application, giving the following reasons in its decision: “... [The CCFP] has been asked to authorise the funding association for the Parti nationaliste basque as that political organisation’s funding association within the meaning of section 11 of the Act of 11 March 1988 as amended. It was noted in the Commission’s opinion published in the Official Gazette of 18 November 1998 ... and was acknowledged by the [applicant] party’s chairman in his letter of 20 January 1999 that the party receives funds from the Spanish Basque Nationalist Party. Section 11-4 of Law no. 88-227 of 11 March 1988, as amended by section 16-1 of Law no.", "95-65 of 19 January 1995, prohibits the funding of a political party by any foreign legal entity [personne morale]. The Parti nationaliste basque receives financial support from the Spanish Basque Nationalist Party, whose official recognition under Spanish law does not in any way remove its status as a foreign legal entity. Accordingly, this unlawful source of funding, which accounts for most of the resources of the Parti nationaliste basque, precludes the party from having a funding association authorised in accordance with the law. ...” 7. On 22 June 1999 the applicant party applied to the CCFP to reconsider its decision.", "The application was refused on 2 July 1999 in a decision worded as follows: “... As to the [alleged] absence of a ban on the financing of a French political party by a foreign political party: Having compared the provisions of Article L. 52-8 of the Elections Code, applicable to election campaigns, and section 16-1 of the Act of 19 January 1995, the applicant contends that section 16-1 ... simply states that only a political party can fund another political party and that, contrary to the position regarding election campaigns, no provision of any statute or regulations expressly prohibits the funding of a political party by another political party established under the law of a foreign country. This argument disregards the fifth subsection of section 11-4 of the Act of 11 March 1988, as amended by the Acts of 15 January 1990 and 19 January 1995, which provides: ‘No funding association or financial agent may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ Pursuant to section 11 of the Act of 11 March 1988, the intervention of a funding association or financial agent is compulsory for the receipt of funds. It thus follows from these two provisions, read together, that a party cannot receive funds from a political party that is a foreign legal entity. As to the [alleged] infringement of the Community principle of the free movement of capital and [alleged] incompatibility with developments in national electoral law: These two principles conflict with express provisions of French law. Firstly, the free movement of capital does not prevent local law from regulating certain aspects of this principle.", "Secondly, the transnational representativeness of parties does not necessarily presuppose financial support from abroad and, contrary to what the applicant argues, the prohibition of such support does not in any way impair the full exercise of the right to vote and to stand for election. ...” 8. On 3 September 1999 the applicant party applied for judicial review of that decision to the Conseil d’Etat, which dismissed the application on 8 December 2000 in a judgment worded as follows: “... Section 11 of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), in the wording resulting from Law no.", "90-55 of 15 January 1990, provides that political parties and their territorial and specialist organisations ‘collect funds through the intermediary [of an agent] duly designated by them, which may be either a funding association or an individual’. Section 11-1, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, provides that ‘authorisation to act as a political party’s funding association shall be given by the National Commission on Election Campaign Accounts and Political Funding’. It follows from the first subsection of section 11-6, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act. Among the requirements concerned are those set forth in the penultimate subsection of section 11-4, which provides: ‘No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ ... Substantive legality The applicant group argues that the Commission erred in its application of section 11-4 of the Act of 11 March 1988 and that, should the Commission’s interpretation be held to prevail, the statutory provisions cited in support of its decision should be struck down as being contrary to the Constitution and incompatible with France’s international obligations.", "As to the alleged erroneous application of section 11-4 of the Act of 11 March 1988: ... the penultimate subsection of section 11-4 of the Act of 11 March 1988 prohibits funding associations from receiving financial contributions ‘from a foreign State or a foreign legal entity’. Foreign political parties, which belong to the category of foreign legal entities, fall within the purview of that prohibition. The amendments resulting from the Act of 19 January 1995 to the second subsection of section 11-4 with the effect, firstly, of prohibiting a legal entity from funding a party or a political group and, secondly, of excluding ‘political parties and groups’ from this prohibition on account of the role conferred on them by Article 4 of the Constitution of 4 October 1958 had neither the purpose nor the effect of exempting foreign political parties from the prohibition on the funding of a French political party by any foreign legal entity. Consequently, the applicant group has no basis for arguing that the impugned decision was based on an erroneous application of the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988 in conjunction with the second subsection of that section. As to the alleged breach of Article 11 of the Declaration of the Rights of Man and of the Citizen: It is not for the Conseil d’Etat, acting in its judicial capacity, to assess whether the law is compatible with the Constitution.", "Accordingly, the argument that section 11-4 of the Act of 11 March 1988 contravenes Article 11 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble to the Constitution refers, fails. As to the alleged incompatibility of the law with France’s international obligations: As regards the Convention for the Protection of Human Rights and Fundamental Freedoms: The applicant group relies on the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, paragraph 1, of which secures freedom of expression to everyone ‘without interference by public authority and regardless of borders’ and Article 14 of which provides that the enjoyment of the rights and freedoms set forth in the Convention is to be secured ‘without [discrimination] on any ground such as ... national ... origin ...’. Even accepting, as the applicant group argues, that the rules on the conditions for funding political parties have a bearing on the right to freedom of expression within the meaning of paragraph 1 of Article 10 of the Convention, which includes, as well as the freedom to hold opinions, ‘the freedom to receive and impart information and ideas’, paragraph 2 of the same Article nonetheless provides that ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’, may be subject to such ‘restrictions ... as are prescribed by law and are necessary in a democratic society’ to the extent that they satisfy one or other of the requirements set forth in that paragraph, among which is ‘the prevention of disorder’. Political groups and parties falling within the purview of Article 4 of the Constitution of the French Republic are intended to contribute to the exercise of suffrage in the implementation of national sovereignty. In prohibiting foreign States and foreign legal entities from funding national political parties, the legislature sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty.", "The aim thus pursued is linked to the ‘prevention of disorder’ within the meaning of paragraph 2 of Article 10 of the Convention. On account of both the justification of this measure and the fact that the right to freedom of expression is affected only indirectly by the rules governing the funding of political parties, and in view of the margin of appreciation which Article 10, paragraph 2, affords the national legislature, the provisions of section 11-4 of the Act of 11 March 1988 are not incompatible either with the requirements of Article 10 of the Convention, or indeed with those of Article 14. As regards Community law: The applicant group argues that since the resources obtained by the funding association whose authorisation has been refused stem from a political party with its registered office in a member State of the European Community, the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988, in so far as they apply to a situation governed by Community law, are incompatible with a number of provisions of the Treaty establishing the European Community. ... Thirdly, even supposing that the rules governing the funding of political parties may, in certain respects, have a bearing on the free movement of capital between member States as guaranteed by Article 56 of the EC Treaty, that Article, as Article 58 clearly indicates, does not affect the right of member States to ‘take measures which are justified on grounds of ... public security’. Regard being had both to the aim it pursues and to the limited impact it has on the free movement of capital, the prohibition set forth in the penultimate subsection of section 11-4 of the Act of 11 March 1988 is to be counted among the measures that may be taken by a member State under Article 58 of the Treaty.", "Accordingly, the submission that the Act is incompatible with Article 56 must be dismissed. Fourthly, the provisions of section 11-4 of the Act of 11 March 1988, which, as stated above, are intended to avoid creating any relationship of dependency between political parties in the performance of their function and a foreign State or a foreign legal entity, are likewise not incompatible with the provisions of Article 191 of the Treaty, which appear in a part of the Treaty dealing with the Community institutions and more specifically the European Parliament, and which read: ‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Accordingly, and even supposing that Article 191 creates any rights in respect of private individuals, this submission must fail. ...” II. RELEVANT DOMESTIC LAW 9.", "The first paragraph of Article 4 of the Constitution of 4 October 1958 provides: “Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.” Section 7 of the Political Life (Financial Transparency) Act (Law no. 88‑227 of 11 March 1988) reaffirms that “political parties and groups shall be formed and shall carry on their activities freely”, adding that they have legal personality and are entitled to take part in court proceedings and to acquire movable and immovable property, by way of gift or for consideration, and that they “may perform any actions consistent with their purpose, including establishing and running newspapers and training institutions in accordance with the statutory provisions in force”. 10.", "The financing of politics in general and political parties in particular is governed by law (main source: technical files on the Senate’s website, www.senat.fr). A. Funding of political parties 11. In addition to the operating costs they have to meet in the same way as any other association, political parties incur significant expenditure during election campaigns. They have two main sources of funds: private funding, which is generally modest, and State funding, which nowadays accounts for a decisive share.", "1. Private funding 12. Like any association, political parties may charge membership fees. In practice, however, these account for only a very small proportion of their resources. 13.", "The Act of 11 March 1988 (as amended) gives them the further possibility of receiving donations from individuals (donations from other legal entities are in principle prohibited); however, voluntary contributions from individuals are traditionally modest. The following provisions of the Act of 11 March 1988 (as amended) are relevant to the present case: Section 11 “Political parties and the territorial or specialist organisations they may designate for this purpose shall collect funds through the intermediary of an agent duly designated by them, which may be either a funding association or an individual.” Section 11-1 “Authorisation of a political party’s funding association shall be granted by the National Commission on Election Campaign Accounts and Political Funding referred to in Article L. 52-14 of the Elections Code, provided that the sole object of the association is the funding of a political party and that its articles of association comply with the provisions of the following subsections of this section. The authorisation shall be published in the Official Gazette. The articles of an association authorised to act as a political party’s funding association must include: (1) the delimitation of the geographical area within which the association is to carry on its activities; and (2) an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited.” Section 11-2 “The political party shall declare in writing to the prefecture of the département in which its registered office is situated the name of the individual it has chosen as its financial agent. The declaration must be accompanied by the express consent of the person designated and must specify the geographical area within which the financial agent is to perform his or her duties.", "The financial agent must open a single bank or post-office account into which all donations received for the funding of the political party are to be deposited.” Section 11-4 “Donations made by duly identified individuals to one or more associations authorised as funding associations or to one or more financial agents of the same political party may not exceed 7,500 euros per annum. Other legal entities, with the exception of political parties or groups, may not contribute to the funding of political parties or groups, either by making donations in any form to their funding associations or financial agents or by providing them with property, services or other direct or indirect benefits for less than the usual price. The funding association or financial agent shall provide the donor with a receipt. A decree issued after consultation of the Conseil d’Etat shall lay down the conditions for drawing up and using such receipts. This decree shall also determine the procedure whereby receipts issued for donations by individuals of amounts lower than or equal to 3,000 euros shall not mention the name of the receiving party or group.", "All donations of more than 150 euros to a funding association or financial agent of a political party must be made by cheque. No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity. Notices and documents issued by the funding association or financial agent to third parties for the purpose of soliciting donations must indicate, as appropriate, the name of the association and the date of its authorisation or the name of the agent and the date of the declaration to the prefecture, and also the political party or group for which the sums collected are intended.” Section 11-5 “Anyone who makes or accepts donations in breach of the provisions of the preceding section shall be liable to a fine of 3,750 euros or one year’s imprisonment or both.” Section 11-6 “The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked. In that event, or where the summary statement mentioned in section 11-1 is found not to have been transmitted, the votes obtained in the geographical area of the association’s activity by the political party or group which requested its authorisation shall be discounted, for the following year, from the total referred to in the first subsection of section 9 above.” Section 11-8 “No political party or group which has obtained authorisation for a funding association or has appointed a financial agent may receive donations from duly identified persons other than through the intermediary of such association or agent. In the event of a breach of this requirement, the provisions of the last subsection of section 11-7 shall apply.” 2.", "State funding 14. Every year, appropriations are set aside in the Budget Bill for political parties and groups; one half is allocated according to their results in the last election to the National Assembly and the other half according to their representation in Parliament (section 8 of the Act of 11 March 1988 as amended). The first portion of these subsidies is distributed among parties and groups which put forward candidates who each obtained at least 1% of the votes cast in at least fifty constituencies in the most recent election to the National Assembly, or which put forward candidates solely in one or more overseas départements or in St Pierre and Miquelon, Mayotte, New Caledonia, French Polynesia or Wallis and Futuna who obtained at least 1% of the votes cast in all constituencies in which they stood. The second portion is distributed among parties and groups eligible for the first portion, in proportion to the number of members of parliament belonging to or attached to them (section 9 of the Act of 11 March 1988 as amended). State subsidies are now the main source of political parties’ funding (80,264,408 euros (EUR) was distributed among more than forty parties or groups in 2002).", "In addition, the State grants parties resources which may be regarded as indirect funding. Outside election campaign periods, political organisations represented by parliamentary groups in the National Assembly or the Senate are entitled to “air time”, allowing them to broadcast on public radio stations and television channels; they are also granted certain tax concessions (reduced-rate corporation tax) on some of their own income (for example, from leasing out their buildings and undeveloped land). B. Funding of election campaigns 15. Except in the case of the election of département councillors in cantons with fewer than 9,000 inhabitants or municipal councillors in municipalities with fewer than 9,000 inhabitants, all candidates intending to receive donations for the organisation of their campaigns are required to do so through a financial agent, who is the sole person entitled to collect funds to cover campaign costs and the payment of expenses (except for those borne by a political party or group).", "Donations from individuals are capped at EUR 4,600 per candidate per campaign. Contributions from other legal entities, with the exception of political parties and groups, and from foreign States or foreign legal entities are prohibited (Articles L. 52-4 and L. 52‑8 of the Elections Code). Election expenditure is subject to a ceiling according to the number of inhabitants in the constituency concerned (Article L. 52-11 of the Elections Code). The financial agent must keep campaign accounts recording all receipts and expenditure relating to the election campaign. The accounts must be certified by an accountant and submitted to the scrutiny of the National Commission on Election Campaign Accounts and Political Funding, which approves or rejects them.", "If the accounts are approved, the State reimburses candidates who obtain at least 5% of the votes cast in the first round in the form of a lump sum of up to 50% of the maximum permitted expenditure in the constituency in question, within the limits of the amounts actually spent (see, in particular, Article L. 52-11-1 of the Elections Code). The State bears the costs associated with “official election material”, defined as the cost of paper, printing of ballot papers, circulars, posters and official billposting fees (these costs are reimbursed on the basis of an official scale to candidates obtaining at least 5% of the votes cast). III. WORK OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) AND THE PARLIAMENTARY ASSEMBLY AND COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 16. At its 46th plenary meeting (9-10 March 2001), the Venice Commission adopted guidelines on the financing of political parties (document CDL-INF (2001) 8), the relevant parts of which read: “The Venice Commission: Being engaged in the promotion of fundamental principles of democracy, of the rule of law and the protection of human rights, and in the context of improving democratic security for all; Noting with concern problems relating to the illicit financing of political parties recently uncovered in a number of Council of Europe member States; Taking into account the essential role of political parties within democracy and considering that freedom of association, including that of political association, is a fundamental freedom protected by the European Convention on Human Rights and is one of the cornerstones of genuine democracy, such as that envisaged by the Statute of the Council of Europe; Paying particular attention to State practice in the area of financing of political parties; Recognising the need to further promote standards in this area on the basis of the values of European legal heritage; Has adopted the following guidelines: 1.", "For the purpose of these guidelines, a political party is an association of persons one of the aims of which is to participate in the management of public affairs by the presentation of candidates to free and democratic elections. 2. Such political parties may seek out and receive funds by means of public or private financing. A. Regular Financing a.", "Public Financing 3. Public financing must be aimed at each party represented in Parliament. 4. In order, however, to ensure the equality of opportunities for the different political forces, public financing could also be extended to political bodies representing a significant section of the electoral body and presenting candidates for election. The level of financing could be fixed by legislator on a periodic basis, according to objective criteria.", "Tax exemptions can be granted for operations strictly connected to the parties’ political activity. 5. The financing of political parties through public funds should be on condition that the accounts of political parties shall be subject to control by specific public organs (for example by a Court of Audit). States shall promote a policy of financial transparency of political parties that benefit from public financing. b.", "Private Financing 6. Political parties may receive private financial donations. Donations from foreign States or enterprises must however be prohibited. This prohibition should not prevent financial donations from nationals living abroad. Other limitations may also be envisaged.", "Such may consist notably of: a. a maximum level for each contribution; b. a prohibition of contributions from enterprises of an industrial, or commercial nature or from religious organisations; c. prior control of contributions by members of parties who wish to stand as candidates in elections by public organs specialised in electoral matters. 7. The transparency of private financing of each party should be guaranteed. In achieving this aim, each party should make public each year the annual accounts of the previous year, which should incorporate a list of all donations other than membership fees. All donations exceeding an amount fixed by the legislator must be recorded and made public.", "...” 17. On 22 May 2001 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1516 (2001) on the financing of political parties, the relevant parts of which read: “... 7. The Assembly believes that the rules on financing political parties and on electoral campaigns must be based on the following principles: a reasonable balance between public and private funding, fair criteria for the distribution of State contributions to parties, strict rules concerning private donations, a threshold on parties’ expenditures linked to election campaigns, complete transparency of accounts, the establishment of an independent audit authority and meaningful sanctions for those who violate the rules. 8. Accordingly, the Assembly considers that: A.", "As regards sources of finance i. States should encourage citizens’ participation in the activities of political parties, including their financial support to parties. It should be accepted that membership fees, traditional and non-controversial sources of finance, are not sufficient to face the ever increasing expense of political competition. ii. Political parties should receive financial contributions from the State budget in order to prevent dependence on private donors and to guarantee equality of chances between political parties.", "State financial contributions should, on the one hand, be calculated in ratio to the political support which the parties enjoy, evaluated on objective criteria such as the number of votes cast or the number of parliamentary seats won, and on the other hand enable new parties to enter the political arena and to compete under fair conditions with the more well-established parties. iii. State support should not exceed the level strictly necessary to achieve the above objectives, since excessive reliance on State funding can lead to the weakening of links between parties and their electorate. iv. Besides their financial contributions, States may contribute indirectly to financing political parties based on law, for example by covering the costs of postage and of meeting rooms, by supporting party media, youth organisations and research institutes; and also by granting tax incentives.", "v. Together with State funding, private funding is an essential source of finance for political parties. As private financing, in particular donations, creates opportunities for influence and corruption, the following rules should apply: a. a ban on donations from State enterprises, enterprises under State control, or firms which provide goods or services to the public administration sector; b. a ban on donations from companies domiciliated in offshore centres; c. strict limitations on donations from legal entities; d. a legal limit on the maximum sum of donations; e. a ban on donations by religious institutions. ...” 18. In Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (Article 7). THE LAW 19.", "The applicant party complained that its request for authorisation of the funding association it had set up in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988 had been refused on the ground that most of its resources derived from financial support from the Spanish Basque Nationalist Party, a foreign legal entity. This had severely affected its finances and its capacity to pursue its political activities, particularly in relation to elections. It contested the Conseil d’Etat’s conclusion that the prohibition on the funding of political parties by foreign legal entities was “necessary in a democratic society” for the “prevention of disorder” and submitted that the rule in question had been applied in its case on account of the views it promoted. It relied on Articles 10 and 11 of the Convention, taken together, and on Article 3 of Protocol No. 1, which provide: Article 10 “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 “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.” Article 3 of Protocol No. 1 “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A.", "The parties’ submissions 1. The Government 20. The Government submitted that the sole consequence of the decision by the National Commission on Election Campaign Accounts and Political Funding (CCFP) in the applicant party’s case had been to deprive it of entitlement to State funding and the financial benefits provided for in the Political Life (Financial Transparency) Act of 11 March 1988; if it put forward candidates in political elections, it would not be entitled to have any of its campaign expenses refunded. The decision did not have the effect of prohibiting the applicant party from carrying on its activities and resorting to other sources of funding. The Government accordingly concluded that there was no “interference” in the present case with the exercise of the rights protected by Articles 10 and 11 of the Convention.", "21. The Government further submitted that, even supposing that such interference were to be established, it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. 22. As to the first point, the Government noted that the decision in issue had been based on sections 11-4 and 11-6 of the Act of 11 March 1988, by which political parties’ funding associations were prohibited from receiving financial contributions from a “foreign legal entity” (personne morale de droit étranger), such as a foreign political party, the applicable penalty being loss of the authorisation entitling them to claim State funding. They submitted that it had been foreseeable that such authorisation would be denied in the applicant party’s case on the basis of those provisions since, although they expressly provided only for “revocation” of the authorisation, they were to be construed as giving the CCFP – whose discretion was limited – the possibility of refusing authorisation, even if that entailed granting and subsequently revoking it.", "Furthermore, it was not disputed that the applicant party had not satisfied the requirements of section 11-4 of the Act of 11 March 1988 and had received donations from a foreign legal entity. Lastly, there was settled case-law to the effect that it was possible to cite the grounds for revoking a permit or authorisation as a basis for refusing to grant such a permit or authorisation, seeing that the result was the same (the Government referred to the Aldana Barrena judgment of 8 January 1982 of the Conseil d’Etat, from which it appeared that the grounds for revoking refugee status were also capable of justifying a refusal to grant such status). 23. As to the second point, the Government contended that the prohibition took into account “national security interests” in seeking to protect “the expression of national sovereignty”, to which political parties contributed under the French Constitution. The principle of national sovereignty was inextricably linked with that of national independence, which prohibited foreign interference in the operation of national politics.", "The aim pursued accordingly related not only to the “prevention of disorder”, as the Conseil d’Etat had emphasised in the instant case, but also to the “prevention of crime”, seeing that it was harder to verify the origin and legality of funds from abroad. 24. As to the third point, the Government asserted that the measure in issue was reasonable and proportionate to the aims pursued. They pointed out that it did not undermine the applicant party’s legal validity, its freedom of expression or its participation in political life; its sole effect was to deny the party the opportunity to claim, through its funding association, public funding and the financial benefits laid down in the Act of 11 March 1988 (reimbursement of the campaign expenses of candidates in political elections) and thereby to bar it from receiving contributions that were subject to the tax concessions provided for by law. They added that, in compensation for the prohibition on certain sources of funding, sections 8 and 9 of the Act of 11 March 1988 afforded national political parties access to State funding, distributed among all parties in accordance with objective and transparent criteria, in proportion to their representation in Parliament or as a lump sum if the donations they had received from individuals reached a certain level.", "In that way, the law compensated by means of State funding for the acceptance of certain restrictions and contributed to promoting freedom of political expression by providing a balanced and reasonable response to the imperatives of national independence and transparency in political life. Furthermore, although the law barred the applicant party from receiving funds from the Spanish Basque Nationalist Party or any other foreign legal entity, the party still retained the possibility of receiving contributions from foreign individuals. Moreover, the refusal to authorise the funding association formed by the applicant party, on the basis of the undisputed fact that it had recourse to funding from a foreign political party, was not irrevocable; there was nothing to prevent it from submitting a fresh application for authorisation of an association that operated in accordance with the national regulations and received donations that complied with the statutory conditions. Nor was there anything to stop it from appointing an individual as its “financial agent” to that end. It would then have the possibility of collecting funds both from French political parties or groups and from individuals.", "2. The applicant party 25. The applicant party stressed that the prohibition on its receiving any financial support from the Spanish Basque Nationalist Party deprived it of most of its resources, with the result that, in practice, it lacked the means to be able to carry on its political activities. Referring to a study carried out by the Max Planck Institute at the Council of Europe’s request, it submitted that a precondition for the integration of minorities was their participation in political life, in particular through the formation of political parties; however, the prohibition of all funding from abroad particularly affected parties of this kind. It added that the refusal to authorise the funding association it had set up had had a direct impact on its ability to obtain funding for its political activities, including participation in elections.", "26. The applicant party submitted that such interference with the exercise of its rights was not “prescribed by law” in the sense attached to that expression by the Court, since the refusal of its application for authorisation on the basis of the penultimate subsection of section 11-4 of the Act of 11 March 1988 had not been foreseeable in that the first subsection of section 11-6 of the same Act did not envisage the “refusal” of an application for authorisation but the “revocation” of authorisation already obtained. Furthermore, the second paragraph of Article L. 52 of the Elections Code expressly provided that “legal entities, with the exception of political parties or groups, [could] not contribute to the funding of the election campaign ...” and section 11-4 (in its version as amended by the Act of 19 January 1995) of the Act of 11 March 1998 provided that “legal entities, with the exception of political parties or groups, [could] not contribute to the funding of political parties or groups ...”, and there was no statutory provision excluding foreign political parties. In addition, the penultimate subsection of section 11-4 referred to “foreign legal entities”, without specifying that this included foreign political parties. 27.", "The applicant party disputed that such interference could legitimately pursue the aim of “preventing disorder” where it related to funds from political parties registered in another member State of the European Union. It contended that the Government’s submissions on this point were contrary to the aim of Regulation (EC) no. 2004/2003 of the European Parliament and Council of 4 November 2003 on the status and funding of “political parties at European level”, namely to strengthen ties between parties and citizens of the European Union. In any event, the principle of national sovereignty to which the Government referred would not be affected in the case of a political party that took part solely in local elections. The applicant party added that neither the Venice Commission’s guidelines on the financing of political parties nor Recommendation 1516 (2001) of the Parliamentary Assembly of the Council of Europe on the financing of political parties mentioned the need to prohibit contributions from foreign political parties.", "That observation also led it to reject the Government’s contention that the prohibition was necessary for the “prevention of crime” within the meaning of Articles 10 and 11; indeed, it emphasised that in the instant case the Spanish Basque Nationalist Party was subject to the machinery established under Spanish law for ensuring transparency and financial scrutiny. 28. As to whether the interference was proportionate, the applicant party pointed out that, as the CCFP had found, most of its resources stemmed from the Spanish Basque Nationalist Party, with the result that its inability to receive such funding had a considerable effect on its financial capacity. It emphasised that public funding would be negligible in its case, since such funding depended on results in national elections and, in practice, was distributed among the four main parties at national level. As regards reimbursement of election expenses, this presupposed that the party had funds available in advance, which was not possible without the contribution from the Spanish Basque Nationalist Party.", "In addition, it argued that there was a contradiction between the prohibition on funding by European parties and the possibility of funding by foreign individuals, given that it was easy to scrutinise funds from the former but not from the latter. In its submission, the prohibition in issue was not based on any “pressing social need”, seeing that it concerned contributions from a party registered in a member State of the European Union, and especially as it contravened the principle of the free movement of capital within the Union. Lastly, although the applicant party still had the possibility of appointing a financial agent and obtaining funds by that means, such funds could only take the form of donations from individuals or from French political parties. Yet the party’s own aims meant that its geographical sphere of activity was limited to a very small part of France, so that it could not expect any financial support from other French parties. Indeed, it pointed out that, as matters stood, either its resources would be limited to contributions from individuals, in which case it would no longer have the means to finance its political activities, or it would continue to receive contributions from the Spanish Basque Nationalist Party, in which case it would be prohibited from intervening in electoral matters in any way.", "B. Opinion of the Venice Commission 29. In its opinion, based in particular on a study of the domestic law in forty-four member States of the Council of Europe, the Venice Commission noted that twenty-eight of these States prohibited or substantially limited foreign donations to political parties and the other sixteen did not impose any such restrictions. It pointed out that national regulations on political parties resulted from history, political tradition and practice and hence differed greatly from one country to another. With regard to funding, approaches ranged from a total lack of regulations (for example, in Switzerland) or non-prohibition of foreign donations (for example, in Cyprus, Bosnia and Herzegovina, the Czech Republic and Hungary) to an explicit ban on foreign contributions and donations (as in France and the Russian Federation); intermediate solutions included imposing strict limitations (for example, in Armenia, Azerbaijan, Georgia and Moldova) or providing for exceptions to the rule, to a greater or lesser extent, in the case of funds originating from European Union member States (for example, in Spain, Germany, the United Kingdom – except Northern Ireland – and Lithuania).", "It concluded that each example of the prohibition of financing of political parties from foreign sources had to be considered separately in the light of the political system of the country concerned, its relations with its neighbours, its constitutional law and the general system it had adopted for the financing of political parties. 30. The Venice Commission went on to point out that its guidelines on the financing of political parties emphasised the need to prohibit donations from foreign States and enterprises, and that Recommendation Rec(2003)4 of the Committee of Ministers urged member States “specifically [to] limit, prohibit or otherwise regulate donations from foreign donors” (see paragraph 18 above). As to whether, in particular, it was “necessary in a democratic society” for this prohibition to cover funds from foreign political parties, the Venice Commission referred to the principles deriving from the Court’s case-law, as set out in The United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00, §§ 57-62, 19 January 2006).", "An analysis of the domestic provisions containing such a prohibition indicated that the reasons varied from one country to another, particularly on account of their specific history and political and constitutional experiences. One such reason related to the internationalist policies of extremist parties between the two World Wars. A second stemmed from similar circumstances during the Cold War and the ensuing polarisation of the world. A third resulted from fear of separatist movements. A fourth concerned the implementation of a system of public funding of parties and the consequent desire for the funds thus allocated to remain within the country.", "It was more difficult, in the Venice Commission’s opinion, to identify why many States did not impose a prohibition of this kind (for example, Austria, Belgium, Denmark and Finland). In some countries, the reason was possibly that such a measure had never been thought necessary. Other countries appeared to have adopted this position in order to facilitate politically their own support of political movements in the Third World. A further group seemed reluctant to hinder legitimate cooperation between political parties in the context of the Parliamentary Assemblies of the Council of Europe and the OSCE, the European Parliament and cooperation organisations such as the Nordic Council. 31.", "Having regard to the specific nature of the European Union and the “new legal order” it constituted, the Venice Commission found it “reasonable and appropriate” that the Union’s member States should adopt a specific approach to the financing of political parties by political parties established in other member States. It pointed out in particular that Article 191 of the Treaty of Rome provided that “[p]olitical parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.” It added in this context that Regulation (EC) no. 2004/2003 of the European Parliament and the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (see paragraph 27 above) afforded such parties the possibility of receiving donations from political parties which were members of them (Article 6), while Article 7 of the Regulation stated that their funding “from the general budget of the European Union or from any other source may not be used for the direct or indirect funding of other political parties, and in particular national political parties, which shall continue to be governed by national rules”. The Venice Commission observed that the very existence of the Regulation showed that cooperation and, to some extent, integration of financing systems were necessary for the functioning of political parties both at national level and at the level of the Union.", "It also referred to Article 56 of the Treaty, which enshrined the principle of the free movement of capital, pointing out that this notion in principle covered all transfers of funds from one member State to another, probably including those between political parties. Since this was a fundamental freedom enshrined in the Treaty, the member States were required to respect it. The Venice Commission thus concluded that rules adopted by member States for the funding of political parties had to observe this principle, although the European Union’s powers with regard to political parties were limited to the regulation of “political parties at European level”. The only exceptions permitted in this regard by Community law were those set out in the Treaty itself (for example, in Article 58, which reserved the right of member States “to take measures which are justified on grounds of public policy or public security”) or identified by the Court of Justice of the European Communities. 32.", "In conclusion, the Venice Commission observed that in the light of the varying approaches to the issue from one Council of Europe member State to another, there could be no single answer to the question whether the prohibition on the funding of political parties by foreign political parties was “necessary in a democratic society”. It considered, however, that the experience of cooperation between political parties within supranational European organisations and institutions supported a less restrictive approach; such cooperation was itself “necessary in a democratic society”, whereas it was not obvious that the same could be said about the imposition of obstacles to cooperation through the prohibition of all financial relations between political parties established in different countries. Various factors could nevertheless be capable of justifying the prohibition of contributions from foreign political parties: in particular, where contributions were used to pursue unlawful aims (for example, where the foreign party in question advocated discrimination or human rights violations), undermined the fairness or integrity of political competition, destabilised the electoral process, threatened the territorial integrity of the State concerned or hindered its democratic development, or where prohibition formed part of the State’s international obligations. Accordingly, in the Venice Commission’s opinion, to establish whether the prohibition on the financing of political parties by foreign political parties was compatible with the requirements of Article 11 of the Convention, each individual case had to be considered separately in the context of the general legislation applicable in the State concerned on the funding of political parties and of the State’s international obligations – including, where appropriate, those resulting from membership of the European Union. C. The Court’s assessment 33.", "As a preliminary point, the Court reiterates that political parties come within the scope of Article 11 of the Convention (see, for example, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 25, Reports of Judgments and Decisions 1998-I, and Socialist Party and Others v. Turkey, 25 May 1998, § 29, Reports 1998-III). Accordingly, this provision is clearly applicable in the instant case. Furthermore, the protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association enshrined in Article 11, particularly in the case of political parties, so that Article 11 must be considered in the light of Article 10 (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 88-89, ECHR 2003-II; United Communist Party of Turkey and Others, cited above, §§ 42-43; Socialist Party and Others, cited above, § 41; and The United Macedonian Organisation Ilinden and Others, cited above, §§ 59-61). In the instant case the Court cannot see any evidence to suggest that the impugned measure sought to penalise the applicant party on account of the political views it promoted.", "Accordingly, although this factor is not decisive (see The United Macedonian Organisation Ilinden and Others, cited above, § 59), the Court considers that the issues raised by the case relate essentially to Article 11 of the Convention. 34. As to Article 3 of Protocol No. 1, the financial repercussions of the impugned measure on the ability of the applicant party and its members to take part in parliamentary elections cannot in any event be seen as anything other than “secondary” or “incidental effects” of the measure; accordingly, irrespective of whether the Court finds a violation (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, § 64, and Socialist Party and Others, cited above, § 57) or no violation of Article 11 (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others, cited above, § 139), it is unnecessary to examine the case under Article 3 of Protocol No. 1.", "35. Having clarified that point, the Court will examine whether there was interference with the applicant party’s exercise of the rights guaranteed by Article 11 of the Convention and, if so, whether the interference was justified in view of the requirements of paragraph 2 of that Article. 1. Whether there was interference 36. The Political Life (Financial Transparency) Act of 11 March 1988 limits the sources of funding for political parties.", "There is an annual ceiling of EUR 7,500 per person on donations from individuals, and contributions from other legal entities (with the exception of French political parties or groups) and foreign States are prohibited. In compensation for this, public funds are allocated to political parties in proportion to their results in elections to the National Assembly (sections 8 and 9 of the Act). Under section 11 of the 1988 Act, political parties collect their funds through the intermediary of an agent, in the form of either a funding association (which must be authorised by the CCFP – section 11-1 of the Act) or an individual (designated as the “financial agent” in a simple declaration to the prefecture – section 11-2). 37. In view of the applicant party’s specific nature as the French “branch” of the Spanish Basque Nationalist Party, and in particular its small size and the local character of its sphere of activity, the prohibition on its receiving contributions from the Spanish Basque Nationalist Party undoubtedly has a significant impact on its financial resources and hence its ability to engage fully in its political activities.", "More specifically, as a result of the refusal, on the basis of this prohibition, of the request to authorise the funding association set up by it, the applicant party is unable to receive funds through the association. While it has the alternative possibility of appointing an individual as “financial agent” for that purpose (without any authorisation being required), that person would not be able to receive contributions from the Spanish Basque Nationalist Party either. 38. In short, having regard to the impact of the circumstances in issue on the applicant party’s financial capacity to carry on its political activities, the Court is in no doubt that there has been interference with the exercise of its rights under Article 11. 2.", "Whether the interference was justified 39. Such 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. (a) “Prescribed by law” 40. The Court reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen – 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; experience shows, however, that it is impossible to attain absolute precision in the framing of laws (see, for example, Ezelin v. France, 26 April 1991, § 45, Series A no. 202).", "41. In the instant case, contrary to what the applicant party maintained, the prohibition on the funding of French political parties by foreign political parties is prescribed by the Act of 11 March 1988. It follows from section 11 of the Act that political parties may receive funds only through a funding association or a financial agent (see also the CCFP’s decision of 2 July 1999), and from subsection 5 of section 11-4 that funding associations and financial agents cannot receive contributions from foreign legal entities. A political party established in another State is clearly a “foreign legal entity”. The fact that the second subsection of section 11-4, which lays down in more general terms the rule that donations from legal entities are prohibited, provides for an exception to this rule in the case of donations from “political parties or groups”, without specifying whether this concerns only French parties or groups, is not sufficient to cast doubt on the clarity of the law on this point.", "42. The Court can, however, understand the applicant party’s doubts as to whether the refusal of its request for authorisation of the funding association it had set up was foreseeable. It notes that the Act of 11 March 1988 (section 11-1) envisages only two scenarios in which a request for authorisation can be refused: where the object of the association is not limited to the funding of a political party, and where its articles of association do not define the geographical area within which the association is to carry out its activities or do not contain an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited. However, in the present case the refusal was not based on one of these grounds but on the finding that most of the applicant party’s resources derived from financial support from the Spanish Basque Nationalist Party. Admittedly, the Conseil d’Etat held in the instant case that “[i]t follows from the first subsection of section 11-6 ... that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act”.", "However, this is a somewhat extensive interpretation of that subsection, which is worded: “The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked.” It appears that in reality this provision solely allows ex post facto scrutiny of funding associations that have obtained authorisation. It is therefore permissible to question whether the law, as interpreted by the Conseil d’Etat, was foreseeable in its effect. On this specific point, the Government maintained that there was settled case-law to the effect that it was possible to cite the grounds for revoking a permit or authorisation as a basis for refusing to grant such a permit or authorisation, seeing that the result was the same. They relied in that connection on the Conseil d’Etat’s Aldana Barrena judgment of 8 January 1982, from which it appeared that the grounds for revoking refugee status were also capable of justifying a refusal to grant such status. In the Court’s view, that judgment is not conclusive in that it simply set aside a decision by the Appeals Board on the ground that it had refused to take into consideration facts occurring after the refusal issued by the French Office for the Protection of Refugees and Stateless Persons.", "The Court can, however, see the logic in the Conseil d’Etat’s interpretation of the above-mentioned provisions, given that a strict reading of them would mean granting and subsequently revoking authorisation, since the CCFP – as the Government submitted – has limited discretion. Accepting, therefore, that such an interpretation was foreseeable, the Court concludes that the interference in issue was “prescribed by law”. (b) Legitimate aim 43. As to the “legitimate aim” pursued, the Conseil d’Etat referred to the “prevention of disorder”. It pointed out in that connection that political parties were “intended to contribute to the exercise of suffrage in the implementation of national sovereignty” and that “[i]n prohibiting foreign States and foreign legal entities from funding national political parties, the legislature [had] sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty”; the aim pursued had thus related to the protection of the “institutional order”.", "The Court accepts that the concept of “order” within the meaning of the French version of Articles 10 and 11 of the Convention encompasses the “institutional order”, although the expression “défense de l’ordre” (protection of order) refers essentially to the prevention of disorder, as can be seen from the English version of Articles 10 and 11, which uses that term. Having thus acknowledged the legitimacy of the aim pursued, the Court considers that, contrary to what the applicant party maintained, the fact that the prohibition also applies to contributions from political parties established in another member State of the European Union is not sufficient to call it into question; in the Court’s view, that particular factor must be taken into account in examining whether the interference was “necessary”. 44. The Government added that the law was also aimed at the “prevention of crime”, in that it was more difficult to check the origin and lawfulness of funds from abroad. The Court observes that that was not the Conseil d’Etat’s assessment in the present case, but considers it unnecessary to determine this question since it is sufficient that the interference in issue pursued just one of the legitimate aims listed.", "It will therefore confine itself to its above finding that the aim of the interference was the “prevention of disorder”. (c) “Necessary in a democratic society” 45. The Court observes at the outset that the prohibition on the financing of political parties by any legal entities other than French political parties and groups forms part of a body of rules designed to ensure financial transparency in political life. It would observe, firstly, that it is especially alert to the importance of such regulations “in a democratic society” as this has been highlighted by both the Venice Commission and the Parliamentary Assembly of the Council of Europe (see paragraphs 16-17 above). 46.", "That said, the Court reiterates that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on the freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, 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 1998-IV). That applies all the more in relation to political parties in view of the importance of their role in a “democratic society” (see, for example, United Communist Party of Turkey and Others, cited above, §§ 25, 43 and 46). When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must 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 so doing, the Court also has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for example, Sidiropoulos and Others, loc. cit., and United Communist Party of Turkey and Others, cited above, § 47). 47. In the instant case the Court has no difficulty in accepting that the prohibition on the funding of political parties by foreign States is necessary for the preservation of national sovereignty; indeed, the “Guidelines and Report on the financing of political parties” adopted by the Venice Commission (see paragraph 16 above) state that financial contributions from foreign States should be prohibited. It is not so easily persuaded, however, with regard to the prohibition on funding by foreign political parties.", "It fails to see exactly how State sovereignty would be undermined by this factor alone. Moreover, it is striking that the above-mentioned guidelines – which, precisely, approach this question from the standpoint both of the need to ensure “democratic security” and of freedom of political association – do not indicate that there should be such a ban, whereas they emphasise the need to prohibit funding by “foreign enterprises”. The Court considers, however, that this matter falls within the residual margin of appreciation afforded to the Contracting States, which remain free to determine which sources of foreign funding may be received by political parties. In support of that approach, it notes that it appears from the opinion produced in the present case by the Venice Commission that the member States of the Council of Europe are divided on the financing of political parties from foreign sources (see paragraph 29 above), and that in Article 7 of Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (see paragraph 18 above). This leads the Court to conclude that the fact that political parties are not permitted to receive funds from foreign parties is not in itself incompatible with Article 11 of the Convention.", "48. The applicant party submitted that a specific approach nevertheless had to be adopted where a political party established in one member State of the European Union received funds from a political party established in another member State. In the Court’s opinion, that is no doubt a factor to be taken into consideration, seeing that a certain degree of “intrusion” by such parties into the political life of other European Union member States may appear consistent with the logic of European integration. Indeed, this seems to be the approach taken by the Venice Commission, whose opinion stresses the value of financial cooperation between parties at European Union level and points out that the prohibition in issue might contravene the Community principle of the free movement of capital (see paragraph 31 above). However, in the first place, it is not for the Court to interfere in matters relating to the compatibility of a member State’s domestic law with the European Union project.", "Moreover, the choice of the French legislature not to exempt political parties established in other European Union member States from this prohibition is an eminently political matter, which accordingly falls within its residual margin of appreciation. 49. It remains to be determined in practical terms whether the measure complained of is proportionate to the aim pursued; this entails assessing its impact on the applicant party’s ability to engage in political activities. The Court reiterates in this connection that when assessing the “necessity” of an interference with the right to freedom of association, the extent of the interference is decisive. It has held that “drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases” (see Refah Partisi (the Welfare Party) and Others, cited above, § 100); conversely, “mild measures” should be more broadly acceptable.", "50. In the instant case the Government rightly pointed out that the measure complained of does not call into question the applicant party’s legality or constitute a legal impediment to its participation in political life or censorship of the views it intends to promote in the political arena. Admittedly, as the applicant party indicated, in order to engage fully in political activities it has to forgo financial assistance from the Spanish Basque Nationalist Party. However, to fund its political activities, it would nevertheless be able to use membership fees and donations from individuals – including those from outside France – which it could collect through a financial agent or a funding association authorised on the basis of a fresh application. Furthermore, there is nothing in law to prevent it from receiving funds from other French political parties or from taking advantage of the system of public funding instituted by the French legislature.", "It is true, as the applicant party pointed out, that these sources of funding appear somewhat hypothetical in its particular case. In view of its political aims, it is unlikely that it would attract the support of another French party; and in view of its geographical sphere of activity, it is likely to take part in local rather than parliamentary elections, so that it scarcely appears to be in a position to take advantage of the system of public funding (which is based on results in parliamentary elections). Its election candidates would nevertheless enjoy all the same benefits as those from other parties in terms of the funding of their election campaign (the costs of “official election material” being borne by the State and election expenses being refunded subject to certain conditions). 51. In conclusion, the impact of the measure in question on the applicant party’s ability to conduct its political activities is not disproportionate.", "Although the prohibition on receiving contributions from the Spanish Basque Nationalist Party has an effect on its finances, the situation in which it finds itself as a result is no different from that of any small political party faced with a shortage of funds. 52. In the light of the foregoing, the Court considers that the interference with the applicant party’s right to freedom of association may be regarded as “necessary in a democratic society” for the “prevention of disorder” within the meaning of Article 11 of the Convention. There has therefore been no violation of that provision, taken separately or in conjunction with Article 10 of the Convention. FOR THESE REASONS, THE COURT 1.", "Holds by six votes to one that there has been no violation of Article 11 of the Convention, taken separately or in conjunction with Article 10; 2. Holds unanimously that it is not necessary to consider the case under Article 3 of Protocol No. 1. Done in French, and notified in writing on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Rozakis is annexed to this judgment.", "C.L.R.S.N. DISSENTING OPINION OF JUDGE ROZAKIS Regretfully I am not in a position to follow the Court’s majority in finding that in the circumstances of the present case there has been no violation of Article 11, for the following reasons. 1. I cannot dispute the wisdom of Article 4 of the 1958 French Constitution, when it provides that political parties and groups “must respect the principles of national sovereignty and democracy”. States and the democratic societies living within them have the inalienable right and interest to preserve these two fundamental values, respecting, at the same time, the rights and interests of those segments of society which do not belong to the national and social mainstream.", "Equally, I cannot dispute the wisdom of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), which determines the arrangements for the financing of political parties. Political parties do not only aspire to take control of the reins of a State, but also, even when they do not have governance over the State, exert significant influence on political life and an impact on the fate of the State and society. There is a legitimate interest on the part of the latter in having a clear, transparent picture of the financing of political parties, and in scrutinising their sources of income, conditions which act as safety valves for the parties’ independence and as a safeguard against abuses resulting from partiality and corruption. Lastly, I can also understand that scrutiny of the funding of political parties may be stricter when funds come from a foreign State – there one can readily accept that a total prohibition may be imposed – or foreign entities, including foreign political parties.", "Yet in so far as foreign political parties are concerned, a general unconditional prohibition on financial transactions and assistance should be applied with caution, taking into consideration modern trends and tendencies and political realities existing in some parts of the world, particularly in the closely integrated environment of the European Union. 2. Section 11-4 of the Act in question deals with the financing of political parties from foreign sources. It provides: “No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.” Section 11-4 of the Act is complemented by sections 11-5 and 11-6 of the same Act. It clearly transpires from these provisions that the Act does not impose any preventive controls on the establishment of a funding association of a political party, but provides for sanctions in the event of transgression of the general rule, which may entail revocation of the authorisation already granted for the association to operate, or the punishment of anyone “who makes or accepts donations in breach of [section 11-4]”.", "One should also underscore that section 11-4 does not make specific reference to “foreign political parties”, but speaks of a “legal entity” (personne morale), thus leaving some room for the authorities implementing it to consider in individual cases whether the prohibition also applies to foreign parties or groups. 3. I would hence conclude that the law, as it stands alone, cannot be regarded as violating freedom of association, as provided for by Article 11 of the Convention. It does not prevent the establishment of an association – a matter which constitutes in the eyes of the Convention’s case-law the gravest of interferences – and it limits the prohibition to another State’s financing of a political party – something which, to my mind, is readily justified by paragraph 2 of Article 11 – leaving the matter of the financing of a political party by a foreign political party to be determined on the basis of an interpretation of the broad term of “personne morale”, which may or may not necessarily cover foreign political parties. This interpretation may depend on the circumstances of a particular case or on societal developments at local, national or international level.", "4. What seems questionable in the circumstances of this case is the interpretation which was given by the national courts of sections 11-4 to 11‑6 of the French Act, following the dicta of the Conseil d’Etat in the Aldana Barrena case. The “pragmatic” approach which had been enunciated by the Conseil d’Etat and adopted by the national courts in the present case, justifying the decision of the National Commission on Election Campaign Accounts and Political Funding, entails a blanket preventive prohibition on the very establishment of a funding association. Such a blanket prohibition, apart from the fact that it imposes an unbearable burden on the party concerned, does not allow any flexibility to an authority or a judge in ruling on financing in a particular case on the basis of wider considerations than the mere fact of the origins of the funding. It would be consonant with the requirements of the Convention if the authorities could rule on the legality of a source of funding, after the establishment of the association, on the basis of various factors, such as the circumstances surrounding the funding (its amount, its use, transparency of the transactions, sphere of activity of both the offering and the receiving entities, etc.).", "The law itself, providing for repressive measures rather than preventive measures, allows for such supervision to be carried out after the association has been established. 5. The above considerations constitute, to my mind, an interpretation of sections 11-4 to 11-6 of the French Act which brings that Act into line with the requirements of Article 11 of the Convention. We should not lose sight of the fact that, while Article 11 § 2 of the Convention, which provides for limitations to freedom of association, leaves a margin of appreciation to the States Parties to determine certain practicalities of that freedom, in the circumstances of the present case there are two elements which, I believe, have gone beyond a permissible and acceptable margin. The first is the use of preventive controls which interfered with the very establishment of the association, despite the fact that the authorities would have had the possibility, by applying the domestic law in a qualified manner, of imposing measures and sanctions on an association that had already been established.", "The second is the total disregarding of the fact that both parties function within the domain of the European Union. This latter element is of primordial importance, and fundamentally changes the parameters of this case in relation to the relevant parameters of other cases, where the financing of a political party by a foreign party takes place in an “unorganised” international environment. In the present case, both the French and the Spanish parties are entities which lawfully work within their respective States, France and Spain, both members of the European Union. Although one may share the reticence of various quarters, including the Council of Europe, when they recommend strict controls on foreign funding of political parties – which may amount to a total prohibition – because of the dangers that that may entail for the proper operation of a political party, the situation changes when we are faced with two European Union parties, working within the integrational landscape of the twenty-seven members. Admittedly, even in that context controls and prohibitions may still apply, and section 11-4 of the French Act still has a valid place; however, what seems to me to be unacceptable and to have a direct impact on the extent of the limitations allowed by the second paragraph of Article 11 of the Convention is the total disregard, by those who have applied the national law, of the specificity of the case of two parties working within the context of the European unification process." ]
[ "SECOND SECTION CASE OF DEMİRBAŞ AND OTHERS v. TURKEY (Applications nos. 50973/06, 8672/07 and 8722/07) JUDGMENT This version was rectified on 12 February 2009under Rule 81 of the Rules of the Court STRASBOURG 9 December 2008 FINAL 09/03/2009 This judgment may be subject to editorial revision. In the case of Demirbaş and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 18 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 50973/06, 8672/07 and 8722/07) 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 three Turkish nationals, Mr Cem Demirbaş, Mr Haydar Ceylan and Ms Binnaz Demirbaş (“the applicants”), on 8 December 2006, 15 February 2007 and 17 February 2007 respectively.", "2. The applicants were represented by Mr Z. Polat, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 30 August 2007 the Court joined the applications and declared them partly inadmissible.", "It decided to communicate the complaints made by the applicant in the second application concerning the ill-treatment to which he had allegedly been subjected, as well as the complaints concerning the rights of all three applicants to release pending trial, to take proceedings to challenge the lawfulness of their detention, to an enforceable right to compensation, to a fair hearing within a reasonable time and to an effective remedy in respect of the reasonable-time complaint, to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASES 4. The applicants were born in 1977, 1974 and 1974, respectively, and live in Istanbul.", "A. The applicants’ arrest, detention and trial 5. Cem Demirbaş and Haydar Ceylan were arrested on 18 April 1999, and Binnaz Demirbaş was arrested on 19 April 1999. According to the arrest report drawn up in respect of Binnaz Demirbaş and Cem Demirbaş, the reason for their arrest was the suspicion that they were members of an illegal organisation, namely the Türkiye Komunist Partisi/Marksist Leninist - Türkiye İşçi Köylü Kurtuluş Ordusu (the TKP/ML-TİKKO; the Communist Party of Turkey/Marxist Leninist-Workers’ and Peasants’ Liberation Army of Turkey). They were subsequently placed in custody at the Anti-Terrorist Branch of the Istanbul Police Headquarters.", "6. On 25 April 1999 the applicants were brought before the prosecutor and, subsequently, the duty judge of the Istanbul State Security Court, who questioned them further and recorded their statements. The duty judge remanded them in custody pending the introduction of criminal proceedings against them. 7. On 3 June 1999 the public prosecutor at the Istanbul State Security Court filed an indictment against the applicants and nine other persons.", "The applicants were charged with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. 8. On 25 August 1999 the Istanbul State Security Court held the first hearing on the merits of the case. In the course of twelve subsequent hearings, the actions taken by the trial court were limited to the reading out of the indictment in open court, asking the applicants to submit their defence and obtaining copies of the applicants’ birth certificates and criminal records. The applicants’ request to widen the scope of the investigation by, inter alia, hearing a number of witnesses, was rejected by the trial court.", "9. On 22 May 2002 the first-instance court found the applicants guilty as charged and sentenced them to death. This sentence was commuted to life imprisonment. 10. The applicants appealed.", "11. On 17 April 2003 the Court of Cassation quashed the judgment. 12. On 2 June 2003 the case against the applicants resumed before the Istanbul State Security Court. 13.", "By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicants was transferred to the Istanbul Assize Court. 14. Up until 14 February 2007 the applicants and their representatives requested the formers’ release pending trial several times both before the Istanbul State Security Court and the Istanbul Assize Court.", "On each of those occasions the trial court rejected the applicants’ requests, considering that the reasons justifying their remand in custody still obtained on account of the “nature of the offence of which they were accused, the evidence in the file, and the continuing risk of escape”. Binnaz Demirbaş’s objection of 15 April 2002 and the other two applicants’ objections of 25 July 2005 against the orders for their continued detention were also dismissed on 17 April 2002 and 5 September 2005 respectively. 15. On 14 February 2007 the Istanbul Assize Court ordered the applicants’ release pending trial. 16.", "According to the information in the case file, thirteen more hearings have been held since 2 June 2003 in the context of the criminal proceedings brought against the applicants which, according to the information available in the case file, are still pending. B. The alleged ill-treatment of Haydar Ceylan in police custody 17. On 18 April 1999, following his arrest at 1 p.m., Haydar Ceylan was first taken to the Gaziosmanpaşa district police headquarters in Istanbul. 18.", "According to the arrest report drafted by two police officers, Haydar Ceylan was apprehended since the officers found him “suspicious”. The report noted that the applicant refused to sign it. On the same day at 1.45 p.m. another report was drawn up by three officers concerning the body search, which recorded that the objects found on the applicant’s person were given to him. This report also noted that the applicant refused to sign it. According to an undated third report, without the applicant’s signature or a note concerning his refusal to put his signature, drawn up and signed by three officers, the applicant resisted the body search and attempted to jump out of a window while he was detained in the Gaziosmanpaşa police headquarters; the officers prevented him from doing so by using force.", "19. On the same date the applicant was transferred to the Anti-Terrorist Branch of the Istanbul Police Headquarters. 20. On 19 April 1999 at 3.42 a.m. the applicant was examined by a doctor who found that there were a few ecchymotic lesions (bruising) on the applicant’s back, an ecchymosis on his left eyelid, and a few ecchymoses on his left shoulder. 21.", "On 22 April 1999 at 5.45 p.m. the applicant was once again examined by a doctor who observed two old scabbed grazes on his right eyebrow and on the left of his nose, and another scabbed superficial graze on his left shoulder. 22. On 25 April 1999 at 10.30 a.m., before his referral to the public prosecutor and the duty judge, the applicant was examined at the Beyoğlu branch of the Forensic Medicine Institute. The doctor, who examined the applicant and nine other persons, noted that there were scars of 0.2-0.3 cm in diameter on the applicant’s right eyebrow and on the left of his nose. He also observed a scabbed graze of 1x1 cm on his left shoulder.", "23. On the same day Haydar Ceylan stated before the duty judge at the State Security Court that he had been subjected to torture while he was in police custody. In particular, he had been suspended by the arms, forcibly given water and beaten. 24. On 3 March 2000 and 22 May 2002 Haydar Ceylan made submissions to the Istanbul State Security Court and stated, inter alia, that he had been subjected to torture while in police custody.", "In his submissions of 3 March 2000 the applicant gave a detailed description of the ill‑treatment to which he had allegedly been subjected. 25. On 6 June 2002 the applicant’s representative lodged a formal complaint with the Fatih public prosecutor’s officer against the police officers who had allegedly inflicted ill-treatment on the applicant. In support of these claims, he submitted the medical reports drafted in respect of the applicant. 26.", "Upon the receipt of the petition of the applicant’s representative, the Fatih public prosecutor initiated an investigation into the allegations of ill‑treatment. 27. On 26 August 2002 the Fatih public prosecutor obtained statements from Haydar Ceylan, who maintained that he had been subjected to ill‑treatment in both the Gaziosmanpaşa and Istanbul police headquarters. 28. On 28 November 2002 the public prosecutor took statements from H.İ., one of the police officers who had arrested the applicant.", "H.İ. stated that the injuries noted on the medical reports had occurred when the officers had attempted to prevent the applicant from jumping out of the window in the police headquarters. H.İ. denied the allegations of torture. 29.", "On 17 February 2003 the public prosecutor took statements from the second arresting police officer, M.Ö., who also contended that the applicant had attempted to jump out of the window and that they had been obliged to use force. 30. On 25 August 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court against H.İ. and M.Ö., charging them with inflicting ill‑treatment on Haydar Ceylan under Article 245 of the former Criminal Code. 31.", "On 1 September 2003 the first hearing before the Fatih Criminal Court was taken up with procedural matters. The first hearing on the merits of the case was scheduled for 18 December 2003. 32. On 7 November 2003 Haydar Ceylan reiterated his allegations of ill‑treatment before the Kandıra Criminal Court. (He was then being detained in a prison in Kandıra.)", "The record of the hearing containing his statements was sent to the Fatih Criminal Court. 33. On 18 December 2003 the Fatih Criminal Court heard H.İ., who once again denied the applicant’s allegations of ill-treatment. On the same day the Fatih Assize Court accepted the applicant’s request to intervene in the proceedings as a civil party. 34.", "At the end of the second hearing on the merits, held on 6 July 2004, the criminal court decided that a forensic expert should give an opinion as to whether the applicant had been ill-treated as alleged. 35. On an unspecified date a forensic expert recommended that the first‑instance court should obtain a medical opinion from the competent section of the Forensic Medicine Institute regarding the alleged physical trauma as well as the psychological trauma which the applicant could have suffered. 36. On 2 November 2004 the Fatih Criminal Court requested the Forensic Medicine Institute to prepare a report on the applicant’s case.", "37. On an unspecified date the Forensic Medicine Institute requested the medical reports drawn up in respect of the applicant from the Fatih Criminal Court. It also requested that the applicant be sent to the Institute for a medical examination. 38. On 1 March 2005 the Fatih Criminal Court requested the medical reports concerning the applicant from the Istanbul Assize Court.", "39. On 8 June and 20 October 2005 the first-instance court postponed the hearings since the Istanbul Assize Court had not responded to its request. 40. On 21 March 2006 the Fatih public prosecutor submitted to the court that the accused police officers’ acts should be defined as torture under Article 243 of the former Criminal Code and that, therefore, the assize courts had jurisdiction to examine the case. 41.", "On the same day the Fatih Criminal Court issued a decision of non‑jurisdiction and transmitted the case to the Istanbul Assize Court. 42. On 17 October 2006 the first hearing before the Istanbul Assize Court was taken up with procedural matters. The first hearing on the merits of the case was scheduled for 1 December 2006. 43.", "On 1 December 2006 the Istanbul Assize Court held that the criminal proceedings against the police officers should be discontinued on the ground that the prosecution was time-barred. II. RELEVANT DOMESTIC LAW AND PRACTICE 44. A description of the domestic law at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV(extracts)) and Çobanoğlu and Budak v. Turkey (no.", "45977/99, §§ 29-30, 30 January 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF HAYDAR CEYLAN 45. The applicant in the second application, Haydar Ceylan, complained, under Articles 3 and 13 of the Convention, that he had been subjected to ill‑treatment while in police custody and that the authorities had failed to punish those responsible for this. The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 46.", "The Government submitted that the applicant’s complaint under Article 3 should be rejected for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They maintained that the applicant had failed to lodge an appeal against the judgment of the Istanbul Assize Court. 47. The applicant contended in reply that under Article 102 § 4 of the former Criminal Code, taken together with Article 243 of the same Code, there was a five-year time-limit for prosecuting offences of ill-treatment and torture committed by civil servants. He submitted that, according to Article 104 § 2 of the former Criminal Code, the running of the statutory time-limits defined in Article 102 could be interrupted by a variety of events such as a conviction, an arrest, the detention and questioning of an accused and, in case of such an interruption, the time would start to run again from the date of the latest event.", "Yet the same paragraph stipulated that, anyway, the statutory time-limit could be extended for a maximum additional period of half the period prescribed in Article 102. Therefore, the statutory time-limit for the prosecution of offences of ill-treatment and torture had expired at the end of seven years and six months. The applicant contended that it was true that seven and a half years had elapsed since his ill-treatment in police custody and that, therefore, the assize court’s judgment was in accordance with Articles 102 and 104 of the former Criminal Code. The applicant concluded that an appeal to the Court of Cassation would have been devoid of any chance of success in the circumstances of his case. 48.", "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 (see, for example, Chitayev and Chitayev v. Russia, no. 59334/00, § 134, 18 January 2007). The Court recalls that Article 35 § 1 of the Convention 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 Sejdovic v. Italy [GC], no.", "56581/00, § 46, ECHR 2006‑....). 49. In the instant case, the Court observes that the Istanbul Assize Court discontinued the proceedings brought against two police officers upon the applicant’s complaint and that the applicant did not appeal that decision despite the fact that he had joined the proceedings as a civil party. The Court should therefore determine whether an appeal to the Court of Cassation, in the particular circumstances of the present case, would have constituted an effective remedy in respect of Haydar Ceylan’s complaint under Article 3 of the Convention. 50.", "The Court notes that under Articles 102 and 104 of the Criminal Code in force at the material time, there was an absolute statutory time-limit in cases concerning ill-treatment of seven years and six months. The Court observes in this connection that seven years, six months and two weeks had indeed elapsed since the date of the alleged ill-treatment of the applicant when the Istanbul Assize Court discontinued the criminal proceedings brought against two police officers for being time-barred. The Court does not see why the applicant should have lodged an appeal and raised his allegations of ill‑treatment once again before to the Court of Cassation whereas the latter could only uphold the judgment of the first-instance court, having regard to the absolute time-limits laid down in the former Criminal Code. Furthermore, the Government failed to offer any detailed explanation as to how an appeal to the Court of Cassation would provide redress for the applicant’s complaints under Article 3. Nor did they submit a copy of the Court of Cassation’s decisions in similar cases in support of their claim.", "51. In the circumstances of the present case, the Court finds that an appeal to the Court of Cassation did not offer any prospect of success to Haydar Ceylan vis-à-vis his complaint under Article 3 of the Convention. The Court therefore rejects the Government’s preliminary objection. 52. 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 responsibility of the respondent State in the light of the substantive aspect of Article 3 of the Convention 53.", "The Government maintained that the Haydar Ceylan’s allegations of ill‑treatment were not substantiated. They submitted that the applicant had sustained injuries when the police officers had been obliged to use force to restrain him when he attempted to escape. The Government further contended that the applicant’s account of events had not been consistent before the national courts and the Court. In sum, they submitted that the applicant’s allegations of ill-treatment could not be proved beyond reasonable doubt. 54.", "Haydar Ceylan replied that he had submitted to the national authorities a detailed description of the ill-treatment which he had suffered. In particular, he had been punched, kicked, thrown to the floor and beaten, subjected to falaka (beating on the soles of the feet), hosed with water and forced to remain standing for long periods. Regarding the undated police report, without the applicant’s signature, which stated that he had attempted to escape during his detention in the Gaziosmanpaşa police headquarters, the applicant denied such an attempt and submitted that this report was fraudulent. 55. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies, making no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 of the Convention (see Selmouni v. France [GC], no.", "25803/94, § 95, ECHR 1999-V). It recalls that where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the veracity of the victim’s allegations, particularly if those allegations are supported by medical reports. Failing this, a clear issue arises under Article 3 of the Convention (see, among many others, Selmouni, cited above, § 87, and Çelik and İmret v. Turkey, no. 44093/98, § 39, 26 October 2004). In assessing such evidence, the Court has adopted the standard of proof “beyond reasonable doubt”.", "Sufficient proof may, however, follow from the coexistence of adequately strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Hacı Özen v. Turkey, no. 46286/99, § 46, 12 April 2007). 56. Furthermore, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under 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 Hacı Özen, cited above, § 47).", "57. Turning to the circumstances of the present case, the Court observes at the outset that the applicant was not medically examined at the beginning of his detention in police custody and that there are three medical reports drawn up in his respect during his police custody period. The medical report of 19 April 1999 showed that the applicant had sustained bruising on his back, his left eyelid, and his left shoulder. The second medical report drawn up on 22 April 1999 showed that the applicant had injuries on his right eyebrow, on the left of his nose and on his left shoulder. The third and the final report of 25 April 1999 demonstrated that there were scars on the applicant’s right eyebrow, on the left of his nose and his left shoulder (see paragraphs 20-22 above).", "58. The Court notes that the parties did not dispute the findings of these medical reports. However, they put forward different versions as to how the applicant had actually sustained injury. Haydar Ceylan alleged that he had beento be ill-treated while in custody, whereas the Government alleged that the injuries had occurred when he had attempted to jump out of the window at the Gaziosmanpaşa police headquarters (see paragraph 18 above). The Government submitted a report drawn up and signed by three officers in support of that claim.", "59. In this connection, the Court observes that the report submitted by the Government bears neither the applicant’s signature nor a note of his refusal to sign it. It does not contain the date and time of drafting either. Furthermore, the body search report on 18 April 1999 at 1.45 p.m. does not include any detail regarding the applicant’s resistance to the officers and the force used by them against him. Nor does it contain any indication that a second report would be prepared.", "The Court has difficulty in understanding why the alleged struggle was not noted on the body search report itself. Moreover, the findings of the medical reports match the applicant’s allegations that he was beaten. The Court therefore does not find it convincingly proved that the applicant had sustained the injuries noted in the report of 19 April 1999 as a result of a legitimate use of force. 60. The Court further observes that the medical reports of 22 and 25 April 1999 contain findings which did not exist in the report of 19 April 1999, that is to say the scars on the applicant’s right eye and on the left of his nose, and that the Government have not provided any explanation for these injuries.", "61. The Court reiterates that States are 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 (see Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 30, 20 July 2004). Bearing in mind the authorities’ obligation to account for injuries caused to persons under their control in custody and in the absence of a convincing explanation by the Government in the instant case, the Court considers that the injuries recorded in the medical reports of 19, 22 and 25 April 1999 were the result of treatment for which the Government bore responsibility.", "62. There has accordingly been a violation of Article 3 of the Convention under its substantive limb. 2. The responsibility of the respondent State in the light of the procedural aspect of Article 3 of the Convention 63. The Government submitted that the domestic authorities had fulfilled their obligation to conduct an effective investigation into the applicant’s allegations.", "64. The applicant maintained that the investigation and the criminal proceedings brought against the police officers were not capable of being effective as the prosecution had become time-barred. 65. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005).", "This investigation should be independent, impartial and subject to public scrutiny. It should also 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; Aksoy v. Turkey, 18 December 1996, § 98, Reports 1996-VI; Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 66. A requirement of promptness and reasonable expedition is implicit in this context.", "It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities in investigating torture or 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 Çelik and İmret, cited above, § 55). 67. The Court has found above that the respondent State was responsible, under Article 3 of the Convention, for the injuries sustained by the applicant. An effective investigation was therefore required.", "68. The Court observes that, on 25 April 1999, 3 March 2000 and 22 May 2002, the applicant maintained before the duty judge at the State Security Court and the court itself that he had been subjected to ill-treatment while detained in police custody. Despite the applicant’s allegations, the judicial authorities failed to bring any criminal charges promptly. It was not until more than three years later, following the lodging of a formal criminal complaint by the applicant’s representative, that an investigation was initiated into the applicant’s allegation. It then took the Fatih public prosecutor one year and three months to file a bill of indictment with the Fatih Criminal Court.", "The latter issued a decision of non‑jurisdiction two years and six months after the initiation of the proceedings and seven years after the acts of ill-treatment had occurred. It then sent the case file to the Istanbul Assize Court, which decided to discontinue the proceedings during the first hearing on the merits of the case. 69. The Court observes that the proceedings in question have not produced any result due to these substantial delays, resulting in the application of the statutory limitations in domestic law (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 59, 2 November 2004).", "It finds that the domestic authorities cannot be considered to have acted with sufficient promptness or diligence, which created virtual impunity for the main perpetrators of the acts of violence, despite the evidence against them (see Batı and Others, cited above, § 147). 70. In the light of the above, the Court concludes that the Haydar Ceylan’s allegations of ill-treatment were not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention. 71. There has accordingly been a violation of Article 3 under its procedural limb.", "II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 72. The applicants complained under Article 5 § 3 of the Convention that the length of their detention pending the criminal proceedings had been excessive. They further maintained under Article 5 § 4 of the Convention that there had been no effective domestic remedy to challenge the lawfulness of their detention. Finally, relying on Article 5 § 5 of the Convention, the applicants complained that they had not had an enforceable right to compensation for their excessively long detention.", "Article 5 provides insofar as relevant as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 73. The Government asked the Court to dismiss the applicants’ complaint under Article 5 § 4 of the Convention for failure to exhaust domestic remedies as required by Article 35 § 1. Referring to the Court’s decisions in the cases of Köse v. Turkey (no. 50177/99, 2 May 2006) and Baştımar v. Turkey (no.", "74337/01, 5 December 2006), the Government maintained that the applicants had failed to object to their continued detention pursuant to Articles 297-304 of the former Code of Criminal Procedure. 74. The applicants submitted that they had lodged objections in accordance with Articles 297-304 of the former Code of Criminal Procedure and that the remedy in question was ineffective. 75. The Court observes that on 15 April 2002 and 25 July 2005 the applicants objected to the orders for their continued detention using the remedy referred by the Government.", "It further considers that the issue concerning exhaustion of domestic remedies requires a determination to be made of the effectiveness of this remedy. As such, it is inextricably linked to the merits of the applicants’ complaint. It follows that this issue should be joined to the merits. 76. The Court considers that this part of the application 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. It must therefore be declared admissible. 1. Article 5 § 3 of the Convention 77. The Government submitted that that there had been a reasonable suspicion that the applicants had taken part in terrorist activities which persisted throughout the proceedings.", "They further maintained that the applicants’ detention on remand had also been necessary to prevent them from absconding, committing a further offence and removing evidence. 78. The applicants maintained their allegation. 79. The Court notes that, when calculating the period to be taken into consideration, the multiple, consecutive detention periods of the applicants should be regarded as a whole.", "In addition, while assessing the reasonableness of the length of the applicants’ detention on remand, it should make a global evaluation of the accumulated periods of detention under Article 5 § 3 of the Convention (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, ECHR 2007-... (extracts)). Consequently, after deducting the period when the applicants were detained after conviction under Article 5 § 1 (a) of the Convention – namely the period between 22 May 2002 and 17 April 2003 – from the total time that they were remanded in custody pending trial, the period to be taken into consideration in the instant case is more than six years and eleven months. 80. The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present applications (see, for example, Gökçe and Demirel v. Turkey, no.", "51839/99, § 45, 22 June 2006; Solmaz, cited above; Bayam v. Turkey, no. 26896/02, § 20, 31 July 2007). 81. 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 applicants’ detention on remand was excessive.", "82. There has accordingly been a violation of Article 5 § 3 of the Convention. 2. Article 5 § 4 of the Convention 83. The Government submitted that the applicants’ complaint under this provision was manifestly ill-founded.", "84. The applicants maintained their allegation. 85. The Court observes at the outset that the applicants requested to be released pending trial several times before the State Security Court and the Assize Court, which dismissed all such requests. The trial courts therefore had the opportunity to end the applicants’ lengthy detention on remand and to avoid or redress the alleged breach of the Convention (see Acunbay v. Turkey, nos.", "61442/00 and 61445/00, § 48, 31 May 2005 and, Mehmet Şah Çelik v. Turkey, no. 48545/99, § 26, 24 July 2007). 86. The Court further notes that it has already found that the remedy provided by Articles 297-304 of the former Code of Criminal Procedure, whereby the applicants could object to decisions ordering their continued detention, offered little prospect of success in practice, and that it did not provide for a procedure which was genuinely adversarial for the accused (see Koşti and Others v. Turkey, no. 74321/01, § 22, 3 May 2007; Bağrıyanık v. Turkey, no.", "43256/04, §§ 50 and 51, 5 June 2007; Doğan Yalçın v. Turkey, no. 15041/03, § 43, 19 February 2008). 87. In the present case, there is no element which would require the Court to depart from its previous findings. The Court therefore concludes that there was no remedy in domestic law, within the meaning of Article 5 § 4, by which the applicants could have challenged the lawfulness of their detention.", "88. The Court accordingly dismisses the Government’s preliminary objection based on non-exhaustion of domestic remedies and concludes that there has been a violation of Article 5 § 4 of the Convention. B. Article 5 § 5 of the Convention 89. The Government submitted under this head that the applicants’ detention on remand had been necessary and in accordance with domestic law.", "90. The applicants maintained their allegation and submitted that there was no remedy whereby they could claim compensation for the damage they had suffered as a result of the excessive length of their detention on remand. 91. The Court notes that it has found a breach of Article 5 § 3 of the Convention in the present case which would entitle the applicants to compensation under paragraph 5 of this provision. In this connection, the Court recalls that it has already found that there was no remedy in Turkish law whereby a person could claim compensation for damage suffered as a result of detention on remand which had exceeded a “reasonable time” in breach of Article 5 § 3 (see, for example, Çiçekler v. Turkey, no.", "14899/03, § 65, 22 December 2005, and Cahit Solmaz v. Turkey, no. 34623/03, § 47, 14 June 2007). 92. In the present case, there is no element which would require the Court to depart from its previous findings. The Court therefore concludes that the applicants did not have an enforceable right to compensation.", "93. There has accordingly been a violation of Article 5 § 5 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 94. The applicants complained of the length of the criminal proceedings brought against them.", "They relied on Article 6 § 1 which provides as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 95. The Court considers 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. It must therefore be declared admissible. B.", "Merits 96. The Government maintained that, in the circumstances of the present case, the length of the criminal proceedings could not be considered to have been unreasonable. In this respect they referred to the number of defendants who had been on trial for terrorism-related offences. The Government further submitted that the applicants and the other defendants had contributed to the prolongation of the proceedings by requesting extensions for the submission of their defence. Finally, they maintained that there was no delay in the proceedings which could be attributed to the authorities.", "97. The applicants maintained their allegations. 98. The Court observes that the period to be taken into consideration began on 18 and 19 April 1999, when the applicants were arrested and taken into police custody and, according to the information in the case file, were still pending on the date of the adoption of the present judgment. The period under consideration has thus lasted nine years and seven months before two levels of jurisdiction.", "99. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, and the conduct of the applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 100. 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, for example, Sertkaya v. Turkey, no.", "77113/01, § 21, 22 June 2006; Hasan Döner v. Turkey, no. 53546/99, § 54, 20 November 2007; Uysal and Osal v. Turkey, no. 1206/03, § 33, 13 December 2007). 101. 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 application.", "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. 102. There has accordingly been a breach of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 103.", "The applicants further complained that there were no domestic remedies available under Turkish law for the excessive length of the criminal proceedings against them. 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.” A. Admissibility 104. The Court considers 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. It must therefore be declared admissible.", "B. Merits 105. The Government did not comment on this complaint. 106. The applicants maintained their allegations.", "107. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Bahçeyaka v. Turkey, no. 74463/01, §§ 26-30, 13 July 2006, and Tendik and Others v. Turkey, no. 23188/02, §§ 34-39, 22 December 2005). It finds no reason to depart from that conclusion in the present case.", "108. There has accordingly been a violation of Article 13 of the Convention. V. 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.", "Cem Demirbaş claimed 20,000 euros (EUR) and Haydar Ceylan and Binnaz Demirbaş claimed EUR 40,000 each in respect of non-pecuniary damage. Cem Demirbaş further claimed EUR 20,000 in respect of pecuniary damage. 111. The Government contested the applicants’ claims. 112.", "The Court notes that it has found violations of Articles 3, 5 §§ 3, 4 and 5, 6 § 1 and 13 of the Convention in respect of Haydar Ceylan. Regarding Cem Demirbaş and Binnaz Demirbaş, the Court has found violations of Articles 5 §§ 3, 4 and 5, 6 § 1 and 13 of the Convention. The Court considers, on the one hand, that the finding of a violation in respect of Article 5 §§ 4 and 5, and Article 13 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. On the other hand, the Court accepts that non-pecuniary damage suffered on account of the violations of Articles 3, 5 § 3 and 6 § 1 of the Convention cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, the Court awards Haydar Ceylan EUR 17,500 in respect of non-pecuniary damage.", "It further awards Cem Demirbaş and Binnaz Demirbaş EUR 7,500 each under this head. 113. As regards the alleged pecuniary damage sustained by Cem Demirbaş, the Court observes that he did not produce any document in support of his claim, which the Court, accordingly, dismisses. B. Costs and expenses 114.", "The applicants also claimed EUR 3,995 jointly for legal expenses incurred before the Court and for other expenses, such as stationery, photocopying and postalmailing costs. In support of their claims, the applicants submitted the legal fees agreement concluded with their lawyer and invoices demonstrating that they had paid EUR 1,250 each to their representative. 115. The Government maintained that only expenses actually incurred can be reimbursed. In this connection, they submitted that all costs and expenses must be documented by the applicants.", "Finally, they contended that the applicants should have based themselves on the minimum fees established by the Turkish Bar Association when claiming legal costs. 116. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award EUR 1,250 to Haydar Ceylan, as well as EUR 1,000 to Cem Demirbbaş and Binnaz Demirbaş, each, under this head. C. Default interest 117.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the applications admissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant Haydar Ceylan; In respect of all applicants: 3. Holds that there has been a violation of Article 5 § 3 of the Convention; 4.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 5. Holds that there has been a violation of Article 5 § 5 of the Convention; 6. Holds that there has been a violation of Article 6 § 1 of the Convention; 7. Holds that there has been a violation of Article 13 of the Convention; 8. Holds (a) that the respondent State is to pay within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent Government at the rate applicable at the date of settlement: (i) EUR 17,500 (seventeen thousand five hundred euros) to Haydar Ceylan, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 7,500 (seven thousand five hundred euros) to Cem Demirbaş and Binnaz Demirbaş, each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 1,250 (one thousand two hundred and fifty euros) to Haydar Ceylan, plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (iv) EUR 1,000 (one thousand euros) to Cem Demirbaş and Binnaz[1] Demirbaş, each, plus any tax that may be chargeable to the applicants, in respect of cost and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1]. Rectified on 12 February 2009: The applicant’s name read “Binna” in the former version of the judgment." ]
[ "FIRST SECTION CASE OF NIKOWITZ AND VERLAGSGRUPPE NEWS GMBH v. AUSTRIA (Application no. 5266/03) JUDGMENT STRASBOURG 22 February 2007 FINAL 22/05/2007 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 Nikowitz and Verlagsgruppe News GmbH v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD.", "Spielmann, judges,and Mr S. Nielsen, Section Registrar, 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. 5266/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Rainer Nikowitz, an Austrian national, and Verlagsgruppe News GmbH, a limited liability company with its registered office in Tulln, on 3 February 2003. 2. The applicants were represented by Mr H. Simon, a lawyer practising in Vienna.", "The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. 3. On 15 September 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 4.", "The applicant company is the owner and publisher of the weekly magazine Profil. The first applicant works as a journalist for the applicant company. 5. In the section of the issue of Profil of 3 September 2001 dealing with society matters the applicant company published, on page 124, a two-page article by the first applicant with the headline “Ouch” and the strapline “Hermann Maier. Austria is limping.", "Rainer Nikowitz too is suffering from acute phantom pains as a result of the national broken leg.” The article was accompanied by a portrait of Mr Maier together with the caption “Hero Hermann's leg is causing millions of Austrians pain”. 6. The article was meant as an ironic essay on the reaction of the Austrian population and media scene to the road-traffic accident in which the Austrian ski-racing champion Hermann Maier had injured his leg some weeks before. In this context the article cited and commented on various statements from Austrian and German newspapers and Hermann Maier's Internet homepage. The article also mentioned one of Maier's competitors, the Austrian ski-racing champion Stefan Eberharter.", "The relevant passage reads as follows: “Even Maier's dear friend Stefan Eberharter had to say something, and he presumably decided against it at the last moment: 'Great, now I'll win something at last. Hopefully the rotten dog will slip over on his crutches and break his other leg too'.” “Auch Maiers lieber Freund Stefan Eberharter musste was sagen, und er entschied sich vermutlich im letzten Moment gegen: 'Super, jetzt gwinn ich endlich auch einmal was. Hoffentlich prackt's den miesen Hund mit den Krücken hin, und er bricht sich den anderen Haxn auch noch'.” 7. Subsequently, Mr Eberharter brought a private prosecution for defamation against the first applicant and a compensation claim under the Media Act (Mediengesetz) against the applicant company. He submitted that the above passage communicated a negative image of him as it suggested disdainful behaviour towards a colleague.", "Like all top athletes he earned the majority of his income from public-relations activities for sponsor companies. Because of the article in question he had already been repeatedly questioned about his attitude concerning Mr Maier's accident. If the suggested reproach of most objectionable competitiveness remained attached to him, this would entail a significant loss of value in his standing as a communication medium. His previous correspondence with the applicant company requesting it to publish his comment had remained unsuccessful. 8.", "On 6 December 2001 the Vienna Regional Criminal Court (Landesgericht), having held a hearing, convicted the first applicant of defamation under section 111 of the Criminal Code (Strafgesetzbuch) and sentenced him to a fine of 40 daily payments (Tagessätze) of 500 Austrian schillings (ATS) each (making a total of ATS 20,000 [approximately 1,450 euros (EUR)]) suspended for a three-year probationary period. It further ordered the first applicant to pay the costs of the proceedings. It held the applicant company jointly and severally liable for the fine and the costs of the proceedings and further ordered it to pay ATS 10,000 (EUR 726.23) in compensation to Mr Eberharter under section 6 of the Media Act. Lastly, the court ordered the publication of extracts from its judgment. 9.", "The court noted that the offending passage was to be understood in the way it would be perceived by an average reader. The magazine Profil was aimed at an understanding and intellectual readership and the majority of readers could therefore be expected to discern the satirical and humorous content of the article and the passage in particular. This was not true, however, for a person who read the article only superficially and without the necessary concentration. Such a reader was confronted at the very beginning of the article, namely in its third paragraph, with the impugned passage suggesting that jealousy, rudeness and schadenfreude were obvious characteristics of Stefan Eberharter. The content of the offending statement could furthermore not be regarded as far-fetched, as in the milieu of skiing experts Stefan Eberharter was seen as the “eternal bridesmaid” in relation to Hermann Maier and known for his rather ribald expressions.", "Lastly, the rest of the article only informed the reader about the coverage of the accident in other media and did not say anything more about Stefan Eberharter's character. 10. The applicants appealed and submitted in particular that when assessing the meaning of the offending passage the court should not have applied the standard of a hasty and unfocused reader. In any event, the applicants' right to freedom of artistic expression outweighed Mr Eberharter's personal interests. The article at issue was a satirical and farcical essay on a subject of public interest.", "Stefan Eberharter was mentioned as the representative of all other ski-racing competitors who had no chance against the overpowering Hermann Maier. The wish put in Eberharter's mouth, to the effect that Hermann Maier should break his other leg too so that he could at last win something, was a humorous, exaggerated and furthermore comprehensible reaction. The humorous nature of the article was already evident from its headline, strapline and first paragraphs. Furthermore, the applicant company regularly published the first applicant's columns, whose satirical and humorous nature was therefore well-known to readers. 11.", "On 26 June 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal. It noted that the reading and understanding of the article demanded a very high level of intelligence and concentration. The court of first instance had therefore rightfully also taken account of readers who might peruse the first paragraphs of the article without understanding its satirical meaning and then discontinue their reading of the essay because it was too demanding. The fact that the offending statement was pure fiction and that Stefan Eberharter was only mentioned as a representative for all competitors of Hermann Maier was not discernable for such a reader. Stefan Eberharter was Hermann Maier's main challenger and he was the first to benefit from Hermann Maier's accident.", "Besides, any reader would assume that the author of the article had used information not yet known to the public and that there was a real background even behind comic exaggeration. The reported reaction conveyed a negative image of a top athlete who was expected to win in fair competition instead of wishing his competitor serious bodily harm. Stefan Eberharter was presented as a most egocentric person who would stop at nothing and accept any harm done to his competitors. The court concluded that Stefan Eberharter's personal interests outweighed the applicants' right to freedom of artistic expression. 12.", "This judgment was served on the applicants' counsel on 5 August 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 13. The applicants complained under Article 10 of the Convention that the Austrian courts' judgments violated their right to freedom of expression. Article 10 of the Convention, as 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.” 14. The Government contested that argument.", "A. Admissibility 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 16. The applicants contended that the offending statement concerned a fictitious, but nevertheless conceivable and humanly understandable thought by Mr Eberharter, which was clearly discernable as such even by the hastiest of readers. The domestic authorities' reference to a reader who perused the text in such a quick or unfocused manner that he failed to understand its content was inadmissible. The applicants were not responsible for such readers and the freedom of expression guaranteed under Article 10 of the Convention was not restricted by the fact that a reader might misunderstand the ideas expressed. Any reader who honestly believed that Mr Eberharter had in fact uttered the impugned statement before the press was simply ignorant.", "17. The first applicant's satirical essays had become a trademark of the magazine Profil and the reader would thus expect the first applicant to make use of satire. The text of the article moreover contained other fictitious satirical statements, such as its remark that an ORF reporter had interviewed Mr Maier's first replaced bandage or that God himself had addressed Mr Maier and asked for his help. In any event, the article's headings already indicated its humorous and satirical approach. 18.", "In this article the first applicant had wished to criticise the national hysteria after Mr Maier's accident. The essential statement behind the impugned fictitious quotation of Mr Eberharter's thought was that he had every reason to be happy about his strong rival dropping out and the consequential chance of his winning, but had not expressed this openly. In reality, Mr Eberharter had had extraordinary ski-racing successes after Mr Maier's injury. Almost everyone in Mr Eberharter's position would have had the same thought deep down inside and the statement did not imply that he had reprehensible character traits. In any event, it was clearly recognisable that he had not expressed such words at all.", "19. The Government conceded that there had been interference with the applicants' rights, but that it was prescribed by law and sought to protect the reputation and rights of others. Furthermore, the interference had been necessary and proportionate within the meaning of paragraph 2 of Article 10 of the Convention. The article had quoted and commented on excerpts from various Austrian newspapers. In a total of eighteen quotations it had referred to headlines and passages from various other articles reporting statements which had actually been made in connection with Hermann Maier's accident.", "The impugned statement, attributed to Stefan Eberharter, was the only fictitious statement amongst all those quotations. As the Austrian courts had rightly pointed out, in those circumstances only a highly concentrated reader could have been expected to realise that this passage was pure fiction with comic exaggeration. The offending statement conveyed a negative image of Mr Eberharter's person in a striking and blatant manner. Even considering the satirical nature of this statement, the limits to the guarantees under Article 10 of the Convention had clearly been transgressed as there was no factual basis for the reproach of envy and inappropriate glee. The Government also referred in this regard to the judgment in Lopes Gomes da Silva v. Portugal (no.", "37698/97, ECHR 2000‑X) and the decision in Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria (no. 17200/91, Commission decision of 2 December 1991, unreported). Mr Eberharter's interest in protection against statements which seriously affected his image as a sportsman had outweighed the applicants' interest in embellishing their article, which was of no particular public interest, by means of the impugned statement. Moreover, the interference with the applicants' rights had been proportionate as the fine imposed on the first applicant was a suspended penalty and the amount of compensation the second applicant had been ordered to pay was minor. 20.", "The Court notes that the domestic courts' decisions in the present case constituted an interference with the applicants' rights under Article 10 of the Convention. The interference was prescribed by law and pursued the legitimate aim of the protection of the rights of others. The parties differed as to whether the interference in question had been “necessary in a democratic society”. 21. The Court reiterates in this regard that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”.", "The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision which covers both the legislation and the decision applying it, even one 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. 22. 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 delivered in the exercise of 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 statement held against the applicants and the context in which they made it.", "23. 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 (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-90, ECHR 2004‑XI, with further references). 24.", "In the present case, the domestic courts found that Mr Eberharter's personal interests in having his reputation protected had outweighed the applicants' right to freedom of expression. They noted in this regard that the reported reaction had conveyed a negative image of a top athlete who was expected to win in fair competition instead of wishing his competitor serious bodily harm. An unfocused reader could not have been expected to discern the satirical and humorous content of the article and impugned passage. Besides, any reader would have assumed that there was a real background even behind comic exaggeration. 25.", "The Court cannot find that these are “relevant and sufficient” reasons to justify the interference at issue. It notes that the article dealt with the road traffic accident in which the well-known Austrian skiing champion Hermann Mayer had been injured, this incident having attracted the attention of the Austrian media at the time. The article, as was already evident from its headings and the caption next to Mr Maier's photograph, was written in an ironic and satirical style and meant as a humorous commentary. Nevertheless, it sought to make a critical contribution to an issue of general interest, namely society's attitude towards a sports star. The Court is not convinced by the reasoning of the domestic courts and the Government that the average reader would be unable to grasp the text's satirical character and, in particular, the humorous element of the impugned passage about what Mr Eberharter could have said but did not actually say.", "This passage could at most be understood as the author's value judgment on Mr Eberharter's character, expressed in the form of a joke. 26. The Court notes that the impugned statement speculates on Mr Eberharter's true feelings about his competitor's accident and suggests, firstly, that he was pleased because he expected to benefit from this incident and, secondly, that he hoped his competitor would be further weakened. The Court acknowledges that such feelings, if actually expressed, would seriously affect and damage any sportsman's good image. However, the Court does not find that the same can be said about this humorous passage, which clearly mentions that Mr Eberharter made no such statement.", "The Court also notes in this regard that Mr Eberharter had already previously commented on Mr Maier's accident in public, obviously using different words. In sum, the Court considers that the impugned passage about Mr Eberharter remains within the limits of acceptable satirical comment in a democratic society. 27. Moreover, the Court, having regard to the fact that the Austrian courts convicted the first applicant of defamation and ordered the applicant company to pay compensation and to publish the judgment, cannot adhere to the Government's argument that the Austrian courts showed moderation in interfering with the applicants' rights in the present case. In particular, as regards the first applicant, what matters is not that he was sentenced to a relatively minor suspended penalty, but that he was convicted at all (see Lopez Gomez da Silva, cited above, § 36).", "28. It follows that the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. Consequently, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicants claimed a total of 7,288.13 euros (EUR) including value-added tax (VAT) in respect of pecuniary damage. This amount consisted of EUR 726.73 for the compensation the applicant company had been ordered to pay to Mr Eberharter, EUR 2,421.40 for the reimbursement of the costs incurred by Mr Eberharter in the domestic proceedings and EUR 4,140 for the loss of advertising revenue owing to the publication of extracts from the judgment in the applicant company's magazine Profil. 31.", "The Government contended that the amount claimed by the applicant company for the loss caused by having to publish the judgment was excessive. They contested, in particular, the inclusion of a surcharge of 15% on the normal advertising rate to account for special placement of the notice in the magazine's “Society” section. In any event, the applicants had incorrectly calculated this surcharge as EUR 740 instead of EUR 510. They did not comment on the other claims. 32.", "Having regard to the direct link between the applicants' claims for reimbursement of the compensation and of the costs of the domestic proceedings which had been awarded to Mr Eberharter, and the violation of Article 10 found by the Court, the Court finds that the applicants are entitled to recover the full amount of EUR 3,148.13 in this connection. The Court further considers that there is also a direct link between the applicant company's claim for the loss of advertising revenue caused by the publication of the judgment in its magazine and the violation found (compare Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003-XI). The Court agrees with the applicants that the loss of advertising revenue should be calculated on the basis of the normal advertisement rate for similar publication. The advertisement rate for an equal-sized insert in the applicant company's magazine amounted at the material time to EUR 3,400 to which a surcharge of 15% was to be added for special placement.", "In the present case, the relevant provisions of the Media Act obliged the applicant company to publish the judgment in a section that was the same as, or similar to, that in which the impugned original article had appeared. The Court accordingly awards the applicants EUR 3,910 for the loss of advertising revenue. In sum, the Court awards a total of EUR 7,058.13 in respect of pecuniary damage. This amount includes VAT. B.", "Costs and expenses 33. The applicants also claimed a total of EUR 2,397.64 for the costs and expenses incurred in the domestic proceedings and EUR 2,561.46 for those incurred in the proceedings before the Court. 34. The Government submitted that the amount claimed for costs in respect of the domestic proceedings was excessive in so far as it included the sum of EUR 127.70 for “review of the publication of the judgment”. They further argued that the amount claimed in respect of the present proceedings was also excessive.", "35. 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, the above criteria and the Government's comment, the Court awards EUR 2,269.94 for costs in respect of the domestic proceedings. The Court further finds that the sum claimed by the applicants in respect of the present proceedings appears reasonable and awards the full amount, namely EUR 2,561.46. In sum, the Court awards a total of EUR 4,831.40 under the head of costs and expenses.", "This amount does not include VAT. 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 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, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 7,058.13 (seven thousand and fifty-eight euros thirteen cents) in respect of pecuniary damage; (ii) EUR 4,831.40 (four thousand eight hundred and thirty-one euros forty cents) in respect of costs and expenses; (iii) any tax that may be chargeable on the latter amount; (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 22 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF OBERWALDER v. SLOVENIA (Application no. 75567/01) JUDGMENT STRASBOURG 18 January 2007 FINAL 18/04/2007 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 Oberwalder v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrC. Bîrsan,MrV. Zagrebelsky,MrsA. Gyulumyan,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 75567/01) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Slovenian nationals, Mr Jože Oberwalder, Mr Jože Oberwalder junior (“jr.”) and Mr Andrej Oberwalder (“the applicants”), on 10 February 2000. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3.", "The applicants alleged inter alia under Article 6 § 1 of the Convention that the length of the civil proceedings before the domestic courts to which they were a party was excessive. 4. On 24 March 2005 the Court decided to communicate the complaint concerning the length of the second set of proceedings to the Government and to declare the remainder of the application inadmissible. Under Article 29 § 3 of the Convention, it decided to examine the merits of the remaining complaint at the same time as its admissibility. THE FACTS 5.", "The applicants were born in 1931, 1959 and 1967 respectively and live in Domžale. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 8 July 1970 and 11 March 1971 respectively, four plots of land were sold to the Municipality by H.O., the late wife of the first applicant J.O.", "and the mother of the second and third applicants, J.O. jr. and A.O. 8. On 5 July 1973 and 4 June 1974, respectively, three plots of land were sold to the Municipality by the second applicant (J.O. jr.) and his brother (A.O.", "), the third applicant. 9. On 23 November 1973 and 10 September 1976 two plots of land were sold to the Municipality by J.O. 10. On 6 May 1992 the applicants lodged a request for the return of nine plots of land with the Domžale Administrative Unit on the basis of the 1991 Denationalisation Act, claiming that they had signed the contracts of sale under duress which was tantamount to expropriation.", "11. On 7 June 1993 the Administrative Unit transferred their request to the Domžale Local Court (Okrajno sodišče v Domžalah) as the competent authority. 12. On 13 July 1994 a hearing was held. The court requested the applicants to complete their request and submit further documents.", "13. On 28 September and 29 November 1994, 16 February 1995, 23 March, 23 May and 17 July 1995 the court sent a letter to the applicants' lawyer, reiterating its request. The court also informed the new lawyer representing the applicants that it had received no reply. 14. On 18 September 1997 the court summoned the applicants to complete their request within 30 days, or else it would reject it or consider it withdrawn.", "15. On 3 November 1997 the applicants filed the requested document through their representative and enlarged their claim, directing it also against the Slovenian Compensation Corporation (the “SCC”). On 20 January 1998 the latter replied to the applicants. 16. Further to their reply, on 10 December 1998, 11 February and 26 April 1999 the court requested the lawyer to submit further documents.", "17. On 14 May 1999 the applicants through their representative filed the requested documents which were forwarded to the SCC. The latter replied on 5 July 1999. 18. On 7 February 2001 the applicants specified the amount of compensation claimed.", "On 14 February 2001 a hearing was held. Since some of the requested documents were still missing, the applicants' representative obliged himself to reply to the SCC's statements. 19. On 20 February 2001 the Municipality of Domžale filed a reply. On 14 September 2001, further to the court's additional request, the applicants' representative filed submissions.", "20. On 13 December 2001, after a hearing, the Local Court rejected the claim. 21. On 28 January 2001 the applicants lodged an appeal with the Ljubljana Higher Court (Višje sodišče). 22.", "On 15 January 2003 the Ljubljana Higher Court rejected their appeal. On 6 February 2003 the decision was served on the applicants. That decision became final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23.", "The applicants complained about the excessive length of the civil 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 ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 24. The Government pleaded non-exhaustion of domestic remedies. 25. The applicants contested that argument, claiming that the remedies available were not effective.", "26. The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001 and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicants' 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. 27. 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. 28. 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 29.", "The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and ended on 6 February 2003, the day the Ljubljana Higher Court's decision was served on the applicants. It therefore lasted about 8 years and 7 months for 2 levels of jurisdiction. 30. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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).", "31. In the Government's view, the proceedings at stake were rather complex, since denationalisation claims are professionally demanding for a judge. The applicants themselves also contributed to their complexity, course and duration because they belatedly replied to the court's requests to submit the documents. In addition, in 1998 they enlarged their claim. The domestic courts could not be reproached negligence in dealing with the proceedings in question.", "Moreover, the second-instance judge treated the case with priority. Delays in examining the case occurred primarily for the reasons for which the applicants were responsible. The Government contend that a decision on the restitution of ownership rights is undoubtedly of great importance to the applicants. However, they should have exercised their procedural rights with greater care 32. The applicants contested those arguments.", "33. The Court notes that the period after 28 June 1994, when the Convention entered into force for Slovenia, until 3 November 1997 when the applicants finally replied to the court's repeated requests is entirely incumbent on the applicants. Similarly, the periods between 10 December 1998 and 14 May 1999 and between 14 February and 14 September 2001 are also attributable to the applicants. Therefore, the period which could be attributed to the domestic courts amounts to approximately 4 years and 2 months. 34.", "Nevertheless, 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. 35. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicants claimed non-pecuniary damage for the suffering sustained in the course of the proceedings, but left the matter to the Court's discretion. 38. In addition, they claimed compensation for the material loss amounting to 57,200 DEM, which would be the value of the bonds of the Slovenian Compensation Corporation for the expropriated land, plus the interest, in respect of 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, the Court considers that the applicants must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards them EUR 2,000 under that head. B. Costs and expenses 41. The applicants also claimed reimbursement of the costs of their attorney, without specifying the amount. 42.", "The Government contested their claim. 43. 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. 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 applicants the sum of EUR 200 for the proceedings before the Court. 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 remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 200 (two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 18 January 2007 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]
[ "CASE OF HASHMAN AND HARRUP v. THE UNITED KINGDOM (Application no. 25594/94) JUDGMENT STRASBOURG 25 November 1999 In the case of Hashman and Harrup v. the United Kingdom, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court[2], as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrA.", "Pastor Ridruejo,MrG. Bonello,MrP. Kūris,MrR. Türmen,MrJ.-P. Costa,MrsF. Tulkens,MrsV.", "Strážnická,MrP. Lorenzen,MrM. Fischbach,MrV. Butkevych,MrJ. Casadevall,MrA.B.", "Baka,MrR. Maruste,MrsS. Botoucharova,LordReed, ad hoc judge,and also of Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 23 June and 27 October 1999, 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 2 November 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention.", "It originated in an application (no. 25594/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under former Article 25 by two United Kingdom nationals, Mr Joseph Hashman and Ms Wanda Harrup, on 19 August 1994. The applicants were represented by Mr J. Bate, a solicitor practising in Woking. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.", "2. In accordance with the provisions of Article 5 § 4 of Protocol No. 11 taken together with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 20 January 1999 that the case would be examined by the Grand Chamber of the Court. The Grand Chamber included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 24 § 4), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mr R. Türmen, Mrs F. Tulkens, Mrs V. Strážnická, Mr P. Lorenzen, Mr V. Butkevych, Mr A.B.", "Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3). Subsequently Sir Nicolas Bratza, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). On 13 May 1999 the Government of the United Kingdom (“the Government”) appointed Lord Reed to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Later Mr Makarczyk, who was unable to take part in the further consideration of the case, was replaced by Mr J. Casadevall (Rule 24 § 5 (b)). 3.", "In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 23 June 1999. There appeared before the Court: (a) for the GovernmentMrM. Eaton, Agent,MrJ. Morris QC, Attorney General,MrR. Singh,MsM.", "Demetriou, Counsel,MsC. Stewart,MrS. Bramley, Home Office, Advisers; (b) for the applicantsMrP. Codner, Counsel. The Court heard addresses by Mr Codner and Mr Morris.", "THE FACTS I. the circumstances of the case 4. On 3 March 1993 the applicants blew a hunting horn and engaged in hallooing with the intention of disrupting the activities of the Portman Hunt. A complaint was made to the Gillingham magistrates that the applicants should be required to enter into a recognisance with or without sureties to keep the peace and be of good behaviour pursuant to the Justices of the Peace Act 1361. 5. The applicants were bound over to keep the peace and be of good behaviour in the sum of 100 pounds sterling for twelve months on 7 September 1993.", "They appealed to the Crown Court, which heard their appeals on 22 April 1994 at Dorchester. 6. The Crown Court, comprising a Crown Court judge and two magistrates, found that the applicants had not committed any breach of the peace and that their conduct had not been likely to occasion a breach of the peace. It found the following facts: “(a) On 3rd March, 1993, Edward Lycett Green, a joint Master of the Portman Hunt, saw the [applicants] in the environs of the Ranston Estate, and heard the sound of a hunting horn being blown from that position. Later, at about 1.15 p.m., he saw the [applicants’] car on Iwerne Hill and again heard the sound of a hunting horn being blown.", "On that occasion he also heard [the second applicant] hallooing. Some hounds were drawn towards the [applicants], and hunt staff had to be deployed to recover them. (b) At about 1.45 p.m., a solitary hound ran out of Rolf’s Wood along the Higher Shaftesbury Road. It suddenly, and for no apparent reason, ran across the road and was killed by a lorry travelling in the direction of Blandford Forum. (c) At about 3.45 p.m., [the first applicant] stated to a police constable that he had been blowing a hunting horn, but nowhere near where the hound was killed.", "The police officer seized the hunting horn. (d) Iwerne Hill is about a mile from where the hound was killed, and, at the time of its death, it was travelling away from the hunt and away from Iwerne Hill. (e) On their own admissions each [applicant] was a hunt saboteur. [The first applicant] admitted that he had blown the horn and [the second applicant] that she shouted at hounds. Their object was to distract hounds from hunting and killing foxes.", "(f) An expert, a Mr A. Downes, told us that he had observed hunts for many years and had frequently seen hounds running loose on the road away from the main pack. In his opinion, this caused danger to hounds and to other users of the road.” 7. On the basis of these facts, the Crown Court was of the following opinion: “(a) The [applicants’] behaviour had been a deliberate attempt to interfere with the Portman Hunt and to take hounds out of the control of the huntsman and the whippers‑in. (b) That in this respect the actions of the [applicants] were unlawful, and had exposed hounds to danger. (c) That there had been no violence or threats of violence on this occasion, so that it could not be said that any breach of the peace had been committed or threatened.", "(d) That the [applicants] would repeat their behaviour unless it were checked by the sanction of a bind over. (e) That the [applicants’] conduct had been contra bonos mores. (f) That R. v. Howell [see below] was distinguishable in that it related to the power of arrest for breach of the peace, which could only be exercised if there was violence or the immediate likelihood of violence. (g) That the power to bind over ‘to keep the peace and be of good behaviour’ was wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores, since a breach of the peace is ex hypothesi contra bonos mores, and the words ‘to keep the peace’ added nothing to what was required of the defendant by the words ‘to be of good behaviour’.” 8. The court noted that neither the Law Commission’s report on binding over nor the European Convention was part of domestic law.", "9. The Crown Court judge agreed to state a case to the High Court, but legal aid for the case stated was refused on 5 August 1994. The applicants’ appeals against the decisions were dismissed on 19 September 1994. ii. relevant domestic law and practice A. Breach of the peace and conduct contra bonos mores 10.", "Breach of the peace – which does not constitute a criminal offence (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670) – is a common-law concept of great antiquity. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated …” (p. 426) He continued: “We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427) 11. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392) 12.", "In Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] 160 Justice of the Peace Reports 155), Lord Justice Simon Brown stated: “… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163) 13. Behaviour contra bonos mores has been described as “conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130). 14. In R. v. Sandbach, ex parte Williams ([1935] 2 King’s Bench Reports 192) the Divisional Court rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace.", "As in the case of binding over to keep the peace, there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made. B. Binding over 15. Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”). A binding-over order requires the person bound over to enter into a “recognisance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time.", "If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognisance. A binding-over order is not a criminal conviction (R. v. County of London Quarter Sessions, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670). 1. Binding over under the Magistrates’ Courts Act 1980 16.", "Section 115 of the 1980 Act provides: “(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint. … (3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.” 2. Binding over at common law and under the Justices of the Peace Act 1361 17. In addition to the statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores.", "It is not open to the justices to attach specific conditions to a binding-over order (Ayu [1959] 43 Criminal Appeal Reports 31; Goodlad v. Chief Constable of South Yorkshire [1979] Criminal Law Review 51). 3. Appeals 18. An order of the magistrates to require a person to enter into a recognisance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”.", "An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law. 4. The Law Commission’s report on binding over 19. In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that: “4.34 We regard reliance on contra bonos mores as certainly, and breach of the peace as very arguably, contrary to elementary notions of what is required by the principles of natural justice when they are relied on as definitional grounds justifying the making of a binding-over order. Because an order binding someone to be of good behaviour is made in such wide terms, it fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions … … 6.27 We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour.", "These objections are, in summary, that the conduct which can be the ground for a binding‑over order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222) The Law Commission recommended abolition of the power to bind over. PROCEEDINGS BEFORE THE COMMISSION 20. The applicants applied to the Commission on 19 August 1994. They alleged violations of Articles 5, 10 and 11 of the Convention.", "21. The Commission declared the application (no. 25594/94) partly admissible on 26 June 1996. In its report of 6 July 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 10 of the Convention (twenty-five votes to four). The full text of the Commission’s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment[3].", "FINAL SUBMISSIONS TO THE COURT 22. The Government asked the Court to find that the facts of the case disclosed no breach of the Convention. The applicants invited the Court to find a violation of Article 10 of the Convention and to award costs. THE LAW i. scope of the case before the court 23. Before the Commission the applicants made a complaint under Article 11 of the Convention (see paragraph 20 above).", "24. This complaint was not pursued before the Court, which sees no reason to consider it of its own motion (see, for example, the Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, p. 680, § 52). II. ALLEGED VIOLATION OF aRTICLE 10 OF THE CONVENTION 25. The applicants alleged a violation of Article 10 of the Convention.", "In particular, they claimed that the finding that they had behaved in a manner contra bonos mores and the subsequent binding-over order constituted an interference with their rights under Article 10 which was not “prescribed by law” within the meaning of that provision. The relevant parts of Article 10 read 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 ... for the prevention of disorder or crime ... [or] for the protection of the reputation or rights of others ...” 26.", "The Court must determine whether the case discloses any interference with the applicants’ right to freedom of expression, and if so, whether any such interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 10 § 2. A. As to the existence of an interference with the applicants’ freedom of expression 27. The applicants, “hunt saboteurs”, disrupted the Portman Hunt on 3 March 1993. Proceedings were brought as a result of which they were bound over in the sum of 100 pounds sterling not to breach the peace and to be of good behaviour for twelve months.", "28. The Court recalls that proceedings were brought against the applicants in respect of their behaviour while protesting against fox hunting by disrupting the hunt. It is true that the protest took the form of impeding the activities of which they disapproved, but the Court considers nonetheless that it constituted an expression of opinion within the meaning of Article 10 (see, for example, the Steel and Others v. the United Kingdom judgment of 23 September 1998, Reports 1998-VII, p. 2742, § 92). The measures taken against the applicants were, therefore, an interference with their right to freedom of expression. B.", "Whether the interference was “prescribed by law” 29. The Government submitted that the concepts of breach of the peace and behaviour contra bonos mores were sufficiently precise and certain to comply with the requirement under Article 10 § 2 that any limitations on freedom of expression be “prescribed by law”. With particular reference to the concept of behaviour contra bonos mores, the Government accepted that the power was broadly defined, but claimed that the breadth was necessary to meet the aims of the power, and sufficient to meet the requirements of the Convention. They stated that the power to bind over to be of good behaviour gave magistrates a vital tool in controlling anti-social behaviour which had the potential to escalate into criminal conduct. They also noted that the breadth of the definition facilitated the administration of justice as social standards altered and public perception of acceptable behaviour changed.", "The Government disagreed with the Commission’s conclusion that there was no objective element to help a citizen regulate his conduct: they pointed to the Chorherr case, where an administrative offence of causing “a breach of the peace by conduct likely to cause annoyance” fell within the scope of the concept of “prescribed by law” (Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, § 25). They also pointed to the test under English law of whether a person had acted “dishonestly” for the purpose of the Theft Acts 1968 and 1978 which was, at least in part, the standard of ordinary reasonable and honest people (R. v. Ghosh [1982] Queen’s Bench Reports 1053), and to the test for whether a publication was defamatory, namely whether the statement concerned would lower a person in the opinion of right-thinking members of society. Finally, the Government submitted that, on the facts of the case, the applicants should have known that what they had done was contra bonos mores and they should have known what they should do to avoid such behaviour in the future: they had acted in a way intended to disrupt the lawful activities of others, and should not have been in any doubt that their behaviour was unlawful and should not be repeated.", "The Government recalled that the Court was concerned with the case before it, rather than the compatibility of domestic law with the Convention in abstracto. 30. The applicants, with reference to the Commission’s report and to the report of the Law Commission (see paragraph 19 above), considered that the law on conduct contra bonos mores lacked sufficient objective criteria to satisfy the requirements of Article 10 § 2. They further considered that an order not to act contra bonos mores could not be prescribed by law as it did not state what it was that the subject of the order might or might not lawfully do, such that it was not “prescribed by law”. 31.", "The Court recalls that one of the requirements flowing from the expression “prescribed by law” is foreseeability. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. At the same time, whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. 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 generally in this connection, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).", "32. The Court further recalls that prior restraint on freedom of expression must call for the most careful scrutiny on its part (see, in the context of the necessity for a prior restraint, the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 29‑30, § 51).", "33. The Court has already considered the issue of “lawfulness” for the purposes of Article 5 of the Convention of orders to be bound over to keep the peace and be of good behaviour in its above-mentioned Steel and Others judgment (pp. 2738-40, §§ 71-77). In that case, the Court found that the elements of breach of the peace were adequately defined by English law (ibid., p. 2739, § 75). 34.", "The Court also considered whether the binding-over orders in that case were specific enough properly to be described as “lawful order[s] of a court” within the meaning of Article 5 § 1 (b) of the Convention. It noted at paragraph 76 of the judgment that: “… the orders were expressed in rather vague and general terms; the expression ‘to be of good behaviour’ was particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would amount to a breach of the order. However, in each applicant’s case the binding-over order was imposed after a finding that she had committed a breach of the peace. Having considered all the circumstances, the Court is satisfied that, given the context, it was sufficiently clear that the applicants were being requested to agree to refrain from causing further, similar, breaches of the peace during the ensuing twelve months.” The Court also noted that the requirement under Article 10 § 2 that an interference with the exercise of freedom of expression be “prescribed by law” is similar to that under Article 5 § 1 that any deprivation of liberty be “lawful” (ibid., p. 2742, § 94). 35.", "It is a feature of the present case that it concerns an interference with freedom of expression which was not expressed to be a “sanction”, or punishment, for behaviour of a certain type, but rather an order, imposed on the applicants, not to breach the peace or behave contra bonos mores in the future. The binding-over order in the present case thus had purely prospective effect. It did not require a finding that there had been a breach of the peace. The case is thus different from the case of Steel and Others, in which the proceedings brought against the first and second applicants were in respect of breaches of the peace which were later found to have been committed. 36.", "The Court must consider the question of whether behaviour contra bonos mores is adequately defined for the purposes of Article 10 § 2 of the Convention. 37. The Court first recalls that in its Steel and Others judgment, it noted that the expression “to be of good behaviour” “was particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would amount to a breach of the order” (ibid., pp. 2739-40, § 76). Those considerations apply equally in the present case, where the applicants were not charged with any criminal offence, and were found not to have breached the peace.", "38. The Court next notes that conduct contra bonos mores is defined as behaviour which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens” (see paragraph 13 above). It cannot agree with the Government that this definition has the same objective element as conduct “likely to cause annoyance”, which was at issue in the Chorherr case (see paragraph 29 above). The Court considers that the question of whether conduct is “likely to cause annoyance” is a question which goes to the very heart of the nature of the conduct proscribed: it is conduct whose likely consequence is the annoyance of others. Similarly, the definition of breach of the peace given in the case of Percy v. Director of Public Prosecutions (see paragraph 11 above) – that it includes conduct the natural consequences of which would be to provoke others to violence – also describes behaviour by reference to its effects.", "Conduct which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”, by contrast, is conduct which is not described at all, but merely expressed to be “wrong” in the opinion of a majority of citizens. 39. Nor can the Court agree that the Government’s other examples of behaviour which is defined by reference to the standards expected by the majority of contemporary opinion are similar to conduct contra bonos mores as in each case cited by the Government the example given is but one element of a more comprehensive definition of the proscribed behaviour. 40. With specific reference to the facts of the present case, the Court does not accept that it must have been evident to the applicants what they were being ordered not do for the period of their binding over.", "Whilst in the case of Steel and Others the applicants had been found to have breached the peace, and the Court found that it was apparent that the binding over related to similar behaviour (ibid. ), the present applicants did not breach the peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over not to do must have been apparent to them. 41. The Court thus finds that the order by which the applicants were bound over to keep the peace and not to behave contra bonos mores did not comply with the requirement of Article 10 § 2 of the Convention that it be “prescribed by law”. 42.", "In these circumstances, the Court is not required to consider the remainder of the issues under Article 10 of the Convention. 43. It follows that there has been a violation of Article 10 of the Convention. III. application of article 41 of the Convention 44.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Costs and expenses 45. The applicants claimed a total of 6,000 pounds sterling plus value‑added tax in respect of costs and expenses in the Strasbourg proceedings, less amounts received by way of legal aid before the Court and Commission. The Government agreed with this figure. The Court is satisfied that the claim for costs and expenses is reasonable, and should be reimbursed in its entirety.", "B. Default interest 46. According to the information available to the Court, the statutory rate of interest applicable in England and Wales at the date of adoption of the present judgment is 7.5% per annum. FOR THESE REASONS, THE COURT 1. Holds unanimously that it is not necessary to examine the applicants’ complaint under Article 11 of the Convention; 2.", "Holds by sixteen votes to one that there has been a violation of Article 10 of the Convention; 3. Holds unanimously (a) that the respondent State is to pay the applicants, within three months, for costs and expenses, 6,000 (six thousand) pounds sterling, together with any value-added tax that may be chargeable less the sums paid by way of legal aid; (b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 November 1999. Luzius WildhaberPresidentPaul Mahoney Deputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Baka is annexed to this judgment. L.W.", "P.J.M. DISSENTING OPINION OF JUDGE BAKA It is not the task of an international judge to defend a national institution which clearly shows certain shortcomings. The magistrates’ power to bind over – as the Law Commission’s report on the subject explains – is based on “conduct which … is too vaguely defined; … binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; … the power to imprison someone if he or she refuses to consent to be bound over is anomalous ...”. For these and other reasons the Law Commission even recommended abolition of the power to bind over. On the other hand, it is not easy to destroy old, established institutions which are deeply rooted in a country’s legal system and have proved their usefulness over the centuries for protecting the rights of the public, as in the present case.", "If we look at the concrete circumstances of the case, what the applicants did according to the national courts’ finding was “a deliberate attempt to interfere with the Portman Hunt and to take the hounds out of … control ...”. They were avowed hunt saboteurs and as such they deliberately tried seriously to disturb other people’s lawfully organised pleasure and leisure activity or even make it impossible. Their action, according to the Crown Court’s findings, had not resulted in “violence or threats of violence on this occasion, so that it could not be said that any breach of the peace had been committed or threatened”. On the other hand, their action, in my opinion, definitely required an adequate and proportionate legal response in order to protect others. I agree with the Court that this case is different from the case of Steel and Others v. the United Kingdom (judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), in which the binding-over decision was based on breaches of the peace, while in the present case the findings against the applicants were based on behaviour contra bonos mores.", "In the Steel and Others case the Court was satisfied that binding-over orders had been imposed after a finding that the applicants had committed a breach of the peace, the elements of which – according to the Court’s findings – “were adequately defined by English law” (see the Steel and Others judgment, p. 2739, § 75). What I do not agree with is that “the order by which the applicants were bound over to keep the peace and not to behave contra bonos mores did not comply with the requirement of Article 10 § 2 of the Convention that it be prescribed by law” (see paragraph 41 of the judgment). The Court, when analysing the “prescribed by law” requirement of Article 10 § 2, has always reiterated that “the level of precision required of the domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed”. It has pointed out also that “it is primarily for the national authorities to interpret and apply domestic law” (see the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266‑B, pp.", "35-36, § 25). On the basis of these elements of foreseeability, I am of the opinion that in the concrete circumstances of the case, the applicants should have known what kind of behaviour was contra bonos mores. It is true that the requirement is broadly defined, but taking into account the nature of the disturbance and the limited number of offenders, the institution of binding over to be of good behaviour imposed an unmistakable obligation on the applicants, namely to refrain from any offensive and deliberate action which could disturb the lawfully organised activity of others engaged in fox hunting. In my view, the “keep the peace or be of good behaviour” obligation has to be interpreted in the light of the specific anti-social behaviour committed by the applicants. In this context, I think that the binding-over requirement was foreseeable and enabled the applicants to a reasonable extent to behave accordingly.", "On this basis, I think that the interference with the applicants’ rights under Article 10 § 2 not only served a legitimate aim but was also prescribed by law and necessary in a democratic society. Consequently, I find no breach of Article 10 of the Convention. [1] 1-2. Note by the Registry. Protocol No.", "11 and the Rules of Court came into force on 1 November 1998. [2] [3]1. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry." ]
[ "FIRST SECTION CASE OF KUDESHKINA v. RUSSIA (Application no. 29492/05) JUDGMENT STRASBOURG 26 February 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision. In the case of Kudeshkina v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 5 February 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29492/05) 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 Olga Borisovna Kudeshkina (“the applicant”), on 12 July 2005.", "2. The applicant was represented by Ms K. Moskalenko, Ms A. Panicheva and Ms M. Voskobitova, lawyers practising in Strasbourg and Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that her dismissal from the judiciary, following critical statements by her in the media, violated her right to the freedom of expression guaranteed by Article 10 of the Convention.", "4. By a decision of 28 February 2008, the Court declared the application 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 1951 and lives in Moscow. At the material time she had been working as a judge for 18 years. 7. From 6 November 2000 the applicant held judicial office at the Moscow City Court.", "A. The applicant’s participation in the criminal case against Mr Zaytsev 8. In 2003 the applicant was appointed to sit on a criminal case concerning abuse of powers by a police investigator, Mr Zaytsev. He was accused of carrying out unlawful searches while investigating a case of large-scale customs and financial fraud involving a group of companies and, allegedly, certain high-ranking state officials. 9.", "In June 2003 the court, composed of the applicant as judge and two lay assessors, Ms I. and Ms D., began to examine the case. During the hearing on 26 June 2003 the court invited the public prosecutor to present evidence for the prosecution. He replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted. On the following day, Friday 27 June 2003, he challenged the applicant as judge on the grounds of bias which she had allegedly shown when questioning one of the victims. Other parties to the proceedings, including the victim in question, objected to the challenge.", "On the same day the lay assessors dismissed the challenge, following which the public prosecutor challenged both lay assessors. The parties to the proceedings objected to the challenge and it was dismissed. On the same day the prosecutor filed another challenge to the lay assessors on the grounds of bias, which was also dismissed by the applicant on the same day. 10. On Monday 30 June 2003 both lay assessors filed a motion to withdraw from the proceedings.", "11. On 1 July 2003 the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records. The court refused his motion, on the grounds that the minutes could be accessed within three days of their completion. 12. On 3 July 2003 the applicant allowed the withdrawal of both lay assessors, having found as follows: “At the hearing the lay assessors I and D declared their withdrawal from the proceedings, on the grounds that they were unable to participate in the examination of the case because of the [public prosecutor’s] biased and discourteous behaviour towards them and due to the perverse environment at the hearing, for which he is responsible and which made them ill.” 13.", "According to the applicant, the Moscow City Court President, Ms Yegorova, then during the proceedings called the applicant to her office and asked her about the details of the proceedings, putting certain questions regarding the conduct of the trial and the decisions on the above motions. 14. The parties disagree on the circumstances of the applicant’s withdrawal from the case. According to the applicant, the Moscow City Court President removed her from sitting in the case on 4 July 2003, the day after the lay assessors’ withdrawal. According to the Government, the case remained with the applicant until 23 July 2003, when it was withdrawn from her by the Moscow City Court President on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for annual leave from 11 August to 11 September 2003, filed on 22 July 2003.", "15. On 23 July 2003 the Moscow City Court President assigned the case to judge M. 16. The applicant subsequently sat as a judge in several other criminal cases. B. The applicant’s election campaign 17.", "In October 2003 the applicant submitted her candidature in general elections for the State Duma of the Russian Federation. Her election campaign included a programme for judicial reform. 18. On 29 October 2003 the Judiciary Qualification Board of Moscow granted the applicant’s request for suspension from her judicial functions pending the elections in which she was standing as a candidate. 19.", "On 1 December 2003 the applicant gave an interview to the radio station Ekho Moskvy, which was broadcast on the same day. She made the following statements: “Ekho Moskvy (EM): ... it has come to our knowledge that an acting judge of the Moscow City Court has expressed criticism of the existing judicial system and mentioned certain instances of pressure being exerted on the court ... Olga Kudeshkina (OK): Indeed. Years of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow. Instances of a court being put under pressure to take a certain decision are not that rare, not only in cases of great public interest but also in cases encroaching on the interests of certain individuals of consequence or of particular groups. ... EM: So what about that case in which you were confronted with such bare and ruthless pressure, what was it?", "OK: Some of you have probably heard about the criminal case concerning the smuggling of furniture which was subsequently sold in the large Moscow shopping centres ‘Tri Kita’ and ‘Grand’. The damage caused by this crime, as the investigation has revealed, amounted to several million roubles. Among those who came within the sights of the investigators, led by Zaytsev, were extremely influential and prominent people. This case received great publicity after the Prosecutor General hastily withdrew the file from the investigation unit of the Ministry of the Interior and charged the investigator Zaytsev [with abuse of official powers]. EM: So you examined Zaytsev’s case, and not that of the furniture dealers?", "OK: Yes, [the case] against Zaytsev. First the Moscow City Court examined the case and acquitted him. What is more, the court expressly stated in the judgment that the office of the Prosecutor General itself sometimes failed to conform to, or was in direct breach of, the law. The reputation of the Prosecutor General’s Office had been publicly challenged. EM: And the judgment was quashed, as I remember?", "OK: Yes, it was. The Panel of the Supreme Court reversed the judgment and remitted it to the Moscow City Court for a fresh examination. EM: And you received the case? OK: Yes. The Panel of the Supreme Court in its decision indicated the points to be taken account of in the new proceedings.", "EM: So far as I know you were unable to hear the case to the end ... What happened? OK: In the course of the examination the case was withdrawn from me by the Moscow City Court President, Yegorova, without any explanation. ... EM: What happened just before the withdrawal? OK: During the hearing the court was considering the evidence for the prosecution and started to cross-examine the victims. However, the public prosecutor, a representative of the Prosecutor General’s Office, must have reckoned that the victims’ testimonies ran contrary to the prosecution’s version of events.", "He therefore attempted to bring the proceedings to naught. In 20 years in the judiciary this was the first time that I was confronted with such behaviour ... he was trying to keep the court within the strict bounds of the questions he thought the court ought to ask the victims ... if the court went beyond these limits he started challenging the court and bombarding it with unreasoned requests. ... EM: ... what are judges supposed to do in such a situation, when a party to the proceedings acts in breach of the law? Can you seek help, support or at least advice? OK: Yes, the court ... could request the Prosecutor General to replace the public prosecutor on the grounds of undue conduct in the proceedings.", "But at that very moment the court president called me to her office. EM: How come the court president could intervene in the proceedings? OK: Of course she could not. Criminal procedure in Russia is adversarial; in accordance with the law the court acts neither for the prosecution nor for the defence ... Here, it was expressly brought home to me that the President of the Moscow City Court and the agent of the Prosecutor General’s Office had common cause in this case.", "... EM: ... do you think this case was exceptional or is this a widespread phenomenon? OK: No, as far as I am aware, this is not the only case where the courts of law are used as an instrument of commercial, political or personal manipulation. This is a dangerous state of affairs because no one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone ... I do realise what kind of statement I have just made. But if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness.” 20.", "On 4 December 2003 two newspapers – Novaya Gazeta and Izvestiya – published interviews with the applicant. 21. The interview with Novaya Gazeta, in so far as relevant, read as follows: “... Over the past 20 years working in the courts of law I have ... dealt with various cases: civil, criminal and administrative. Having examined hundreds, if not thousands, of cases ... I have seen a bit of everything, I know the judicial system inside out.", "I would not have imagined anything like what happened between me and Yegorova. In Siberia, by the way, the courts are much purer than in Moscow. There you cannot imagine such brutal manipulation and would not be talking about corruption to such an extent. ... This was not a conflict, but unprecedented pressure on justice.", "Yegorova called me several times, whenever the prosecutor thought that the proceedings were not going the right way; on the last occasion I was called out of the deliberations room, which is unheard of. Never in my life had I been shouted at like that. I would not have gone if I knew what I was being called for. ... It was that conflict which made me consider changing my career, should I succeed in the elections.", "There is a job for me in the highest legislative body, namely the problems of justice. I doubt that any provincial courts would harbour scandals as outrageous as those in the Moscow City Court, but this a question of degree, while the problems are more general. A judge, although defined by law as the embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president. The mechanism of how a decision is imposed on a judge is not to contact [the judge] directly: instead, a prosecutor or an interested person calls the court president, who then tries to talk the judge into a ‘right’ decision, first gently, by offering advice or a professional opinion, then pushing him or her more strongly to take the ‘correct’ decision, that is, one that is convenient to somebody. A judge, on the other hand, is dependant on the president for the daily basics, such as accommodation grants, bonuses, and also the distribution of cases between the judges.", "The president can always find a flaw in the judge’s work if he or she wishes (as simple as exceeding judicial time-limits, a situation impossible to avoid in practice, given the volume of work). On these grounds the president may seek termination of the judge’s office, which is decided upon by the qualification board, usually controlled by the same court bureaucrats. ... in reality a court still more often than not takes the position of the prosecution. The courts then become an instrument of commercial, political or personal manipulation. No one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone.", "Today it is investigator Zaytsev, investigating the smuggling of furniture, tomorrow it may be any one of us ...” The interview with Izvestiya, in so far as relevant, read as follows: “Izvestiya: Why did you decide to stand for election? OK: Looking around, one is just stunned by the lawlessness. The law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts. But they break the law too. I would like to participate in making laws that would provide for real independence of the judicial power ... Izvestiya: What does the pressure look like in practice?", "OK: There is a kind of consultation, legal advice, usually in cases of great public interest. Sometimes this has a healthy pretext, such as academic debate. The judge expresses his position, and the deputy president replies. The court president rarely speaks to the judges directly. Through such conventions the court administration tests each judge to see how flexible he is, so that when it comes to [the allocation of cases] they know who can be entrusted with a delicate case and whom to avoid.", "... Izvestiya: So how exactly was pressure exerted on you? OK: The public prosecutor exerted pressure on me. You put a question to the victim, and he immediately challenges you. In 20 years of practice I have not seen anything like it. Zaytsev was accused of abuse of official powers.", "He carried out a search without authorisation from a prosecutor. The law allows this in urgent cases, but the investigator must report to the prosecutor within 24 hours. Zaytsev reported to the prosecutor [in time], and it was for the court to verify whether there had indeed been any urgency in conducting those searches. Therefore it was necessary to examine the criminal case files against the firms ‘Grand’ and ‘Tri Kita’ who were dealing in furniture. Through his constant objections, however, the public prosecutor would not allow the court to touch this subject ...” 22.", "On 7 December 2003 the general elections took place. The applicant was not elected. 23. On 24 December 2003 the Judiciary Qualification Board of Moscow reinstated the applicant in her judicial functions as of 8 December 2003. C. The applicant’s complaint about the President of the Moscow City Court 24.", "On 2 December 2003 the applicant lodged the following complaint with the High Judiciary Qualification Panel: “I request that the President of the Moscow City Court, Olga Aleksandrovna Yegorova, be charged with a disciplinary offence for exerting unlawful pressure on me in June 2003, when I was presiding in the criminal proceedings against P.V. Zaytsev. She demanded that I give an account on the merits of this case while its examination was underway, and that I inform her about the decisions the court was about to take; she even called me out of the deliberations room for that purpose. [She] insisted on removing certain documents from the case file, forced me to forge the minutes of the hearing, and also recommended that I ask the lay assessors not to turn up for the hearing. Following my refusal to bow to this unlawful pressure [she] removed me from the proceedings and transferred the case to another judge.", "As to the particular circumstances, they were as follows. I was appointed to examine the case against Zaytsev, and the court, acting in a bench with two lay assessors, I and D, started its examination. Having started the trial, the court questioned a number of victims. The public prosecutor who was representing the Prosecutor General’s Office clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing. For no reason he challenged me as a judge, the lay assessors and the whole composition of the court.", "His motions were made in a manner that was humiliating, offensive and insulting to the court, and were clearly untrue. Soon after the challenge was rejected by the court, the Moscow City Court President Yegorova called me to her office. In violation of Article 120 of the Constitution and section 10 of the Law ‘On the Status of a Judge in the Russian Federation’, the Moscow City Court President demanded an explanation from me as to why the lay assessors and I were putting one or other question to the victims in the trial and why one or other motion by the parties was refused or accepted. In my presence the Moscow City Court President had a telephone conversation with the [First Deputy Prosecutor General], who had issued the indictment against Zaytsev. Yegorova informed [the First Deputy Prosecutor General] that the judge was being called to account with regard to what was going on in the proceedings.", "Back in my office I told the lay assessors what had happened. By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor, and they therefore considered it impossible to continue to take part in the proceedings. One of the assessors, Ms I., was seeking medical assistance for a health problem. For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of the Prosecutor General’s Office. At the court’s following meeting the lay assessors announced their withdrawal on the above grounds.", "Their written requests were given to me to be enclosed in the file, and the court adjourned for deliberations. I was again called from the deliberations room by the Moscow City Court President, Yegorova. This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take. Her main point was that there should have been no mention in the assessors’ written requests that the reason for their withdrawal was pressure being exerted on the court. The Moscow City Court President also insisted on excluding from the hearing minutes any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure.", "In essence, Yegorova was pushing me to forge the case file. Moreover, she proposed that I ensure that the assessors did not turn up for the hearing, literally ‘ask them not to come to the court any more’. The aim was obvious – if the assessors [did] not appear the proceedings themselves [would] fall apart. It seemed that for some reason [she] did not want the case to continue to be examined in this composition. The unlawfulness of the Moscow City Court President’s actions was obvious.", "I followed none of her instructions. The lay assessors’ requests were included in the file, the court allowed their withdrawal and stated that the reason for it was the pressure being applied by the Prosecutor General’s Office. The hearing minutes reflected everything that happened in the proceedings. Once I signed [the minutes] Yegorova withdrew the case from me and transferred it to another judge without stating reasons. I consider that such acts on the part of the Moscow City Court President, Olga Alexandrovna Yegorova, are incompatible with the status of a judge and undermine judicial authority, and are thus destructive for justice, for which she must be held liable.", "This is what I hereby request from the High Judiciary Qualification Panel of the Russian Federation.” 25. On 15 December 2003 Ms D., one of the lay assessors who had, on 3 July 2003, withdrawn from the criminal case against Mr Zaytsev, sent a letter to the High Judiciary Qualification Panel in support of the applicant: “Further to the publication of an interview with judge Kudeshkina ... I decided to write you because I participated in Zaytsev’s case as a lay assessor. I entirely support everything judge Kudeshkina said in her interview. During the trial the [public prosecutor] did everything to prevent the court from hearing the case.", "He was rude and aggressive to the court; in his interventions and requests he deliberately misrepresented what was going on in the proceedings, and he repeatedly filed objections to the court composition. These motions were made in a humiliating, even obnoxious manner. By doing so he was exerting pressure on the court, to force it to give a judgment that was convenient to him, or, alternatively, to set the court hearing at naught. I was appalled by that, but what was my surprise when I learned about the pressure also being exerted on judge Kudeshkina by the court President! We, the assessors, were there when, during the interval, judge Kudeshkina received a phone call from the court President to come and see her.", "After some time judge Kudeshkina came back, she was upset and depressed. To our question she replied that the court President Yegorova had accused her that the court was reluctant to examine the case; that the lay assessors were asking the victims the wrong questions; and that she had suggested that judge Kudeshkina arrange for the lay assessors not to appear at the court proceedings. ... On the following morning ... both Ms I. and I decided to withdraw from the proceedings. At the start of the hearing on that day the public prosecutor, before he was called by the court, began with a motion in which he, in essence, again degraded and insulted me by repeating [a] comment made by [the victim] outside the courtroom about me ... he did not react to the reproof by the judge. After that ...", "I declared that I withdrew from sitting in the proceedings on the grounds of the public prosecutor’s rude and offensive behaviour, which could not be defined as anything but pressure on the court. Ms I. then withdrew as well. Before the trial I had never met anybody [involved in the proceedings]: not the judge, not Zaytsev, not the public prosecutor, not the defence counsel; I had no personal interest in the case. The public prosecutor’s behaviour was therefore inexplicable and came as a shock to me. At about 6 p.m. judge Kudeshkina was called out from the deliberations room where the court was taking a decision.", "It was the court President who called her... On the following day ... judge Kudeshkina told us that the court President had shouted at her, demanding that she refrain from enclosing [the assessors’] withdrawal requests in the file and not refer in the court’s decision to the reason for the withdrawal. Ms I. and I were shocked by what was going on. First it was the public prosecutor who put pressure on us at the hearing, and then it turned out that the [court President] joined in. What a surprise it was when the [court’s Deputy President] came into the deliberations room and started trying to persuade me and Ms I. not to comment on the public prosecutor’s behaviour in the court decision, but to state in our requests and in the court decision that we withdrew on medical grounds. She said that they would invite me and Ms I. to take part in other proceedings.", "Ms I. and I refused to change our requests, and after the Deputy President left the court issued the decision [to allow withdrawal] which reflected what had happened. I have been a lay assessor before, I have taken part in several other proceedings, but this was the first time that I came across such pressure being exerted on the court. I request you to look into the above events and to take action against the [court’s President and her Deputy].” 26. On 16 December 2003 the other lay assessor who had withdrawn, Ms I., sent a similar letter to the High Judiciary Qualification Panel. 27.", "Similar allegations were made by Ms T., a court secretary, in a letter to the President of the Supreme Court of the Russian Federation. She related her participation in Zaytsev’s case and volunteered to testify that the applicant had indeed been frequently called up by the court president and had been distressed because of the intrusion in the court proceedings. She also complained about the unacceptable behaviour of the public prosecutor, who had forced, in her opinion, the lay assessors to withdraw. 28. Following the applicant’s complaint of 2 December 2003, the High Judiciary Qualification Panel appointed Mr S., a judge of the Moscow City Commercial Court, to examine the allegations against Ms Yegorova.", "29. The Government submitted a copy of a report prepared by Mr S. and submitted to the High Judiciary Qualification Panel, which contained the following conclusions: – during the hearing of the criminal case against Zaytsev the applicant herself consulted Ms Yegorova, seeking advice on the conduct of the proceedings in view of the public prosecutor’s behaviour; – further communications between the applicant and Ms Yegorova and, on another occasion, the deputy court president, took place in private and their content could not be established; – there was insufficient evidence that Ms Yegorova exerted pressure on the applicant, since both Ms Yegorova and the deputy court president denied the allegations; – Ms Yegorova transferred the criminal case file against Zaytsev to another judge on the grounds that Ms Kudeshkina “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on the case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”. 30. On 11 May 2004 the High Judiciary Qualification Panel reported to the President of the Supreme Court their findings concerning the complaint against Ms Yegorova. He decided, without elaborating on the reasons, that there were no grounds for charging Ms Yegorova with a disciplinary offence.", "31. On 17 May 2004 the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against Ms Yegorova. No copy of this decision was provided to the Court. On the same day the applicant was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary. D. The applicant’s dismissal from office 32.", "In the meantime, on an unidentified date prior to the applicant’s above reinstatement in the judicial function, the President of the Moscow Judicial Council sought termination of the applicant’s office as judge. He applied to the Judiciary Qualification Board of Moscow, alleging that during her election campaign the applicant had behaved in a manner inconsistent with the authority and standing of a judge. He claimed that in her interviews she had intentionally insulted the court system and individual judges and had made false statements that could mislead the public and undermine the authority of the judiciary. The applicant filed her objections. 33.", "The hearing before the Judiciary Qualification Board of Moscow was scheduled for 24 March 2004, but was then adjourned until 31 March 2004, at the applicant’s request, on health grounds. It was subsequently adjourned for the applicant’s failure to appear until 14 April 2004, then until 28 April 2004, 12 May 2004 and, finally, 19 May 2004. 34. On 19 May 2004 the Judiciary Qualification Board of Moscow examined the Moscow Judicial Council’s request. The applicant was absent from the proceedings, apparently without any valid excuse.", "The Judiciary Qualification Board of Moscow decided that the applicant had committed a disciplinary offence and that her office as a judge was to be terminated in accordance with the Law “On the Status of Judges in the Russian Federation”. The decision, in so far as relevant, read as follows: “During her election campaign, in order to win fame and popularity with the voters, judge Kudeshkina deliberately disseminated deceptive, concocted and insulting perceptions of the judges and judicial system of the Russian Federation, degrading the authority of the judiciary and undermining the prestige of the judicial profession, in violation of the Law On the Status of Judges in the Russian Federation and the Code of Honour of a Judge in the Russian Federation. Thus, in November 2003, when meeting with [members of her] constituency, judge Kudeshkina stated that the Prosecutor General’s Office exerts unprecedented pressure on judges during examination of a number of criminal cases by the Moscow City Court. In the live broadcast of her interview with the radio station Ekho Moskvy on 1 December 2003, judge Kudeshkina stated that ‘years of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow’; ‘a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president’; ‘the courts of law are used as an instrument of commercial, political or personal manipulation’; ‘if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness.’ In the interview with the newspaper Izvestiya of 4 December 2003, judge Kudeshkina stated: ‘looking around, one is just stunned by the lawlessness. The law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts.", "But they break the law too – although they are not subject to liability’; ‘the court administration tests each judge to see how flexible he is, so that when it comes to [the allocation of cases] they know who can be entrusted with a delicate case and whom to avoid’. In another interview with judge Kudeshkina, published in Novaya Gazeta on 4 December 2003, she also stated that ‘in Siberia, by the way, the courts are much purer than in Moscow. There you cannot imagine such brutal manipulation and would not be talking about corruption to such an extent’; ‘I doubt that any provincial courts would harbour scandals as outrageous as those in the Moscow City Court, but this a question of degree, while the problems are more general’; ‘a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president. The mechanism of how a decision is imposed on a judge is not to contact [the judge] directly, instead a prosecutor or an interested person calls the court president, who then tries to talk the judge into a ‘right’ decision, first gently, by offering advice or a professional opinion, then pushing him or her more strongly to take the ‘correct’ decision, that is, one that is convenient to somebody’; ‘in reality a court still more often than not takes the position of the prosecution. The courts then become an instrument of commercial, political or personal manipulation.", "No one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone’. In so doing judge Kudeshkina knowingly and intentionally disseminated in civil society false and untruthful fabrications about the arbitrariness allegedly prevailing in the judicial sphere; that, in dealing with specific cases, judges find themselves under constant and undisguised pressure exercised through the court presidents; that the court presidents pre-test to what extent one or other judge may be controlled in order to determine who could be entrusted with delivering a knowingly unjust judgment in a case; that no one can be sure that his case is examined by an impartial tribunal; that judges in fact betray the interests of justice by adopting the position of the prosecution in most cases; that a judge in this country is not independent and honest, but [is] a typical subordinate public servant; that in this country we have complete lawlessness, and judicial chaos. The above-mentioned statements by judge Kudeshkina are clearly based on fantasies, on knowingly false and distorted facts. However, dissemination by a judge of such information poses a great public danger because it signifies deliberate slandering of the authority of the judiciary and intentional undermining of the prestige of the judicial profession, and also promotes incorrect ideas about corrupted, dependent and biased judicial authorities in this country, which leads to the loss of public trust in the fairness and impartiality of examination of cases brought before the courts of law. As a result, the false information imparted to civil society by judge Kudeshkina, a member of the judiciary of Russia, undermined public confidence that the judiciary in Russia are independent and impartial; consequently, many citizens were lead to believe, erroneously, that all judges in this country are unprincipled, biased and venal, that in exercising their functions they only pursue their own mercenary ends or other selfish goals and interests.", "... In support of her unsubstantiated and groundless attempts to defile the judicial system of our country, judge Kudeshkina referred [in her interviews] to the criminal case against P.V. Zaytsev, in which she had earlier acted as judge. She referred to the same case in her complaint to the High Judiciary Qualification Panel of the Russian Federation. ...", "According to the note of the President of the High Judiciary Qualification Panel (ref. no. BKK-7242/03 of 17 May 2004), the High Judiciary Qualification Panel of the Russian Federation carried out an enquiry to verify the allegations made by judge Kudeshkina in her complaint; the President of the Supreme Court of the Russian Federation concluded, on the basis of the above, that there were no grounds to grant her request. Thus, the allegations of interference with judge Kudeshkina’s exercise of judicial function have not been confirmed by the conclusions of the enquiry. The Qualification Board of Moscow notes that judge Kudeshkina did not make these allegations during the period when she was examining the case against Zaytsev, but nearly half a year later, during and immediately after the election campaign.", "Therefore the Panel considers that the dissemination by judge Kudeshkina of false and untrue information is based only on her subjective conjectures and personal insinuations. Besides, in making her statements in the media judge Kudeshkina disclosed specific factual information concerning the criminal proceedings in the case against Zaytsev, before the judgment in this case had entered into legal force. ... [The Law on the Status of Judges in the Russian Federation and the Code of Honour of a Judge in the Russian Federation] obliged her to refrain from any public statements discrediting the judiciary and the justice [system] in general. ... In sum, the Judiciary Qualification Board of Moscow finds the actions of judge Kudeshkina to have degraded the honour and dignity of a judge, discredited the authority of the judiciary [and] caused substantial damage to the prestige of the judicial profession, thus constituting a disciplinary offence.", "In choosing the disciplinary sanction to be imposed on judge Kudeshkina the qualification board takes into account that in making her statements [she] dishonoured the judges and the judicial system of Russia; she disseminated false information about her colleagues; she traded the dignity, responsibility and integrity of a judge for a political career; demonstrated bias when hearing a case; preferred her own political and other interests to the values of justice; abused her status as a judge in propagating legal nihilism and causing irreparable damage to the foundations of judicial authority. ...” 35. The decision indicated that it could be challenged before a court within 10 days of being served. 36. The applicant applied to the Moscow City Court, contesting the decision of the Judiciary Qualification Board of Moscow.", "37. On 13 September 2004 the applicant filed a request with the President of the Supreme Court to transfer her case from the Moscow City Court to another court, on the grounds that the former would lack impartiality. 38. On 7 October 2004 the Moscow City Court, composed of a single judge, began to examine the case. The applicant first challenged the judge on the grounds that he was a member of the Moscow Judicial Council and was thus directly associated with the other party to the proceedings.", "She further claimed that the Moscow City Court, in any composition, would lack independence and impartiality because the impugned statements were specifically concerned with that court and its President. This request was examined on the same day and was refused, on the grounds that it was not possible to transfer the case to another judge within the same court and that only a higher court was entitled to transfer the case to another court. The applicant lodged a request seeking to have the case adjourned pending the Supreme Court’s decision on her request for transfer of the case; this was also refused. 39. On 8 October 2004 the Moscow City Court upheld the decision of the Judiciary Qualification Board of Moscow.", "It found that the applicant’s statements in the media were false, unsubstantiated and damaging to the reputation of the judiciary and the authority of all law courts. It also established that the applicant had publicly expressed an opinion prejudicial to the outcome of a pending criminal case. It concluded that the applicant had abused the right to freedom of expression out of political ambition, that she had publicly denied the rule of law and that such conduct was incompatible with holding judicial office. The court dismissed the applicant’s argument that the decision was taken in her absence, having found that after many adjournments she had failed to present the court with any document certifying the reasons for her absence. It also dismissed her objection that at the time of the election campaign her duties as a judge were suspended and held that, during the suspension, she was still bound by the rules of conduct applicable to judges.", "Concerning the applicability of the Code of Honour of a Judge in the Russian Federation, the court decided that it was in force and legally binding at the material time and could be applied in this case. 40. The applicant filed an appeal with the Supreme Court. 41. On 25 October 2004 the applicant received a letter from judge R. of the Supreme Court, informing her that transfer of the case from the Moscow City Court was refused on the grounds that it would be contrary to the rules of jurisdiction.", "42. On 19 January 2005 the Supreme Court of the Russian Federation, ruling at final instance, upheld the judgment of 8 October 2004, having reiterated the earlier findings by the Judiciary Qualification Board of Moscow and the Moscow City Court. On the question of the alleged lack of impartiality by the Moscow City Court, which considered the case at first instance, it found that the applicant had not made any relevant complaints in the proceedings before the Moscow City Court and was therefore barred from raising this objection on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Regulations on judicial ethics and disciplinary offences 43. Law No. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides: Section 3 Requirements applicable to a judge “1. A judge must strictly observe the Constitution of the Russian Federation and other laws. 2.", "In exercising his or her powers, and also in his or her conduct outside the office, a judge must refrain from anything that would derogate from the authority of the judicial power or the dignity of a judge or cast doubts on his or her objectivity, fairness and impartiality.” Section 12.1 Judges’ liability for disciplinary offences “A judge who has committed a disciplinary offence (a breach of this Law and of the Code of Judicial Ethics to be adopted by the All-Russian Judicial Congress) may, with the exception of the judges of the Constitutional Court of the Russian Federation, receive a disciplinary penalty in the form of: – a warning; [or] – early termination of judicial office. The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision. ...” 44. The Code of Honour of a Judge in the Russian Federation, as adopted by the Judicial Council of the Russian Federation on 21 October 1993 and approved by the Second All-Russian Judicial Congress in July 1993, provides: Section 1.3 General requirements applicable to a judge “A judge must refrain from anything that would derogate from the authority of judicial power. He or she shall not cause damage to the prestige of his or her profession in order to pursue personal ends or the interests of another person.” Section 2.5 Rules on the exercise of professional functions by a judge “... A judge must not make any public statements, comments or press publications concerning cases under examination by a court before a final judicial decision enters into force.", "A judge must not publicly, outside the professional framework, challenge court judgments that have entered into legal force or the acts of his or her colleagues.” Section 3.3 Outside activities of a judge “A judge may participate in public life so long as this does not cause damage to the authority of the court and proper discharge by the judge of his or her professional duties.” B. Termination of judicial office 45. Section 14 of the Law “On the Status of Judges in the Russian Federation” provides as follows: “1. Judicial office may be terminated on the following grounds: ... (7) pursuing activities incompatible with holding judicial office;” 46. The Code of Civil Procedure of the Russian Federation provides as follows: Article 27 Civil cases falling within the jurisdiction of the Supreme Courtof the Russian Federation “1.", "The Supreme Court of the Russian Federation examines as a court of first instance civil cases concerning: ... (3) contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge; ...” 47. Section 26 of the Federal Law of 14 March 2002 “On the Bodies of the Judicial Community” provided that disputes concerning the termination of the status of a judge fell within the jurisdiction of the courts of the subjects of the Russian Federation. 48. On 2 February 2006 the Constitutional Court held in its decision No. 45‑O: “Jurisdiction in cases concerning contestation of decisions by judicial qualification panels of the subjects of the Russian Federation on the termination or suspension of the status of a judge or the status of a retired judge must be determined in accordance with paragraph 1(3) of Article 27 of the Code of Civil Procedure of the Russian Federation, which provides that only the Supreme Court of the Russian Federation may examine, as a court of first instance, civil cases concerning the contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge.” C. Composition of court and assignment of cases to judges 49.", "The Code of Criminal Procedure of the Russian Federation provides: Article 242 Immutability of court composition “1. The case must be examined by one and the same judge or by a court bench in one and the same composition. 2. If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.” 50. Law No.", "3132-I of 26 June 1992 “On the Status of Judges” provides: Article 6.2Powers of court Presidents and deputy court Presidents “1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions: (1) organises the court’s work; ... (3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...” 51. The instruction on the courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management. 52. As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 53. The applicant complained that her dismissal from judicial office following her statements in the media constituted a violation of the freedom of expression provided for in Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties’ submissions 1. Arguments by the applicant 54.", "The applicant complained that the decision of the Judiciary Qualification Board of Moscow to bar her from holding judicial office in view of her critical public statements was incompatible with the principles enshrined in Article 10 of the Convention. She contended that judges, like other persons, enjoy the protection of Article 10 and that the interference with her freedom of expression was not “prescribed by law”, did not pursue a legitimate aim and, finally, was not necessary in a democratic society. Her submissions under these heads may be summarised as follows. (a) “Prescribed by law” 55. The applicant alleged that the disciplinary penalty was imposed on her unlawfully.", "She considered that the provisions of the Law “On the Status of Judges” applied in her case were formulated in terms that were too vague to serve as legal grounds for the charges. As for the Code of Honour of a Judge, she claimed that it did not constitute legislation because it had not been lawfully adopted by the All-Russian Judicial Congress as required by the Law “On the Status of Judges”, but was only approved by that body. 56. She further contested the jurisdiction of the Moscow City Court over the proceedings in which she challenged the decision of the Judiciary Qualification Board of Moscow. She invoked the provisions of the Code of Civil Procedure, which confer jurisdiction on the Supreme Court as a first-instance court in disputes concerning the contestation of a decision on termination of judicial office.", "She also considered it inappropriate for the Moscow City Court to examine a case concerning criticism of that same court and its president. Her requests to the Moscow City Court and the Supreme Court to have the case transferred to the Supreme Court were refused. (b) Legitimate aim 57. The applicant claimed that, although the authorities had declared that her termination of office was necessary for “maintaining the authority and impartiality of the judiciary”, this was not the true purpose of the disputed measure. She contended that the authorities were determined to demonstrate to all members of the judiciary that information concerning the irregular functioning of the judicial system must not be disclosed to the general public, in order to preserve the judicial community from any public scrutiny even in matters concerning the implementation of procedural safeguards.", "58. She further submitted that judicial independence and impartiality are issues of great public concern in Russia, where citizens have little trust in courts and the judiciary. She had decided to unveil the facts of pressure exerted on court and ordinary judges because she considered that drawing public attention to the problem would serve the interests of justice and the principles of independence and impartiality better than concealing the disgraceful facts. 59. As regards the “protection of the reputation or the rights of others”, the applicant contested that the reputation or the rights of the Moscow City Court President required protection in the form of disciplinary proceedings.", "If Ms Yegorova, or anyone else, regarded their reputation as undermined and wished to have redress they could bring civil proceedings for defamation or even request criminal proceedings for libel. However, no such claims had been lodged, and the authorities should not have substituted themselves for persons allegedly affected by the applicant’s statements. (c) “Necessary in a democratic society” 60. Finally, the applicant claimed that the impugned measure constituted a disproportionate interference with her freedom of expression and therefore could not be regarded as “necessary in a democratic society”. 61.", "She claimed that she should not have been prevented from criticising the domestic system of justice only because she was a judge. Although she was a civil servant, she enjoyed the rights and freedoms protected in the Convention, including those guaranteed by Article 10, just as other citizens did. 62. The applicant insisted that the statements on the basis of which she was charged with a disciplinary offence were an expression of her opinion, i.e. a value judgment, and not a statement of fact.", "However, she maintained that all the facts underlying her opinion were true and supported by evidence. 63. Concerning the statements that the Government claimed were “untrue facts”, she pointed out that no establishment of facts as such had taken place. Her allegations of undue pressure exerted during the criminal proceedings against Zaytsev had not been subjected to an effective investigation and had not been disproved by means of adversarial proceedings. The enquiry conducted following her complaint to the High Judicial Qualification Panel had not been public and was conducted informally.", "Its findings could not therefore be regarded as officially established facts. In this situation the burden of proof in the proceedings before the Judicial Qualification Board of Moscow should have been discharged by the party which brought disciplinary proceedings. In other words, it was for the Moscow Judicial Council to prove that the applicant’s statements were untrue. The authorities failed to discharge this burden of proof in the proceedings before the Judicial Qualification Board of Moscow or in the ensuing court proceedings. 64.", "As evidence of her allegations of pressure on the part of the Moscow City Court President, she referred to the statements of the lay assessors and to the arbitrary and unlawful transfer of the criminal case file from her to another judge. She claimed that the judicial authorities disregarded the evidence, notably by refusing to question the lay assessors or other witnesses, as requested by the applicant. 2. Arguments by the Government 65. The Government did not dispute the applicability of Article 10 of the Convention in the present case.", "They also accepted that the decision to bar the applicant from holding judicial office constituted an interference with her freedom of expression provided for in that Article. 66. However, they maintained that the interference was justified within the meaning of paragraph 2 of Article 10 of the Convention, in that it was prescribed by law, pursued legitimate aims and was “necessary in a democratic society”. Their submissions under these heads may be summarised as follows. (a) “Prescribed by law” 67.", "The Government considered that the applicant’s status as judge had been terminated in accordance with substantive and procedural laws. They contested the applicant’s argument that the Law “On the Status of Judges” was too vague to be applied as a basis for disciplinary charges. They also maintained that the Code of Honour of a Judge was a legally binding document since its adoption, on 21 October 1993, by the Judicial Council of the Russian Federation on the basis of its approval by the Second All-Russian Judicial Congress. It ceased to have effect only on 2 December 2004, when it was replaced by the Code of Judicial Ethics adopted by the All-Russian Judicial Congress. 68.", "As regards the alleged lack of jurisdiction of the Moscow City Court, the Government disagreed with the applicant. They claimed that at the material time jurisdiction was determined by the Federal Law “On the Bodies of the Judicial Community”, which provided that the courts of the subjects of the Russian Federation were competent to examine such claims. This changed only on 2 February 2006, when the Constitutional Court gave an interpretation in favour of the conflicting provisions of the Code of Civil Procedure. The Government pointed out that the applicant herself had filed her claim with the Moscow City Court and thus accepted its jurisdiction. Furthermore, in her requests for a transfer of the case she did not rely on the lack of jurisdiction of the Moscow City Court, but only on its alleged lack of impartiality.", "(b) Legitimate aim 69. The Government maintained that the impugned measure was necessary for “maintaining the authority and impartiality of the judiciary” and for the “protection of the reputation or rights of others”. The applicant’s statements were damaging to the system of justice in general and promoted “legal nihilism” among the public. Moreover, she had disseminated defamatory statements against officials of the Moscow City Court and had failed to prove the alleged facts. The interests of justice and of the implicated persons, who held judicial posts, required the State to interfere and to impose sanctions on the applicant.", "(c) “Necessary in a democratic society” 70. The Government claimed that the termination of the applicant’s judicial office was proportionate to the pursued legitimate aim and that it corresponded to a “pressing social need”. They referred to the Court’s case-law, which stated that “whenever civil servants’ right to freedom of expression is in issue the ‘duties and responsibilities’ referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim” (the Government cited Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). They contended that the restrictions on judges’ freedom of expression had even greater importance than that of other civil servants.", "Accordingly, the State must be afforded an even wider margin of appreciation in imposing and enforcing limits on judges’ freedom of speech. 71. The Government considered that the disciplinary offence committed by the applicant had two separate aspects, each of which was of such gravity that it justified the disciplinary sanction imposed on her. 72. The first aspect was making statements concerning judges and the judicial system, alleging unlawful conduct by Ms Yegorova and other officials.", "However, in her complaint against these persons to the High Judiciary Qualification Panel she had failed to adduce sufficient proof of these facts. Consequently, these allegations could not be regarded as fair comment or justified criticism. 73. The Government argued that even if those statements were to be regarded as value judgments, they still needed to have some underlying factual ground and, in any event, should have remained within the limits compatible with the high moral standards required from judges. In the present case, the applicant went beyond what was acceptable from a civil servant, particularly a judge.", "Although freedom of expression was guaranteed to everyone, the rules of judicial ethics imposed certain restrictions on holders of judicial posts. The latter persons acted as guarantors of the rule of law, and it was therefore necessary to set strict limits on their permissible conduct in order to ensure the authority and the impartiality of the judiciary. Moreover, opinions expressed by a judge carried a greater danger of misleading the public because they carried greater weight than those expressed by laymen. The audience tended to trust persons with professional knowledge of the judicial system and their views were usually respected as authoritative and balanced. 74.", "The second aspect of the applicant’s disciplinary offence consisted of the statements concerning the criminal case against Zaytsev, which at the material time was pending before the appeal instance. It was unacceptable for a judge to comment on a case under examination by a court because this encroached on the competent court’s jurisdiction, independence and impartiality. 75. Replying to the applicant’s argument that the interested persons should themselves have brought defamation proceedings, the Government submitted that these individuals had no personal animosity towards the applicant and did not wish to pursue any private ends by bringing such proceedings. 76.", "The Government further alleged that the applicant had abused her position as a judge in order to achieve her personal goals, namely to win votes from the electorate at the expense of the reputation of her colleagues and the judicial institutions. She had therefore made her allegations several months after the events at issue, at the time of the election campaign. 77. Finally, the Government contended that the choice of the disciplinary sanction was justified in view of the specific circumstances of the case. The applicant had demonstrated her inability to comply with the requirements for holding judicial office, and therefore a measure that would have allowed her to continue working as a judge, such as a warning, would not have sufficed.", "Moreover, no further measures were taken against the applicant. In particular, there had been no injunction against her continuing the public debate on the subject. 78. In view of the foregoing, the Government considered that the interference with the applicant’s freedom of expression was “necessary in a democratic society”. B.", "The Court’s assessment 79. As regards the scope of this case, the Court observes, and this is common ground between the parties, that the decision to bar the applicant from holding judicial office was prompted by her statements to the media. Neither the applicant’s eligibility for public service nor her professional ability to exercise judicial functions were part of the arguments before the domestic authorities. Accordingly, the measure complained of essentially related to freedom of expression, and not the holding of a public post in the administration of justice, the right to which is not secured by the Convention (see Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004).", "It follows that Article 10 applies in the present case. 80. The Court considers that the disciplinary penalty imposed on the applicant constituted an interference with the exercise of the right protected by Article 10 of the Convention. Moreover, the existence of the interference was not in dispute between the parties. The Court will therefore examine whether it was justified under paragraph 2 of Article 10 of the Convention.", "1. “Prescribed by law” and legitimate aim 81. The Court notes that the applicant contested that the disciplinary penalty was “prescribed by law” and that it pursued a legitimate aim. However, in so far as she may be understood to challenge the quality of law applied in her case, the Court does not find sufficient ground to conclude that the legal acts relied on by the domestic authorities were not published or that their effect was not foreseeable. As regards her arguments relating to the unfairness of the disciplinary proceedings and the lack of impartiality of the Moscow City Court, the Court considers that they essentially concern the proportionality of the disputed measure and will be more appropriately considered under this head.", "The same applies to the arguments adduced in contesting the legitimate aim relied on by the Government. The Court will therefore assume that the measure at stake complied with the first two conditions and will proceed to examine whether it was “necessary in a democratic society”. 2. “Necessary in a democratic society” 82. In assessing whether the decision to bar the applicant from holding judicial office, taken in response to her public statements, was “necessary in a democratic society”, the Court will consider the circumstances of the case as a whole and examine these in the light of the principles established in the case-law, which have been summed up as follows (see, among other authorities, Jersild v. Denmark, of 23 September 1994, § 31, Series A no.", "298; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions, 1998-VI; and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005‑II): “(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 ...” 83.", "In addition, the Court reiterates that the fairness of the proceedings, the procedural guarantees afforded (see, mutatis mutandis, Steel and Morris, cited above, § 95) and the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; Skałka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003; and Lešník v. Slovakia, no. 35640/97, §§ 63-64, ECHR 2003-IV) are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10.", "84. In assessing whether there was a “pressing social need” capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports 1997‑I, and Harlanova v. Latvia (dec.), no. 57313/00, 3 April 2003). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels, cited above, § 47, and Jerusalem v. Austria, no.", "26958/95, § 43, ECHR 2001‑II). 85. The Court further reiterates that Article 10 applies also to the workplace, and that civil servants, such as the applicant, enjoy the right to freedom of expression (see Vogt, cited above, § 53; Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII; Ahmed and Others v. the United Kingdom, 2 September 1998, § 56, Reports 1998-VI; Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; and Guja v. Moldova [GC], no.", "14277/04, § 52, 12 February 2008). At the same time, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (see Vogt, cited above, § 53; Ahmed and Others, cited above, § 55; and De Diego Nafría v. Spain, no. 46833/99, § 37, 14 March 2002). Disclosure by civil servants of information obtained in the course of work, even on matters of public interest, should therefore be examined in the light of their duty of loyalty and discretion (see Guja, cited above, §§ 72-78).", "86. The Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10. However, 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 law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313).", "The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V). What is at stake as regards protection of the judiciary’s authority is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis, among many other authorities, Fey v. Austria, 24 February 1993, Series A no. 255-A). For this reason the Court has found it incumbent on public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question (see Wille, cited above, § 64). 87.", "In the context of election debates, on the other hand, the Court has attributed particular significance to the unhindered exercise of freedom of speech by candidates. It has held that the right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1, is inherent in the concept of a truly democratic regime (see Melnychenko v. Ukraine, no. 17707/02, § 59, ECHR 2004-X). It enshrines a fundamental principle for effective political democracy, is accordingly of prime importance in the Convention system and is crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Malisiewicz-Gąsior v. Poland, no.", "43797/98, § 67, 6 April 2006; Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113; and Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005-IX). 88.", "Turning to the present case, the Court notes that the Judiciary Qualification Board of Moscow charged the applicant with a disciplinary offence on account of a number of statements made in the course of her three media interviews. In their decision of 19 May 2004 (see paragraph 34 above) they cited the following statements: “– years of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow; – a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president; – the courts of law are used as an instrument of commercial, political or personal manipulation; – if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness; – looking around, one is just stunned by the lawlessness. The law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts. But they break the law too – although they are not subject to liability; – the court administration tests each judge to see how flexible he or she is, so that when it comes to [the allocation of cases] they know who can be entrusted with a delicate case and whom to avoid; – in Siberia, by the way, the courts are much purer than in Moscow. There you cannot imagine such brutal manipulation and would not be talking about corruption to such an extent; – I doubt that any provincial courts would harbour scandals as outrageous as those in the Moscow City Court, but this is a question of degree, while the problems are more general; – a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president.", "The mechanism of how a decision is imposed on a judge is not to contact [the judge] directly; instead a prosecutor or an interested person calls the court president, who then tries to talk the judge into a ‘right’ decision, first gently, by offering advice or a professional opinion, then pushing him or her more strongly to take the ‘correct’ decision, that is, one that is convenient to somebody; – in reality a court still more often than not takes the position of the prosecution. The courts then become an instrument of commercial, political or personal manipulation. No one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone.” 89. The Judiciary Qualification Board of Moscow further noted that by making these statements the applicant “disseminated in civil society false and untruthful fabrications” and that the statements were “clearly based on fantasies, on knowingly false and distorted facts”. 90.", "Apart from the above statements, the Judiciary Qualification Board of Moscow reproached the applicant for having “disclosed specific factual information concerning the criminal proceedings against Zaytsev before the judgment in this case had entered into legal force”. 91. As regards the applicant’s comments on the pending criminal proceedings, the domestic instances did not rely on any specific statements in this respect. The Court, for its part, sees nothing in the three impugned interviews that would justify the claims of “disclosure”. Indeed, in support of her criticism of the role of court presidents, the applicant described her experience as a judge in the criminal proceedings against Zaytsev, alleging that the court was under pressure from various officials, in particular the Moscow City Court President.", "This, however, differed from the divulgation of classified information of which one may become aware in the course of his or her work (cf. Guja, cited above). The applicant’s accounts of her experience in the above proceedings should therefore be regarded as statements of fact which, in the given context, were inseparable from her opinions expressed in the same interviews, extracts of which are listed above. The Court will therefore have to assess the factual foundation of the applicant’s statements before deciding on the appropriateness of the value judgments expressed in the interviews. 92.", "The Court observes that the applicant’s account of the episode in which she was called and questioned by Ms Yegorova during the proceedings is disputed by the Government. They relied on the enquiry by the High Judiciary Qualification Panel, conducted following the applicant’s complaint against Ms Yegorova. The Panel found itself short of evidence to prove that Ms Yegorova had attempted to influence the applicant, or to ascertain the absence of such attempts (see the internal report by judge S., paragraph 29 above). While the Court might accept the difficulties of establishing the content of communications between the applicant and Ms Yegorova in private, it notes that the applicant’s account has support in the statements of the lay assessors and the court secretary. Furthermore, the Court cannot but note the Panel’s overlooking of irregularities in the ensuing transfer of the case to another judge.", "The Court notes that pursuant to Article 242 of the Code of Criminal Procedure, the case must be examined by the same court composition except when one of the judges is no longer able to take part in the hearing. However, it follows from the report by judge S. that Ms Yegorova decided to withdraw the case from the applicant because of her disapproval of the applicant’s conduct of the hearing and “the existence of confidential reports by relevant agencies” on the applicant’s examination of Zaytsev’s case. In the Court’s view, the mere suggestion that such considerations may have triggered the transfer of a case under judicial examination from one judge to another should have warranted support for the applicant’s allegations. Having overlooked this point, the qualification panel failed to secure a reliable factual foundation for their assessment, and this omission has not been made up for by any of the ensuing instances. Accordingly, the applicant’s allegations of pressure have not been convincingly dispelled in the domestic proceedings.", "93. Having concluded on the existence of a factual background for the applicant’s criticism, the Court reiterates that the duty of loyalty and discretion owed by civil servants, and particularly the judiciary, requires that the dissemination of even accurate information is carried out with moderation and propriety (see Guja, cited above, and Wille, cited above, §§ 64 and 67). It will therefore continue to examine whether the opinions expressed by the applicant on the basis of this information were nevertheless excessive in view of her judicial status. 94. The Court observes that the applicant made the public criticism with regard to a highly sensitive matter, notably the conduct of various officials dealing with a large-scale corruption case in which she was sitting as a judge.", "Indeed, her interviews referred to a disconcerting state of affairs, and alleged that instances of pressure on judges were commonplace and that this problem had to be treated seriously if the judicial system was to maintain its independence and enjoy public confidence. There is no doubt that, in so doing, she raised a very important matter of public interest, which should be open to free debate in a democratic society. Her decision to make this information public was based on her personal experience and was taken only after she had been prevented from participating in the trial in her official capacity. 95. In so far as the applicant’s motive for making the impugned statements may be relevant, the Court reiterates that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Guja, cited above, § 77).", "Political speech, on the contrary, enjoys special protection under Article 10 (see the case-law cited in paragraph 87 above). The Court has previously established that even if an issue under debate has political implications, this is not by itself sufficient to prevent a judge from making any statement on the matter (see, Wille, cited above, § 67). The Court notes, and it is not in dispute between the parties in the present case, that the interviews were published in the context of the applicant’s election campaign. However, even if the applicant allowed herself a certain degree of exaggeration and generalisation, characteristic of the pre-election agitation, her statements were not entirely devoid of any factual grounds (see paragraph 92 above), and therefore were not to be regarded as a gratuitous personal attack but as a fair comment on a matter of great public importance. 96.", "As for the manner in which the disciplinary penalty was imposed, the applicant argued that the courts implicated in her critical statements should not have heard her case. The Court observes that the question of termination of judicial office lay within the competence of the relevant judiciary qualification board, whose decision was subject to judicial review by the Moscow City Court and the Supreme Court. It further notes that before the start of the first instance proceedings the applicant requested both the Moscow City Court and the Supreme Court to have the case transferred from the Moscow City Court to another court of first instance on the grounds that the former had been implicated in the interviews that caused controversy and that the members of that court would lack objective impartiality for the purposes of her disciplinary proceedings. However, the Moscow City Court considered that it lacked legal capacity to order the transfer, whereas the Supreme Court disregarded the applicant’s request and found later, acting as the appeal instance, that the applicant had failed to raise the issue when it was appropriate. 97.", "The Court considers that the applicant’s fears as regards the impartiality of the Moscow City Court were justified on account of her allegations against that Court’s President. However, these arguments were not given consideration, and this failure constituted a grave procedural omission. Consequently, the Court finds that the manner in which the disciplinary sanction was imposed on the applicant fell short of securing important procedural guarantees. 98. Finally, the Court will assess the penalty imposed on the applicant.", "It notes that the disciplinary proceedings entailed the loss of the judicial office she held in the Moscow City Court and of any possibility of exercising the profession of judge. This was undoubtedly a severe penalty and it must have been extremely distressing for the applicant to have lost access to the profession she had exercised for 18 years. This was the strictest available penalty that could be imposed in the disciplinary proceedings and, in the light of the Court’s findings above, did not correspond to the gravity of the offence. Moreover, it could undoubtedly discourage other judges in the future from making statements critical of public institutions or policies, for fear of the loss of judicial office. 99.", "The Court recalls the “chilling effect” that the fear of sanction has on the exercise of freedom of expression (see, mutatis mutandis, Wille, cited above, § 50; Nikula v. Finland, no. 31611/96, § 54, ECHR 2002‑II; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 114, ECHR 2004‑XI; and Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 714, 13 November 2003). This effect, which works to the detriment of society as a whole, is likewise a factor which concerns the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was undeniably entitled to bring to the public’s attention the matter at issue.", "100. Accordingly, it is the Court’s assessment that the penalty at issue was disproportionately severe on the applicant and was, moreover, capable of having a “chilling effect” on judges wishing to participate in the public debate on the effectiveness of the judicial institutions. 101. In the light of the foregoing, the Court considers that the domestic authorities failed to strike the right balance between the need to protect the authority of the judiciary and the protection of the reputation or rights of others, on the one hand, and the need to protect the applicant’s right to freedom of expression on the other. 102.", "There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 103. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 104.", "The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage. 105. The Government considered this amount unsubstantiated and excessive. They claimed that an acknowledgement of a violation, if found by the Court, would by itself constitute sufficient just satisfaction. 106.", "The Court considers that the applicant must have suffered distress on account of the facts of the case. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 107. The applicant requested the Court to make an award for costs and expenses on account of the pro bono work conducted by her lawyers in the present case, in the amount to be determined by the Court.", "108. The Government objected to the claim. 109. Under 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 were reasonable as to quantum. In the present case, regard being had to the lack of any quantified submissions, the Court rejects the claim for costs and expenses.", "C. Default interest 110. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds by four votes to three that there has been a violation of Article 10 of the Convention; 2. Holds by four votes to three (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3.", "Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment: (a) dissenting opinion of Judge Kovler, joined by Judge Steiner; (b) dissenting opinion of Judge Nicolaou. C.L.R.S.N. DISSENTING OPINION OF JUDGE KOVLERJOINED BY JUDGE STEINER (Translation) I regret that I am unable to join the fragile majority in this judgment.", "The case concerns not only the applicant’s personal situation, but also crucial points of judicial ethics as such. Unlike some followers of the “pure theory of law”, I am not convinced that legal issues can be separated from ethical and moral problems and that the Convention and national law can be analysed only nominally. The Resolution on Judicial Ethics adopted by the Plenary of our Court on 23 June 2008 stipulates in point VI, on “Freedom of expression”: “Judges shall exercise their freedom of expression in a manner compatible with the dignity of their office. They shall refrain from public statements or remarks that may undermine the authority of the Court or give rise to reasonable doubt as to their impartiality”. Having applied this principle to ourselves, we must then apply it to our colleagues in other courts, who are also constrained by similar obligations, namely laws on the status of judges and Codes of judicial ethics adopted by judicial communities (see paragraphs 43-44 of the judgment).", "Thus, laws and professional ethics are a common ground in assessing judges’ behaviour. In its decision on inadmissibility in the case Pitkevich v. Russia (no. 47936/99, 8 February 2001) – concerning the dismissal of a judge who misused her office to pursue religious activities – the Court, having analysed judge Pitkevich’s dismissal, found that the judiciary, while not part of the ordinary civil service, was nonetheless part of typical public service. A judge has specific responsibilities in the field of administration of justice, a sphere in which States exercise sovereign powers. Consequently, a judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State.", "In the Pitketich case the Court concluded, in line with its Pellegrin judgment (Pellegrin v. France [GC], no. 28541/95, ECHR 1999‑VIII), that the dispute concerning the judge’s dismissal did not concern her “civil” rights or obligations within the meaning of Article 6 of the Convention, and that her dismissal pursued legitimate aims within the meaning of paragraph 2 of Article 10 of the Convention, with a view to protecting the rights of others and maintaining the authority and impartiality of the judiciary. Even assuming that the present case differs substantially from that mentioned above, a similar problem arises concerning the limits on the freedom of expression of judges. It is known from the Court’s case-law that the status of a public or civil servant does not deprive the individual concerned of the protection of Article 10. In its recent judgment in the case of Guja v. Moldova, the Grand Chamber again reiterated that “the protection of Article 10 extends to the workplace in general and to public servants in particular” (see Guja v. Moldova [GC], no.", "14277/04, § 52, ECHR 2008‑...; see also Vogt v. Germany, 26 September 1995, § 53, Series A no. 323; Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII; Ahmed and Others v. the United Kingdom, 2 September 1998, § 56, Reports of Judgments and Decisions 1998-VI; Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000). However, the right to freedom of expression as such is not without limits and the Court in the same Guja judgment warns against an entirely “permissive” reading of Article 10: “At the same time, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion.", "This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion” (see Guja, cited above, § 70; Vogt, cited above, § 53; Ahmed and Others, cited above, § 55; De Diego Natria v. Spain, no. 46833/99, § 37, 14 March 2002). The Court in the present judgment reproduces this reasoning (see paragraph 85), but ignores its development in Guja, and thus I am obliged to reiterate the following conclusion from paragraph 71 of the Guja judgment (since, on occasion, an omission may be significant): “Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for them (see, mutatis mutandis, Ahmed and Others v. the United Kingdom, cited above, § 53). In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one.” Turning to the present case, I would point out that the Judiciary Qualification Board of Moscow reproached the applicant for having “disclosed specific factual information concerning the criminal proceedings against Zaytsev before the judgment in this case had entered into legal force” (paragraph 34).", "Let us remember that the criminal proceedings concerned Mr Zaytsev’s actions as an investigator in an extremely sensitive case of large-scale corruption, and that this case is still pending. It is very strange that in this regard the Court concludes: “The Court, for its part, sees nothing in the three impugned interviews that would justify the claims of ‘disclosure’” (paragraph 91). Even accepting that statements giving details of a pending case in which the applicant was a judge do not amount to the divulgation of classified information, it is somewhat difficult to consider them as a value judgment. The Court appears to justify this behaviour: “There is no doubt [sic! – AK] that, in so doing, she raised a very important matter of public interest which should be open to free debate in a democratic society.", "Her decision to make this information public was based on her personal experience and was taken only after she had been prevented from participating in the trial in her official capacity” (paragraph 94). It is necessary to point out that “after [she] had been prevented from participating in [one] trial”, the applicant subsequently sat as a judge in several other criminal cases (paragraph 16) and her office as judge was not at this stage terminated, but only temporarily suspended for two months, pending the elections and at her own request. Nothing indicates that she was released from her obligation to uphold judicial ethics and her obligation of professional discretion. Yet the applicant abused her immunity as a candidate, disclosing specific factual information concerning the criminal proceedings in a sensitive case before the judgment in that case had entered into legal force. For the Court this, shall we say “uncommon” (for an acting judge), behaviour is justified by the fact that, at the time of her statements, the applicant was involved in an electoral campaign: “political speech ... enjoys special protection under Article 10” (paragraph 95).", "Thus, if one wishes to settle a personal score with someone, it is safer to do so during an electoral campaign, as in that case even a disclosure of professional and restricted information is “not to be regarded as a gratuitous personal public attack, but as a fair comment on a matter of great public importance” (paragraph 95). This conclusion, which is more than “permissive”, contrasts with another: “... the Court has found it incumbent on public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question ...” (paragraph 86). Disclosure by civil and public servants of information obtained in the course of their work, even on matters of public interest, must be examined in the light of their duty of loyalty and discretion. Once again, I would point out that in the case of Guja (cited above, §§ 72-78) the Court held that, in deciding whether the signalling of illegal conduct or wrongdoing in the workplace enjoyed the protection of Article 10, account must be had to whether there was available to the civil servant in question any other effective means of remedying the wrongdoing which he or she intended to uncover, such as disclosure to the person’s superior or other competent authority or body ... The applicant preferred to do so publicly some months later, during her electoral campaign (see paragraph 19) and only after this did she lodge the complaint with the High Judiciary Qualification Panel (see paragraph 24): this was clearly done in order to achieve her personal goals, as the Government has submitted.", "It is significant that all of the applicant’s allegations concerning procedural irregularities during her participation in the criminal case against Mr Zaytsev were examined by an independent judge from the commercial courts system, and were rejected as unsubstantiated because the applicant failed to prove the alleged facts. The remainder of the applicant’s statements in the course of her media interviews, such as “the courts of law are used as an instrument of commercial, political and personal manipulation” could be easily tolerated if made by journalists or professional politicians, but are not reconcilable with the status of a judge within the same judicial system, in which she had exercised her profession for 18 years. The central moral issue in this story is that, through her conduct, former judge Kudeshkina excluded herself from the community of judges prior to the imposition of the disciplinary penalty. Thus, there was a reasonable relationship of proportionality between the measures applied against the applicant and the legitimate aim of protection of the authority of the judiciary as provided by paragraph 2 of Article 10 of the Convention (see Vogt, cited above, § 53). These measures were “prescribed by law” (see paragraphs 45-47 of the judgment), pursued a legitimate aim as provided by the last sentence of Article 10 § 2 (“preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”) and were “necessary in a democratic society”, leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference was proportionate to the above aim (see, among other authorities, Vogt, cited above, § 53).", "The Court draws attention to the “chilling effect that the fear of sanction has on the exercise of freedom of expression”. I am afraid that the “chilling effect” of this judgment could be to create an impression that the need to protect the authority of the judiciary is much less important than the need to protect civil servants’ right to freedom of expression, even if the civil servant’s bona fide intentions are not proved. I am profoundly pained by the Court’s conclusions. I hope that my esteemed colleagues will pardon me this freedom of expression. DISSENTING OPINION OF JUDGE NICOLAOU The circumstances in which the Zaytzev case was transferred to another judge, during a trial conducted by the applicant, does indeed give cause for concern.", "This concern does not emanate directly from the applicant’s statements to the mass media as to what had taken place, since her version was disputed and it could not, therefore, be accorded preference in the present context. It is rather a concern arising from what was stated in a report prepared by an investigating judge, following the applicant’s complaint concerning those circumstances. It should be noted that after 23 July 2003, when the case was assigned to another judge, the applicant acted as judge in several other criminal cases until the end of October 2003 when, at her request, she was excused from her judicial duties as she was a candidate in the general elections of 7 December 2003 for the State Duma of the Russian Federation. It was not until the beginning of December 2003, in the context of the election campaign and more than four months after the transfer of the Zaytzev case, that the applicant gave the interviews containing the impugned statements by which she attacked the domestic judicial system; and it was on the day of the last two interviews, 4 December 2003, that she lodged with the High Judiciary Qualification Panel a complaint that the Moscow City Court President had unlawfully exerted pressure on her to deflect her from the proper exercise of her judicial duties. There was thus a substantial delay but I am prepared to accept that nothing much turns on this.", "Next, it should be noted that under Article 6.2 of the Code of Criminal Procedure of the Russian Federation, court presidents have administrative duties in addition to their judicial functions. They are thus responsible for organising the Court’s work and for distributing cases to judges. This is subject to Article 242 of the same Code, which states expressly what in principle should be taken for granted, namely that a case must be examined by one and the same judge unless he or she is no longer able to take part in the hearing. It was, apparently, in exercise of the powers conferred by Article 6.2 that in the instant case the Moscow City Court President withdrew the case from the applicant. Initially, this was on the pretext that if the case had remained with the applicant an unacceptable delay would have ensued.", "But this was later changed. In the report prepared by the investigating judge it was stated that the grounds relied on by the court president were, in fact, that the applicant: “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on the case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”. It has not been shown that, on an interpretation of the said Article 6.2, the domestic courts recognised that court presidents had such sweeping powers of dealing administratively with what are, quite clearly, procedural matters of a judicial nature; and it would be rather astonishing if they had. What, however, is most disquieting was the reliance placed on “... confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina ...” as a ground for removing the judge from the case. The investigating judge does not seem to have thought that such grounds raised any issue and neither did he relate them to the applicant’s version of events which was, to some extent, supported by the written statements of the lay assessors and the court secretary, at least in the way that events had unfolded.", "His conclusion that there was insufficient evidence in support of the applicant’s allegations, merely because they were denied by the person against whom they were made, cannot be regarded as satisfactory. Finally, it does not appear that the appropriate authorities addressed any of these matters in their decision not to proceed further with the complaint. Against this background, and in the light of the investigating judge’s report which left room for a number of scenarios, the applicant’s right to freedom of expression acquired particular significance. That much I would accept. And although it seems to me that a judge, more than anyone else, should not go public either while a matter is sub judice – as it was in the present case – or before submitting a complaint to the appropriate authority and giving time for a response - which the applicant had failed to do – I might still contemplate the possibility of yielding to the view, apparently favoured by the majority, that a judge retained the right to go public immediately, on the basis presumably of highly exceptional circumstances.", "The most important aspect of this case is, however, that the applicant’s statements were not confined to the Zaytzev trial. The applicant referred directly and in no uncertain terms to a much wider problem in the domestic judicial system. Relying on her many years of experience at the Moscow City Court, she stated categorically that she doubted the existence of independent courts in Moscow. She asserted, without any qualifying words and without specifying other instances, that Moscow courts are, in both their civil and criminal jurisdictions, systematically used as an instrument of commercial, political or personal manipulation; she spoke of brutal manipulation of judges, of outrageous scandals and of extensive corruption in the Moscow courts; and she concluded that if all judges kept quiet the country might soon end up in “judicial lawlessness”. As I read them, her statements clearly imply that she knew of particular instances which justified what she was describing as the magnitude of the problem.", "But she made no effort to substantiate this factual substratum before expressing value judgments on the extent and the gravity of the situation, which she summarised by saying that “[n]o one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone.” These are extremely strong words coming from a judge and should not have been made unless the judge was able to back them up, at least to a meaningful extent. The majority judgment concentrates on the Zaytzev incident without, in my view, addressing sufficiently the applicant’s statements about the wider problem, as she had alleged it, created by a mass of other similar instances of which the Zaytzev case was only an example. It was, in fact, her insistence that such conduct was widespread and systematic that formed the basis for her conclusions that it was impossible for an ordinary citizen to obtain justice in the Moscow courts. Further, in so far as the majority judgment makes reference to the applicant’s statements generally, I am unable to agree that the statements consisted essentially of value judgments requiring no substantiation, though I recognise the flexibility of the Court’s case-law on the matter. If, indeed, the applicant knew of facts other than those concerning the Zaytzev case that judicial corruption was so rampant and judges were so effectively subjugated to behind the scenes arrangements, the applicant ought to have been more specific in her allegations.", "As it was, she condemned every single judge working in the Moscow courts as being either a willing accomplice or a helpless victim of a corrupt judicial system, and showed no regard for judges who, like herself, might also have claimed to have been above reproach. In short, she condemned indiscriminately all judges, demolishing in this way the whole judicial system. The incident in the Zaytsev case, taken alone, could not possibly have given cause for such far-reaching statements. It should be borne in mind that what a judge says in public can have considerable impact since people would naturally consider a judge’s views as balanced and verified; whereas, for example, it is generally understood that a journalist, who is regarded as a public watchdog, may sometimes be provocative or prone to exaggeration and so more latitude is allowed. At the time that the impugned statements were made, the applicant’s judicial functions had already been suspended to enable her to conduct her political campaign.", "She could, consequently, express herself much more freely. But she still remained a judge. She was still bound by the Law on the Status of Judges and she should have had regard to the Code of Honour of a Judge, whether this latter had legislative effect or not. So her speech had to be tempered by discretion. Instead, she went to unacceptable extremes.", "In my opinion, therefore, it was reasonably open to the domestic authorities to find, as they did, that “the actions of judge Kudeshkina have degraded the honour and dignity of a judge, discredited the authority of the judiciary [and] caused substantial damage to the prestige of the judicial profession, thus constituting a disciplinary offence”. Further, in these circumstances the disciplinary sanction imposed on the applicant was not, in my opinion, disproportionate. There is one last thing. The applicant complained of a procedural irregularity in the examination of her application for judicial review. The complaint does not, in my view, amount to anything.", "Although with some delay, it was pointed out to her by a judge of the Supreme Court that the rules on jurisdiction prevented the transfer of judicial review of her case from the Moscow City Court to another court. In any event the involvement of the Moscow City Court could not have had a determinative influence on the outcome of the proceedings as a whole, given that the substantive findings and the final review of the sanction lay with bodies whose impartiality was not called into question." ]
[ "FIRST SECTION CASE OF SAVARESE v. ITALY (Application no. 55673/00) JUDGMENT (Friendly settlement) STRASBOURG 20 February 2003 This judgment is final but it may be subject to editorial revision In the case of Savarese 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,MrV. Zagrebelsky,MrsE. Steiner, judgesandMr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 30 January 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "55673/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Italian nationals, Mr Gerardo Savarese and Mr Raffaele Savarese (“the applicants”), on 29 February 2000 2. The applicants were represented by Mr V. Savarese, a lawyer practising in Nocera Inferiore (Salerno). The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-agent, Mr F. Crisafulli. 3. The applicants complained about their prolonged inability - through lack of police assistance - to recover possession of their apartment and about the duration of the eviction proceedings.", "4. On 26 March 2002, after obtaining the parties' observations, the Court declared the application admissible. 5. On 29 November 2002 and on 17 December 2002 the applicants and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6.", "The applicants are the owners of an apartment in Pagani, which they had let to R.E. 7. In a writ served on the tenant on 24 December 1983, the applicants informed the tenant of their intention to terminate the lease and summoned him to appear before the Nocera Inferiore Magistrate. 8. By a decision of 12 April 1984, which was made enforceable on the same day, the Nocera Inferiore Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 July 1985.", "9. On 13 September 1985, 21 January 1988 and 11 January 1990, the applicants served notice on the tenant requiring him to vacate the premises. 10. On 12 March 1990, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 April 1990. 11.", "Between 6 April 1990 and 25 June 1990 the bailiff made two attempts to recover possession. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension, the applicants were not entitled to police assistance in enforcing the order for possession. 12. On 9 September 1999, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 October 1999. 13.", "Between 6 October 1999 and 17 January 2000, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 14. On 17 January 2000, the applicants recovered possession of the apartment. THE LAW 15.", "On 17 December 2002 the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay a sum totalling 2,500 (two thousand five hundred) Euros to Mr Gerardo Savarese and Mr Raffaele Savarese (1,250 Euros to each applicant) with a view to securing a friendly settlement of the application registered under no. 55673/00. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months starting from the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present case.", "The Government further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.” 16. On 29 November 2002 the Court received the following declaration signed by the applicants' representative: “I note that the Government of Italy are prepared to pay a sum totalling totalling 2,500 (two thousand five hundred) Euros (1,250 Euros to each applicant) covering both pecuniary and non-pecuniary damage and costs to Mr Gerardo Savarese and Mr Raffaele Savarese with a view to securing a friendly settlement of application no. 55673/00 pending before the Court. I accept the proposal and waive any further claims in respect of Italy relating to the facts of this application. I declare that the case is definitely settled.", "This declaration is made in the context of a friendly settlement which the Government and the applicants have reached. I further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court's judgment.” 17. 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). 18.", "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 20 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM (Application no. 19055/05) JUDGMENT STRASBOURG 3 June 2008 FINAL 01/12/2008 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 Deak v. Romania and the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Nicolas Bratza,Corneliu Bîrsan,Boštjan M. Zupančič,Egbert Myjer,Ineta Ziemele, judges,and Santiago Quesada, 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. 19055/05) against Romania and the United Kingdom 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 Andrei Deak (“the applicant”), on 24 May 2005.", "2. The applicant was represented by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. The Romanian Government were represented by their Agent at the time, Ms Ruxandra Pasoi, and the United Kingdom’s Government were represented by their Agent, Ms Emily Willmott. 3. The applicant alleged, in particular, a breach of his rights guaranteed by Article 6 and Article 8 of the Convention.", "4. On 16 March 2007 the Court decided to give notice of the application to the respondent Governments. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, Mr Andrei Deak, is a Romanian national who was born in 1956 and lives in Bucharest. 6. The applicant married C.D. (hereinafter referred to as “the mother”), also a Romanian national, in January 1998. In July 1998 their son C.A.", "(hereinafter referred to as “the child”) was born. 7. In November 2000 they divorced and according to the divorce agreement between them, endorsed by a final court judgment, the mother was to have custody of the child, while the applicant obtained a right of access of 82 days per year and was to pay a monthly allowance. 8. In September 2002 the mother travelled to England to commence studying for a Master degree in Business and Administration and left the child in Romania with her parents.", "9. In November 2002 the mother married a British national. She later returned to Romania and on 23 December 2002, without informing the applicant, took the child with her to London. 10. The applicant found out about the child’s removal from Romania to the United Kingdom in January 2003.", "11. On 6 February 2003 he instituted proceedings in London before the High Court of Justice, Family Division (“the High Court”), under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The child and the mother were located by the British authorities; however, their place of residence was not disclosed to the applicant. 12. A directions hearing was held on 27 February 2003 before the High Court at which the parties were requested to file observations on the question whether the removal of the child from Romania was wrongful under Romanian law within the meaning of Article 3 of the Hague Convention.", "The judge in charge of the case also directed that the matter be set down for final hearing on 11 April 2003. 13. On 11 April 2003 the parties received permission to file further evidence. 14. By the time of the next hearing, on 9 May 2003, the High Court was presented by the applicant with documentary evidence emanating from the Ministry of Justice, the Romanian President’s Office, the Child Protection Authority and the Ombudsman, according to which the child’s removal was wrongful under Romanian law.", "However, the court was not convinced and, in accordance with Article 15 of the Hague Convention, requested a Romanian court decision on the matter. 15. On 11 June 2003 the applicant instituted civil proceedings before the Bucharest Third District Court (“District Court”) seeking a ruling that the child’s removal from Romania had been illegal. 16. On 16 July 2003 the applicant introduced a new application before the same court seeking a ruling that the child’s removal was contrary to Article 3 of the Hague Convention because he also had custody rights over the child.", "17. On 1 September 2003 the District Court held the first hearing in respect of the applicant’s first action; however, as a result of the mother’s request for an adjournment, the proceedings were adjourned until 8 December 2003. 18. On 29 September 2003 the Romanian Ministry of Justice wrote to the High Court in London, informing it that the Romanian courts had exclusive competence in issuing decisions in accordance with Article 15 of the Hague Convention. 19.", "On 30 September 2003 the District Court in Bucharest held the first hearing in respect of the second action and adjourned the case on the grounds that the applicant had failed to sign the application and that the mother had failed to sign her request for an adjournment. 20. On 2 October 2003 the High Court in London resumed its examination of the case. The judge in charge of the case indicated that since his decision of May 2003 a number of documents from Romania had become available which seemed to indicate that the child’s removal from Romania by his mother was wrongful, and that, had these documents been available earlier, he would not have sought a declaration under Article 15 of the Hague Convention. Nevertheless, in view of the fact that the proceedings in Romania had commenced, and in view of the letter from the Romanian Ministry of Justice of 29 September 2003 it was decided to adjourn the proceedings to a date after 8 December 2003 (the date on which the District Court in Bucharest was to hear the case).", "The judge expressed concern about the time that had elapsed in the proceedings and indicated that if the 8 December hearing in Romania was not conclusive he would discharge the order he had made in May and proceed to adjudication. 21. On 31 October 2003 the mother submitted her observations concerning the applicant’s actions in the Romanian proceedings and introduced a counter-action seeking, inter alia, a ruling that the applicant did not have a right of custody over the child and that he did not have the right to decide on the child’s place of domicile. 22. On 8 December 2003 the District Court in Bucharest adjourned the hearing at the applicant’s request so that he could examine the mother’s observations and the counter-action lodged by her.", "On the same date the two actions lodged by the applicant and the mother’s counter-action were joined. 23. On 19 December 2003 the judge at the High Court in London, having learned that the final determination of the case before the Romanian court had yet again been put back, made an order that the final hearing in London should take place “as a matter of urgency” in January 2004. 24. On 5 January 2004 the District Court in Bucharest adopted a final ruling in the case and declared inadmissible the applicant’s actions without entering into the merits of the case.", "It decided not to examine the mother’s counter-action. Both parties appealed against the judgment. 25. On 14 January 2004 the proceedings in London were adjourned at the request of the parties to 1 March 2004 to allow time for receipt of the written reasons from the Romanian court. 26.", "On 20 January 2004 the District Court in Bucharest delivered its judgment and on 3 and 5 February the parties appealed against it. 27. On 6 February 2004 the case file was transmitted by the District Court to the Bucharest Court of Appeal and the latter fixed 6 April as the date of the hearing in the case. 28. On 23 February 2004 the applicant requested the Bucharest Court of Appeal to speed up the proceedings in view of the proceedings pending in London.", "His request was granted and the date of the hearing was set for 16 March 2004. 29. On 1 March 2004 the applicant applied for an adjournment in the High Court proceedings in London pending determination of the case by the Bucharest Court of Appeal. His request was granted and the judge in charge of the case ordered that the final hearing should take place as soon as possible after receipt of an authorised translation of the decision of the Bucharest Court of Appeal. 30.", "On 15 March 2004 the mother filed her observations with the Bucharest Court of Appeal. 31. On 16 March 2004 the applicant’s representative requested an adjournment from the Bucharest Court of Appeal in order to study the mother’s observations. 32. On 11 May 2004 the Bucharest Court of Appeal held a hearing in the case and heard submissions from the parties.", "The pronouncement of the judgment was adjourned to 25 May 2004. 33. On 25 May 2004 the Fourth Section of the Bucharest Court of Appeal quashed the judgment of the first-instance court in part. It examined the applicant’s action on the merits and dismissed it as ill-founded, finding that the applicant did not have custody rights over the child and that the child’s removal from Romania was legal under domestic law and not wrongful within the meaning of Article 3 of the Hague Convention. The judgment of the Court of Appeal was communicated to the parties on 19 July 2004.", "34. On 3 August 2004 the applicant lodged an appeal on points of law with the Court of Cassation (Înalta Curte de Casaţie şi Justiţie) against the judgment of the Bucharest Court of Appeal. 35. On 16 August 2004 the case file was sent by the Bucharest Court of Appeal to the Court of Cassation of Romania. 36.", "On three occasions between November 2004 and March 2005 the applicant lodged requests with the Court of Cassation asking it for a speedier examination of his case on grounds of the urgency of the matter. 37. It appears that during that period the Romanian Code of Civil Procedure was undergoing changes and that it was not clear which court was competent under the new rules to examine the applicant’s appeal on points of law. On 16 March 2005 the Court of Cassation declined jurisdiction in favour of the Bucharest Court of Appeal and on 28 March the case file was sent back to that court. 38.", "The Bucharest Court of Appeal scheduled the first hearing in the case for 16 June 2005. 39. On 13 May 2005 the applicant requested that the proceedings be speeded up in view of an upcoming hearing in the London proceedings. On 19 May the applicant’s request was upheld and the hearing was rescheduled for 26 May 2005. 40.", "On 26 May 2005 the Third Section of the Bucharest Court of Appeal held a hearing; however, it decided to adjourn the proceedings to 9 June 2005. 41. On 9 June 2005 the Court of Appeal resumed the examination of the case and dismissed the applicant’s appeal on points of law. It found, inter alia, that, under Romanian family law, after divorce the parents of a child do not have equal rights in respect of their child. In particular, the parent who has custody of the child does not need the consent of the other parent in respect of measures concerning the child except for matters relating to adoption and/or losing or re-obtaining Romanian nationality.", "The parent who does not enjoy custody cannot veto a decision of the other parent concerning the child’s domicile. Accordingly, the removal of the child from Romania by the mother was lawful under Romanian law. 42. In July 2005, after the Romanian proceedings had ended and the final Romanian judgment had become available in English, the High Court in London resumed its proceedings and listed the case for a final hearing on 3 and 4 August 2005. 43.", "On 1 August 2005 the judge in charge of the case at the High Court in London acceded to the applicant’s application for an expert opinion on the law of Romania. The expert was to file his report by 16 September 2005. 44. Both parties agreed to instruct Dr Mihai to draft a report on Romanian family law and on 14 September 2005 the High Court confirmed the joint instructions to the expert and the time for lodging of the expert report was extended to 7 October 2005 with the final hearing listed for 14 October 2005. 45.", "On 28 September 2005 the High Court in London extended the time-limit for the expert report to 11 October and relisted the case for 31 October 2005. 46. The expert’s report was ready on 11 October 2005; however, the parties wished to put more questions to him. Therefore, on 31 October 2005, on an application from the applicant, the court adjourned the proceedings to 8 December 2005 and made further procedural directions in relation to any further questions to be put to the expert. 47.", "On 8 December 2005 the final hearing was listed before the High Court in London for 28 February and 1 March 2006. 48. On 28 February and 1 March 2006 the High Court held the final hearings in the case and gave judgment on 28 March 2006. The court found in favour of the applicant, choosing to rely on the expert opinion and to disregard the decisions of the Romanian courts. It found that the applicant had custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania had been wrongful under Article 3 of the same Convention.", "The court also rejected an objection based on Article 13(b) of the Hague Convention raised by the mother and issued an order for the return of the child to Romania. 49. On 7 April 2006 the mother sought leave to appeal. This was granted on 10 April 2006 and the case was fixed for hearing in the Court of Appeal on 25 May 2006. 50.", "On 25 May 2006 the Court of Appeal heard and dismissed the mother’s appeal while varying the order for the peremptory return of the child until the end of the school term. 51. The mother appealed to the House of Lords. Her appeal was heard between 9 and 11 October 2006 and on 16 November 2006 the House of Lords gave judgment allowing the appeal. The House of Lords reversed the judgment of the High Court, finding that the applicant did not have custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania was not wrongful under Article 3 of the same Convention.", "The House of Lords criticised the decision of the High Court to seek a further expert opinion after having obtained a final decision on the matter from the Romanian courts and expressed regret about the length of the proceedings. 52. Lord Hope of Craighead observed, inter alia, that: “Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child’s habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable.", "Great care must therefore be taken, in the child’s best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative. In this case the response that was received from Romania was sufficient to show that the child’s removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child’s place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case.", "The effect on his ability to exercise his rights of access is plain to see. But the phrase “rights of custody” has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child’s removal, the father had no such rights.” 53. Baroness Hale of Richmond commented, inter alia, that: “...the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful... How then should the courts of the requested state respond to such a determination?", "Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice.” 54. Lord Carswell stated that: “It was quite wrong to permit the father to adduce further expert evidence from Dr Mihai which challenged not only the conclusion but the statement of the content of the father’s rights set out in the judgment of the Romanian court. The English court should have considered the terms of the judgment itself, without any subsequently obtained expert evidence.", "If it had done so it could only have come to the same conclusion as the Romanian court, even without applying any presumption in its favour.” 55. Lord Brown commented as follows: “This is an extraordinary case. It is, we are told, unique in the length of time which elapsed before the judge’s order for the child’s summary return to Romania (over three years after the commencement of Hague Convention proceedings); and unique too in being the only case in which a United Kingdom court has rejected a foreign court’s article 15 determination that the child’s removal was not in the event wrongful within the meaning of article 3... In circumstances like these it seems to me almost inconceivable that the court requesting the article 15 determination would then not simply accept it. Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”.", "There is nothing of that sort here. On the contrary, the judge - neither Johnson J (who had requested the determination) nor Hogg J (who later ordered the child’s return to Romania) - on 1 August 2005, acting merely on the father’s request, ordered that an expert in Romanian law be jointly instructed by both parties to cover exactly the same ground as the Romanian Appeal Courts had themselves just covered...” 56. Throughout the entire proceedings in the United Kingdom the applicant was allowed to meet his child on a number of occasions in special contact centres for periods not exceeding two hours. According to him, however, over the last four years he has only been able to spend about thirty hours with his son. 57.", "It does not appear that the applicant ever applied to the United Kingdom courts in order to obtain a judgment from them giving him access to the child. However, on an unspecified date in 2007 he applied to the High Court in London for the recognition of the Romanian judgment of November 2000 (see paragraph 7 above). The Court is not aware of the outcome of those proceedings. II. RELEVANT NATIONAL AND INTERNATIONAL LAW 58.", "The relevant provisions of the Romanian Family Code read as follows: Article 43 1. The divorced parent who was entrusted with the child shall exercise the parental rights... 3. The divorced parent, who was not entrusted with the child, keeps the right to have personal ties with the child, as well as to observe his or her bringing up, education, studies and professional instruction. 59. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction provide: Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.", "The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 5 “For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Article 7 “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 8 “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...” Article 10 “The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.", "In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 15 “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.” Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.” THE LAW 60.", "Relying on Article 8 of the Convention, the applicant alleges, inter alia, that the Romanian authorities failed to take adequate steps in order to secure the enforcement of the judgment which gave him the right to have access to his son for a total of 82 days per year. The Romanian authorities were wrong to allow the mother to take the child out of the country, and they failed to assist him in the proceedings before the English courts. Furthermore, according to the applicant, the United Kingdom also failed to assist him adequately in retaining contact with the child or to ensure the child’s return to Romania. They were wrong in the first place to have issued a visa to the child without his consent and later in not sending him back to Romania after the expiry of his visa. The authorities obstructed the applicant’s access to the United Kingdom by lengthy questioning before his entry into British territory.", "They also obstructed his contacts with the child by only allowing him to have meetings lasting a maximum of two hours in “locked rooms, under the supervision of one or two strangers”. On several occasions he was not allowed to take pictures of his son and was forced to speak English with him. His Article 8 rights were also infringed by the excessively long proceedings before the English courts. Article 8 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.” 61. He further complains, under Article 6 § 1 of the Convention, of a breach of the principle of equality of arms by the United Kingdom courts because he was not allowed to have any information concerning his son, which put him in a position of procedural inequality vis-à-vis his former wife. The applicant also complains that the proceedings before both the Romanian and the United Kingdom courts were excessively long. The relevant part of Article 6 § 1 of the Convention, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” 62. The applicant finally complains that both Romania and the United Kingdom breached his rights guaranteed by Article 5 of Protocol No.", "7 which reads as follows: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” I. ADMISSIBILITY OF THE COMPLAINTS A. The complaint under Article 6 of the Convention concerning the alleged unfairness of the proceedings before the United Kingdom courts 63. The applicant’s complaint about the breach of the principle of equality of arms appears to be unsubstantiated. Indeed, the applicant failed to explain in what way the non-disclosure of his son’s address negatively influenced or reduced his chances of success in the proceedings before the United Kingdom courts in circumstances in which the decisive factor in those proceedings was the interpretation of Romanian family law.", "Accordingly, this complaint is manifestly ill-founded and must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. B. The complaint under Article 8 of the Convention 64. The applicant argued that the Romanian authorities failed to take adequate steps in order to secure the enforcement of the judgments of the Romanian courts which gave him the right of access to his son and that they wrongfully allowed the child to leave the country without his consent. The applicant also appeared to be dissatisfied with the outcome of the proceedings which ended with the final judgment of the Bucharest Court of Appeal of 9 June 2005 and complained that the Romanian authorities failed to assist him in the proceedings before the English courts.", "65. In so far as the United Kingdom is concerned, the applicant submitted numerous complaints such as the wrongful issuance of a visa to his child by the United Kingdom consulate in Bucharest; his lengthy questioning before his entry into United Kingdom territory; the short duration of his meetings with the child and the inappropriate conditions of such visits; the prohibition on several occasions on taking pictures of his son and speaking Romanian; and the excessive length of the proceedings under the Hague Convention and the outcome of those proceedings. 66. In so far as the complaint about the outcome of the Hague Convention proceedings in both jurisdictions is concerned, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention as interpreted in the light of the requirements of the Hague Convention. However, 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.", "In the instant case, the Court notes that there is no appearance of arbitrariness in the proceedings in either country. The Romanian courts were called upon to interpret Romanian family law and to rule on whether the mother had acted lawfully when removing the child from the country without the father’s consent. The ruling of the Romanian courts does not appear to be unreasonable or contrary to the general rules of fairness. Indeed the applicant did not adduce any evidence to support such a conclusion. 67.", "The English courts in the final instance made use of the interpretation given by the Romanian courts to Romanian family law for the purpose of the proceedings before them. Their task was to return the child to Romania in the event that he had been taken out of the country unlawfully. Since the Romanian courts found that the child had been lawfully removed from Romania, the English courts ruled appropriately and dismissed the applicant’s action. The Court finds no indication of arbitrariness or unreasonableness in the decisions of the English courts in this respect. Moreover, it appears clearly from the judgment of the House of Lords that the length of the proceedings in the present case did not have any bearing on the solution in the case.", "68. In the light of the above conclusions, the Court considers that it cannot be maintained that either the alleged failure of the Romanian authorities to prevent the removal of the child to the United Kingdom or the fact that the United Kingdom authorities issued a visa for the child and subsequently refused to order the return of the child to Romania in itself breached the applicant’s rights under Article 8 of the Convention. Furthermore, with regard to the applicant’s complaint that the Romanian authorities failed to assist the applicant in the proceedings before the English courts, the Court does not consider that any such obligation can be inferred from Article 8. 69. In so far as the applicant complains that the authorities of both States failed to take adequate steps to ensure that he could exercise his right of access to his child, the Court observes firstly that the proceedings instituted by the applicant related exclusively to the lawfulness of the child’s removal from Romania.", "In that respect, it notes that the Hague Convention does not prevent a parent with sole custody of a child taking the child abroad (see paragraph 59 above). Moreover, the Romanian courts concluded in the present case that the removal of the applicant’s child was not wrongful within the meaning of the Hague Convention. Consequently, the proceedings did not directly determine the question of the applicant’s right of access and neither their outcome nor their allegedly protracted nature had a decisive impact on the exercise of that right. It is true that the applicant’s objective in seeking to have the child returned to Romania was to ensure that he could exercise the right of access which he had been granted by the Romanian courts and that both the removal of the child and the fact that he remained in the United Kingdom throughout the subsequent proceedings to a certain extent frustrated the exercise of the applicant’s rights. The Court notes, however, that the applicant did have access to his child in the United Kingdom during the proceedings and that although that access was limited he did not apply to the English courts for any extension of his rights or for any modification of the manner in which they were exercised.", "Furthermore, the Court finds it striking that the applicant did not at any stage ask to have the child returned to Romania on a temporary basis with a view to exercising his right of access, which in any event was limited to eighty-two days a year, and that it was only in 2007 that he applied to the English courts for recognition of the judgment of the Romanian court granting him a right of access (see paragraph 57 above). In all these circumstances, the Court finds that neither State failed to take adequate steps to secure the exercise of the applicant’s right of access to his child. 70. Having examined the applicant’s other complaints concerning both respondent States, the Court notes that all are either ill-founded and/or unsubstantiated or he has failed to exhaust domestic remedies in respect of them. The Court finds therefore no appearance of a violation of Article 8 of the Convention in the circumstances of this case.", "This complaint must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. C. The complaint under Article 5 of Protocol No. 7 to the Convention 71. The Court notes that the United Kingdom has not ratified Protocol No. 7 to the Convention.", "As to Romania, the Court notes that the applicant raised this complaint for the first time in the proceedings before it. Accordingly, the complaint is incompatible ratione personae with regard to the United Kingdom and inadmissible on account of failure to exhaust domestic remedies with regard to Romania and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention. D. The complaints under Article 6 of the Convention concerning the length of the proceedings 72. The Court considers that the rest of the applicant’s complaints raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares 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 the complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 73. The applicant argued that the proceedings were excessively long before both the Romanian and the United Kingdom courts. 74.", "The Romanian Government argued that the overall duration of the proceedings had not been excessive. They pointed out that the proceedings were complex and that the domestic courts did their best to have them concluded as soon as practicable. In their view, the only problematic period was the period before the examination of the case by the Court of Cassation. However, that was due to the excessive case-load of that court and could not render the overall period excessive. The parties themselves contributed to the length of the proceedings by asking on several occasions for adjournments and by making use of all the ordinary appeals possible under the procedural law.", "On the other hand, the Romanian courts acceded on two occasions to the applicant’s requests to speed up the proceedings. 75. The United Kingdom Government argued that the case was of some complexity which was underlined, inter alia, by the applicant’s refusal to accept the rulings of the Romanian courts and his subsequent applications to be permitted to adduce further expert evidence with the intention of disputing the accuracy of the final ruling of the Romanian courts. The English courts were at all times concerned to bring the dispute to a conclusion as quickly as was possible. Once the Romanian courts had ruled against the applicant, it was the conduct of the applicant himself which caused the delay.", "While it is now clear, following the ruling from the House of Lords, that the lower courts should not have acceded to the applicant’s requests but should have dismissed his application under the Hague Convention as soon as possible after 18 July 2005, it is equally clear that the courts’ sole motivation in acceding to the applicant’s requests was so as to protect his rights both under Articles 6 and 8 of the Convention. 76. The Court recalls that the reasonableness of the length of proceedings is to be examined in the light of the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. On the latter point, the importance of what is at stake for the applicant in the litigation has to be taken into account. It is thus essential that custody cases be dealt with speedily (see, for example, the Hokkanen v. Finland, judgment of 23 September 1994, Series A no.", "299-A, p. 25, § 69). A delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, for example, the Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, p. 16, § 37). 77. As to the proceedings before the United Kingdom courts, the Court notes that they commenced on 6 February 2003 and ended on 16 November 2006.", "The length of those proceedings depended to a large extent, at least initially, on the conclusion of the Romanian proceedings. Following its decision of 9 May 2003 to seek a Romanian court decision on the matter in accordance with Article 15 of the Hague Convention, the High Court in London could not come to a decision before the end of the Romanian proceedings. 78. Having examined the materials submitted by the parties, the court cannot find any lengthy periods of inactivity on the part of the English courts imputable to them. It notes, however, the criticism which the House of Lords expressed in respect of the first instance court’s decision to allow the applicant’s request to seek a further expert opinion on the interpretation of the Romanian law, after the end of the proceedings in Romania.", "Nonetheless, the Court does not consider that the extra length generated by that decision was so important as to render the overall duration of the proceedings unreasonable, in particular taking into account the fact that it was the applicant who requested from the High Court that an expert opinion be sought, in order to contest the decision which had been reached on the basis of the findings of the Romanian courts, so that the continuation of the proceedings thereafter was in his interest only. 79. In so far as the length of the proceedings in Romania is concerned, the Court notes that they commenced on 11 June 2003 and ended on 9 June 2005. Thus, the period to be taken into consideration is approximately two years. 80.", "The Court notes that according to Article 11 of the Hague Convention any delay in the proceedings exceeding six weeks gives the applicant a right to request from the competent authorities a statement of the reasons for the delay. It is for this reason that the proceedings under the Hague Convention require special expediency. Against this background, the Court notes several factors which raise concern. In the first place it notes that several adjournments were ordered at the beginning of the proceedings, notwithstanding the urgent nature of the matter. Moreover, it took six months for the first instance court to examine the case without, however, giving a decision on the merits.", "In addition, although the courts twice agreed to speed up the proceedings, they subsequently had to adjourn the advanced hearings because they had failed to ensure that the observations were submitted earlier than the day before the hearing. Consequently, on both occasions the speeding up did not have the desired effect. Most importantly, however, the Court notes that between August 2004 and May 2005 there were no developments in the proceedings before the Romanian courts. The Government submitted that this was due to the workload of the Romanian Court of Cassation; however, the Court cannot accept this argument. In the first place, it was not the Court of Cassation which examined the appeal on points of law, but the Bucharest Court of Appeal.", "In any event, even assuming that the delay occurred due to the Court of Cassation’s workload, the Court recalls that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see, among many other authorities, Kyrtatos v. Greece, ECHR-2003..., 22 May 2003, § 42). In such circumstances, and bearing in mind the urgency of the matter, the Court considers that the length of the proceedings in Romania did not satisfy the “reasonable time” requirement. 81. Accordingly, there has been no violation of Article 6 § 1 of the Convention in respect of the United Kingdom and there was a breach of that provision in respect of Romania. III.", "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 300,000 euros (EUR) for pecuniary damage and EUR 500,000 for non-pecuniary damage. 84.", "The Romanian Government argued that the amounts were excessive. 85. In so far as the pecuniary damage is concerned, the Court finds no causal link between the violation found and the pecuniary damage allegedly suffered. This claim must therefore be rejected. 86.", "As to the non-pecuniary damage, the Court accepts that the excessive length of the proceedings in Romania has caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the applicant EUR 1,000 in respect of non-pecuniary damage. B. Costs and expenses 87. The applicant also claimed EUR 106,947.44 for the costs and expenses incurred.", "88. The Romanian Government argued that the amount was excessive. 89. 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 300 covering costs for the proceedings before the Court.", "C. Default interest 90. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint under Article 6 of the Convention concerning the excessive length of the proceedings in respect of both Romania and the United Kingdom admissible; 2. Declares unanimously the other complaint under Article 6 and the complaint under Article 5 of Protocol No 7 inadmissible; 3.", "Declares by a majority the complaint under Article 8 of the Convention inadmissible; 4. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention by Romania; 5. Holds unanimously that there has been no violation of Article 6 § 1 of the Convention by the United Kingdom; 6. Holds unanimously (a) that the Government of Romania 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, plus any tax that may be chargeable, and EUR 300 (three hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on the applicant, to be converted into Romanian lei 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 unanimously the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 3 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting opinion of Mr B.M. Zupančič is annexed to this judgment. JCMSQ PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ I regret that I am unable to join the majority in this case as far as it concerns the inadmissibility of the complaint under Article 8 of the Convention. The applicant complains that the Romanian authorities failed to take adequate steps to enforce the judgment which had given him the right to have access to his son for a total of 82 days per year.", "He also complains that the Romanian authorities allowed the mother to take the child out of the country and failed to assist him in the proceedings before the English courts. My first hesitation in this case stemmed from my belief that it ought not to have been finally decided before it had become clear whether another case, which was being examined by the Third Section, would or would not be accepted for a referral to the Grand Chamber. I am referring to Maumousseau and Washington v. France, a case in which the pattern of events is to some extent a mirror image of the situation in this particular case. In Maumousseau and Washington the mother stayed in France and the father returned to the United States. Eventually, after a radical departure from the jurisprudence of the Cour de cassation, the child – who had never spent any meaningful time with the father – was snatched from the hands of the mother, put on an aeroplane and sent back to New York.", "The passage of time, which was the central issue in that case, made it unreasonable – according to the Hague Convention criteria – to have proceeded under those conditions to re-establish the relationship with the father in New York. The position I took in that case relied principally on the fait accompli logic, not uncommon in such cases, that is, the sheer passage of time in conjunction with the fact that the child in question was deprived to such a degree of her mother’s maternal love and care. I continue to see the eventual snatching as an incredibly sad and shocking turn of events. If Maumousseau and Washington is to be reconsidered by the Grand Chamber, which we do not know at this particular point in time, then certain very basic logic of the Hague Convention would have to be interpreted in the light of our own Article 8 and certain criteria guiding decisions in similar cases would be confirmed or newly established. In my opinion, it would be wise to wait and see whether such criteria is or is not forthcoming.", "It is inconceivable, in my humble opinion, not to regard the pattern of events in this particular case through precisely the same lenses. At bottom, the situation is very simple, namely, the mother here effectively kidnapped the boy and, unbeknown to the father and the authorities, moved the child to a faraway country. In Maumousseau and Washington the omission of the mother was considered by the American courts to have been a kidnapping, whereas here perfectly analogous behaviour, except that the mother actively kidnapped the boy, has not been considered as anything illegal. How can that be? If the father in this particular case were to pursue the same legal internal and international remedies, then the mother’s behaviour would end up in the same legal slot as the behaviour of the mother in Maumousseau and Washington.", "The father has not, however, pursued those or other legal remedies and therefore the actual kidnapping of the child has never fallen under that legal definition. The case has ended here in this Court, reduced to a series of technicalities concerning unreasonable delays allegedly committed by the Romanian and English courts. On another level, an analysis of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction reveals that the removal of the child is to be considered wrongful if it is in breach of rights of custody, here of the father, under the law of the State in which the child was habitually resident immediately before the removal, and under the additional condition that those rights were actually exercised, here by both the father and mother. Technically, the application of the Hague Convention therefore depends on the application of Romanian law in the matter. A separate question therefore arises as to whether the idea of litigating this issue before the Romanian courts does not in fact conflict with the primordial imperative of the Hague Convention.", "This imperative, as we emphasized in our dissent in Maumousseau and Washington, is time. In other words, if the application of domestic law were to be litigated with unreasonable delay in each of these cases then the fait accompli logic referred to above would always produce an undesired effect. This is precisely what happened in Maumousseau and Washington, which is why it became unreasonable to snatch the child from the hands of the mother and put it on an aeroplane back to New York. Nevertheless, there is one significant difference concerning the pattern of events in question. In Maumousseau and Washington the litigation was parallel in both countries but proved to be more effective in the United States than in France.", "In this particular case the litigation before the Romanian courts was completely ineffective, hence the unfortunate consequences which this Court has now confirmed. If the father in this case had pursued the same remedies as Mr Washington in his case, the mother’s action would perhaps have been regarded as a kidnapping. However, the case got bogged down in the Romanian courts and the international action never materialised. If, on the other hand, the American courts in Duchess County in the State of New York had bothered to undertake a complex analysis of the French law, before the departure from precedent by the Cour de cassation, Mr Washington would never have succeeded with his case. But these are technicalities.", "The role of the European Court of Human Right has certainly not been foreseen as one in which the unfortunate formula condemning legal formalism – summum jus, summa injuria! – would prevail. The subsidiary function of the international court is precisely to cut through such Gordian knots of legal technicalities and see the reality with a great dose of common sense and awareness of justice. Here we have a father who has effectively been deprived of his child whereas in Maumousseau and Washington we had a child who had effectively been deprived of her mother. There is no disputing the fact that the clandestine removal of the child in this case was wrongful because there is now no getting round the fact that the distance between Bucharest and the United Kingdom, given the financial requirements involved, has deprived the father of his right to see his son for a total of 82 days per year.", "No amount of legal fireworks can conceal that simple fact, just as in Maumousseau and Washington nothing could conceal the fact that the child had been snatched from the hands of her mother who had cared for her all her life. The legitimacy and moral impact of the judgments of this Court depend on this direct contact with reality. We should not be seduced into legal formalism." ]
[ "SECOND SECTION CASE OF BULDAN v. TURKEY (Application no. 28298/95) JUDGMENT STRASBOURG 20 April 2004 FINAL 10/11/2004 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 Buldan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrK.", "Jungwiert,MrV. Butkevych,MrsW. Thomassen,MrM. Ugrekhelidze, judges,MrF. Gölcüklü, ad hoc judge,and Mr T.L.", "Early, Deputy Section Registrar, Having deliberated in private on 4 June 2002 and 23 March 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28298/95) 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 a Turkish national, Mr Nejdet Buldan (“the applicant”), on 2 December 1994. The application was introduced on his own behalf and on behalf of his deceased brother's widow and children. 2.", "The applicant was represented by Mr S. Leader, a lawyer practising in Colchester, England. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court. 3. The applicant alleged, in particular that his brother had been ill-treated and killed following his abduction by undercover agents of the State and that the authorities had failed to carry out an effective and adequate investigation into his death. In this respect, he relied on Articles 2, 3, 13 and 14 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). Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28 of the Rules of Court).", "The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court). 5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 7. By a decision of 4 June 2002 the Court declared the application admissible. 8.", "The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The kidnapping and subsequent killing of the applicant's brother 9. On 3 June 1994 at about 4.30 a.m. while the applicant's brother, Savaş Buldan, was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with his two friends Adnan Yıldırım and Hacı Karay, they were approached by seven or eight people with walkie-talkies, firearms and bullet-proof vests who introduced themselves as police officers.", "The three men were then forced into three cars. 10. The applicant, who at this time was living in Turkey, was informed of what had happened to his brother at 5 a.m. that same day. With friends and family he began a search, especially along the Istanbul-Ankara motorway. Part of the search party came to an area called the Yedigöller (Seven Lakes).", "This was a national park. According to the applicant, there was a shooting polygon situated therein, open only to members of the security forces and high-level State officials. The Government on the other hand deny the existence of such a shooting polygon. The search party met a watchman at the national park, who told them that 10 or 11 people in three cars had entered the area on the same day at about 7.30 a.m. The watchman then gave a description of the three vehicles that matched the description given by those who had witnessed the abduction at the Çınar Hotel.", "11. When the applicant learnt about the kidnapping of his brother, he immediately contacted members of Parliament, the Governor of Istanbul and the media. The Office of the Prime Minister was also informed about the kidnapping. The applicant and his legal representative made a further written application to the Bakırköy public prosecutor's office. The initial enquiries made by the authorities showed that the three persons had not been taken into custody.", "12. The same day, Mr Nihat Buldan, one of Savaş Buldan's brothers, submitted another petition to the Bakırköy public prosecutor's office in which he claimed that his brother and two of his brother's friends had been abducted by people who had identified themselves as plainclothes police officers. Mr Nihat Buldan requested the prosecutor to investigate the matter. The prosecutor asked the family members to go to the Yeşilköy police headquarters, which was responsible for the area where the incident had taken place. The family members complied with this request but no written statements were taken from them at the police headquarters.", "The Yeşilköy police headquarters informed the Bakırköy police headquarters and also the anti-terrorist branch of the police about the events on the same day. 13. On 3 June 1994 at about 9 p.m., Mr İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu, some 270 kilometres from where the three men had been abducted. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. The same day at about 9.15 p.m. the gendarmerie arrived at the scene.", "During the preliminary search, no empty cartridges or other evidence could be found as it was very dark. 14. The public prosecutor and two doctors arrived at the scene of the crime at about 11 p.m. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities.", "It was further noted that valuable items such as gold rings and wrist watches were intact. The preliminary investigation of the bodies revealed that rigor mortis had set in and that the three men had been shot at point-blank range. Subsequently, at about 2.45 a.m. on 4 June 1994 the corpses were taken to the Health Centre in Yığılca for further examination. 15. On the night of 3 June 1994, the gendarmerie in Bolu contacted the applicant and informed him that three corpses had been found in Yığılca.", "16. On 4 June 1994 the applicant identified the bodies of his brother and his two friends at the Düzce State Hospital. B. Actions taken by the authorities 1. Investigation of Bakırköy Chief Public Prosecutor's Office 17.", "On 4 June 1994 a statement was taken from Mr Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr Uz explained that when the three persons who had disappeared, all of whom he knew as they were regular customers at the hotel casino, emerged from the hotel door sometime between 4.30 and 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, had approached them and held them against the wall and conducted body searches. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as statements had been taken from them. The Mercedes then left followed by the second car which, according to the doorman, was a sports car.", "The doorman was unable to describe any of the men as it was dark and they had been standing some distance from him. 18. Also on 4 June 1994 a statement was taken from Mr Hüseyin Kılıç, a security guard at the Çınar Hotel. Mr Kılıç stated that seven or eight men had approached the three disappeared persons as they walked out the door. The men all wore waistcoats and were carrying weapons.", "They forced the three disappeared persons into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car. 19. On 5 June 1994 a statement was taken from Mr Serdar Özdemir, who was a taxi driver waiting at the taxi rank outside the Çınar Hotel. He stated that while waiting for customers, he had noticed three persons coming out of the casino.", "At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which had been driven away by one of the men wearing a waistcoat.", "The witness had been unable to see the licence plates of the cars or the faces of the seven or eight men. 20. Again on 5 June 1994 another statement was taken from another taxi driver, Mr Hüseyin Durmazer. Mr Durmazer stated that as he approached the taxi rank outside the hotel, he was able to see some people putting three other persons into a black car. 21.", "The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years in accordance with the statutory limit stipulated for kidnapping. 22. On 17 March 1995 the Bakırköy public prosecutor's investigation file, together with a report summarising the investigation, was forwarded to the Yığılca public prosecutor in order to authorise him to investigate the killings since the bodies were found within his area of jurisdiction. 2. Investigation of the Yığılca Gendarmerie and Yığılca Public Prosecutor's Office 23.", "When the bodies were brought to the Yığılca Health Centre in the early hours of 4 June 1994, post mortem examinations of the bodies were carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Savaş Buldan. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was also perceived that rigor mortis was fading. It was observed that when the body was touched, the skin peeled - which was most probably due to its damp condition.", "One bullet entrance hall on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm.", "in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out. 24. The bullets recovered from the bodies were sent for a ballistics examination to the Central Police Forensic Laboratory.", "The Central Police Laboratory prepared two forensic reports dated 6 and 14 June 1994. The ballistics report prepared by the Police Forensic Laboratory on 14 June 1994 showed that five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report also showed that two bullets recovered from the bodies of Savaş Buldan and Hacı Karay had been fired from the same 9 mm. pistol. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities.", "25. The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. This report showed that the two bullets recovered from the bodies of Savaş Buldan and Hacı Karay, both 9 mm and Parabellum type, had been fired from the same pistol. The report further concluded that comparisons of five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities. These ballistics reports, together with the photo fits of suspects, were sent to the Yığılca public prosecutor on 21 June 1994.", "26. On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of Mr İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994. 27. On 4 June 1994 the Yığılca gendarmerie took statements from 13 persons who claimed to have seen three luxury cars travelling in the direction of the spot where the bodies were later found.", "One of these witnesses, Fevzi Aydın, stated that at around 8 a.m. on 3 June 1994 he had been having his breakfast when he had seen three cars. The first car had stopped and one of the persons inside the car had asked him for directions to Bolu. The witness stated that it was a red car, but he was unable to remember the make of the car. There were two persons in the car, both around 40 years of age with one of them sporting a beard. The witness had also seen three persons in the third car.", "The witness was able to remember that the car registrations all started with '34', the prefix for cars registered in Istanbul. Most of the other witnesses also gave similar statements. 28. On 6 June 1994 statements were taken from 11 other witnesses including a number of officials working at the Yedigöller National Park. One of these witnesses, Muzaffer Yıldız, confirmed that the cars' licence plates all had the prefix '34'.", "The witness also stated that one of the passengers had asked for directions to the Yedigöller National Park. Another witness, Şevket Öztürk, similarly stated that he had seen the three cars and that he had also been asked for directions to the Yedigöller National Park by a passenger in a Mercedes with darkened windows. 29. On 7 June 1994 five more witnesses were questioned. These witnesses also stated that they had seen the three cars at 9 or 9.30 a.m. One of them stated that he had been asked for directions to Bolu.", "30. On 10 June 1994 all the witness statements and other documents were sent to the Yığılca public prosecutor. 31. On 21 June 1994 a statement was taken from Nihat Buldan, a brother of Savaş Buldan. He stated that he had been told about the kidnapping which was said to have been carried out by persons claiming to be police officers.", "This was the reason why he had contacted the police to verify whether his brother had been taken into custody. The witness concluded his statement by stating that his brother had no enemies and that he did not suspect anyone. He requested that the perpetrators responsible for the kidnapping and the subsequent killing be apprehended. 32. On 31 August 1995 the Yığılca public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the perpetrators.", "The prosecutor further stated in this report that no evidence had been found during the investigation. It was decided, therefore, to issue a continuous search warrant for the perpetrators of the killings, which remained valid for twenty years, the statutory time limit under Article 102 of the Turkish Criminal Code. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators. 3.", "Further investigations 33. On 10 January 1995 the Police Laboratory, which had carried out a forensic examination on a 9-mm Smith and Wesson pistol and 11 bullets found in a car in Istanbul, concluded that this weapon had not been used in any unknown perpetrator murder. 34. On 4 June 1996 a statement was taken from Mr İrfan Kurşunlu who had first seen the bodies together with his uncle at 8.15 p.m. on 3 June 1994. He stated that he had not heard any gun shots that day.", "35. Also on 4 June 1996 the Yığılca public prosecutor visited the spot where the bodies had been found. He also went to take a statement from one Ayşe Araç who claimed that she had heard gun shots on the day of the killing. The house of Ayşe Araç was just outside Hacılar village and approximately two kilometres from the scene of the incident. In order to test whether this would have been possible, the prosecutor ordered a gendarmerie soldier to the incident scene and to fire a weapon similar to the one used in the killings.", "The prosecutor was able to hear the gun shot. The prosecutor summoned 12 persons who had seen the three cars on the day of the incident to his office in order to take further statements from them. 36. On 6 June 1996 a gendarmerie non-commissioned officer visited the spot where the bodies had been found and prepared a report. According to this report, the scene of the incident was exactly 7,000 metres from Yığılca town centre.", "It was impossible for a person in Hacılar village, which was eight kilometres away, to have heard the gun shots. According to the experiments carried out that day, the maximum distance from which gun shots could have been heard was five kilometres. 37. On 6 June 1996 a statement was taken by the Yığılca public prosecutor from Ayşe Uzun who had seen the three cars on the day of the incident. She stated that one of the cars had been a red Mazda with four persons in it.", "She had not seen any of the cars' number plates. 38. On 6 June 1996 another statement was taken by the prosecutor from one Bengü Çelebi who had also seen the three cars on the day of the incident. She was able to recall that one of the cars had been a red Mazda. She stated that there were three persons in the last car, which had darkened windows.", "39. On 7 June 1996 the Ministry of Justice informed the Düzce public prosecutor about the application made to the former Commission by the applicant. The Ministry's letter stated that there were no documents in the investigation file showing that attempts had been made to trace the cars used in the kidnapping despite the fact that eyewitnesses had given the authorities the full registration number of one of the cars and the prefixes of the other two cars. In addition, some witnesses who lived near the spot where the three persons had been killed had stated that they had heard gun shots and that the timing of the gun shots coincided with the time of the killing. The Ministry's letter finally stated that although it was highly probable that further investigations would not produce any outcome, the investigating authorities should still take further steps in the investigation as this case would be scrutinised by the Commission which, in the past, had put prosecutors in difficulties when questioning them.", "The Ministry requested that the cars be traced, a check made as to whether witnesses could have heard the gun shots and whether any tyre marks had been subjected to forensic examination. It should also be confirmed with the local gendarmerie whether or not any of the witnesses had informed them on the morning of 3 June 1994 that they had heard gun shots. 40. In response to the Yeşilköy public prosecutor's office, on 15 November 1996 the Istanbul Security Department stated that the vehicle with registration number 34 CK 420 was a 1984 model, metallic grey Toyota which had belonged to a certain Mr J.H since 16 August 1995. 41.", "Between 14 July 1998 and 24 August 1999 the area where the three bodies had been found was visited 20 times by the gendarmerie and the police in an attempt to find the perpetrators there. It had not been possible, however, to find the perpetrators or any other evidence at the place. 4. Investigations following the Susurluk Report 42. After the Susurluk incident of 3 November 1996, the spent cartridges and bullets recovered from the scene were re-examined and compared with the bullets and cartridges of the guns found at the scene of the Susurluk incident by the Gendarmerie Criminal Laboratory.", "In a report dated 15 January 1997, it was concluded that there was no connection between them. 43. On 7 February 1997 Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, Mr Avcı referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations.", "He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following: “The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken.", "This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us.", "Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”. 44. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, Mr Avcı stated that he did not know how and by whom the killings were carried out.", "45. On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention as a result of the investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before. 46. The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory.", "In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison. 47. On 23 February 1998 the lawyer representing the families of the other two deceased persons lodged a petition with the Yığılca public prosecutor's office. He requested that the photograph of the red car, belonging to Tarık Umit, which was found abandoned after his abduction, be shown to the witnesses heard in Yığılca. When the photograph of the red sports car with registration number 34 ZU 478 was shown to Ali Osman Sivri, Halit Sivri and Fevzi Aydın, who had given statements about the incident in 1994, they all stated that it was not like the car they had seen that day, and that a long time had elapsed since the incident.", "48. The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. At that time, Mr Öz was detained in the Metris prision in Istanbul in connection with another crime.", "On 5 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he had not been in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. Mr Öz explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping. On 7 May 1998 Yaşar Öz was formally arrested by the Bakırköy Magistrates' Court.", "49. On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicant's brother and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Mr Sebahattin Uz, the doorman at the Çınar Hotel, and Mr Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor.", "Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person got out of the car and filled a container with water from a fountain and left. This witness was unable to recognise the red sports car with registration number 34 ZU 478. He was also shown pictures of Yaşar Öz.", "The witness stated that the person he had seen did not look like Yaşar Öz. 50. On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz. 51.", "On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor. 52.", "On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings. 53. On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends.", "54. During the proceedings before the Düzca Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Yaşar Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar. 55. The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara.", "According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities. 56. Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction.", "57. The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the Ankara State Security Court concluded that it too did not have jurisdiction to deal with the case. The court held that according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio.", "The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction. 58. On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case. 59. Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz.", "Nihat Buldan, one of Savaş Buldan's brothers, joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. 19 eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before. 60. On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence.", "The case file was sent back to the Yığılca public prosecutor's office to continue the search for the perpetrators. C. Documents as submitted by the parties 61. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Savaş Buldan. 1. Official documents The documents listed below concern the statements taken from various witnesses and the investigation in relation to the kidnapping and subsequent killing of the applicant's brother.", "(a) Witness testimonies (i)Statement of Sabahattin Uz, doorman of the Çınar Hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office. (ii)Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office. (iii)Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office. (iv)Statement of Hüseyin Durmazer, dated 5 June 1994, taken by the Bakırköy public prosecutor's office. (v)Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.", "(vi)Statement of Ayşe Araç, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (vii)Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie. (viii)Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (ix)Statement of Ayşe Uzun, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (x)Statement of Hazım Yıldız, driver of the school bus, dated 4 June 1994, taken by the Yığılca District Gendarmerie.", "(xi)Statement of Mehmet Baş, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xii)Statement of Seyfettin Akmak, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xiii)Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xiv)Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xv)Statement of İrfan Kurşunlu, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.", "(xvi)Statements of Hasan Baş; a villager, dated 4 June 1994 and 6 June 1994 taken by theYığılca District Gendarmerie. (xvii)Statement of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xvii)Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xviii)Statement of Şevket Öztürk, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xix)Statement of Yunus Öztürk, dated 6 June 1994, taken by the Yığılca District Gendarmerie.", "(xx)Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxi)Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxii)Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxiii)Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie. (xxiv)Statement of Muzaffer Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie.", "(xxv)Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxvi)Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxvii)Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxviii)Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxix)Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie.", "(xxx)Statement of Bahar Yıldırım, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxi)Statement of Güngör Aydoğan, dated 8 June 1994, taken by the Yığılca District Gendarmerie. (xxxii)Statement of Şemsettin Okyay, dated 8 June 1994, taken by the Yığılca District Gendarmerie. (xxxiii)Statement of Nihat Buldan, dated 21 June 1994, taken by the Yığılca District Gendarmerie. (b) Forensic documents (i)Body examination report, dated 4 June 1994.", "(ii)Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory. (iii)Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory. (iv)Photo-fits of three of the perpetrators. (v)Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory. (vi)Report of the Gendarmerie Forensic Laboratory, dated 15 January 1997.", "(vii)Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın. (c) Further documents in respect of the investigation (i)Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander. (ii)Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander. (iii)Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994. (iv)Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995.", "(v)A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor. (vi)Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident. (vii)A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office. (viii)An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots. (ix)The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office.", "(x)Periodic follow-up reports (twenty in all) of gendarmes between 1998 and 1999. (xi)Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995. (xii)Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996. (xiii)Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted. (d) Documents concerning the investigation following the Susurluk incident (i)Letter of Pervin Buldan, the wife of Savaş Buldan, to the Yığılca public prosecutor, requesting the extension of the investigation so as to cover the new evidence produced after the Susurluk incident.", "(ii)Statements of Hanefi Avcı, dated 7 February 1997 and 24 March 1997, concerning the Susurluk incident. (iii)Report of the Central Police Laboratory indicating that the photo- fits of the perpetrators had similarities with the photo of Yaşar Öz. (iv)Statement of Yaşar Öz, dated 7 May 1998. (v)Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before. (vi)Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7 March 1998.", "The file was transferred to Ankara State Security court. (vii)Non-jurisdiction decision of the Ankara State Security Court, dated 7 October 1998. (viii)Non-jurisdiction decision of Düzce Assize Court, dated 24 November 1998, and transfer of case file to the Ankara State Security Court. (ix)Non-jurisdiction decision of Ankara State Security Court, dated 16 December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction.", "(x)Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court. (xi)Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court. (xii)Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence. 2.", "Unofficial documents 62. The applicant produced several press releases concerning the abduction and killing of his brother. 63. The applicant further submitted to the Court a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr Kutlu Savas, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.", "64. The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 65. The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere.", "In the Report, reference is made to the killing of the applicant's brother: “All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).” 66.", "The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. II. RELEVANT DOMESTIC LAW AND PRACTICE 67. For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v. Turkey, no. 27602/95, §§ 111-18, 16 July 2002 and Tepe v. Turkey, no.", "27244/95, §§ 115-22, 9 May 2003. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 68. The applicant alleged that his brother had been tortured and killed following his abduction by undercover agents of the State or by persons acting under their express or implicit instructions. He also complained that the authorities had failed to carry out an effective and adequate investigation into his brother's killing.", "Finally, the applicant alleged that he received life-threatening messages from unknown persons and as a result he had to leave Turkey and go to Germany to live. The applicant 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. Parties' submissions 1. The applicant 69. The applicant claimed that there was sufficient evidence to prove that his brother was killed by agents of the State and that the State had failed to protect his brother's right to life and to carry out an investigation to find the perpetrators. The applicant made extensive references to the Susurluk Report which concluded that his brother had been killed by agents of the State.", "According to the applicant, the Susuruluk Report and the statements of Mr Hanefi Avcı, former head of the intelligence service of Istanbul Police Headquarters, made it clear that the killing had taken place with the full knowledge of the Turkish authorities. 70. As to the unsatisfactory nature of the investigation, the applicant submitted that the authorities excluded the possibility that the killings might have been carried out by the police or other individuals acting on behalf of or with the approval of the State. In the applicant's opinion, the investigation carried out by the authorities was a mere formality intended to impress the Strasbourg organs. 2.", "The Government 71. The Government disputed these allegations and denied that the applicant's brother had been killed by undercover agents of the State. There was no evidence to suggest this. The Government submitted that Savaş Buldan could have been killed by the PKK or Hezbollah. 72.", "As regards the requirement to carry out an effective investigation, the Government maintained that the investigation carried out by the authorities met the requirements of the Convention. According to the Government, the authorities took all the necessary steps to find Savaş Buldan's killers. The Government further stated that the investigations were broadened following the Susurluk incident and any possible links between the Susurluk case and the killing of Savaş Buldan and his friends had been thoroughly considered. B. The Court's assessment 1.", "The death of the applicant's brother 73. The Court recalls 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, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no.", "324, pp. 45-46, §§ 146-47). 74. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002).", "75. The Court will examine the issues that arise in the light of the documentary evidence adduced in the present case, in particular the documents lodged by the Government with respect to the judicial investigations carried out in the case as well as the parties' written observations. 76. The Court is sensitive to the subsidiary nature of its role 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 v. Turkey, no.", "25657/94, § 283, ECHR 2001-VII) even if certain domestic proceedings and investigations have already taken place. 77. The Court notes that the applicant alleges that his brother had been deliberately killed by agents of the State. In this respect, he relies on the Susurluk Report, which refers to the killing of Savaş Buldan. In this Report, it is stated that it had been a State strategy to kill wealthy Kurdish people who supported the PKK, an organisation proscribed under domestic law.", "It is further revealed that these factors were also relevant in the murder of Savaş Buldan. Furthermore, the Court observes that in the investigation conducted following the publication of the Report, Mr Hanefi Avcı, former head of Istanbul and Diyarbakır Police Intelligence, deposed before the public prosecutor that a special team made up of State officials and civilians had been established and that the kidnapping and assassination of Savaş Buldan had been one of the actions carried out by this team. 78. In view of the above, the Court concludes that the applicant's allegation that his brother was killed by or at least with the connivance of State agents cannot therefore be discarded as prima facie untenable. However, it recalls that the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and 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, and Ülkü Ekinci, cited above, §§ 141-42). 79. The Court observes that there is no indication in the case-file that the applicant's brother had been threatened by anyone, or had reason to believe that his life was at risk prior to his death. It further recalls that there were no eyewitnesses to the killing of Savaş Buldan. 80.", "Moreover, in respect of the applicant's reliance on the Susurluk Report, it recalls that in its earlier judgments (Yaşa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998‑VI, §§ 95-96, Özgür Gündem v. Turkey, no. 23144/93, § 40 ECHR 2000‑III), it held that the Susurluk Report may not be relied on for establishing to the required standard of proof that State officials were implicated in any particular incident. It can only be considered that the Report, which was drawn up at the request of the Prime Minister and which he decided should be made public, must be regarded as a serious attempt to provide information on and analyse problems associated with the fight against terrorism from a general perspective and to recommend preventive and investigative measures. 81. In the light of the foregoing, the Court concludes that notwithstanding the fact that the name of the applicant's brother was mentioned in the Report, the actual circumstances in which the deceased died remain a matter of speculation and assumption.", "Accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant's brother was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicant. 82. Accordingly, there has been no violation of Article 2 on that account. 2. The alleged inadequacy of the investigation 83.", "The Court recalls that, according to its case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State's general duty under Article 1 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. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. Nor is it decisive whether members of the deceased's family or others have lodged a formal complaint about the killing with the competent investigation authority. The mere fact that the authorities were informed of the killing of the applicant's brother gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101 and 103, ECHR 1999-IV).", "The nature and degree of scrutiny which satisfies the minimum threshold of an investigation's effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI, and Ülkü Ekinci, cited above, §144). 84. There is also a requirement of promptness and reasonable expedition implicit in this context (Yaşa, cited above, §§ 102-04; Çakıcı v. Turkey [GC], no.", "23657/94, §§ 80, 87 and 106, ECHR 1999-IV, Tanrıkulu, cited above, § 109, Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force or a disappearance 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, §§ 108-15, ECHR 2001‑III, and Avşar, cited above, §§ 390-95).", "85. Turning to the particular circumstances of the case, the Court notes that an investigation was indeed carried out into the kidnapping and subsequent death of the applicant's brother. However, there were striking omissions in the conduct of the investigation. 86. It observes in this connection that the applicant had made known his concerns to the domestic authorities on 4 June 1994 that undercover agents of the State might have been involved in his brother's killing.", "For the Court, the applicant's concerns should have led the authorities to broaden the scope of the investigation. However, it is apparent from the case file that the authorities did not make any serious attempt to broaden the investigation so as to investigate the possible involvement of State agents in the killing. It notes that a link between the killing of Savaş Buldan and the special team mentioned in the Susurluk Report was in fact established in the decision of the Düzce Assize Court dated 24 November 1998. In reaching this decision, the Düzce Assize Court stated that there was no evidence to suggest that the killing of Savaş Buldan and his friends had been carried out for personal motives. However, the Düzce Assize Court ruled that it had no jurisdiction in the matter and transferred the case file to the State Security Court (see paragraphs 54-56 above).", "As can be observed from the facts of the case, a protracted dispute then ensued over which court had jurisdiction to prosecute Yaşar Öz for the killing of Savaş Buldan. Ultimately, the Fifth Criminal Chamber of the Court of Cassation found that the charges laid against Yaşar Öz were not related to organised crime and remitted the case to the Düzce Assize Court, which acquitted Yaşar Öz for lack of evidence. It can only be concluded that in the course of these proceedings the link identified between the killing of Savaş Buldan and the activities of the special team was regrettably ignored. The Court is also struck by the fact that it would appear that no investigation was carried out in order to determine whether the documents referred to by Mr Hanefi Avcı in his statement dated 7 February 1997 in fact existed (see paragraph 43 above). It recalls in this connection that, according to Mr Avcı, if an investigation were to be conducted into certain sources it would be possible to find documents to verify the accuracy of the allegation that Savaş Buldan and his friends had been killed by an illegal group.", "87. The Court further refers to the letter of the Ministry of Justice dated 3 June 1996. In this letter, which was written to the Düzce public prosecutor's office, the Ministry requested the Düzce public prosecutor's office to conduct a rapid and effective investigation into the killing of Savaş Buldan, while noting at the same time that it was highly probable that the investigations would not produce any outcome. Despite the Ministry's effort to carry out an effective investigation, the Court observes that the domestic authorities never provided any information about the owner of the car with registration number 34 CK 420, which, according to an eyewitness, was one of the cars that had been used on 3 June 1994. Although on 4 June 1994, one day after the incident, this registration number was clearly referred to in the statement of one of the eyewitnesses, it is to be regretted that no steps were taken by the Bakırköy public prosecutor to trace the car.", "It was not until the letter of the Ministry of Justice that the authorities took steps to trace the car. Even then, the response of the domestic authorities must be considered very vague. In a letter dated 15 November 1996, the Istanbul Security Department stated that the vehicle with registration number 34 CK 420 was a metallic grey 1984 Toyota that had belonged to Mr J.H. since 16 August 1995. The Court finds it striking that no information has ever been provided as to the identity of the owner of the car registered with this number in June 1994.", "88. In view of the fact that this crucial element has not been clarified by the Government, and given the delay in tracing the vehicles, such a failure clearly points to the inadequacy of the investigation carried out by the domestic authorities. 89. It should further be recalled that for an investigation to be effective there must also be a requirement of promptness and reasonable expedition. The Court notes in this respect that there was no real co-ordination between the different public prosecutors dealing with the case.", "In this connection, it refers to the fact that the Bakırköy public prosecutor's office only transferred the case file to the Yığılca public prosecutor on 17 March 1995, almost nine months after the incident. However, this case file contained crucial information including eyewitness testimonies to the abduction of the applicant's brother. Such information could have been very useful to the Yığılca public prosecutor in the early stages of his investigation. 90. In the light of the foregoing, the Court considers that the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant's brother.", "It concludes therefore that there has been a violation of Article 2 of the Convention under its procedural limb. 3. Complaints concerning the applicant's right to life 91. Under Article 2 of the Convention, the applicant further submitted on his own behalf that his right to life has been placed at risk as a result of his protests to the Turkish Government about the treatment of his brother. He submitted in this respect that he had to seek asylum in Germany as a result of a clear and immediate risk to his life.", "In this connection, he referred to life-threatening messages he had received. 92. The Government alleged that the applicant had fled to Germany as a result of the disputes he had had with the PKK. 93. The Court is not persuaded that the applicant's allegations, which were raised on his own behalf, are of such a nature or degree as to breach Article 2 of the Convention.", "94. Accordingly, the Court concludes that there has been no violation of Article 2 of the Convention in respect of the applicant. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 95. The applicant further alleged that there has been a violation of Article 3 of the Convention in respect of his brother.", "Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 96. The Government submitted that the applicant's allegation was untrue and unsubstantiated. 97. The Court recalls its finding above that it has not been established that any State agent was implicated, directly or indirectly, in the killing of the applicant's brother. There is thus no factual basis on which to conclude that there has been a violation of this provision as alleged by the applicant.", "98. In this respect, the Court finds no violation of Article 3 of the Convention in respect of the applicant's brother. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 99. The applicant complained that he had no effective remedy in respect of his complaints, relying on Article 13 which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 100.", "The applicant submitted that the lack of an effective investigation deprived him of an effective remedy in relation to his complaint regarding the killing of his brother. 101. The Government argued that there had been no shortcomings in the investigation carried out by the authorities. 102. The Court's case-law establishes that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.", "The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they 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 in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the following judgments: Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996‑VI, p. 2286, § 95, Aydın v. Turkey, judgment of 25 September 1997, Reports 1997‑VI, pp. 1895-96, § 103, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, pp. 329-30, § 106).", "103. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and including effective access for the complainant to the investigation procedure (see Kaya, cited above, pp. 330-31, § 107). 104. On the basis of the evidence adduced in the present case, the Court has not found it proved beyond reasonable doubt that agents of the State carried out, or were otherwise implicated in, the killing of the applicant's brother.", "As it has held in previous cases, however, that does not preclude the complaint in relation to Article 2 from being an “arguable” one 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, Kaya, cited above, pp. 330-31, § 107, and Yaşa, cited above, p. 2442, § 113). In this connection, the Court observes that it is not in dispute that the applicant's brother was the victim of an unlawful killing and the applicant may therefore be considered to have an “arguable claim” that there has been a breach of Article 2 of the Convention. 105.", "The authorities thus had an obligation to carry out an effective investigation into the circumstances of the killing of the applicant's brother. For the reasons set out above (see paragraphs 85-90 above), no effective criminal investigation can be considered to have been conducted in accordance with the requirements of Article 13, which requirements are broader than the obligation to investigate imposed by Article 2 (see Kaya, cited above, pp. 330-31, § 107). The Court finds therefore that the applicant has been denied an effective remedy in respect of the death of his brother and thereby access to any other available remedies at his disposal, including a claim for compensation. 106.", "Consequently, there has been a violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 107. The applicant complained that his brother had been killed because of his Kurdish origin, in violation of Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 108. The Government did not address this issue beyond denying the factual basis of the complaint.", "109. The Court has examined the applicant's allegations in the light of the evidence submitted to it, and considers them unsubstantiated. There has therefore been no violation under this head. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 111.", "Under the heading of pecuniary damage, the applicant sought compensation for the loss of earnings of the deceased Savaş Buldan, who had been a businessman. In this respect, he requested the amount of 311,952.39 pounds sterling (“GBP”) on behalf of the widow and two children of Savaş Buldan and GBP 163,821.06 on his own behalf. 112. The Government contested the applicant's claims. 113.", "The Court does not find any casual connection between the matter found to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant In accordance with the principles in its case-law, it rejects the entirety of the applicant's claims under this heading (see Çakıcı, cited above, § 127, and Önen v. Turkey, no. 22876/93, § 115, 14 May 2002). B. Non-pecuniary damage 114. The applicant claimed the sum of GBP 40,000 for the widow and two children of the deceased Savaş Buldan and GBP 27,500 on his own behalf by way of compensation for mental suffering they experienced due to his brother's death. 115.", "The Government submitted that the claims were excessive. 116. The Court notes that the applicant seeks compensation both for the wife and two children of Savaş Buldan and for himself. The Court observes in this respect that the authorities' failure to investigate effectively the death of Savaş Buldan must have caused considerable anguish and distress to his wife, children and brother. Accordingly, deciding on an equitable basis, the Court awards 10,000 euros (“EUR”) in respect of non-pecuniary damage to the wife and children of Savaş Buldan, which amount is 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 of Savaş Buldan's widow and two children.", "The Court further awards EUR 6,000 to the applicant by way of compensation for non-pecuniary damage, such sum to be paid into the applicant's bank account in Germany. C. Costs and expenses 117. The applicant claimed a total of GBP 26,379 for fees and costs incurred in bringing his case before the Convention institutions. 118. The Government maintained that the claim was excessive and unsubstantiated.", "119. The Court, deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, awards the sum of EUR 10,000 in respect of fees and expenses claimed, such sum to be converted into pounds sterling at the date of settlement and to be paid into the bank account in the United Kingdom indicated by the applicant. D. Default interest 120. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been no violation of Article 2 of the Convention as regards the applicant's allegation that his brother was killed in circumstances engaging the responsibility of agents of the respondent State; 2. Holds that there has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an adequate and effective investigation into the circumstances surrounding the death of the applicant's brother; 3. Holds that there has been no violation of Article 2 of the Convention in respect of the applicant himself; 4. Holds that there has been no violation of Article 3 of the Convention in respect of the applicant's brother; 5. Holds that there has been a violation of Article 13 of the Convention; 6.", "Holds that there has been no violation of Article 14 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 according to Article 44 § 2 of the Convention, the following sums free of any tax that may be payable: (i) EUR 10,000 (ten thousand euros) to the widow and two children of Savaş Buldan in respect of non-pecuniary compensation to be converted into Turkish liras at the rate applicable at the date of payment and to be paid into the bank account of Savaş Buldan's widow and two children; (ii) EUR 6,000 (six thousand euros) to the applicant in respect of compensation for non-pecuniary damage to be paid into his bank account in Germany; (iii) EUR 10,000 (ten thousand euros) in respect of costs and expenses, such sum to be converted into pounds sterling and to be paid into the bank account in the United Kingdom indicated by the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 20 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L.", "EarlyJ.-P. Costa Deputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF MALMBERG AND OTHERS v. RUSSIA (Applications nos. 23045/05, 21236/09, 17759/10 and 48402/10) JUDGMENT STRASBOURG 15 January 2015 FINAL 15/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Malmberg and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Paulo Pinto de Albuquerque,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos.", "23045/05, 21236/09, 17759/10 and 48402/10) 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 four Russian nationals, Ms Mariya Gennadyevna Shelkova, Mr Mikhaydar Ayseyevich Tazikov, Ms Olga Ivanovna Shevchenok and Ms Marina Fedorovna Surkova (“the applicants”), on 3 May 2005, 2 April 2009, 17 February 2010 and 27 July 2010 respectively. On 26 March 2009 the first applicant informed the Court that she had changed her name to Mariya Gennadyevna Malmberg. 2. Ms Malmberg and Ms Surkova were represented respectively by Mr A.L. Lifshits, a lawyer practising in St Petersburg, and Mr I.V.", "Starov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants each alleged that the judgments in their civil cases had not been pronounced publicly as required by Article 6 § 1 of the Convention. 4.", "On 13 January 2012 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Application of Ms Malmberg 5. The applicant was born in 1957 and lives in St Petersburg.", "6. She had a dispute with private individuals over a contract of sale for a flat, concluded in 1998, in which the applicant was the purchaser. According to the contract, she was to pay the equivalent of 26,500 US dollars (USD) in two instalments: half of the price on signing the contract, and the rest before 2 January 1999. The sellers were to vacate the flat before the same date. The applicant paid a sum equal to USD 13,250 on signing the contract and a further sum equal to USD 6,155 in 2001, but never paid the remaining sum.", "The sellers were evicted from the flat in 2004. The applicant claimed interest on the amounts paid by her for the period up to the time at which she had taken possession of the flat. 7. At a public hearing on 17 March 2004, in the presence of the applicant’s representative and the defendants, the Vasileostrovskiy District Court of St Petersburg partially found for the applicant, awarding her interest on the amount of USD 13,250 at an annual rate of 12% for the period from 2 January 1999 until the day on which she had taken possession of the flat, and dismissed the remainder of her claims. It read out the operative part of its judgment.", "8. At a public hearing on 21 December 2004 the St Petersburg City Court examined the case on appeal in the presence of the applicant’s representative and the defendants. It quashed the part of the judgment in which the District Court had found for the applicant, and dismissed the applicant’s claims in view of her own failure to pay the price of the flat in full. It upheld the remainder of the judgment. The applicant’s claims were thus dismissed in their entirety.", "9. At the close of the hearing the City Court read out the operative part of its judgment. 10. On 17 January 2005 the applicant’s representative received a copy of the City Court’s reasoned judgment. B.", "Application of Mr Tazikov 11. The applicant was born in 1957 and lives in Ulyanovsk. 12. A private individual brought proceedings against the applicant seeking recovery of a debt in the amount of 1,116,619 Russian roubles (RUB). 13.", "At a public hearing on 13 October 2008 the Leninskiy District Court of Ulyanovsk examined the case in the presence of the claimant and the applicant’s representative. It ordered that the applicant pay the amount of the debt in full, as well as interest in the amount of RUB 10,000 and the court fee in the amount of RUB 2,861.19. 14. At the close of the hearing the District Court read out the operative part of its judgment. 15.", "On 16 October 2008 a copy of the District Court’s reasoned judgment was sent to the applicant by post. 16. At an open hearing on 25 November 2008 the Ulyanovsk Regional Court examined the case on appeal in the presence of the parties’ representatives. It dismissed the applicant’s appeal and upheld the judgment. At the close of the hearing the Regional Court read out the operative part of its judgment.", "17. On 9 December 2008 the applicant’s representative received a copy of the Regional Court’s reasoned judgment. C. Application of Ms Shevchenok 18. The applicant was born in 1958 and lives in Tyumen. 19.", "The Tavda Town Administration brought proceedings against the applicant for recovery of “unjust enrichment” in the amount of RUB 175,276.40 resulting from the use of a plot of urban land for a period of two years and interest in the amount of RUB 17,704.57. 20. At a public hearing on 26 June 2009 the Tavda Town Court of the Sverdlovsk Region examined the case in the presence of the claimant’s representative and the applicant. It found for the claimant and ordered that the applicant repay the sum gained through unjust enrichment and interest as claimed, as well as the court fee in the amount of RUB 3,529.80. 21.", "At the close of the hearing the Town Court read out the operative part of its judgment. 22. On 2 July 2009 the applicant received the Town Court’s reasoned judgment. 23. The applicant appealed against the judgment.", "24. On 18 August 2009 the Sverdlovsk Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment. It rejected the applicant’s argument that the Town Court’s judgment had not been pronounced publicly as required by Article 6 § 1 of the Convention, stating that the Town Court had read out the operative part of its judgment at the hearing and prepared the reasoned judgment within five days thereafter in compliance with domestic law. D. Application of Ms Surkova 25. The applicant was born in 1946 and lives in Moscow.", "26. The applicant brought proceedings against the Moscow department of the Federal Service for State Statistics, challenging its refusal to employ her for the campaign of the population census on the ground of her disability and claiming damages in the amount of RUB 356,145. The applicant argued, in particular, that despite her disability she was perfectly fit for the work and that she had successfully performed that type of work in the past. 27. At a public hearing on 30 October 2009 the Basmanniy District Court of Moscow examined the case in the presence of the applicant and the defendant’s representative.", "It dismissed her claims in full, having found, inter alia, that the refusal to employ her had been lawful in view of a medico‑social expert report confirming her total incapacity for any kind of work. The District Court noted that it had been open to the applicant to challenge the conclusion of the medico-social expert report, but that she had chosen not to do so. At the close of the hearing the court read out the operative part of its judgment. 28. On 17 November 2009 the applicant received a copy of the District Court’s reasoned judgment.", "29. On 28 January 2010 the Moscow City Court dismissed the applicant’s appeal and upheld the District Court’s judgment. The City Court read out the operative part of its judgment at the close of its public hearing in the presence of the parties’ representatives. The applicant’s representative received a copy of its reasoned judgment in March 2010. II.", "RELEVANT DOMESTIC LAW A. Code of Civil Procedure 30. Article 10 § 8 of the Code of Civil Procedure of the Russian Federation of 2002, in force at the material time, provided: “Judgments shall be pronounced publicly, save in cases where the public pronouncement of a judgment would infringe the rights and lawful interests of a minor.” 31. Article 199 of the Code provided: “Judgment shall be delivered immediately after the examination of a case. The preparation of a reasoned judgment may be postponed for not more than five days from the date on which the examination of the case ended, provided that the court has pronounced the operative part of the judgment at the same hearing in which the examination of the case ended.", "The pronounced operative part of the judgment shall be signed by all judges and included in the case file.” 32. Under Article 193 § 2 of the Code, if only the operative part of the judgment was read out at the hearing, the presiding judge had to announce when parties to the proceedings and their representatives would become acquainted with the reasoned judgment. 33. Under Article 198 of the Code, judgments were to include an introduction (including the date and place of the adoption of the judgment, the name and composition of the court, the registrar, parties to and other participants in the proceedings, their representatives, and the subject matter of the dispute), a description (the claims and parties’ submissions), the reasons (the circumstances of a case as established by the court, the evidence on which the court based its conclusions, the reasons for which the court rejected one or another piece of evidence, and the statutes by which the court was governed) and an operative part (the court’s decision whether to grant or reject the suit, instructions as to how court costs should be divided and explanations concerning an appeal against the judgment). 34.", "Under Article 214 of the Code, copies of judgments were to be sent to those participants in the proceedings who had not been present at the court hearing not later than five days after the adoption of the final text of the judgment. B. Instructions of the Courts Administration Office at the Supreme Court of the Russian Federation 35. The Courts Administration Office at the Supreme Court of the Russian Federation provides administrative support for district and regional courts. In particular, it organises their clerical work, including archives.", "Thus, at the material time, the clerical work in a district court was governed by Courts Administration Office Instruction no. 36 of 29 April 2003 (“the Instruction”). 36. Paragraph 12.1 of the Instruction contained an exhaustive list of persons who could consult a case file in a court building. For civil proceedings, it was limited to the parties to the proceedings, their representatives, other participants in the proceedings, judges and officers of higher courts, public prosecutors and officers of the Courts Administration Office.", "37. Paragraph 12.4 of the Instruction provided that, at the discretion of the president or deputy president of a court, a copy of case-file documents could be given to the parties to the civil case and their representatives. 38. The Instruction was unsuccessfully challenged in the Supreme Court. In its decision of 2 November 2004, the latter found that the Instruction had fully complied with the Code of Civil Procedure of 2002.", "The Supreme Court relied on Articles 34 and 35 of the Code, which vested the right to consult a case file and receive a copy of judgments and other documents only in the participants in the proceedings. On 13 January 2005 the decision was upheld by the Cassation Division of the Supreme Court. 39. The relevant part of paragraph 12.4 of the Instruction, as amended on 23 January 2007, read as follows: “Original case-file documents and their certified copies ... are issued by authorised officers of the court’s registry or archives to ... participants in the civil proceedings and their representatives ... Copies of final judgments in civil cases are issued to other persons if those persons’ rights and lawful interests have been infringed by the judgments ... ... copies of final judgments are issued in the order as established by the president of the court ...” 40.", "In accordance with Courts Administration Office Instruction no. 169 of 28 December 1999 (paragraph 12.19) and Instruction no. 161 of 13 December 2004 (paragraph 12.16), a judgment by an appeal instance is dispatched after its delivery (not later than five and seven days, respectively), together with the case file, to the first-instance court that delivered the judgment in the case. C. Law no. 262-FZ 41.", "Federal Law no. 262-FZ of 22 December 2008 on Access to Information on the Functioning of Courts in the Russian Federation (Об обеспечении доступа к информации о деятельности судов в Российской Федерации), which came into force on 1 July 2010, provided for the publication of domestic courts’ judgments on the internet. THE LAW I. JOINDER OF THE APPLICATIONS 42. Given that the applications at hand raise an identical issue under the Convention, the Court decides to join them in accordance with Rule 42 § 1 of the Rules of Court. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 43. The applicants complained that the judgments in their civil cases had not been “pronounced publicly”, as required by Article 6 § 1 of the Convention, the relevant part of which reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” A. The parties’ submissions 1. The Government 44.", "The Government submitted that the courts in the applicants’ civil proceedings had acted in accordance with the domestic law, which at the material time did not provide for compulsory publication of judgments or for making copies of them available to persons other than participants in the proceedings. That problem had been identified by the Court in its judgment in the case of Ryakib Biryukov v. Russia (no. 14810/02, ECHR 2008). The Government acknowledged that the Court’s findings in that judgment were applicable to the present applications. 45.", "The Government further stated that as a result of the enactment of Law no. 262‑FZ, which provided for the compulsory publication of judgments on the internet, the requirement under Article 6 § 1 of the Convention that judgments be pronounced publicly had been complied with. The authorities had thus taken measures to prevent the same violation as that found in the Ryakib Biryukov judgment. The Government submitted that, given that the enactment of new legislation had reasonably required a significant period of time, the State should not be held responsible for its failure to comply with the requirement that judgments be pronounced publicly in the applicants’ cases. 46.", "The Government noted that no requests for access to the judgments in the applicants’ cases had been received by the courts from third parties who had not participated in the proceedings. It would have been open for them to appeal to a court against any refusal to give them such access, pursuant to the provisions of the Code of Civil Procedure, as interpreted by the Constitutional Court of the Russian Federation in its decision no. 1‑P of 20 February 2006. They also noted that at the material time it had not been the practice of the domestic courts to prepare records of court hearings on appeal. 47.", "The Government concluded that the applications should be declared inadmissible as manifestly ill-founded. 2. The applicants 48. The applicants maintained their complaints. 49.", "In particular, Ms Malmberg disagreed with the Government that the problem of the lack of publicity of judgments had been successfully resolved by the adoption of Law no. 262-FZ. She also submitted that there was no information in the final text of a judgment about the date on which it had actually been prepared, in the absence of such a requirement in the Code of Civil Procedure. 50. Ms Surkova submitted that the preparation of the final texts of the District Court’s and City Court’s judgments had been delayed for seventeen and more than twenty days respectively.", "In the absence of the relevant requirement in the Code of Civil Procedure, there was no information as to the dates on which those final texts had been prepared. She also argued that Law no. 262-FZ could not be applied to the facts of her case as they took place before it had entered into force. Furthermore, the domestic law in force at that time, in particular Article 123 § 1 of the Constitution and Article 11 of the Code of Civil Procedure, had laid down a sufficient basis for the courts to administer justice and pronounce judgments openly and publicly. B.", "The Court’s assessment 1. Admissibility 51. The Court notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "2. Merits 52. The Court has previously found a violation of Article 6 § 1 of the Convention by the respondent State on account of the lack of public access to a reasoned judgment in a civil case in which only the operative part of the judgment was read out in open court and the full text of the judgment was prepared later (see Ryakib Biryukov, cited above, §§ 28-46). 53. Turning to the facts of the present applications and taking into account the proceedings as a whole (see, for example, Axen v. Germany, 8 December 1983, §§ 27 and 32, Series A no.", "72, and Moser v. Austria, no. 12643/02, § 101, 21 September 2006), the Court observes that the St Petersburg City Court, the Ulyanovsk Regional Court and the Moscow City Court read out the operative parts of their judgments at public hearings, that they prepared the full texts of their judgments later, and that the reading out of the lower courts’ judgments – which they upheld on appeal fully or partially – was also limited to their operative parts. The Tavda Town Court likewise publicly pronounced the operative part of its judgment, which – in so far as the material before the Court suggests – was not made any more public by the appeal court by which it was upheld. 54. The Government submitted that the domestic law in force at the material time had not provided for compulsory publication of judgments or for otherwise making their full texts available to persons who had not participated in the proceedings.", "The Government acknowledged that the Court’s finding in its Ryakib Biryukov judgment was therefore applicable to the applications at hand (see paragraph 44 above). 55. The Court sees no reason to disagree with the Government. It concludes that, as there were no means of ensuring publicity other than by reading out the operative parts of the judgments in open court, the judgments of the above-mentioned courts remained inaccessible to the public. The possibility of granting those whose rights and lawful interests had been infringed access to the judgments (see paragraph 39 above) was insufficient to comply with the publicity requirement (see, mutatis mutandis, Moser, cited above, § 103).", "56. As to the Government’s argument that Law no. 262-FZ provided for the compulsory publication of judgments on the internet in compliance with the requirement to pronounce judgments publicly, the Court notes that the events complained of in the instant case took place before that legislation entered into force on 1 July 2010 (see paragraph 41 above and Buscarini and Others v. San Marino [GC], no. 24645/94, § 40, ECHR 1999‑I). 57.", "The foregoing considerations are sufficient for the Court to conclude that the object pursued by Article 6 § 1 in this context – namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – was not achieved in the present cases. The court’s reasoning, which would have explained why the applicants’ claims had been rejected, was inaccessible to the public. 58. There has accordingly been a violation of Article 6 § 1 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 59. As regards the applicants’ remaining complaints concerning, in particular, the unfavorable outcome of their civil proceedings, 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. 60. It follows that these parts of the applications are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. Ms Malmberg claimed 3,000 euros (EUR) in respect of non‑pecuniary damage suffered as a result of the violation of the publicity requirement in her proceedings. Mr Tazikov claimed EUR 50,000 in respect of non‑pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments delivered in his case and the outcome of his civil proceedings.", "Ms Shevchenok claimed EUR 7,000 in respect of non‑pecuniary damage suffered on account of the violations of the Convention alleged by her. Ms Surkova claimed 208,650 Russian roubles (RUB, approximately EUR 5,348) in lost wages as a result of the refusal of her employment, and RUB 300,000 (approximately EUR 7,690) in respect of non‑pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments in her case and other alleged violations of the Convention. 63. The Government considered the applicant’s claims excessive and unreasonable. They also submitted that there was no causal link between the applicants’ claims and the alleged violation of the Convention.", "Relying on the case of Ryakib Biryukov, cited above, the Government argued that if the Court were to find a violation of Article 6 § 1 of the Convention in the present case, the finding of a violation would constitute in itself sufficient just satisfaction. 64. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Ms Surkova and therefore dismisses that claim. As to the applicants’ claims in respect of non‑pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments delivered in their cases, the Court considers that the finding of a violation of Article 6 § 1 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. B.", "Costs and expenses 65. Ms Malmberg claimed RUB 596.40 (approximately EUR 15) in postal and copying costs incurred in the proceedings before the Court. Ms Surkova claimed RUB 89,000 (approximately EUR 2,281) for the costs and expenses incurred before the domestic authorities and the Court. The other applicants made no such claims. 66.", "The Government agreed with Ms Malmberg’s claim of RUB 521.50 in postal expenses, and Ms Surkova’s claim of RUB 13,000 in translation costs and RUB 1,087.90 in postal expenses, and disagreed with the remainder of the claims. 67. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 13 for postal and copying expenses to Ms Malmberg, to be paid directly into the bank account of the applicant’s representative, as requested by her, and the sum of EUR 358 for postal, copying and translation expenses to Ms Surkova. It rejects the remainder of the claims.", "C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaint concerning the lack of the public pronouncement of the judgments admissible and the remainder of the applications inadmissible; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants; 5. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) to Ms Malmberg EUR 13 (thirteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the applicant’s representative’s bank account; (ii) to Ms Surkova EUR 358 (three hundred and fifty-eight 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 applicants’ claims for just satisfaction. Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "THIRD SECTION CASE OF DUMIKYAN v. RUSSIA (Application no. 2961/09) JUDGMENT STRASBOURG 13 December 2016 FINAL 13/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dumikyan v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "2961/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Mkptych Semenovich Dumikyan (“the applicant”), on 11 December 2008. 2. The applicant was represented by Mr G. Isakayev, a lawyer practising in Kurgan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The Armenian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).", "3. The applicant alleged, in particular, that the conditions of his detention in a remand prison had been appalling, that he had not had access to adequate medical care whilst in detention, and that his detention between 12 August and 23 September 2008 had been unlawful and unjustified and therefore in breach of Article 5 § 1 of the Convention. 4. On 5 April 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1970 in Armenia. Until his arrest in 2008 he lived in Kurgan, Russia. On 20 September 2012 the Sverdlovsk Region office of the Federal Migration Service ordered his deportation to Armenia. It seems that the deportation order was executed on 11 October 2012.", "A. Circumstances leading to the applicant’s arrest 6. On 3 August 2008 the applicant, while under the influence of alcohol, took a car without the owner’s consent and crashed into a tree. As a result of this accident he sustained multiple injuries, including a thighbone fracture, a dislocated hip and facial wounds. 7.", "The applicant was taken by ambulance to Kurgan Town Hospital where he was admitted to an intensive care unit. He was connected to a medical ventilator and subjected to emergency anti-shock treatment. The doctors sutured his wounds. A metal pin for skeletal traction was inserted through the heel bone of his broken leg and the applicant was placed in a special metal frame with weights attached to his injured leg. 8.", "Several days later his condition improved and he was transferred to a trauma department, where he remained bedridden in a skeletal traction frame. Osteosynthesis surgery was to be performed in due course. 9. On 6 August 2008 the police opened a criminal case into car theft. 10.", "It appears that during the investigation the authorities learned that the applicant was wanted by the authorities of the Republic of Belarus for a murder allegedly committed in 2003 in Minsk. 11. A police investigator asked the attending doctor whether the applicant could be discharged from hospital and transferred to a detention facility. 12. On an unspecified date the doctor informed the investigator that the applicant was in need of inpatient treatment on account of multiple injuries, including facial injuries, a dislocated hip and a thighbone fracture.", "Citing the seriousness of his condition the doctor noted that the applicant could not be transported to a court or police station. The doctor stated that police detention centres and remand prisons in Kurgan were unable to ensure the appropriate medical care to the applicant. 13. On 8 August 2008 the investigator reported the content of the above letter to his superior. 14.", "Four days later, upon a request from an investigator, a medical expert commenced an examination of the applicant to assess the seriousness of his injuries. Without informing the hospital administration and without having received the results of the expert examination, the police arrested the applicant and took him to remand prison no. IZ-45/1 in Kurgan. It does not seem that any special arrangements for the applicant’s transport were made. 15.", "It was noted in the expert report completed on 3 September 2008 that the applicant’s injuries were of “medium” seriousness. B. Detention and conviction 1. Detention pending extradition 16. On 13 August 2008 the Kurgan Town Court, at the request of the Kurgan prosecutor and in the absence of the applicant, ordered his detention pending the receipt of an extradition request from the Belarusian authorities.", "That ruling was based on Article 466 of the Code of Criminal Procedure of Russia (“the CCrP”) and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). 17. On 21 August 2008 the Kurgan Regional Court quashed the order of 13 August 2008 in view of the applicant’s absence from the hearing before the Town Court. The Regional Court remitted the issue for fresh consideration. 18.", "A week later, this time after hearing evidence from the applicant, the Town Court, on the basis of the same legal provisions, ordered his detention until receipt of the extradition request from the Republic of Belarus. 19. On 4 September 2008 the Regional Court upheld the applicant’s detention on appeal. 20. According to the applicant, only on 14 October 2008 did the Prosecutor General’s Office inform the competent Belarusian authorities of the applicant’s arrest.", "21. The General Prosecutor of the Republic of Belarus requested the applicant’s extradition. 22. On 25 August 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition to stand trial in Belarus. 23.", "According to the applicant, in March 2010 he was extradited to the Republic of Belarus. 24. On 23 March 2010 the Belarusian authorities closed the criminal case due to the absence of corpus delicti in the applicant’s actions. He was then returned to Russia. 2.", "Detention pending investigation into the car accident 25. In the meantime, on 29 August 2008, in the context of the criminal investigation into car theft, the Kurgan Town Court ordered the applicant not to leave Kurgan. 26. On 23 September 2008 the Town Court changed the measure of restraint to detention pending investigation. The decision was based on the seriousness of the charges, the fact that the applicant had been on the run and had no permanent residence in Russia.", "The Regional Court upheld that detention order on appeal. 27. On 22 November 2008 the Town Court extended the applicant’s detention until 5 December 2008, citing the seriousness of the charges and the lack of a permanent residence in Russia. 28. On 4 December 2008 and 4 January 2009 the Town Court again extended the applicant’s detention until 5 and 30 January 2009, respectively.", "In addition to the previously employed arguments, the detention orders were held to be justified by the necessity to complete the investigation. The latest detention order was upheld on appeal by the Regional Court on 15 January 2009. 3. Conviction 29. On 27 March 2009 the Kurgan Town Court convicted the applicant of car theft and sentenced him to four years’ imprisonment in a correctional colony.", "30. On 26 May 2009 the Regional Court upheld the conviction and sentence, but amended the type of the detention facility where the applicant was to serve his sentence to a settlement colony. C. Medical treatment and the conditions of detention 31. It is clear from entries made by civilian doctors in the applicant’s medical history on 12 August 2008, the day of his arrest, that he was in satisfactory health; his body temperature, which had fluctuated for several days, was 37.7˚C; the pain syndrome was decreasing; his stitches were dry; and no signs of inflammation were present. The metal pin remained in his leg.", "In the discharge summary drafted on account of the applicant’s arrest, “continued medical treatment” and crutches were prescribed. The attending doctor explicitly noted that the patient had been taken from the hospital without the consent of the chief doctor. 32. On admission to the remand prison the applicant was examined by a feldsher (medical assistant), who recorded the visible bodily injuries. No medical tests were performed and no treatment was prescribed.", "The applicant was not provided with any mobility aid devices, such as a wheelchair, crutches or a walking stick. 33. It was not disputed by the parties that the next day the applicant had been placed in a cell designed to accommodate a maximum of four inmates. The cell measured 15.4 sq. m. On 13 August and between 15 and 19 August 2008 the applicant had to share that cell with seven other inmates, with each inmate thus having no more than 1.9 sq.", "m of floor space. Several inmates, including the applicant, had no places to sleep. 34. According to the applicant, in the remand prison he experienced a leg pain, nausea and loss of consciousness. 35.", "Medical entries show that the applicant was seen by a prison doctor for the first time on 18 August 2008, in response to his complaints of pain, nausea and vertigo. After a visual examination, the doctor ordered the transfer of the applicant to Regional Anti-Tuberculosis Prison Hospital no. OF-73/1 in Kurgan (“the prison hospital”) “for treatment and skeletal traction”. The transfer was performed the next day. 36.", "In the prison hospital several medical tests were performed. Owing to technical problems the applicant could not undergo an X-ray examination of his legs ordered by a doctor. He was seen by a surgeon and a neurologist. 37. The surgeon, having considered the time that had passed from the termination of the skeletal traction, removed the metal pin from the applicant’s leg.", "A walking stick was prescribed. 38. The neurologist diagnosed the applicant with vegetative-vascular dystonia and prescribed a month-long drug regimen. 39. The applicant was discharged from hospital on 27 August 2008 in a “satisfactory condition”.", "40. The medical documents in the Court’s possession cover the period up to 21 May 2009. They show that at that time the applicant was seen by the prison doctor on account of his chronic peptic and liver conditions. It does not appear that he underwent any medical examination or treatment related to the leg condition. 41.", "As to the conditions of the applicant’s detention during that period, the Government submitted that the applicant had been transferred between several cells of the remand prison, some of which were overcrowded. In particular, between 30 September and 8 October 2008, between 26 January and 19 March, 24 March and 10 April, 11 April and 2 June 2009 the applicant was afforded less than 2.7 sq. m of floor space, and occasionally less than 2 sq. m. According to the applicant, the cells were poorly ventilated, had non-partitioned toilets and were infested with bugs, mice and lice. 42.", "On 2 June 2009, the applicant was sent to serve his sentence in a settlement colony. He was released on 22 September 2012, after having served his sentence in full. 43. According to him, he continued to walk with a limp after the release, because the broken leg had knitted in a wrong position. II.", "RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS A. Conditions of detention 44. The applicable provisions of domestic law and international documents are cited in the cases of Mela v. Russia (no. 34044/08, §§ 30 and 31, 23 October 2014) and Sudarkov v. Russia (no. 3130/03, § 30, 10 July 2008).", "B. Medical care afforded to detainees 45. The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015). C. Detention pending extradition proceedings 46.", "For the summary of relevant domestic and international law on the detention pending extradition, including Article 466 of the CCrP and Article 61 of the Minsk Convention, see the case of Nasrulloyev v. Russia (no. 656/06, §§ 48-56, 11 October 2007). THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT A PART OF THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 47. The Government submitted a unilateral declaration concerning issues raised under Articles 3 and 5 of the Convention which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1).", "The Court rejects the Government’s request to strike out a relevant part of the application and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION 48. The applicant complained that the conditions of his detention in the remand prison from 12 August 2008 to 2 June 2009 had been incompatible with Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 49.", "In their observations of 19 October 2012 the Government acknowledged that the conditions of the applicant’s detention in the remand prison had been incompatible with the requirements of Article 3 of the Convention. In the further observations of 15 February 2013 they confirmed that position. 50. The applicant maintained his complaint. B.", "The Court’s assessment 1. Admissibility 51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 52. Having regard to the documents in the Court’s possession as well as to the Court’s findings in many similar cases concerning conditions of detention in Russian remand prisons (see Mela, cited above, §§ 61-69, 23 October 2014; Tsarenko v. Russia, no. 5235/09, §§ 47-53, 3 March 2011; Gorbulya v. Russia, no. 31535/09, §§ 64-73, 6 March 2014; Malyugin v. Russia, no.", "71578/11, §§ 20-23, 13 March 2014; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143-48, 161-62 and 166), it considers that the conditions of the applicant’s detention in the remand prison amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE QUALITY OF MEDICAL TREATMENT 53. The applicant complained that the authorities had not taken steps to safeguard his health and well-being, having failed to provide him with adequate medical assistance in breach of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 54.", "The Government submitted that the applicant’s medical condition in detention had not called for skeletal traction and that in custody he had received adequate medical care. In particular, several days after his arrest he had been transferred to a prison hospital for medical examination and treatment. He had been discharged from hospital in satisfactory condition and had thereafter received the prescribed treatment in full. 55. The applicant alleged that the interruption of the skeletal traction after his arrest had run contrary to the treatment needed for his medical condition and doctors’ recommendations.", "He stated that in the first week of his detention he had not received any painkillers to relieve the acute leg pain. The lack of skeletal traction had caused the broken bone to mend badly and resulted in a permanent limp. B. The Court’s assessment 1. Admissibility 56.", "The Court notes that the applicant’s 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. 2. Merits (a) General principles 57. The applicable general principles were recently summarised in the cases of Blokhin v. Russia [GC] (no.", "47152/06, §§ 135-40, ECHR 2016), and Ivko (cited above, §§ 91-95). (b) Application of the above principles to the present case 58. The Court reiterates, being sensitive to the subsidiary nature of its role, that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant’s needs (see Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008, and Sergey Antonov v. Ukraine, no. 40512/13, § 86, 22 October 2015).", "However, having regard to the vulnerability of applicants in detention, it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention (see Sergey Antonov, ibid.). 59. In the present case the applicant’s insistence on the necessity of that medical procedure was primarily based on the medical opinion of his attending doctor (see paragraph 12 above). In their turn, the Government pointed to the fact that skeletal traction had been explicitly recommended neither in the discharge summary, nor by the surgeon of the prison hospital (see paragraphs 31 and 37 above). 60.", "The Court notes that a few days before the applicant’s arrest his attending doctor opposed the interruption of his treatment. It is evident that the treatment had not been completed on 12 August 2008, the day of the applicant’s arrest, as he still remained under skeletal traction. Even if the discharge summary did not explicitly mention skeletal traction, the doctor’s order prescribing the “continuation of the treatment” could hardly be interpreted in any other way than the need to continue that treatment, as it was the method used to treat the applicant. This is particularly so when one takes into account that treatment with skeletal traction is of a continuous nature. The Government cited the prison surgeon’s decision to remove the metal pin from the applicant’s bone as evidence that that procedure was not necessary.", "However, that decision was made in the absence of an X-ray examination and a significant amount of time after the interruption of the therapy. Even if skeletal traction was unnecessary at that time the Court finds that it was exigent at the time of the applicant’s arrest. 61. In addition to the interruption of the skeletal traction itself, the Court notes the manner in which the applicant was arrested and taken to the remand prison. In particular, it notes that the police, in blunt disregard of the opinion of the attending doctor regarding the applicant’s serious medical condition, and without introducing any special arrangements for his transport, interrupted his therapy and took him to the prison.", "In the following days the applicant, whose grave health condition was evident to the authorities, was not only left without medical attention and assistance, but also placed in a severely overcrowded cell without a sleeping place. He was provided neither with the prescribed crutches nor with painkillers. 62. The Court notes that a week later the remand prison’s authorities ensured the applicant’s admission to the prison hospital. However, that belated measure was not capable of remedying the aforementioned major failures on the part of the authorities.", "The applicant was not subjected to a key medical test – an X-ray examination (see paragraph 36 above). The surgeon did not consider whether it was necessary to remedy the interruption of the therapy. He also failed to assess whether the lack of the treatment at the initial, most crucial, stage of the therapy had led to certain health issues, such as possible misunion of the bones in need of correction or closer medical attention. Furthermore, no follow-up on the necessity of osteosynthesis, prescribed by civilian doctors, was carried out by the prison medical staff. 63.", "Lastly, the Court cannot overlook the fact, which was not disputed by the Government, that after the medical treatment received in detention the applicant developed a perpetual limp and had constantly to use a walking stick. 64. Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the inadequate medical care and the inappropriate conditions in which the applicant was held throughout his detention, which clearly had a detrimental effect on his health and well‑being (see Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002 VI), the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading (see Musiałek and Baczyński v. Poland, no. 32798/02, § 137, 26 July 2011; Labzov v. Russia, no.", "62208/00, § 45, 16 June 2005; Mayzit v. Russia, no. 63378/00, § 42, 20 January 2005; and Egmez v. Cyprus, no. 30873/96, § 77, ECHR 2000-XII). 65. There has accordingly been a violation of Article 3 of the Convention on account of the quality of the medical treatment in detention.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 66. The applicant complained under Article 5 of the Convention that his detention between 12 August and 23 September 2008 pending extradition proceedings had been arbitrary and unlawful. The applicable provisions of that Article read as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Submissions by the parties 67. The Government acknowledged that the applicant’s detention from 12 August to 23 September 2008 had been unlawful and thus in breach of Article 5 § 1 of the Convention. 68. The applicant maintained his complaints. B.", "The Court’s assessment 1. Admissibility 69. The Court notes that the applicant’s 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. 2.", "Merits 70. Having regard to the Government’s admission, as well as to its earlier findings in cases raising a similar issue (see, for instance, Yefimova v. Russia, no. 39786/09, § 261, 19 February 2013; Abdulkhakov v. Russia, no. 14743/11, §§ 170-73, 2 October 2012; and Nasrulloyev, cited above, § 77, 11 October 2007), the Court finds that the applicant’s detention between 12 August and 23 September 2008 was not covered by any domestic legal provision clearly establishing the grounds for his detention and the procedure and the time-limits applicable to that detention pending the receipt of the extradition request. 71.", "There has therefore been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention during the mentioned period. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 72. Lastly, the applicant complained under Articles 13 and 14 of the Convention of the lack of effective remedies to complain of the unfairness of his criminal proceedings and of the discrimination against him on the grounds of his ethnic origin and nationality. 73. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention.", "It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VI. 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 1.", "Pecuniary damage 75. The applicant claimed 578 euros (EUR) in respect of pecuniary damage on account of his allegedly unlawful extradition to the Republic of Belarus in 2012. 76. The Government argued that the claim was irrelevant to the circumstances of the case. 77.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged, it therefore rejects this claim. 2. Non-pecuniary damage 78. The applicant claimed EUR 450,000 in respect of non-pecuniary damage. 79.", "The Government stated that the claim was excessive. 80. The Court, making its assessment on an equitable basis, considers it reasonable to award the applicant EUR 19,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 81.", "The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 82. The Government argued that the applicant had not provided any evidence in support of his claim to show that those expenses had indeed been incurred. 83. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Rejects the Government’s request to strike out of the list a part of the application concerning issues raised under Articles 3 and 5 of the Convention; 2.", "Declares the complaints concerning the conditions of detention in the remand prison, the quality of medical treatment in detention and the compatibility of the applicant’s detention with the requirement of Article 5 § 1 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand prison; 4. Holds that there has been a violation of Article 3 of the Convention on account of the quality of medical treatment in detention; 5. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention between 12 August and 23 September 2008; 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 19,500 (nineteen thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount.", "This amount is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]
[ "FIFTH SECTION CASE OF HAJILI AND OTHERS v. AZERBAIJAN (Applications nos. 44699/13 and 2 others – see appended list) JUDGMENT STRASBOURG 29 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Hajili and Others v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Nona Tsotsoria, President,Síofra O’Leary,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 6 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 44699/13, 47040/13 and 65283/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Azerbaijani nationals, Mr Ramin Rasim oglu Hajili (“the first applicant”), Ms Nargiz Tofig gizi Yagublu (“the second applicant”) and Mr Agil Arif oglu Aliyev (“the third applicant”), on various dates in 2013 (see Appendix).", "2. On 23 April 2015 Ms Yagublu (application no. 47040/13) passed away. Her sister, Nigar Tofig gizi Yagublu, informed the Court of her wish to pursue the application introduced by the late applicant. 3.", "The applicants were represented by Mr I. Aliyev, a lawyer practicing in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 4. On 29 August 2014 the complaints concerning Articles 5, 6 and 11 of the Convention, raised in all three applications, and Article 10 of the Convention, raised only in application no. 65283/13, were communicated to the Government.", "On the same date the remainder of all three applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants’ dates of birth and places of residence are given in the Appendix. A. Administrative arrests 7. On 12 January, 26 January and 10 March 2013 demonstrations were planned to be held in Baku.", "It appears that the organisers of the demonstrations gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the demonstrations was disseminated through Facebook or the press. 8. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The demonstrations of 12 January and 10 March 2013 were aimed at protesting about the deaths of soldiers in the army, while the demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations.", "9. Each applicant attended one of the demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All three applicants were arrested during the dispersal operations and were taken to police stations. According to the second applicant, during the demonstration she was giving an interview to the media and the moment of her arrest was recorded. 10.", "The applicants were questioned at the police stations they had been taken to. 11. On the day of each applicant’s arrest administrative-offence reports (inzibati xəta haqqında protokol) were issued, which stated that the applicants had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”) (participation in a public assembly that was not organised in accordance with the law). 12. According to the first and second applicants, they were never served with copies of the administrative-offence reports or with other documents from their case files.", "13. According to the first and third applicants, they were not given access to a lawyer after their arrest or while they were in police custody. 14. According to a statement (ərizə) written by the second applicant at the police station on the day of her arrest, she refused the services of a lawyer. 15.", "The first applicant was released after being kept in police custody for a few hours, subject to an undertaking to reappear at the police station two days later. B. Court proceedings against the applicants 16. The third applicant was taken to a trial court directly from the police station on the day following his arrest. The first applicant was brought before a first-instance court on the date he returned to the police station.", "The second applicant was brought before a court on the day of her arrest; however, the hearing was postponed for two days to allow her to hire a lawyer of her own choosing. 17. A State-funded lawyer was appointed to assist the first applicant. The second and third applicants were not represented by a lawyer. According to documents from the case file of the second applicant, on the day the hearing recommenced, the lawyer she had hired failed to appear and she decided to defend herself in person.", "18. None of the material submitted to the Court contains any records showing that the State-funded lawyer, Mr V.M., made any oral or written submissions on behalf of the first applicant. 19. The only witnesses questioned during the court hearing with respect to the second applicant were the police officers who, according to the official records, had arrested her or had drawn up the administrative-offence report. The police officers testified that the applicant had staged an unauthorised demonstration.", "No witnesses were questioned by the courts in the first and third applicants’ cases. 20. The first-instance courts found that the applicants had participated in unauthorised demonstrations. The applicants were convicted under Article 298.2 of the CAO and sentenced to fines of 450, 500 and 600 Azerbaijani manats (AZN) respectively (see Appendix). 21.", "On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights because the demonstrations in which they had participated had been spontaneous and peaceful. The applicants also complained that their arrests had been unlawful and that the hearings before the first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their cases. 22. The applicants were not represented before the Baku Court of Appeal by a lawyer.", "23. The appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. In the case of the second applicant the court in a similar way additionally refused to examine video recordings made by the media during her arrest. 24. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance courts (see Appendix).", "C. Seizure of the applicants’ case files 25. On 8 August 2014 Mr I. Aliyev, who represented all three applicants before the Court, was arrested on charges of large-scale tax evasion, abuse of power and illegal entrepreneurship. On the same day he was detained pending trial. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14).", "26. On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search the domestic authorities seized a large number of documents, including all the case files relating to the pending applications before the Court, which were in Mr Aliyev’s possession as a representative. The files relating to the present cases, which, it appears, included copies of all the documents and correspondence between the Court and the parties, were also seized in their entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014.", "27. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He further complained about the seizure of the documents and files relating to the pending court proceedings before the Court and the domestic courts. 28. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim.", "It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic courts, it found that they could not be returned to the applicants at that stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014. 29. On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged with the Court, including the files relating to the present cases, to Mr Aliyev’s lawyer.", "The investigator’s relevant decision specified that “since it [had] been established that among the documents seized on 8 and 9 August 2014 there [had been] files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which ha[d] no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] ha[d] been delivered to [Mr Aliyev’s lawyer,] Mr Javad Javadov”. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS 30. At the time of the applicants’ arrest, Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 provided that no prior written notification was required for spontaneous assemblies. 31.", "Before amendments were introduced by Law no. 462-IVQD of 2 November 2012, a breach of the rules on the organisation and holding of assemblies had been punishable under Article 298 of the Code of Administrative Offences of 2000 (“the CAO”) by a reprimand or a fine of AZN 7 to AZN 13. 32. Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO on breaching the rules on the organisation and holding of assemblies.", "Under that amendment, participation in an assembly organised in breach of such rules became explicitly punishable under Article 298.2 of the CAO and punishments in the form of administrative detention of up to fifteen days or community service were introduced for the first time. In addition, the fine for a breach of the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; AZN 1,500 to AZN 3,000 for individuals who organise an assembly; AZN 3,000 to AZN 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and AZN 30,000 for legal entities involved in the organisation of an assembly. 33. Pursuant to Presidential Order (sərəncam) no. 1866 of 1 December 2011, which was in force until 1 September 2013, the minimum wage in Azerbaijan was AZN 93.5.", "34. The relevant extracts of the Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe, “The honouring of obligations and commitments by Azerbaijan”, read as follows: “... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media. 11.", "The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association. The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard. 12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression.", "The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern. ...” 35. The relevant extracts of the Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows: “... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in demonstrations.", "77. The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed. ...” 36. For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning the organisation and holding of public assemblies, and the relevant extracts of international documents see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no.", "60259/11, §§ 27-42, 15 October 2015). THE LAW I. JOINDER OF THE APPLICATIONS 37. Given the similarity of the facts and complaints raised in all three applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 38.", "The applicants complained that the dispersal of the demonstrations by the police and their arrest and conviction for an administrative offence had been in breach of their freedom of assembly, as provided for in Article 11 of the Convention, which reads as follows: Article 11 “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.” 39.", "The third applicant also relied on Article 10 of the Convention, which reads as follows: Article 10 “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 40. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 1. Scope of the third applicant’s complaints 41. The Court notes that in the circumstances of the present case Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaint under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no.", "21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015). 42. 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 enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).", "2. The parties’ submissions 43. The applicants argued that the authorities had not taken into consideration the fact that the demonstrations in question had been spontaneous assemblies and therefore no prior notification had been required by law. In particular, in respect of the demonstration of 12 January 2013, the first applicant submitted that the assembly had been held spontaneously in response to information about the suspicious death of a soldier (J.G.) on 7 January 2013.", "Deaths in the army in non-combat situations had been a serious and widespread problem in Azerbaijan. In respect of the demonstration of 26 January 2013, the second applicant submitted that the assembly had been a spontaneous expression of solidarity with the protests in Ismayilli which had taken place few days earlier and in which the authorities had used force against the protestors. In respect of the demonstration of 10 March 2013, the third applicant submitted that the assembly had been held spontaneously in response to information about another suspicious death of a soldier (S.A.) in a non-combat situation. 44. The applicants also submitted that the authorities had also not taken into consideration the fact that the demonstrations had been intended to be peaceful and had been held in a peaceful manner.", "45. The Government submitted that the demonstrations had been organised in breach of provisions of national legislation. They argued in particular that if steps had been taken to organise an assembly, even if those steps had taken place as little as one to two days before its intended date, the assembly could not be regarded as spontaneous. 46. They further argued that the dispersal of the demonstrations had been necessary in the interests of national security, for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.", "47. Lastly, the Government submitted that the police authorities had warned the organisers and the participants beforehand that the unauthorised assemblies would be dispersed. The applicants had also been aware of the authorities’ position on unauthorised assemblies and of the administrative penalties for participation in such gatherings. 3. The Court’s assessment 48.", "The Court notes from the outset that the organisers did not give the BCEA prior notice of the demonstrations at issue. Examining the applicants’ argument that no such notice was required by law, the Court notes that, indeed, under Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. Nevertheless, the applicants have failed to sufficiently substantiate their allegations that the demonstrations in which they participated were spontaneous. In particular, given that, as submitted by the first applicant, the death of soldiers in the army had already been a widespread problem in the country, it is not clear why it was urgent to hold demonstrations on specific dates – 12 January and 10 March 2013 – without giving five days’ written notice. Similarly, it is not clear why a demonstration in solidarity with the Ismayilli protests could not have been organised in conformity with the five-day written-notice requirement.", "In those circumstances, the Court is ready to accept that the dispersal of the demonstrations on 12 January, 26 January and 10 March 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016). 49. Turning to the question whether it was necessary in a democratic society to disperse those demonstrations and to convict the applicants, the Court notes that the issues raised by the applicants and the facts of the present cases resemble those of the Gafgaz Mammadov case. Therefore, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present cases have not adduced relevant and sufficient reasons justifying the dispersal of the demonstrations (see Gafgaz Mammadov, cited above, § 61).", "The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was itself protected by Article 11 of the Convention (ibid., § 63). 50. The dispersal of the demonstrations and the applicants’ arrests and convictions could not but have the effect of discouraging them from participating in political rallies. The measures applied in the present cases and the fear of sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly have a chilling effect on the exercise of freedom of assembly. This deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.", "51. In these circumstances, the Court finds a violation of Article 11 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 52. The applicants complained under Article 6 that they had not had a fair hearing in the proceedings concerning their alleged administrative offences.", "The relevant parts of Article 6 of the Convention read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. Admissibility 53. The Court notes that the complaints under Article 6, raised by all three applicants, 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 54. The first and second applicants submitted, in particular, that they had not been served with a copy of the administrative-offence reports issued on them or with other material from their case files prior to the hearing before the first-instance courts, or even later.", "The first and third applicants further submitted that they had not been assisted by a lawyer at the pre-trial stage. All three applicants argued that during the trial they had also not had effective legal assistance. In addition, the appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. Lastly, the second applicant submitted that the appellate court in a similar manner had refused to examine video recordings made by the media during her arrest. 55.", "The Government asserted that the applicants had had adequate time and facilities to prepare their defence. They also emphasised that some of the applicants had refused the assistance of State-funded lawyers and had decided to defend themselves in person. 2. The Court’s assessment 56. The Court examines, firstly, the material and the parties’ submissions in the third applicant’s case.", "The Court notes that there is a significant degree of similarity between the facts of the present case and the issues under Article 6 of the Convention raised by it and those examined in the Gafgaz Mammadov case (cited above). The Court considers that the analysis and conclusions made in that judgment also apply to the present case. In particular, the Court noted that the administrative-offence proceedings had lacked the necessary safeguards and guarantees. The time and facilities to prepare the defence had been inadequate (ibid., §§ 78-81). In addition, there had been a strong reliance by the domestic courts on the administrative-offence report prepared by the police (ibid., § 85), utter disregard by the domestic courts for important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86), an absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91), and a failure to provide an opportunity to appoint a lawyer of the applicant’s own choosing (ibid., § 92).", "Having regard to the above, the Court found that the administrative-offence proceedings against the applicant in the Gafgaz Mammadov case, considered as a whole, had not been in conformity with the guarantees of a fair hearing. 57. Having regard to the facts of the present case and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the right of the third applicant to a fair trial was breached for the same reasons as those outlined above. 58. The Court examines, secondly, the material and the parties’ submissions in the first and second applicants’ cases.", "It observes that, after being held in police custody for a few hours and being questioned at the police office without a lawyer present, the first applicant was released pending trial. The trial took place two days later. After being similarly held in police custody and questioned, the second applicant was taken to the court on the day of her arrest. The trial was postponed for two days so that she could hire a lawyer. However, both applicants have failed to explain before the Court whether, during the days preceding the trials, there were any circumstances rendering the time or facilities available to them inadequate; or any factors, such as shortage of time or of financial means, precluding them from contacting and hiring a lawyer of their own choosing to assist them at the trials.", "The Court therefore considers that the first and second applicants’ complaints of inadequacy of time and facilities and lack of effective legal assistance at the trial are unsubstantiated. 59. However, turning to the question whether the right of the first and second applicants to a reasoned decision was respected, the Court notes that the issues raised by the applicants and the facts of the present cases resemble those of the Gafgaz Mammadov case. The Court therefore concludes that, as in the Gafgaz Mammadov case, in the first and second applicants’ cases the domestic courts relied strongly on the statements given by the police officers and/or the administrative-offence reports prepared by the police (see Gafgaz Mammadov, cited above, § 85). The domestic courts also completely disregarded important factual circumstances and legal issues of the cases, inter alia, the peaceful nature of the unauthorised demonstrations (ibid., § 86).", "In addition, in both cases the appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. In the second applicant’s case the appellate court in a similar manner also refused to examine the video recordings. 60. In these circumstances the Court finds a violation of Article 6 §§ 1 and 3 of the Convention in respect of all three applicants. 61.", "Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention (that the administrative-offence proceedings against the applicants, considered as a whole, were not in conformity with the guarantees of a fair hearing), the Court finds it unnecessary to rule on the issue of whether refusal by the second applicant of State-funded legal assistance at the pre-trial stage of the proceedings constituted an unequivocal waiver of the right to a lawyer. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 62 All three applicants complained that their arrest and custody had been in breach of Article 5 of the Convention. They had not been promptly informed of the reasons for their arrest, and the arrest and custody had not conformed to domestic procedural rules. Article 5 of the Convention, in so far as relevant, reads as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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.” 63. The Government submitted that the applicants had been escorted to police stations for the preparation of administrative-offence reports in respect of them. After the administrative-offence reports had been drawn up, the first and second applicants had been released pending trial, while the third applicant had been kept in custody and later brought before a court. The third applicant’s arrest and placement in custody had been in accordance with Article 399.3 of the CAO. Under that Article, a person facing proceedings for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours.", "64. The Government also submitted that the applicants had been duly informed of the reasons for their arrest and of their rights under the relevant provisions of the CAO. 65. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other grounds and must therefore be declared admissible.", "66. However, having regard to its findings in relation to Articles 6 and 11 of the Convention above, the Court considers that it is not necessary, in the circumstances of the present case, to examine whether there has been a violation of Article 5. V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 67. By a fax of 9 September 2014 the applicants’ representative Mr Aliyev introduced a new complaint on behalf of the applicants, arguing that the seizure from his office of the entire case files relating to the applicants’ pending cases before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicants’ right of individual petition under Article 34 of the Convention, the relevant parts of which read 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.", "The parties’ submissions 68. The submissions made by the applicants and the Government were identical to those made by the parties in respect of the same complaint raised in the case of Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015). B. The Court’s assessment 69.", "In Annagi Hajibeyli, having examined an identical complaint based on the same facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (ibid., §§ 64‑79). The Court considers that the analysis and finding it made in the Annagi Hajibeyli judgment also apply to the present cases and sees no reason to deviate from that finding. 70. The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention. VI.", "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. In respect of non-pecuniary damage, the applicants claimed 20,000 euros (EUR) each. 73.", "The applicants also made claims in respect of pecuniary damage. The first applicant claimed EUR 400, the second applicant claimed EUR 500 and the third applicant claimed EUR 600. In support of their claims they submitted that they had paid fines ordered by the domestic courts (see Appendix). 74. The Government submitted that the claims of the applicants in respect of non-pecuniary damage were unsubstantiated and unreasonable.", "They considered that, in any event, an award of EUR 3,000 each would constitute sufficient just satisfaction. 75. The Government also submitted that they did not object to awarding just satisfaction in respect of pecuniary damage. However, they argued that given the exchange rate of the Azerbaijani manat (AZN), the first applicant should be awarded EUR 355, the second applicant, EUR 445, and the third applicant EUR 535. 76.", "The Court considers that the applicants have 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 EUR 6,000 each under this head, plus any tax that may be chargeable on that amount. 77. In addition, the Court accepts that the applicants suffered pecuniary damage as a result of the breach of Article 11 found above. The Court considers that the applicants are entitled to recover the amounts paid as fines and therefore awards the first applicant EUR 400, the second applicant, EUR 473, and the third applicant, EUR 588, plus any tax that may be chargeable on those amounts.", "B. Costs and expenses 78. For legal fees incurred before the domestic courts and the Court the applicants claimed EUR 2,500 each and GBP 2,382.15 each. In support of their claims, they submitted contracts for legal services, signed with their representative, Mr I. Aliyev; a receipt, demonstrating that Mr I. Aliyev had paid AZN 500 for the legal services of Mr K. Bagirov; and invoices, to be paid by European Human Rights Advocacy Centre in London, the United Kingdom, for the legal services of Mr W. Bowring and Ms R. Remezaite and for the translation services of Mr K. Shahkarimov. 79.", "The Government considered that the claims were excessive and could not be regarded as reasonable as to quantum. In particular, they submitted that all three applicants had failed to provide copies of any contracts authorising Mr Bagirov, Mr Bowring or Ms Remezaite to provide legal services or to act on their behalf in the proceedings before the Court. In addition, translation fees for the services provided by Mr Shahkarimov had not been justified or necessarily incurred, as they were related to legal services by Mr Bowring and Ms Remezaite. 80. The Government further argued that all three applicants had been represented by the same lawyer, Mr I. Aliyev, and substantial parts of the submissions in all three cases were identical or very similar.", "They also submitted that the contracts signed by the applicants with Mr Aliyev contained a provision about payment to that lawyer of the legal fees incurred before the domestic courts. However, the applicants had not in fact been represented before the domestic courts by Mr Aliyev. 81. The Government submitted that, taking into account the above considerations, an award of EUR 333 to each applicant should provide sufficient reimbursement of costs and expenses. 82.", "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. 83. The Court notes that in the proceedings before it the applicants were represented by the same lawyer, Mr I. Aliyev, whose submissions in all three cases were very similar. Furthermore, Mr Aliyev did not represent the applicants before the domestic courts. Lastly, the applicants failed to submit any documents proving that Mr Bagirov, Mr Bowring, Ms Remezaite and Mr Shahkarimov had been authorised to represent them in the proceedings before the Court.", "84. Taking those considerations into account, the Court awards a total amount of EUR 3,000 to the applicants jointly in respect of the legal services provided by Mr I. Aliyev. C. Default interest 85. 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 11 of the Convention on account of the dispersal of the assemblies and the applicants’ arrest and conviction; 4. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention; 5. Holds that there is no need to examine the complaints under Article 5 of the Convention; 6.", "Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention; 7. 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) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 400 (four hundred euros), plus any tax that may be chargeable, to the applicant in application no. 44699/13, in respect of pecuniary damage; (iii) EUR 473 (four hundred and seventy three euros), plus any tax that may be chargeable, to the applicant in application no. 47040/13, in respect of pecuniary damage; (iv) EUR 588 (five hundred and eighty eight euros), plus any tax that may be chargeable, to the applicant in application no. 65283/13, in respect of pecuniary damage; (v) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, to the applicants jointly, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginNona TsotsoriaActing Deputy RegistrarPresident APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Represented by Notes First-instance judgment Appellate judgment 44699/13 28/06/2013 Ramin HAJILI 1983 Fizuli Intigam ALIYEV fine of AZN 450 for participation in the demonstration of 12 January 2013 Decision of the Sabail District Court of 14 January 2013 Decision of the Baku Court of Appeal of 25 January 2013 47040/13 25/06/2013 Nargiz YAGUBLU 1989 Baku Intigam ALIYEV fine of AZN 500 for participation in the demonstration of 26 January 2013 Decision of the Nasimi District Court of 28 January 2013 Decision of the Baku Court of Appeal of 7 February 2013 65283/13 30/08/2013 Agil ALIYEV 1990 Jalilabad Intigam ALIYEV fine of AZN 600 for participation in the demonstration of 10 March 2013 Decision of the Sabail District Court of 11 March 2013 Decision of the Baku Court of Appeal of 2 April 2013" ]
[ "SECOND SECTION CASE OF GRACHEVY AND OTHERS v. UKRAINE (Applications nos. 18858/03, 18923/03 and 22553/03) 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 Grachevy and others v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrK.", "Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, 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 three applications (nos. 18858/03, 18923/03 and 22553/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Mrs Aleksandra Grachova, Mr Nikolay Grachev, Mr Anatoliy Yakovlevich Pedan and Mr Eduard Gennadyevich Kuznetsov (“the applicants”), on 20 May 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Zoryana Bortnovska and Mrs Valeria Lutkovska. 3.", "On 21 June 2004 the Court decided to communicate the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. Mrs Aleksandra Gracheva was born in 1947; Mr Nikolay Grachev was born in 1936; Mr Anatoliy Yakovlevich Pedan was born in 1942 and Mr Eduard Gennadyevich Kuznetsov was born in 1969.", "All the applicants reside in the town of Zhovti Vody, the Dnipropetrovsk Region. 5. Between 1999 and 2001 the applicants instituted separate sets of proceedings in the Zhovti Vody City Court (hereafter “the City Court”), seeking the recovery of salary arrears against their former employer - the State owned Electrongaz Company (hereafter “the Company”). 6. On 7 June 1999 and 30 March 2001 the City Court awarded Mrs Aleksandra Gracheva a total of UAH 6,759[1] against the Company.", "7. By the City Court’s judgments of 7 June 1999 and 4 May 2001, and the Dnepropetrovsky Regional Court of Appeal’s decision of 15 August 2001, Mr Nikolay Grachev was awarded a total of UAH 5,358[2] against the Company. 8. On 31 March 2000 and 29 March 2001 the City Court awarded Mr Pedan salary arrears of UAH 7,027[3] against the Company. 9.", "On 19 February 1999 the City Court ordered the Company to pay Mr Kuznetsov UAH 2,916[4] in salary arrears. 10. All the judgments above became final and were sent to the Zhovti Vody City Bailiffs’ Office (hereafter “the Bailiffs”) for compulsory enforcement. 11. In letters dated 23 and 24 January 2003, the Bailiffs informed the applicants that the enforcement of the judgments in their favour was impeded by the entry into force of the Law on the Introduction of a Moratorium on the Forced Sale of Property 2001, which barred the attachment and sale of the Company’s capital assets.", "12. On 7 March 2003 the Dnipropetrovsk Regional Commercial Court (hereafter “the Commercial Court”) instituted bankruptcy proceedings against the Company and issued an injunction, barring the debt recovery. On 10 October 2003 the Commercial Court approved the rehabilitation proposal and appointed a trustee to run the bankruptcy rehabilitation of the Company’s business. 13. On 21 October 2004 the Bailiffs terminated the enforcement proceedings in the applicants’ favour as the awards were paid to them in full.", "II. RELEVANT DOMESTIC LAW 14. The relevant domestic law may be found in the judgments of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22) and of 20 September 2005 in the case of Trykhlib v. Ukraine (no. 58312/00, §§ 25-32).", "THE LAW I. JOINDER OF THE APPLICATIONS 15. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. ADMISSIBILITY OF THE COMPLAINTS 1. Alleged violation of Article 17 of the Convention 16.", "The applicants complained that the introduction of the 2001 Law, barring debt retrieval from the State-owned enterprises violated Article 17 of the Convention. The Court finds no evidence whatsoever in the case file which might disclose any appearance of a breach of this provision. The Court, therefore, rejects this complaint, in accordance with Article 35 §§ 3 and 4 of the Convention, as being manifestly ill-founded. 2. Alleged violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 17. The applicants complained of the failure of the State authorities to execute the judgments given in their favour. They alleged an infringement of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention which provide, 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 fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” a. The applicants’ victim status 18. The Government stressed that, as the judgments in the applicants’ favour had been executed by the national authorities in full, the applicants could no longer be considered victims of a violation of their rights under the Convention.", "19. The applicants disagreed. 20. The Court notes that this issue has already been discussed in a number of the Court’s judgments (see Voytenko v. Ukraine, no. 18966/02, judgment of 6 June 2004, § 35; Shmalko v. Ukraine, no.", "60750/00, judgment of 20 July 2004, § 34). In these cases the Court found that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 and Article 1 of Protocol No.1 in relation to the period during which the decision of which complaint is made remained unenforced. It therefore rejects the Government’s objection as to the present applicants’ lack of victim status. b. Objection as to the exhaustion of domestic remedies 21.", "The Government submitted that the applicants had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, since they had not challenged the Bailiffs’ alleged inactivity before the domestic courts, and had not applied to the Commercial Court for registration as creditors in the bankruptcy proceedings. 22. The applicants contested this submission, alleging that none of the indicated remedies had any prospect of success. 23. In so far as the Government refer to the applicants’ failure to bring proceedings against the Bailiffs for their alleged inactivity, the Court notes that the facts of the case show that, throughout the period under consideration, the enforcement of the judgments was hindered by legislative measures, rather than by the Bailiff’s misconduct.", "In this respect the Court recalls its established case law that the claim for damages against the Bailiffs cannot be considered an effective remedy where the delay in the enforcement of the judgments was due to reasons beyond the Bailiffs’ control (see, among many others, Mykhaylenky and Others v. Ukraine, nos. 35091/02, and the following, §§ 38-39, ECHR 2004‑...). 24. As to the Government’s submission about the applicants’ failure to apply for registration as creditors in the bankruptcy litigation, the Court notes that, in the circumstances of the ongoing rehabilitation programme, resort to this remedy was redundant. The Court recalls in this respect its finding in the judgment of Trykhlib v. Ukraine (cited above, § 42) that, “the Government have failed to demonstrate that joining the bankruptcy litigation as a creditor would have given the applicant such advantages as to warrant giving up the ordinary enforcement procedure”.", "It finds no reason to reach a different conclusion in the present case. 25. Therefore, the applicants were absolved from pursuing the remedies referred to by the Government and have therefore complied with the requirements of Article 35 § 1. 3. Conclusion 26.", "The Court concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. III. MERITS 27. The Government maintained that the lengthy failure to enforce the decisions in the applicants’ favour had been caused by the ongoing bankruptcy proceedings against the debtor Company and its critical financial situation.", "The Government further maintained that the Bailiffs performed all necessary actions and cannot be blamed for the delay. 28. The applicants put in doubt the willingness of the Bailiffs to enforce the decisions in their favour. They maintained that the enforcement proceedings were barred first by the Law “on the Introduction of a Moratorium on the Forced Sale of Property” and then by the bankruptcy proceedings against the debtor. The applicants submitted that the steps taken by the State were insufficient to ensure their right to have court decisions given in their favour enforced without undue delay.", "29. The Court must first address the Government’s submissions regarding the ongoing bankruptcy proceedings. It observes that in the course of such proceedings the commercial court may block any debt retrieval from the bankrupt entity, and the latter remains immune from any penalties for delay in honouring its obligations for the duration of those proceedings. The Court recalls that it has already found in the Trykhlib v. Ukraine case (cited above, §§ 49-50) that this procedure, applied in similar circumstances, may lead to a violation of Article 6 § 1 of the Convention. The Court finds no reason to depart from such a conclusion in the present case.", "30. In so far as the Government refer to the Company’s critical financial situation, the Court recalls that it was a State-owned entity. As such, it attracted the application of the Law on the Introduction of a Moratorium on the Forced Sale of Property (see paragraph 11 above), barring the attachment and sale of the capital assets of State-owned enterprises. The Court observes that domestic law does not offer a creditor like the applicant, or the Bailiff, any possibility to challenge this restriction in case of abuse or an unjustified application. Nor can a compensation claim be made for the delay in enforcement caused by this restriction (see Sokur v. Ukraine, cited above, § 35).", "31. The Court finds, therefore, that the judgments in the applicants’ favour remained unenforced until 21 October 2004, i.e. a period of debt recovery lasting between three to five years, without any valid justification, thus depriving the provisions of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of much of their useful effect. It further notes that the judgments in question were enforced in full after the communication of the applications to the respondent Government.", "32. There has accordingly been a violation of both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage and costs and expenses 34. The applicants claimed the following amounts in pecuniary and non-pecuniary damage. - Mrs Aleksandra Gracheva – EUR 2,210; - Mr Nikolay Grachev – EUR 2,183; - Mr Anatoliy Yakovlevich Pedan – EUR 3,123; and - Mr Eduard Gennadyevich Kuznetsov – EUR 10,000. 35.", "The Government contested the applicants’ claims as being unsubstantiated. 36. The Court, making its assessment on equitable basis, as required by Article 41 of the Convention, awards the following global sums in pecuniary and non-pecuniary damage: - EUR 2,210 to Mrs Aleksandra Gracheva; - EUR 2,183 to Mr Nikolay Grachev; - EUR 2,240 to Mr Anatoliy Yakovlevich Pedan; and - EUR 2,720 to Mr Eduard Gennadyevich Kuznetsov. B. Costs and expenses 37.", "The applicants did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect. C. Default interest 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. Decides to join the applications; 2.", "Declares the applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5.", "Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, as follows: - to Mrs Aleksandra Gracheva, EUR 2,210 (two thousand two hundred and ten euros); - to Mr Nikolay Grachev, EUR 2,183 (two thousand one hundred and eighty-three euros); - to Mr Anatoliy Yakovlevich Pedan, EUR 2,240 (two thousand two hundred and forty euros); and - to Mr Eduard Gennadyevich Kuznetsov, EUR 2,720 (two thousand seven hundred and twenty euros), in respect of pecuniary and non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 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] approximately 1,052 euros (EUR) [2] approximately EUR 834 [3] approximately EUR 1,088 [4] approximately EUR 452" ]
[ "FIFTH SECTION CASE OF FEDORCHENKO AND LOZENKO v. UKRAINE (Application no. 387/03) JUDGMENT STRASBOURG 20 September 2012 FINAL 20/12/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fedorchenko and Lozenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Mark Villiger,Karel Jungwiert,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 10 July2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "387/03) 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 Yuriy Fedorchenko and Ms Zoya Lozenko (“the applicants”), on 28 November 2002. 2. The applicants were represented by the European Roma Rights Center, Budapest, Hungary. The Ukrainian Government (“the Government”) were represented by their former Agent, Mr Y. Zaytsev, from the Ministry of Justice of Ukraine. 3.", "On 22 September 2008 the President of the Fifth Section decided to give notice of the application to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1951 and 1954 and live in the towns of Novi Sanzghary and Zolotnosha, Ukraine. 5.", "According to the first applicant, between 8 and 8:30 a.m. on 28 October 2001, as he was leaving his house, he came face to face with Police Major I. and two strangers. They threatened him and then hit him and pushed him inside the house. The attackers then set the house on fire and left, barring the door. 6. The house exploded and the first applicant was projected outside, while other members of his family, who were asleep, remained inside.", "7. Later the same day the first applicant and four other members of the applicants’ family, 21-year-old Z.F. (the second applicant’s daughter), 6-year-old S.F. (the applicants’ granddaughter), 3-year-old M.F. (the applicants’ grandson) and 15-year-old T.L., were admitted to hospital with burns and gas intoxication.", "Z.F., S.F. and M. F. died in hospital. 8. Two other members of the applicants’ family were found dead in the house: 25-year-old V.F. (the first applicant’s son) and 6-year-old Y.F.", "(the applicants’ grandson). 9. The first applicant informed the police that the fire had been caused by an arson attack carried out by Major I. from the Kryukov police department. He believed that it was a punishment attack for failure to pay a monthly bribe of 200 Ukrainian hryvnias (UAH) claimed by the police. Major I. had allegedly visited the first applicant’s house before and allegedly extorted money from the applicants’ relative, Z.F., in payment for not instituting criminal proceedings against her for drug trafficking.", "In that connection Major I. had allegedly already been bribed with UAH 800. The first applicant also maintained that Major I. had previously threatened to set his house on fire. 10. According to an article in the local newspaper, “police officers burned alive a Gypsy family since they had refused to pay a usual share from selling drugs”. A local prosecutor said that in one of the burned houses they used to sell drugs.", "He also said that the version of “police drug lords’ complicity” in the crime was being checked. A neighbour testified that the applicants’ family was a poor one and that Z.F. had been selling heroin (ширку) for a couple of months but then she had been beaten by police officers “for she was inexperienced”. The first applicant said that Major I. had threatened to burn them alive since they had failed to pay UAH 200 in monthly bribes. The newspaper article also contained the following passages: “Several dozens Gypsies, who came to the victims’ funeral, told the journalists: “Yes, there exists fascism in respect of Gypsies in Ukraine, their ethnic minority rights are being breached” [...] “Very often it is mentioned in the police reports that drugs are sold by “persons of Gypsy ethnicity”, while Ukrainians also sell drugs” 11.", "On 28 October 2001 the Kremenchug District Prosecutor instituted criminal proceedings for the murder of V.F. and Y.F. On 6 November 2001 the Poltava Regional Prosecutor’s Office instituted criminal proceedings for the arson attack on the first applicant’s house. These two cases were later joined. 12.", "The Poltava Regional Police Department (Управління Міністерства внутрішніх справ України в Полтавській області) conducted an internal inquiry into the allegations of Major I.’s involvement in the arson attack on the first applicant’s house. During the inquiry, the first applicant again stated that Major I. had extorted 200 UAH from the first applicant’s daughter-in-law for not prosecuting her for selling drugs. The inquiry further established that at 9 a.m. on 28 October 2001 Major I. left home with his wife. On their way they met their neighbours. However, the written explanations given by Major I. and his wife stated that they had left the house at 8.20 a.m. Later Major I. was seen with his wife at the markets in town, where they talked to furniture and clothes retailers and to a couple named Su.", "At 1 p.m. Major I. returned home. It was also found that on 4 October 2001 Major I. had arrested Z.F., who was later released, and on 20 October 2001 he had searched the first applicant’s house. 13. In particular, in his explanations given on an unidentified date, Major I. stated that “it was likely that I knew by sight the inhabitants of the house on Shkolnaya street, but I did not know their names. I’ve seen there all Gypsies and know that they sell drugs there.", "But it is difficult to catch Gypsies...” 14. It was concluded that these circumstances, as well as “the first applicant’s head injuries sustained as a result of the explosions” could have been the reason why the first applicant slandered Major I. On 10 December 2001 the conclusion reached in the inquiry, namely that Major I. had not been involved in the arson attack on the first applicant’s house, was sent to the Poltava Regional Prosecutor’s Office. 15. On 14 November 2001 a certain N., who was suspected of burning down the first applicant’s house, was charged with murder and destruction of property.", "16. On various dates further criminal proceedings were instituted against at least six individuals for three counts of arson and murder, which took place on 28 October 2001. In April 2002 the cases against these individuals were separated from the case against N., since the former were all missing. 17. In May 2002 the applicants’ representative requested the prosecutor to question (i) the doctors who had been providing first aid to the victims, (ii) the applicants’ neighbour, who had allegedly been told by police not to testify, and (iii) Major I.’s former wife, who had allegedly seen his car.", "18. On 1 June 2002 the applicants’ lawyer requested the investigator to establish criminal responsibility on the part of Major I. for the arson attack. 19. On the same day a face-to-face cross-examination was held between the first applicant and Major I. The applicant gave his account of events and described the clothes Major I. had been wearing on the morning of the arson attack.", "Major I. denied all the accusations. 20. The same day the prosecutor rejected the applicants’ request for Major I. to be prosecuted for the arson attack, on the basis of Major I.’s contentions, the conclusions of the internal inquiry and the existence of other accused who did not confirm the involvement of Major I. in the attack. In particular, D. testified that in the morning of 28 October 2001 he had driven three people to the first applicant’s house, and that Major I. had not been among them. 21.", "In July 2002 the criminal case against N. was submitted to the court. 22. On 11 December 2002 the Poltava Regional Court of Appeal, acting as a court of first instance, considered the criminal case against N. and G., and remitted it for further investigation. In particular, the court noted that a certain X. “had planned to destroy and damage by way of arson three houses in which lived persons of Gypsy ethnicity”.", "N. and G. were accused of acting on the orders of X. together with seven other people. The court indicated numerous shortcomings in the investigation. In particular, G.’s complaints that he had been ill-treated by police with the aim of extracting a confession from him had to be checked; it was not established who had taken part in the arson attack and what each person’s role was; others allegedly involved in arson attacks were wanted, but nothing had been done to search for them. The court noted in particular that the investigation should check Major I.’s alibi and establish why and on what grounds, when arresting Z.F. and searching the first applicant’s house, he had been working outside his area of territorial jurisdiction.", "The applicants also testified in a court hearing that Major I. had threatened them with reprisal. The court, however, did not specify in its decision what the reason for the alleged reprisal was. The court noted that Major I. himself admitted that he had visited the first applicant’s house several times in 2001. The first applicant was also not informed about the decision not to institute criminal proceedings against Major I. The documents from the internal investigation were not joined to the criminal case file and the applicants’ representative’s request of May 2002 was not answered.", "The court noted that Major I.’s former wife, the ambulance doctors, the firemen and the first applicant’s neighbours should be questioned. Finally, the court indicated a large number of various investigative actions which were to be performed by investigation authorities. 23. According to the applicants, in a court hearing N. said: “We had to put those [...] Gypsies in their place. The police should do this!” 24.", "On 6 March 2003 the Supreme Court of Ukraine upheld the decision of 11 December 2002. It has, however, decided that it was not necessary to carry out the reconstruction of events as indicated by the Court of Appeal. 25. On 16 June 2003 the Kremenchug Prosecutor’s Office refused to institute criminal proceedings against Major I. It was held, without any particular specifications, that further checks had been performed and it had been established that Major I. had not been involved in the arson attack.", "26. On 10 July 2004 the criminal proceedings were stayed, because other perpetrators could not be found. 27. On 23 September 2004 the criminal proceedings in respect of N. were resumed. 28.", "On 21 January 2005 the Kremenchug Court found N. guilty of wilful destruction of property which caused significant pecuniary damage and sentenced him to five years’ imprisonment, suspended, with two years’ probation. The court found that N., No. and S. had arrived at the first applicant’s house in order to “destroy the houses of persons of Gypsy ethnicity who sell drugs”. N. chased people out of the house while No. and S. did not wait until everybody was out before setting the house on fire.", "N. testified in a court hearing that his aim had been to destroy the house of drug traffickers. His task was to evict the people from the house, but his accomplices did not wait for him, and had set the house on fire with people inside, including him. The court found that N. had been “in some way” dependent on No. and S., and had acted as their accomplice. His story was confirmed by various evidence, in particular, he had received burns and spent some time in hospital afterwards.", "The court awarded the first applicant UAH 13,820 for destruction of property and entirely rejected the applicants’ civil claim for damages caused by the death of their relatives and by the injuries sustained by the first applicant, on the ground that these had not been caused as a result of the actions or intentions of N. 29. The prosecutor and the applicants appealed, claiming that N.’s sentence was too lenient. In their appeal the applicants noted that the first-instance court had not assessed the evidence of the first applicant and one other survivor of the arson attack, who had witnessed the involvement of Police Major I. in the attack. They also noted that according to N. and G.’s testimonies the arsons had been planned and organised well ahead since the inflammable mixture had been bought and several cars had been sent to set on fire houses of persons of Romani ethnicity. 30.", "On 20 May 2005 the Poltava Regional Court of Appeal quashed the judgment of 21 January 2005 due to procedural defects of the trial in the first-instance court. 31. On 22 June 2005 the criminal proceedings against N. were terminated because of his death. 32. On 4 December 2008 the decision of 10 July 2004 to stay the proceedings was quashed by a prosecutor.", "No further information about the proceedings in the case is available. II. RELEVANT INTERNATIONAL DOCUMENTATION Second report on Ukraine by the European Commission against Racism and Intolerance (ECRI) adopted on 14 December 2001 33. The relevant extracts from the report read as follows: “56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials.", "ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed [...]. 58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill-treatment, verbal abuse and destruction of property by law enforcement personnel.", "Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI’s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 34. The applicants complained that their relatives had died as a result of an arson attack with the direct involvement of a State agent, Police Major I.", "They further complained that the State authorities had failed to conduct a thorough and effective investigation into the circumstances of the death of their relatives and of Major I.’s involvement in the arson attack. They relied on Article 2, which provides, in so far as relevant, as follows: “1. Everyone’s right to life shall be protected by law. ... ” A. Admissibility 35. The Government argued that the applicants had failed to challenge the refusal of 16 June 2003 of the prosecutor to institute criminal proceedings against Major I. with the higher prosecutor or the court.", "Therefore, they did not exhaust effective domestic remedies in respect to their complaints under Article 2 of the Convention. 36. The applicants disagreed, pointing out that there was no evidence that the State authorities, having twice rejected the applicants’ claims, would reach a different conclusion if faced with another complaint. The applicants noted that Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism (see Kucheruk v. Ukraine, no. 2570/04, § 109, 6 September 2007).", "They indicated that they had done everything possible in the circumstances, had provided evidence to the police, and had lodged complaints and appeals, although, according to the applicants, all they had to do was bring the case to the attention of the competent authorities. The applicant noted that in the case of Assenov and Others v. Bulgaria (28 October 1998, § 86, Reports of Judgments and Decisions 1998‑VIII) the Court had found that “the applicants made numerous appeals to the prosecuting authorities at all levels, requesting that a full criminal investigation of Mr Assenov’s allegations of ill-treatment by the police be carried out” and considered that, “having exhausted all the possibilities available to him... the applicant was not required... to embark on another attempt to obtain redress”. Thus, the applicants concluded that they had exhausted all available domestic remedies. 37. The Court notes that the Government’s objection is closely linked to the applicants’ complaint under the procedural limb of Article 2 of the Convention.", "In these circumstances, it joins the objection to the merits of the applicants’ complaint (see, mutatis mutandis, Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010). 38. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Procedural obligations under Article 2 of the Convention (a) The parties’ submissions 39. The applicants noted that the investigation following the arson attack on the first applicant’s house suffered from a number of crucial omissions which made it ineffective.", "The conclusion that Major I. was not involved in the arson attack was reached without interviewing key eyewitnesses. According to the applicants, the first applicant was questioned by investigating officers only a month after the events in question and because he went to the investigator on his own initiative, without being summoned. The applicants also underlined that the national authorities, and in particular the Poltava Regional Court of Appeal in its decision of 11 December 2002, pointed out numerous shortcomings in the investigation and remitted the case for additional investigation. The applicants concluded that the authorities had not complied with their procedural obligation under Article 2 of the Convention. 40.", "The Government noted that both the police internal investigation and the prosecutor’s office had established that Major I. had not been involved in the arson attack. The Government further stated that the circumstances of the incident had been clarified and those responsible for the arson attack had been identified. Numerous and various procedural actions had been taken, including four reconstructions of the incident, four searches, eleven identification parades, sixty-three interviews, one confrontation (between the first applicant and Major I. ), and seventeen forensic examinations. The applicants’ complaints that Major I. had been involved in the incident were properly checked and the national authorities did all which is necessary to find those responsible for the arson attack.", "(b) The Court’s assessment i. General principles 41. The Court reiterates that Article 2 of the Convention imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also requires by implication that there should be an effective official investigation when individuals have been killed. The duty to conduct such an investigation arises in all cases of killing and other suspicious death, whether the perpetrators are private persons or State agents, or are unknown (see Angelova and Iliev v. Bulgaria, no.", "55523/00, § 94, 26 July 2007, and Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts)). 42. The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure all the evidence concerning the incident.", "The investigation’s conclusions must be based on thorough, objective and impartial analysis of all the relevant elements. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness. The national courts should not under any circumstances be prepared to allow life-threatening offences to go unpunished (see, mutatis mutandis, Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009, and Esat Bayram v. Turkey, no.", "75535/01, § 47, 26 May 2009). 43. For an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also independence in practice. The effective investigation required under Article 2 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.", "In all cases, 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, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 321-322, ECHR 2007‑II; Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010; Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 222-225, ECHR 2004‑III; and Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998-IV). ii.", "Application of these principles in the present case 44. The Court notes that in the present case, despite the heinous nature of the incident, in which small children were burned alive, it appears that State authorities limited the investigation to some basic procedural steps. 45. In particular, despite the Government’s reference to a number of procedural actions performed during the investigation of the criminal case, in the absence of the case-file materials it is unclear what exactly was examined, who was questioned during the investigation and when these actions were taken. In its decision of 11 December 2002 the Poltava Regional Court of Appeal indicated numerous shortcomings of the investigation, and noted numerous procedural actions which had to be performed.", "That was confirmed by the Supreme Court of Ukraine. From the materials submitted by the Government it is unclear whether these recommendations had been taken into consideration and complied with by the investigation authorities. 46. The Court also notes that since 2004 none of the at least six suspects of involvement in the arson attack on the first applicant’s house and other houses on 28 October 2001 have been found, and notes that there is no evidence that anything was done to find them. 47.", "As for the investigation of Major I.’s possible involvement in the arson attack, the Court also notes that it appears from the available materials that the prosecutor’s office simply referred to the conclusion of the police internal investigation. Although it was stated in the decision of 16 June 2003 that “further checks had been performed” there is no evidence what exactly had been done. 48. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no.", "46477/99, § 71, ECHR 2002-II). 49. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicants’ relatives’ deaths had not been effective. It accordingly dismisses the Government’s objection (see paragraph 37). There has therefore been a violation of the procedural limb of Article 2 of the Convention.", "2. The alleged violation of the right to life of the applicants’ relatives 50. The applicants stated that the deaths of their relatives had been caused by a violent arson attack, organised and carried out with the participation of a State agent. 51. The Government stated that it had been established by an internal police investigation and by the prosecutor on 16 June 2003 that Major I. had not been involved in the arson attack.", "52. 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 complaints about deprivation of life to the most careful scrutiny, taking into consideration all relevant circumstances. 53. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”.", "However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 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. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003-V (extracts), with further references). 54.", "The Court notes that in the present case it is undisputed that Major I. knew the applicants, had been to the first applicant’s house and had been involved in some police operations against one of the applicants’ relatives, though it appears that in doing that he had been acting outside his jurisdiction. The question to be answered is whether the applicants slandered Major I. in accusing him of involvement in the police operations, or whether Major I. had indeed been involved in the arson attack. 55. The Court first notes that there is no convincing evidence that Major I. had an alibi for the morning of 28 October 2001. For example, the time Major I. allegedly left for the markets in the morning has not been precisely established and is not corroborated by other witnesses (such as Major I.’s neighbours).", "56. Further on, the first applicant stated that he had recognised Major I. among the arsonists. The applicants further suggested that several witnesses (a neighbour, Major I.’s former wife) could have seen Major I. on the morning of the tragic event near the first applicant’s house. However, the Court does not have any other evidence, except for the applicants’ statements, that Major I. had indeed participated in the events in question, as it appears that these witnesses were not questioned. Although the first applicant described the clothes which Major I. had been allegedly wearing in the morning of 28 October 2001, the investigation authorities did not check this with other possible witnesses.", "57. Therefore, in the absence of other evidence, and given the above conclusion that there was no effective investigation in the present case, the Court cannot draw a conclusion beyond reasonable doubt as to whether Major I. was or was not involved in the arson attack which caused the deaths of the applicants’ relatives, and if he was, in what capacity that was. It is not, therefore, possible to conclude that there has been a violation of the substantive limb of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF THE CONVENTION UNDER ITS PROCEDURAL LIMB 58.", "The applicants further invoked Article 14 taken in conjunction with Article 2 of the Convention under its procedural limb. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 59. The Court notes that this complaint is linked to the one examined above (see paragraphs 35-38) and must therefore likewise be declared admissible. B. Merits 60.", "The applicants noted that they had offered evidence of racist motive in the crime. In this case there exists an explicit obligation to investigate possible racist overtones in the events in question (see Šečić v. Croatia, no. 40116/02, §§ 66-70, 31 May 2007). Despite the information available to the authorities that several houses, in which the Romani lived, had been set on fire during the same day, and the express racist statement of one of the accused, there was no evidence that the authorities had carried out any examination into allegations that there had been a crime motivated by ethnic hatred. 61.", "The Government submitted that Article 14 of the Convention applied only when the alleged violation had been committed by the State agents. However, in the present case there were private persons charged with a crime. The Government therefore contended that there has been no violation of Article 14 of the Convention in the present case. 62. The Court recalls firstly that, according to its established case-law, discrimination means treating differently, without any objective and reasonable justification, persons in relevantly similar situations.", "However, Article 14 does not prohibit a member 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 in itself give rise to a breach of the Article (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-....). 63. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those texts.", "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 in issue fall within the ambit of one or more of the latter (see Koppi v. Austria, no. 33001/03, § 25, 10 December 2009). 64. The Court further reiterates that in respect of cases of deprivation of life, States have a general obligation under Article 2 of the Convention to conduct an effective investigation including cases which involve acts of private individuals (see Muravskaya v. Ukraine, no. 249/03, §§ 41-50, 13 November 2008), and that obligation must be discharged without discrimination, as required by Article 14 of the Convention.", "65. In particular, when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII; mutatis mutandis, Šečić v. Croatia, cited above, § 67).", "66. Admittedly, proving racist motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160, ECHR 2005-...). 67. In the instant case the Court has already found that the Ukrainian authorities violated Article 2 of the Convention in that they failed to conduct an effective investigation into the incident.", "It considers that it must examine separately under Article 14 of the Convention taken in conjunction with Article 2 of the Convention under its procedural limb the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the attack on the applicants’ relatives. 68. In this respect the Court observes that on 28 October 2001 three houses, in which lived people of Romani origin, were set on fire. The alleged motive of the arsonists was destruction of houses of drug dealers. However, any information as for whether the inhabitants of two other houses were involved in drug trafficking is absent.", "Moreover, given the widespread discrimination and violence against Roma in Ukraine as noted, in particular, by the report of the ECRI, it cannot be excluded that the decision to burn the houses of the alleged drug traffickers had been additionally nourished by ethnic hatred and thus it necessitated verification. 69. The Court, however, notes that there is no evidence that the authorities have conducted any investigation into the possible racist motives of this crime. 70. The Court considers it unacceptable that in such circumstances an investigation, lasting over eleven years, did not give rise to any serious action with a view to identifying or prosecuting the perpetrators.", "71. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention. III. REMAINING COMPLAINTS 72. The applicants complained that they and their deceased relatives had been subjected to inhuman and degrading treatment, and that there had been no effective investigation of their complaints, in breach of Article 3 of the Convention.", "They further cited Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. The applicants further alleged that the violations they had suffered as a result of the brutal incident at issue had been predominately due to their Romani ethnicity. They therefore considered that there had been a violation of Article 14 taken in conjunction with the above Articles and with Article 2 of the Convention under its substantive limb. 73.", "The Court notes that these complaints are linked to the ones examined above and must therefore likewise be declared admissible. 74. Having regard to the findings relating to Articles 2 and 14 (see paragraphs 44-49, 54-57 and 67-71 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of these other provisions of the Convention (see Koky and Others v. Slovakia, no. 13624/03, §§ 241-244, 12 June 2012; among other authorities in respect of Article 13 of the Convention, Timur v. Turkey, no. 29100/03, §§ 35‑40, 26 June 2007).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The second applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage inflicted on her by the deaths of her relatives, damage caused to the health of her son, and improper investigation of these events.", "The first applicant made no claims in this respect. 77. The Government stated that “the questions put to the Government in this case as regards the applicants’ complaints of a violation of Article 3 of the Convention had no connection with those complaints by the second applicant”. The Government therefore considered that the second applicant’s claims should be rejected. 78.", "The Court considers that the second applicant must have sustained non-pecuniary damage and, deciding on an equitable basis, awards her EUR 20,000 in this respect. B. Costs and expenses 79. The applicants also claimed EUR 9,075 for costs and expenses incurred before the Court. The applicants’ representative submitted the time-sheet that between 2002 and 2009 the lawyers of the European Roma Rights Centre had spent 121 hours on the case at a rate EUR 75 per hour.", "80. The Government submitted that these claims were unsubstantiated. 81. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 for the proceedings before the Court.", "This amount is to be paid into the bank account of the European Roma Rights Centre. C. Default interest 82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of the procedural limb of Article 2 of the Convention; 3. Holds that there has been no violation of the substantive limb of Article 2 of the Convention; 4. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 in respect of its procedural limb; 5. Holds that there is no need to examine separately the remainder of the complaints; 6. Holds (a) that the respondent State is to pay the second applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnas at the rate applicable at the date of settlement; (b) that the respondent State is to pay to the bank account of the European Roma Rights Centre, the applicants’ representative in the proceedings before the Court, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in costs and expenses plus any tax that may be chargeable to the applicants; (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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 20 September 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsDean Spielmann Deputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF MILIĆ v. MONTENEGRO AND SERBIA (Application no. 28359/05) JUDGMENT STRASBOURG 11 December 2012 FINAL 11/03/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milić v. Montenegro and Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Peer Lorenzen,Dragoljub Popović,András Sajó,Nebojša Vučinić,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 20 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28359/05) against Montenegro and Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Ivan Milić (“the applicant”), on 19 July 2005. 2. The applicant, who had been granted legal aid, was represented by Ms G. Ćušić, a lawyer practising in Belgrade. The Montenegrin Government were represented by their Agent, Mr Z. Pažin. The Serbian Government were represented by their Agent, Mr. S. Carić.", "3. The applicant complained about non-enforcement of a final judgment ordering his reinstatement and a lack of an effective domestic remedy in that regard. 4. On 15 March 2010 the application was communicated to the Governments of Montenegro and Serbia. 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, Mr Ivan Milić, was born in 1966 and lives in Belgrade, Serbia. A. The first set of civil proceedings and the ensuing enforcement proceedings 6.", "On 20 June 2002 the Court of First Instance (Osnovni sud) in Podgorica ordered that the applicant be reinstated by the Clinical Centre of Montenegro (Kliničko bolnički Centar Crne Gore), a State-run medical institution. 7. On 4 February 2003 this judgment became final, and on 16 December 2003 it was confirmed by the Supreme Court (Vrhovni sud) in Podgorica at third instance. 8. On 23 April 2003 the Clinical Centre of Montenegro informed the applicant that it could not comply with the judgment in question, but would rather seek an alternative solution.", "9. On 22 May 2003 the Court of First Instance issued an enforcement order, which decision was confirmed on 26 June 2003. 10. On 19 August 2003 the Clinical Centre of Montenegro concluded an agreement with the Special Hospital in Risan, also a State-run medical institution, whereby the latter accepted the applicant as its employee. 11.", "On 30 September 2003 the applicant informed the State Prosecutor that he did not approve of this arrangement. 12. On 17 October 2003 the Special Hospital in Risan issued a decision to the effect that the applicant would become its employee as of 30 October 2003. 13. On 20 October 2003 the applicant received this decision.", "14. On 21 October 2009, as submitted by the Montenegrin Government, the applicant concluded an Agreement on Termination of Employment with the Clinical Centre of Montenegro whereby his employment had been terminated as from 3 February 2003 and both parties waived any further claims in this regard. 15. On 26 October 2009 the applicant withdrew his enforcement request. 16.", "On 5 November 2009 the Court of First Instance terminated the enforcement proceedings and all the enforcement activities which had been carried out in that regard. On 17 November 2009 this decision became final. B. Other relevant facts 17. On 6 May 2004, upon the applicant’s separate claim, the Court of First Instance in Podgorica ordered the Clinical Centre of Montenegro to pay the applicant 4,456 euros (“EUR”) for salary arrears for the period between September 2001 and 3 February 2003.", "This judgment was upheld by the High Court on 5 October 2004. It would appear from the case file that this judgment was enforced on an unspecified date thereafter. 18. On 3 February 2003 the applicant started to work in the Clinical Centre of Serbia for a period of nine months. It would appear from the case file that on an unspecified date thereafter his temporary employment was transformed into a permanent one.", "II. RELEVANT DOMESTIC LAW A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 1/07) 19. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.", "20. The Constitution entered into force on 22 October 2007. B. Montenegro Constitutional Court Act (Zakon o Ustavnom sudu Crne Gore; published in OGM no. 64/08) 21. Section 48 provides that a constitutional appeal may be lodged against an individual decision of a state body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.", "22. Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision. 23. The Act entered into force in November 2008.", "C. Right to a Trial within a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku; published in OGM no. 11/07) 24. This Act provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). 25. Section 9 § 2 provides that a request for review can be filed with the court which is dealing with the case at the relevant time.", "26. Section 33 § 3 provides that an action for fair redress shall be filed with the Supreme Court no later than six months after the date of receipt of the final decision rendered in the impugned proceedings or, within the enforcement procedure, no later than six months after the date of receipt of the final decision issued upon the request for review. 27. Section 44 further provides that this Act shall be applied retroactively to all proceedings from 3 March 2004, but that the duration of proceedings before that date shall also be taken into account. 28.", "The Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court. D. Enforcement Procedure Act 2000 (Zakon o izvršnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia nos. 28/00, 73/00 and 71/01) 29. Section 4 § 1 provided that enforcement proceedings were urgent. 30.", "Sections 211-214 set out details as regards enforcement in cases of reinstatement. E. Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Montenegro - OG RM - no. 23/04) 31. The Act entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286 of this Act, however, all enforcement proceedings instituted prior to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act 2000.", "F. Labour Act 2003 (Zakon o radu; published in OG RM nos. 43/03, 79/04, 24/06 and 25/06; and in the Official Gazette of Montenegro no. 16/07) 32. Section 33 required an employee’s consent in order for him to be transferred to another employer. G. Labour Act 2008 (Zakon o radu; published in OGM nos.", "49/08, 26/09 and 88/09) 33. The Labour Act 2008 entered into force on 19 August 2008 thereby repealing the Labour Act 2003. Section 42 § 2 of the former, however, also requires the employee’s consent for his transfer to another employer. H. Relevant domestic case-law 34. Between 1 January 2008 and 30 September 2009 twenty-two actions for fair redress were submitted, of which sixteen were dealt with and six were still being examined.", "In one case the courts awarded the plaintiff compensation for non-pecuniary damage in respect of the length of civil proceedings. Between 1 January 2010 and 30 April 2011 an additional fifteen actions for fair redress were examined, in three of which the courts awarded damages. THE LAW 35. The applicant complained under various Articles of the Convention against both Montenegro and Serbia about the non-enforcement of the judgment issued by the Court of First Instance in Podgorica ordering his reinstatement, which became final on 4 February 2003, as well as about the lack of an effective domestic remedy in that respect. 36.", "The Court considers that these complaints all fall to be examined under Articles 6 § 1 and 13 of the Convention (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), which, in their relevant parts, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms...are violated shall have an effective remedy before a national authority...” I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. Admissibility 1. Compatibility ratione personae (a) As regards the respondent States 37. The Montenegrin Government made no comment in this regard.", "38. The Serbian Government submitted that the application was incompatible ratione personae with regard to Serbia. They referred, in particular, to Bijelić v. Montenegro and Serbia, no. 11890/05, §§ 67-70, 28 April 2009. 39.", "The applicant complained against both Montenegro and Serbia. 40. Given the fact that the entire enforcement proceedings have been conducted solely by the Montenegrin authorities, which also had the exclusive competence to deal with the subject matter, the Court, without prejudging the merits of the case, finds the applicant’s complaints in respect of Montenegro compatible ratione personae with the provisions of the Convention. For the same reason, however, the applicant’s complaints in respect of Serbia are incompatible ratione personae within the meaning of Article 35 § 3(a), and must be rejected pursuant to Article 35 § 4 of the Convention (see, also, Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 41, 13 December 2011).", "(b) As regards the applicant 41. The Montenegrin Government submitted that the applicant could no longer claim to be a “victim” as he had concluded the Agreement on Termination of Employment on 21 October 2009, waived any further claims in this regard and had withdrawn his enforcement request. The Agreement had effect as from 3 February 2003, which was before the Convention entered into force in respect of Montenegro and before the applicant lodged his application with the Court. They also maintained that the applicant’s submission that he had been forced to conclude the said Agreement was unsubstantiated. 42.", "The applicant contested these submissions. In particular, he maintained that by the time he had concluded the Agreement the enforcement proceedings had been already ongoing for more than five years but to no avail. He had been forced to conclude the said Agreement and to withdraw the enforcement request as he needed to verify his employment in another institution. His withdrawal of the enforcement request was therefore irrelevant and his rights had been breached. 43.", "The Court reiterates that, in order to be able to lodge a petition by virtue of Article 34, a person, non-governmental organisation or a group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention. 44. Turning to the present case, the Court notes that the domestic proceedings were settled in that the applicant concluded the Agreement on Termination of Employment and thus consented to discontinue to insist that the relevant court judgment be enforced. He withdrew his enforcement request on 26 October 2009, after which the enforcement proceedings were terminated. 45.", "The Court also notes, however, that the said agreement did not address the issue of the length of the said non-enforcement, which the applicant alleges constituted a violation of the Convention. In view of that, and without prejudice to the merits of the case, the Court considers that the applicant’s Convention complaint still persists and that the applicant’s status as a “victim” within the meaning of Article 34 of the Convention remained unaffected by the agreement. The Government’s objection in this regard must, therefore, be dismissed. 2. Exhaustion of domestic remedies (a) Arguments of the parties 46.", "The Montenegrin Government submitted that the applicant had not exhausted all effective domestic remedies available to him. In particular, he had failed to lodge a request for review and an action for fair redress provided by the Right to a Trial within a Reasonable Time Act (see paragraph 24 above). He had also failed to make use of a constitutional appeal (see paragraphs 19-23 above). 47. The applicant contested these submissions.", "In particular, he maintained that the remedies referred to by the Government had not existed at the time when he had lodged his application with the Court and that therefore he had not been obliged to make use of them later. He also submitted that in any event these remedies were not effective. (b) Relevant principles 48. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before they are submitted to the Court. 49.", "However, the only remedies which the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999 V, McFarlane v. Ireland [GC], no. 31333/06, § 107, ECHR 2010-...). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198; and Dalia v. France, 19 February 1998, § 38, Reports 1998-I).", "50. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from that requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). 51. The Court reiterates that the effectiveness of a particular remedy is normally assessed with reference to the date on which the application was lodged (see, for example, Baumann v. France, no.", "33592/96, § 47, ECHR 2001-V (extracts)), this rule, however, being subject to exceptions which may be justified by the specific circumstances of each case (see Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002). (c) The Court’s assessment (i) As regards the request for review 52. The Court has already held that it would be unreasonable to require an applicant to try a request for review on the basis of the Right to a Trial within a Reasonable Time Act in a case where the domestic proceedings had been pending for a number of years before the introduction of this legislation and where no conclusions could be drawn from the Government’s submissions about its effectiveness (see, mutatis mutandis, Boucke v. Montenegro, no. 26945/06, §§ 72-74, 21 February 2012; as well as Živaljević v Montenegro, no.", "17229/04, §§ 60-65, 8 March 2011). The Court, however, reserved its right to reconsider its view if the Government demonstrated, with reference to specific cases, the efficacy of this remedy (see Boucke, cited above § 71, and Živaljević, cited above, § 66). 53. In view of the fact that the enforcement proceedings here at issue had been pending for more than four years and six months before the Right to a Trial within a Reasonable Time Act entered into force, of which more than three years and nine months had elapsed after the Convention entered into force in respect of the respondent State, and that no recent case-law concerning the efficacy of this particular remedy has been submitted, the Court sees no reason to depart from its previous finding and concludes, therefore, that the Government’s objection must be dismissed. (ii) As regards the action for fair redress 54.", "The Court notes that the applicant lodged his application on 19 July 2005, which was more than two years and five months before an action for fair redress was introduced by the Right to a Trial within a Reasonable Time Act (see paragraphs 1 and 28 above). Therefore, at the time when the applicant lodged his application with this Court, there was no available domestic remedy which would have enabled him to obtain redress for the past delay, the effectiveness of a particular remedy being assessed with reference to the date on which the application was lodged (see Baumann v. France, cited above, § 47). 55. While the Court has allowed for an exception to this rule, this was usually in cases where specific national legislation as regards the length of proceedings had been passed in response to a great number of applications already pending before the Court indicating a systemic problem in these States. These laws also contained transitional provisions bringing within the jurisdiction of domestic courts the cases already pending before this Court (see Grzinčič v. Slovenia, no.", "26867/02, § 48, 3 May 2007; Charzyński v. Poland (dec.), no. 15212/03, § 20, ECHR 2005-V; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). Having regard to those considerations, the Court was of the opinion that these States should be afforded an opportunity to prevent or put right the alleged violation themselves and therefore allowed for an exception to the above rule. 56.", "Unlike in the above mentioned cases, the relevant legislation in Montenegro had not been passed in response to numerous applications pending before this Court, nor does it contain any transitional provision whatsoever with regard to applications already pending before this Court (see paragraph 28 above). Therefore, it is unclear whether the domestic courts would have ruled at all on the merits of the applicant’s action for fair redress had he lodged one. 57. The Court also notes that the applicant cannot be required to avail himself of this avenue of redress at this stage, as its use had long become time-barred in his case (see paragraphs 26, 25 and 16 above, in that order). 58.", "Having regard to the particular circumstances of the instant case as set out above, the Court considers that the applicant was not obliged to exhaust this particular avenue of redress (see, mutatis mutandis, Novović v. Montenegro, 13210/05, §§ 40-44, 23 October 2012 (not yet final); Vinčić and Others v. Serbia, no. 44698/06 et seq. § 51, 1 December 2009, as well as Cvetković v. Serbia, no. 17271/04, § 41, 10 June 2008). The Government’s objection must, therefore, be dismissed.", "(iii) As regards the constitutional appeal 59. The Court has also already found that a constitutional appeal cannot be considered an effective domestic remedy in respect of length of proceedings (see Boucke, cited above, § 79; see, also, Mijušković v. Montenegro, cited above, §§ 73-74). It sees no reason to hold otherwise in the present case. The Government’s objection in this regard must, therefore, be dismissed. 3.", "Conclusion 60. The Court notes that the applicant’s complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 61. The Montenegrin Government made no comment in this regard. 62. The applicant reaffirmed his complaint. 63.", "The Court recalls that Article 6 § 1 of the Convention, inter alia, protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). The State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). 64.", "Lastly, the Court reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV). 65. Turning to the present case, the Court notes that the period to be taken into account began on 3 March 2004, which is when the Convention entered into force in respect of Montenegro (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009) and ended on 26 October 2009, when the applicant withdrew the enforcement request.", "The impugned enforcement proceedings had thus been within the Court’s competence ratione temporis for a period of more than five years and seven months, more than another nine months having already elapsed before that date (see Mikulić v. Croatia, no. 53176/99, § 37, ECHR 2002‑I, Styranowski v. Poland, 30 October 1998, § 46, Reports of Judgments and Decisions 1998‑VIII). 66. The impugned enforcement proceedings concerned the applicant’s reinstatement. While it can be accepted that some such cases may be more complex than others, the Court does not consider the present one to be of such complexity as to justify enforcement proceedings of this length.", "The issue was clearly of great importance to the applicant, the Convention itself requiring exceptional diligence in employment disputes (see, mutatis mutandis, Guzicka v. Poland, no. 55383/00, § 30, 13 July 2004, Borgese v. Italy, 26 February 1992, § 18, Series A no. 228‑B, and Georgi Georgiev v. Bulgaria, no. 22381/05, § 18 in fine, 27 May 2010). 67.", "As to the conduct of the parties, the Court observes that after the Convention had entered into force in respect of the respondent State and prior to 26 October 2009 the authorities failed to make any attempt whatsoever in order to enforce the judgment in question. The Montenegrin Government did not provide any explanation in that regard. It is further noted that even before the ratification of the Convention the Clinical Centre of Montenegro had merely informed the applicant that the impugned decision could not be enforced, but that they would rather seek an alternative solution. To that end it was agreed with the Special Hospital in Risan to take over the applicant, an option explicitly requiring the applicant’s consent, which was clearly lacking in the present case (see paragraphs 32-33 and 10-11 above). The applicant, for his part, would not appear to have contributed in any way to the delay complained of.", "68. Having regard to its case-law on the subject (see, mutatis mutandis, Boucke, cited above, § 89-94), what was at stake for the applicant and the failure of the domestic authorities to display adequate diligence, the Court considers that the non-enforcement at issue amounts to a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION A. Admissibility 69. The Court considers that the applicant’s complaint in respect of Serbia is incompatible ratione personae, for the reasons already stated in paragraph 40 above.", "70. The Court notes that the complaint in respect of Montenegro raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It also considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention and that it cannot be rejected on any other grounds. The complaint must therefore be declared admissible. B.", "Merits 71. The Court notes that Article 13 guarantees an effective remedy before a national authority for an alleged breach of all rights and freedoms guaranteed by the Convention, including the right to a hearing within a reasonable time under Articles 6 § 1 (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000 XI). 72. It recalls, further, that a remedy concerning length is “effective” if it can be used either to expedite the proceedings before the courts dealing with the case, or to provide the litigant with adequate redress for delays which have already occurred (see Sürmeli v. Germany [GC], no.", "75529/01, § 99, ECHR 2006 VII). 73. Finally, the Court emphasises that the best solution in absolute terms is indisputably, as in many spheres, prevention. Where the judicial system is deficient with regard to the reasonable-time requirement in Article 6 § 1 of the Convention, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy.", "74. However, as noted above, the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see paragraph 49 above). 75. Turning to the present case, the Court notes that the Montenegrin Government averred in their preliminary observations that there were remedies available for the applicant’s complaint about the length of the enforcement proceedings made under Article 6 § 1, which objections were rejected on the grounds described at paragraphs 52-59 above. 76.", "The Court concludes, for the same reasons, that there has been a violation of Article 13 taken together with Article 6 § 1 of the Convention on account of the lack of an effective remedy under domestic law for the applicant’s complaint concerning the length of non-enforcement at issue (see Stakić v. Montenegro, no. 49320/07, §§ 55-60, 2 October 2012 (not yet final); see, also, Stevanović v. Serbia, no. 26642/05, §§ 67-68, 9 October 2007; and, mutatis mutandis, Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, §§ 84-85, 27 May 2008). 77.", "The Court would again observe that it might reconsider its view in this regard if the Government are able to demonstrate in future such applications, with reference to specific cases, the efficacy of the said remedies (see paragraph 52 above, in fine). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 78. The applicant also complained: (a) under Article 1 of Protocol No. 1 to the Convention, that his right to peacefully enjoy his property had been violated in that he had been forced to change the place of residence to search for another job and thus had to leave his property in Montenegro; and (b) under Article 14 of the Convention and Article 1 of Protocol No.", "12 thereto, about having been discriminated against. 79. The Court considers that the applicant’s complaints in respect of Serbia are incompatible ratione personae for the reasons already stated in paragraph 40 above. 80. In the light of all the material in its possession, in particular in view of the fact that the applicant submitted no evidence that Montenegro deprived him of his property in its territory or interfered with it in any way, the Court finds that the complaint in this respect is unsubstantiated and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "81. Quite apart from the fact that the applicant does not seem to have raised this issue before the domestic courts, the Court, in any event, notes that there is no evidence in the case file that there has been any discrimination against the applicant on any grounds. It follows that this complaint is also 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 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 the damages but maintained that the exact amount was difficult to specify as it was “an enormous figure”. He did not submit a properly itemised claim or any documentary evidence in that regard. 84.", "The Montenegrin Government made no comment in this regard. 85. Pursuant to Rule 60 §§ 2 and 3 of the Rules of Court, the Court requires specific claims supported by appropriate documentary evidence, failing which it may make no award (see the Rules of Court as well as paragraph 5 of the Practice Direction on Just Satisfaction Claims). As regards pecuniary damage, in particular, it is for the applicant to show that pecuniary damage has resulted from the violation alleged. The applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage (see paragraph 11 of the said Practice Direction).", "Given that the applicant did not submit a properly itemised claim in respect of the pecuniary damage nor any documentary evidence in that regard and thus failed to comply with Rule 60 §§ 2 and 3 of the Rules of Court, the Court makes no award under this head. 86. On the other hand, it is clear that the applicant sustained some non‑pecuniary damage arising from the breaches of his rights under Articles 6 § 1 and 13 of the Convention, for which he should be compensated. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,000 in this regard. B.", "Costs and expenses 87. The applicant maintained that he had incurred “significant” costs and expenses, but he had submitted no invoice. 88. The Montenegrin Government did not make any comment in this respect. 89.", "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, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 90. In the present case, regard being had to the above criteria, as well as to the EUR 850 already granted to the applicant under the Council of Europe’s legal aid scheme, the Court rejects the applicant’s claim in this regard for lack of substantiation. C. Default interest 91.", "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 admissible the applicant’s complaints under Articles 6 § 1 and 13 of the Convention in respect of Montenegro; 2. Declares the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 13 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, 7,000 EUR (seven thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses remainder of the applicant’s just satisfaction claim. Done in English, and notified in writing on 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]
[ "FIRST SECTION CASE OF MOROKO v. RUSSIA (Application no. 20937/07) JUDGMENT STRASBOURG 12 June 2008 FINAL 01/12/2008 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 Moroko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20937/07) 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 Andrey Vladimirovich Moroko (“the applicant”), on 27 March 2007. 2. The applicant was represented by Ms G. Shakhmatova, a lawyer practising in Krasnoyarsk. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 3 September 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits, but the Court dismissed this objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1979 and lives in Krasnoyarsk. 5. In 2001–02 he stood trial for a drugs offence and was acquitted. He sued the State for compensation for the unfounded prosecution and pre-trial detention. 6.", "The case came before the Leninskiy District Court of Krasnoyarsk. By its judgments of 5 December 2003 and 21 September 2006 the court ordered the Ministry of Finance to compensate the applicant’s non-pecuniary and pecuniary damage. The judgments became binding on 2 February 2004 and 16 November 2006, but were not enforced immediately. 7. The judgment of 5 December 2003 was enforced on 21 October 2005 when the Ministry credited the judgment debt to the applicant’s bank account.", "8. The judgment of 21 September 2006 which was enforceable as of 16 November 2006 was not enforced immediately. The writ of enforcement was sent by the court to the bailiff service two months and seven days after the judgment had become final. On the same date the bailiff service returned the writ to the court as it lacked competence to enforce this judgment under the relevant provisions of the Budgetary Code. Two months later, i.e.", "on 27 March 2007, the applicant sent the relevant documents to the Federal Treasury, and on 15 August 2007 the judgment debt was credited to the applicant’s bank account. II. RELEVANT DOMESTIC LAW A. Time-limits for enforcement 9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must honour a judgment in three months.", "B. Purported remedies against non-enforcement 10. Chapter 25 of the Code of Civil Procedure allows a person to appeal in court against an authority whose actions breach his rights (Article 254). If the appeal is well-founded, the court will order the authority to make good the breach (Article 258). 11. Article 208 of the Code of Civil Procedure empowers a court to upgrade the amount of a judgment debt, if a creditor so asks.", "12. Chapter 59 § 4 of the Civil Code obliges the State to compensate a person’s non-pecuniary damage caused by a breach of his property rights. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 13.", "The applicant complained that the lengthy non-enforcement of the judgments breached Article 6 of the Convention and Article 1 of Protocol No. 1. As far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Exhaustion of domestic remedies (a) The Government 14. The Government argued that the applicant had failed to exhaust domestic remedies in breach of Article 35 § 1 of the Convention. He had had at his disposal three remedies, but used none of them. 15.", "The first remedy had been a court complaint about the Ministry’s negligence under Chapter 25 of the Code of Civil Procedure. This remedy had been effective, because it would have condemned the Ministry’s negligence. 16. The second remedy had been a request to upgrade the judgment debt under section 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; and Sarmina and Sarmin v. Russia (dec.), no. 58830/00, 22 November 2005.). When domestic courts had upgraded a judgment debt, they had closely followed the official rate of inflation and compensated any loss caused by inflation.", "17. The third remedy had been a claim for non-pecuniary damage under Chapter 59 § 4 of the Civil Code. In accordance with this Chapter, non-pecuniary damage may be awarded for non-enforcement of domestic judgments if the fact of moral suffering, the debtor’s fault and the causal link between his acts and the negative consequences for the applicant are established in judicial proceedings. In the Government’s view this remedy had proven its effectiveness in practice. For example, a family from Tatarstan had received 1,800 euros for late enforcement of a judgment in their favour (judgment of the Novo-Savinovskiy District Court of Kazan, no.", "2-1962/2006, 23 October 2006). (b) The applicant 18. The applicant retorted that he had no domestic remedies to exhaust. 19. The first remedy cited by the Government would have merely restated the original payment obligation contained in the first judgment.", "20. As regards the second remedy quoted by the Government, the mere existence of the provision allowing to upgrade judicial awards was not sufficient to meet the requirements of Articles 6 and 13. In addition, the official rate of inflation applied by the courts lagged behind the real inflation. 21. The third remedy had not really existed, because the Civil Code stated that non-pecuniary damage could only be granted in the cases provided for by the law (Article 1099).", "The law did not, however, specifically provide for compensation of non-pecuniary damage in case of late enforcement of a judgment. (c) The Court 22. The Court finds for the applicant. 23. Under Article 35 § 1 of the Convention, the Court may deal with an application only after all domestic remedies have been exhausted.", "This rule allows the State to put matters right domestically, without recourse to international litigation (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 65). This rule extends only to the normal use of remedies that are effective, sufficient, and available (see Pine Valley Developments Ltd and Others v. Ireland, no. 12742/87, Commission decision of 3 May 1989, Decisions and Reports (DR) 61, p. 206). 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 and Others v. Turkey cited above, § 68). 24.", "The three remedies suggested by the Government lack this quality. 25. An appeal against the Ministry’s negligence would yield a declaratory judgment that would reiterate what was in any event evident from the original judgment: the State was to honour its debt. This new judgment would not bring the applicant closer to his desired goal, that is the actual payment of the judicial award or, if appropriate, compensation for late payment (see Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000; Plotnikovy v. Russia, no.", "43883/02, § 16, 24 February 2005). 26. As regards the possibility of upgrading the judgment debt, the Court had indeed noted in certain cases cited by the Government that the upgrading of judicial awards had effectively compensated the applicants for inflation losses. The Court held in these cases that the payment without undue delay of such compensation together with the acknowledgement of the violations by the authorities had deprived the applicants of their victim status (Derkach, Yakimenko, Nemakhina, cited above). However these decisions do not establish any general principle that mere compensation for inflation losses is sufficient to afford redress required by the Convention for late enforcement of a judgment.", "In all aforementioned cases the Court reached its conclusions in the specific circumstances where the applicants’ claims for compensation were limited to pecuniary losses resulting from the inflation or the applicants’ position in the domestic proceedings was considered as an implicit waiver to claim compensation for further pecuniary or non-pecuniary damage. 27. The Court agrees in principle with the applicant that the mere upgrading of judicial awards pursuant to Section 208 of the Code of Civil Procedure does not suffice to satisfy the Convention requirement of effectiveness as it would only compensate for possible inflation losses and not for further damages, either pecuniary or non-pecuniary. This upgrading remedy, however accessible and effective in law and practice, is thus not capable in general of affording adequate and full redress for non-enforcement or late enforcement of a domestic judgment. 28.", "As regards the possibility to claim compensation for non-pecuniary damage under Chapter 59 of the Civil Code, the Court notes, as pointed out by the applicant, that Russian law does not specifically provide for compensation of non-pecuniary damage resulting from non-enforcement or late enforcement of domestic judgments. While accepting the Government’s view that the possibility of such compensation is not, in principle, excluded under the existing general provisions of the Civil Code, the Court is not satisfied that this possibility is sufficiently certain in practice so as to offer the applicant reasonable prospects of success as required by the Convention. 29. With the exception of a limited number of cases listed in sections 1070 and 1100, 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.", "The doubts about the effectiveness of this remedy 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 is effective both in theory and in practice. The domestic judgment cited by the Government as awarding non-pecuniary damage on the basis of the existing provisions does not allow the Court to depart from its conclusion (see also Wasserman v. Russia (no. 2), no. 21071/05, 10 April 2008). 30.", "The Court accordingly rejects the Government argument about the non-exhaustion of domestic remedies. 2. Six months 31. With regard to the judgment of 5 December 2003, the Government also argued that the applicant had missed the six-month period laid down in Article 35 § 1 of the Convention. In particular, the date of introduction was three years and four months after the date of the judgment, and one year and five months after the date of the enforcement.", "32. The applicant replied that it had been only on 24 October 2007 that Government officials preparing the memorandum to the Court had told him that the judgment had been enforced. 33. The Court finds for the Government. 34.", "Where there is no effective remedy, the six-month period runs from the date of the omission complained of, or from the date when the applicant learned about the omission (see Hilton v. United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108). Applied to non-enforcement, this rule would mean that six months run from the date of enforcement (see Gorokhov and Rusyayev v. Russia, no. 38305/02, § 27, 17 March 2005). 35.", "The judgment of 5 December 2003 was enforced on 21 October 2005, that is more than six months before the date of introduction. On the one hand, the applicant asserts that he learned about the transfer only in 2007. But on the other hand, he can be reasonably expected to have learned about the transfer in 2005, because this operation was listed in his bank statement. 36. It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "3. Other grounds 37. With regard to the judgment of 21 September 2006, the Government argued that the complaint was manifestly ill-founded. The enforcement had lasted a short time. The applicant had sent the writ of enforcement to the wrong authority.", "He had acted in bad faith, because instead of sending the writ to the correct authority, he had applied to the Court. 38. The applicant made no observations on this point. 39. The Court refers to its numerous findings of violations on account of lengthy enforcement of domestic judgments in Russia and 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 40. The enforcement of the judgment of 21 September 2006 lasted from 16 November 2006 to 15 August 2007, that is nine months.", "The Government submitted that this period was reasonable and that all authorities involved in the execution of this judgment had displayed the necessary diligence, thus avoiding unnecessary delays. The applicant maintained his complaint. 41. An unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III).", "To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what the nature of the award was (Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 42. On the one hand, the judgment was easy to enforce, because it required only a transfer of a sum of money, and it was the State, not the applicant, who had to take the initiative of enforcing it (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).", "43. On the other hand, the overall time taken by the authorities to enforce the judgment does not appear prima facie unreasonable, and is in any event less than the time found to be excessive in the other similar cases concerning Russia where the Court found violations of the Convention on account of non- enforcement or late enforcement. 44. The Court further notes that the authorities had acted with the necessary diligence. The writ for enforcement was sent by the competent court to the bailiff service two months and seven days after the judgment had become final.", "On the same date the bailiff service returned the writ to the court as it lacked competence to enforce this judgment under the relevant provisions of the Budgetary Code. Two months later, i.e. on 27 March 2007, the applicant sent the relevant documents to the Federal Treasury and the judgment was complied with five months after that date. While noting that the Ministry of Finance did not comply with the three-month time-limit set by the Budgetary Code for execution of a judgment, the Court does not consider that the lapse of time which occurred has breached the reasonable time requirement enshrined in the Convention. 45.", "In view of the above, and having regard to the fact that the award did not relate to the applicant’s main source of income but constituted only a limited amount of damages for a past wrong, the Court finds that there has been no violation of Article 6 of the Convention and Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 46. The applicant complained under Article 13 of the Convention that he had no domestic remedy against the non-enforcement.", "Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 47. The Court recalls that Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case, it has not found violations of Article 6 and of Article 1 of Protocol No.1, but the Court considers, with reference to its own decision on the admissibility above that the applicant’s claim under these Articles was arguable.", "The complaint under Article 13 must also be declared admissible and considered on the merits. 48. Having considered the Government’s preliminary objection, the Court has found that the applicant had no remedy to exhaust as none of those invoked by Government conformed to the Convention requirement of effectiveness. Given various shortcomings of domestic remedies identified above (§§ 25–29), the Court must conclude that the applicant was deprived of an effective remedy in respect of his arguable claim for compensation for late enforcement of the domestic judgment in his favour. There has accordingly been a breach of Article 13 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 3,507 euros (EUR) in respect of pecuniary and non-pecuniary damage.", "51. The Government argued that this claim was unjustified and excessive. 52. The Court does not discern any causal link between the violation found and the damage alleged and therefore rejects this claim. The Court further considers that, having regard to the nature of the violation found, the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage.", "B. Costs and expenses 53. The applicant also claimed EUR 281 for the costs and expenses incurred. 54. The Government argued that this claim was unsubstantiated.", "55. The Court finds that the applicant has not proven his expenses and therefore rejects this claim. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the non-enforcement of the judgment of 21 September 2006 and the lack of domestic remedies admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 of the Convention or Article 1 of Protocol No.", "1; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the damage sustained by the applicant; 5. Dismisses the applicant’s claim for further just satisfaction. Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF KAZACHKOVA AND OTHERS v. RUSSIA (Applications nos. 33064/07 and 8 others - see appended list) JUDGMENT STRASBOURG 30 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Kazachkova and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 9 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE GOVERNMENT’S REQUEST TO STRIKE OUT SOME APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 6. The Government submitted unilateral declaration in some applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine).", "The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). III. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 7.", "The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 9.", "In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 10. Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.", "11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour, as indicated in the appended table below. 12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention. 13. The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non‑enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017).", "Even though the remedy was – or still is – available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230). 14. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Korotyayeva and Others v. Russia, nos. 13122/11 and 2 others, §§ 36-40, 27 June 2017; Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011).", "This ruling is without prejudice to the Court’s future assessment of the new remedy. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law, and insofar as claims for just satisfaction were lodged by the applicants (see, in particular, Gerasimov and Others, cited above, §§ 187‑200; and Korotyayeva and Others, cited above), the Court considers it reasonable to award the sums indicated in the appended table.", "17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. 18. At the same time, the Court notes from the Government’s submissions that in applications nos. 49569/13 and 68839/13 the domestic judgments in the applicants’ favour have remained unenforced to date.", "The State’s obligation to enforce those judgments is not in dispute. The Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the judgment in the applicants’ favour (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010). FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Rejects the Government’s request to strike some of the applications out of the list; 3. Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions, as indicated in the appended table, admissible; 4. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 5.", "Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention; 6. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions in applications nos. 49569/13 and 68839/13; 7. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 30 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1(non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant / household (in euros)[1] 33064/07 05/06/2007 Tatyana Nikolayevna Kazachkova 04/01/1973 Albert Aflitunov 16/04/1949 Presnenskiy District Court of Moscow, 19/11/2003 06/04/2004 04/09/2009 5 year(s) and 4 month(s) and 30 day(s) To register a trade union 6,000 13600/10 12/02/2010 Valentina Aleksandrovna Stepnova 25/01/1946 Bazarnosyzganskiy District Court of Ulyanovsk Region, 27/02/2009 07/04/2009 27/12/2010 1 year(s) and 8 month(s) and 21 day(s) To provide heating supply of the applicant’s apartment 1,500 40437/10 28/06/2010 Sergey Alekseyevich Loginov 21/09/1959 Maikop Garrison Military Court, 30/11/2009 Maikop City Court of the Republic of Adygeya 18/09/2009 10/12/2009 23/10/2009 10/11/2016 6 year(s) and 11 month(s) and 1 day(s) 11/04/2011 1 year and 5 month(s) and 19 day(s) provision of documents related to housing provision of documents related to housing 6,000 78491/12 18/08/2012 Vladimir Petrovich Loktionov 07/04/1950 Zyuzinskiy District Court of Moscow, 21/10/2004 Presidium of Moscow City Court, 15/06/2006 10/12/2004 15/06/2006 18/12/2013 9 year(s) and 9 day(s) 18/12/2013 7 year(s) and 6 month(s) and 4 day(s) \"... the Head of the [Forensic Bureau] to incorporate in the Rehabilitation Program ... a profession ...\" \"... acknowledge the unlawfulness of the actions of the Head of the [Forensic Bureau] ...\" 6,000 20600/13 31/01/2013 Vladimir Stepanovich Sazonov 04/03/1953 Volodarskiy District Court of Bryansk, 20/12/2011 21/02/2012 03/04/2013 1 year(s) and 1 month(s) and 14 day(s) exclude the applicant’s house from the list of houses to be demolished 1,000 49569/13 10/07/2013 Household Viktoriya Viktorovna Klassen 01/10/1984 Vyacheslav Alekseyevich Soplin 25/05/1955 Tamara Anatolyevna Soplina 15/06/1952 Orenburskiy District Court of Orenburg Region, 16/02/2009 06/03/2009 pending More than 8 year(s) and 5 month(s) and 23 day(s) repair works in the applicants’ house 6,500 63406/13 22/07/2013 Aleksey Alekseyevich Grinko 25/07/1978 Military Court of Naro-Fominsk, 17/02/2011 Troitsky District Court of Moscow, 18/06/2013 09/03/2011 24/06/2013 01/04/2016 5 year(s) and 24 day(s) 01/04/2016 2 year(s) and 9 month(s) and 9 day(s) provision of housing 3,644 68839/13 25/09/2009 Igor Stanislavovich Yevseyev 20/01/1955 Syktyvkar Federal Court, 08/02/2002 18/02/2002 pending More than 15 year(s) and 6 month(s) and 11 day(s) provision of housing 6,000 76570/13 18/11/2013 Aleksey Alekseyevich Grinko 25/07/1978 Naro-Fominsk Garrison Military Court, 18/11/2011 29/11/2011 27/10/2014 2 year(s) and 10 month(s) and 29 day(s) recalculation and payment of monetary allowance 2,590 [1]. Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF MECHENKOV v. RUSSIA (Application no. 35421/05) JUDGMENT STRASBOURG 7 February 2008 FINAL 07/07/2008 This judgment may be subject to editorial revision. In the case of Mechenkov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Loukis Loucaides,Nina Vajić,Anatoli Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 17 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35421/05) 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 Aleksandr Stepanovich Mechenkov (“the applicant”), on 18 August 2005.", "2. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mrs V. Milinchuk. 3. On 27 June 2006 the President of the Chamber decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application. 4.", "On 1 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 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 1957 and lives in Novosibirsk. He is currently serving a sentence in correctional facility IK-18 of the Novosibirsk Region. A.", "The applicant’s state of health and the medical treatment available to him 1. Events before 28 October 2001 7. On 6 April 1993 the applicant was sentenced to nine years’ imprisonment. 8. On 10 June 1996 the applicant swallowed a piece of electrode and was admitted to the surgical unit of medical penitentiary institution LIU-10, Novosibirsk («лечебно-исправительное учреждение № 10», hereafter LIU-10).", "He had a chest X-ray and was diagnosed with infiltrative tuberculosis of the upper lobes of the lungs in the active phase. The applicant was treated with ethambutol[1] and isoniazid[2]. 9. On 28 May 1998 the applicant was discharged from LIU-10 to Prison UF-91/21, Novosibirsk («УФ-91/21», hereafter UF-91/21) with a diagnosis of infiltrative tuberculosis resulting in fibrosis and dense foci in the upper lobes of the lungs. 10.", "On 12 April 2000 the applicant was again placed in LIU-10 on account of suspected relapse of tuberculosis. After a medical examination he was diagnosed with infiltrative tuberculosis of the upper lobes of the lungs with dense foci and prescribed with streptomycin, isoniazid, rifampicin[3], ethambutol, pyrazinamide, methionine, diasoline, vitamin B6 and sodium thiosulfate. On 3 May 2000 the applicant stated in writing that he refused to take the prescribed treatment. According to the Government, the course of treatment continued. 11.", "Having been granted amnesty, the applicant was released from LIU‑10 on 16 August 2000. 12. According to the Government, on his release from detention the applicant failed to apply for registration to the centre for prevention of tuberculosis (“the prophylactic centre”). The applicant submitted that his attempt to register at the prophylactic centre had been futile as he had had no valid permanent residence registration. 13.", "On 4 June 2001 the applicant was placed on the list of the prophylactic centre of Krasnozersk Hospital and diagnosed with focal tuberculosis of the upper lobes of the lungs in the resorption and induration phase. 14. On 29 June 2001 the applicant presented himself at the prophylactic centre. He underwent a medical examination and was issued with a certificate confirming that he was fit to work as an operator of agricultural machinery. 2.", "The applicant’s detention after 28 October 2001 (a) Detention between 28 October 2001 and 26 April 2002 15. On 28 October 2001 the applicant was arrested on charges of infliction of bodily injuries and incarcerated in the temporary detention facility of the Krasnozerskiy District Department of the Interior of the Novosibirsk Region. Upon the arrest he was not given blood tests for hepatitis C. 16. On 29 October 2001 the applicant complained to his guards that he was spitting blood. They escorted him to the prophylactic centre of Krasnozersk Hospital.", "The applicant had a chest X-ray and was diagnosed with clinical recovery from tuberculosis resulting in infrequent calcifications. No medical evidence of haemoptysis (coughing blood) was found. 17. On 14 November 2001 the applicant was transferred to remand centre SIZO No. 2, Kuybyshev, the Novosibirsk Region, and underwent a medical examination there.", "18. On 26 February 2002 the Krasnozerskiy District Court of the Novosibirsk Region convicted the applicant and sentenced him to eight years’ imprisonment. 19. On 8 April 2002 the Novosibirsk Regional Court amended the judgment on appeal and reduced the sentence to seven years’ imprisonment. (b) Detention in prison UF-91/13 20.", "On 26 April 2002 the applicant was transferred to serve his sentence in Prison UF-91/13, Novosibirsk (УФ-91/13, hereafter UF-91/13). 21. On 31 July 2002 the applicant was placed in LIU-10 and diagnosed with clinical recovery from pulmonary tuberculosis resulting in fibrosis and dense foci, stenocardia and extra-systolic arrhythmia. On 8 August 2002 he was discharged from LIU-10 and transferred back to UF‑91/13. 22.", "On 30 September 2002 the applicant went on hunger strike, which led to a deterioration in his state of health. On 7 October 2002 the applicant declined the prison authorities’ offer to place him in hospital. On 9 October 2002 the applicant was admitted to the prison infirmary of UF-91/13 and ended his hunger strike. According to the Government, while in the UF-91/13 infirmary, the applicant did not keep to the prescribed diet and refused to undergo certain tests or take treatment. On 23 October 2002 he was discharged from the UF-91/13 infirmary for failure to comply with its rules.", "23. On 13 January 2003 the applicant was transferred away from UF‑91/13 to an unspecified penitentiary institution. (c) Medical assistance available to the applicant after 2 April 2003 24. Between 2 April 2003 and 20 August 2004 the applicant was kept in Prison UF-91/15 (УФ-91/15, hereafter UF-91/15). 25.", "On 5 November 2003 the applicant was placed in the inter-regional tuberculosis hospital («межобластная туберкулезная больница», hereafter MSTB), a specialised facility within LIU-10, for clinical confirmation of diagnoses of ischaemia and chronic hepatitis. On 18 December 2003 he was discharged from the MSTB to UF-91/15 with a diagnosis of compound gastritis, pyloric spasm and emotionally unstable personality disorder. 26. On an unspecified date in 2004 the applicant was transferred to UF‑91/21. On arrival he was listed in the prison medical register.", "The Government submitted that on several occasions the applicant had refused to take preventive anti-tuberculosis medications. According to the applicant, shortly after the transfer to UF‑91/21 he was placed in its prison infirmary where he received injections with non-disposable syringes. 27. On 25 October 2004 the applicant was placed in the MSTB on account of suspected relapse of tuberculosis and underwent general and biochemical blood tests, as well as a chest X-ray. He was diagnosed with recurrence of infiltrative tuberculosis of the upper lobe of the left lung.", "28. According to the Government, on 29 November 2004 the applicant’s blood test revealed antibodies to viral hepatitis C. Relying on the test results, the LIU-10 doctors diagnosed the applicant with chronic hepatitis C and treated him with essenciale, cerucal, riboksin and vitamins C, B1 and B6. The applicant submitted that at some point Mr G., the deputy head of LIU-10, referring to scarce budgetary financing, offered to purchase some costly hepatoprotective medicines for him at his own expense. 29. On 16 December 2004 and 27 January 2005 the applicant’s blood tests revealed no acute hepatitis C. The applicant was then prescribed ninety-three doses of anti-tuberculosis medications, such as isoniazid, rifampicin, ethambutol, protionamid and streptomycin.", "On 26 January 2005 the MSTB doctor filed with the head of LIU‑10 a report stating that the applicant had taken none of the prescribed doses. 30. On 7 February 2005 the applicant was discharged from the MSTB and placed in the LIU-10 infirmary. He was prescribed five anti-tuberculosis medicines, vitamins and hepatoprotective treatment. According to the Government, on several occasions, namely on 11 February, 2 and 30 March, 8 and 12 April, 20 June and 12 July 2005, as well as on 2 February 2006, the applicant refused to take the prescribed anti-tuberculosis treatment.", "31. On 30 March 2005 the doctors of the LIU-10 infirmary prescribed the applicant with a course of anti-tuberculosis medication comprising sixty doses. 32. According to the Government, the applicant’s tuberculosis had been stabilised by August 2005. 33.", "On 25 October 2005 the applicant took blood tests and was diagnosed with infiltrative tuberculosis and hepatitis C in a partial remission stage. No acute hepatitis C was revealed at that time. According to the applicant, he received no antiviral or hepatoprotective treatment. 34. On 9 December 2005 the LIU-10 infirmary doctor issued a certificate confirming that the applicant had taken none of the sixty doses of the prescribed anti-tuberculosis medication.", "35. On 18 April 2006 the applicant was transferred to the MSTB for inpatient treatment and allegedly placed in a cell with active tuberculosis carriers. On 27 April 2006 the applicant was discharged from the MSTB and transferred back to LIU-10. 36. On an unspecified date in 2007 the applicant was transferred from LIU‑10 to correctional facility IK-18 of the Novosibirsk Region.", "B. Proceedings instituted by the applicant 1. Complaints at domestic level 37. On unspecified dates in 2005 the applicant complained to the prosecutor’s office of the Novosibirsk Region (“the regional prosecutor’s office”) about his infection with hepatitis C and lack of medical assistance in LIU-10. By letters of 11 and 13 April 2005 the regional prosecutor’s office informed the applicant that his complaints had been dismissed as unsubstantiated.", "38. At some point the applicant complained to the Main Department of the Federal Service for the Execution of Sentences in the Novosibirsk Region. On 4 July 2005 they replied that the applicant had been refusing to comply with doctors’ instructions and had taken only six out of sixty prescribed doses of anti-tuberculosis treatment. They commented that the applicant had been provided with appropriate and comprehensive medical assistance. 39.", "The applicant applied for conditional release on health grounds. On 15 April 2005 the Novosibirskiy District Court of the Novosibirsk Region dismissed his request. Apparently the applicant did not appeal against the decision. 40. The applicant sued a regional branch of the Federal Penitentiary Service claiming compensation for damage to health.", "On 28 February 2005 the Dzerzhinsk District Court of Novosibirsk returned the statement of claims to the applicant for elimination of discrepancies. It appears that the applicant did not comply with the court’s request. He lodged another statement of claims, which was returned to him for a failure to eliminate discrepancies by the Dzerzhinsk District Court of Novosibirsk on 1 August 2005. Apparently the applicant did not appeal against the decision. 41.", "The applicant believed that his property rights had been infringed by a private company and lodged against it two statements of claims, one of which was returned to him for elimination of discrepancies on 8 November 2005. On 3 April 2006 the second action was disallowed for failure to pay a court fee. The applicant did not appeal against the rulings. 42. The applicant complained to the regional prosecutor’s office that Mr G. had made death threats to him.", "He also complained about his infection with hepatitis C and interference with his correspondence with the Court. 43. By letter of 27 March 2006 the regional prosecutor’s office informed the applicant that they had dismissed the entire set of his complaints as unsubstantiated. They observed, in particular, the following: “<...> [Medical] data obtained in the course of the objective examination excludes viral hepatitis’ activity and the need to administer antiviral treatment. The infection with hepatitis C could have occurred as a result of repeated acts of self-mutilation [that damaged] the epidermis and the mucous membrane of the stomach, committed in March and May 1995 and June and September 1996.", "Since 2000 [medical] facilities of the Novosibirsk Region penitentiaries have used only disposable syringes and needles; thus the possibility of infection with viral hepatitis C in these facilities is excluded. <...> In 2005 [the applicant] sent no applications to the European Court via the LIU‑10 administration; however, he received acknowledgment of receipt dated 16 January 2006 of his application form dated 9 November 2005. In 2006 [the applicant] sent two letters to the European Court, namely a sealed letter of 14 February 2006 and [the applicant’s] explanation of 17 February 2006; by 22 March 2006 LIU-10 had not received any replies to these letters.” 44. On 29 August 2006 the regional prosecutor’s office received the applicant’s complaint of poor detention conditions and insufficient medical assistance in LUI-10, as well as about the disciplinary sanctions imposed on him by the LIU-10 authorities. 45.", "On 29 September 2006 the regional prosecutor’s office informed the applicant that they had carried out an inquiry into the facts complained of and established the following. In 2006 LIU-10 had been fully supplied with anti-tuberculosis treatment and thus the necessary medication had been available to the applicant. The applicant’s allegations that Mr G. had extorted foreign currency from him in exchange for expensive hepatoprotective medicines were rebutted, as Mr G. had only advised the applicant of his right to purchase additional treatment. 2. Application to the Court and further developments (a) The applicant’s correspondence with the Court 46.", "On 18 August 2005 the applicant sent his first letter to the Court. 47. On 8 December 2005 the applicant, referring to his poor state of health and lack of adequate medical assistance in LIU-10, requested the Court to indicate to the Government interim measures under Rule 39 of the Rules of Court. He submitted that he was unable to submit copies of his medical record kept in LIU-10. 48.", "On 26 January 2006 the President of the Chamber requested the Government to submit factual information on the case. 49. On 20 April 2006 the Court forwarded the factual information submitted by the Government to the applicant for comments, to be submitted before 1 June 2006. On 4 May 2006 the LIU-10 authorities received the Court’s letter. According to the applicant, he was served with it only on 25 May 2006.", "50. On 26 July 2006 the Court acknowledged receipt of the applicant’s letter. On 11 August 2006 the Court’s letter reached LIU-10. The letter carries the LIU-10 incoming mail stamp. 51.", "On 8 September 2006 the Court informed the applicant that his case had been communicated to the Government. On 22 September 2006 the Court’s letter reached LIU-10. The letter carries the LIU-10 incoming mail stamp placed next to a signature of the Section Registrar. 52. On 13 September 2006 the Court acknowledged receipt of the applicant’s letter.", "On 2 October 2006 the Court’s letter reached LIU-10. The letter carries the LIU-10 incoming mail stamp placed next to a signature of a lawyer of the Registry. 53. On 19 September 2006 the Court acknowledged receipt of the applicant’s letters. On 13 October 2006 the Court’s letter reached LIU-10.", "The letter carries the LIU-10 incoming mail stamp placed next to a signature of a lawyer of the Registry. 54. On 22 September 2006 the Court acknowledged receipt of the applicant’s letters. On 13 October 2006 the Court’s letter reached LIU-10. The letter carries the LIU-10 incoming mail stamp placed next to a signature of a lawyer of the Registry.", "(b) Sanctions imposed on the applicant 55. Between 13 February 2002 and 4 May 2005 the applicant was placed in a disciplinary cell six times and reprimanded five times for failure to comply with prison regulations. 56. The applicant was placed in a disciplinary cell a further nine times. In particular, on 28 October 2005 he was sanctioned for storing prohibited items; on 1 and 22 March, 14 April, 24 May and 21 July 2006 for unauthorised visits to certain areas of a penitentiary institution; on 14 June 2006 for smoking outside the designated area.", "On 29 September 2006 he was again confined in a disciplinary cell for swearing at an officer, and on 13 October 2006 he was punished for sending a complaint to the Prosecutor General without the authorities’ permission. 57. On 17 March and 6 September 2006 the applicant was reprimanded for swearing. Two more reprimands were given him, on 10 July and 14 August 2006, for unauthorised visits to certain areas of a penitentiary institution. (c) Conversations with the LIU-10 officials 58.", "On 14 February 2006 the applicant handed over to the LIU-10 authorities a sealed letter to the Court. On the same date Mr S., the new deputy head of LIU-10, and two other officials, Mr K. and Mr L., organised a meeting with the applicant and discussed the contents of the letter. The case file contains a certificate signed by the three officials, which reads as follows: “On 14 February 2006 a conversation was held with the convict Mechenkov in the educational work unit [of LIU-10] concerning the sealed complaint he had lodged. In the course of the conversation Mechenkov refused to inform the [LIU-10] officers of the purpose of the complaint and of its content.” 59. According to the applicant, on 27 March 2006 Mr S. in the presence of Mr K. said to the applicant, alluding to the latter’s application to the Court, that he “had got mixed up with the State that had no mercy” and that even if he survived in prison, he might be hit by a car after his release.", "60. On 7 July 2006 Mr S., Mr K. and Mr L. held another meeting with the applicant and issued a certificate analogous to that of 14 February 2006. On the same date they sent the applicant’s letter to the Court. 61. On 2 August 2006 Mr S., Mr K. and Mr L. discussed his sealed complaint to the Court with the applicant and issued a certificate to that effect.", "62. On 19 and 27 October 2006 Mr S., Mr K. and Mr L. issued certificates confirming that they had had conversations with the applicant concerning his sealed complaints and stating that the applicant had refused to disclose their contents. On the same dates the LIU-10 authorities sent the applicant’s letters to the Court. 63. On 17 December 2006 and 9 January 2007 Mr L. issued certificates confirming that he had conversed with the applicant and that the latter had refused to disclose the contents of his sealed letters.", "On 18 December 2006 and 9 January 2007 the LIU-10 authorities sent the applicant’s letters to the Court. II. MEDICAL documents submitted by the Government 64. The Government submitted to the Court copies of a number of documents related to the applicant’s medical history. Most of the copies are of poor quality.", "65. Majority of the documents relate to the events between June 1996 and March 2003 and concern the treatment that the applicant received on account of tuberculosis. The documents submitted that relate to the applicant’s hepatitis C may be summarised as follows. 66. A barely legible one-page document entitled “Discharge summary” is dated 18 December 2003; it is unclear which medical institution issued it.", "It transpires from the document that by 18 December 2003 the applicant had been diagnosed with chronic hepatitis of unconfirmed aetiology in inactive phase. 67. A record dated 5 November 2004 that appears in a document entitled “Medical record” lists the applicant’s diagnosises, including chronic viral hepatitis C with zero activity. 68. The case file contains one page of the “Discharge summary”.", "It is clear from the content of the document that the discharge summary contains more than one page. The document confirms that between 25 October 2004 and 7 February 2005 the applicant was kept in the MSTB and diagnosed with infiltrative tuberculosis concurrent with chronic viral hepatitis C with zero activity. It transpires from the document that the applicant had unspecified blood tests, chest X-ray and electrocardiogram. 69. According to a one-page document that presumably forms part of a medical record, on 11 February 2005 the applicant visited a doctor and complained that he had been infected with hepatitis C in UF-91/15.", "The applicant, who had refused to take anti-tuberculosis treatment, was prescribed with essenciale, vitamin B6 and two more medicines, the names of which are illegible. 70. The case file contains a barely legible one-page document from which it transpires that the applicant spent some time in an unspecified medical institution with a diagnosis of recurrence of tuberculosis concurrent with viral hepatitis C with zero activity. The document contains no information concerning the treatment prescribed to the applicant. III.", "RELEVANT DOMESTIC LAW 71. Article 91 § 2 of the Russian on Execution of Sentences of 1997 («Уголовно-исполнительный Кодекс РФ»), as amended on 8 December 2003, as well as Rule 53 of the Internal Regulations of Correctional Facilities adopted by Decree no. 205 of the Russian Ministry of Justice of 3 November 2005, provide that all detainees’ incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility. Correspondence with courts, prosecutors, penitentiary officials, the Ombudsman, the public monitoring board and the European Court is not subject to censorship. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on account of infection with hepatitis C 72. The applicant complained under Article 3 of the Convention that he had been infected with hepatitis C after his incarceration in October 2001. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 73. The Government submitted that the applicant could not have contracted hepatitis C in any penitentiary facility after 28 October 2001 because since that date all medical procedures in the penitentiary system’s facilities had been done with disposable or sterile instruments. In the Government’s view, the applicant had not been duly diligent as regards to his health and could have contracted hepatitis C in the usual ways before his arrest in October 2001.", "74. The applicant contested the Government’s submissions. He submitted that in 1995 and 1996 he had undergone three surgical procedures while in detention that the Government had failed to mention. He also explained that between August 2000 and October 2001 he had undergone medical check-ups that had revealed no hepatitis C. B. The Court’s assessment 75.", "The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months of the final decision in the process of exhaustion. 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.), nos. 62566/00 et seq., 10 January 2002). Special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware, or should have become aware, of those circumstances (see Bulut and Yavuz v. Turkey (dec.), no.", "73065/01, 28 May 2002). 76. The Court further points out that it is not open to it to set aside the application of the six-month rule solely because a respondent Government have not made a preliminary objection based on that rule, since the said criterion, reflecting as it does the wish of the Contracting Parties to prevent past events being called into question after an indefinite lapse of time, serves the interests not only of respondent Governments but also of legal certainty as a value in itself. It marks out the temporal limits of the supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).", "77. Turning to the circumstances of the present case, the Court notes that, according to the Government, the applicant was diagnosed with chronic hepatitis C for the first time on 29 November 2004 (see paragraph 28 above). The applicant did not allege that he had become aware of the diagnosis at a later date. The present application was lodged on 18 August 2005, more than six months after 29 November 2004. 78.", "The Court further notes that the applicant attempted to bring his grievances to the attention of the domestic authorities. In particular, early in 2005 he complained about his infection with hepatitis C to the prosecutor’s office. He also lodged a statement of claims with a district court, but did not take the appropriate steps to have the case finally decided. Given that the Government did not plead non-exhaustion, the Court is not in a position to determine whether the applicant had exhausted effective domestic remedies available to him, if any, in respect of the infection complaint. In any event, the Court does not deem it necessary to determine the benchmark for the calculation of the six-month period for the following reason.", "79. The Court observes that the circumstances of the applicant’s infection with hepatitis C were contested between the parties. At the outset of the proceedings before the Court the applicant insisted that he could have become infected with the virus of hepatitis C after his arrest in October 2001. The Government refuted his allegations and presumed that the infection could have occurred before the arrest. The applicant did not agree with the Government and noted that in 1995 and 1996 he had undergone surgical procedures, which the Government had not mentioned.", "He asserted that between August 2000 and October 2001 he had undergone medical check-ups which had revealed no hepatitis C. 80. The Court notes that an ordinary medical check-up does not suffice to reveal chronic hepatitis. Considering that the applicant did not submit any medical evidence that he had undergone a specific blood test for hepatitis C before his incarceration in October 2001, the Court concludes that the applicant’s allegations relating to his infection with the hepatitis C virus did not go beyond speculation and assumption. 81. In the light of the above, the Court finds that the material in the case file does not enable it to conclude beyond all reasonable doubt that the applicant contracted chronic hepatitis C after his incarceration on 28 October 2001 and that such infection could be imputable to the respondent State.", "82. 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. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on account of RISK OF REcurrence OF TUBERCULOSIS AND INFECTION WITH HEPATITIS A 83. The applicant complained under Article 3 of the Convention that in LIU-10 he had been held with inmates suffering from active tuberculosis and hepatitis A and thus could have become infected with those illnesses.", "A. Submissions by the parties 84. The Government contested the applicant’s allegations. They submitted that the applicant had never shared a cell with active tuberculosis carriers. They further insisted that no case of infection with hepatitis had been registered in the penitentiary institutions of Russia since 28 October 2001. 85.", "The applicant disagreed with the Government and rebutted their allegations and claimed that one of his inmates had contracted hepatitis A in LIU-10, while a number of other detainees had been infected with HIV and hepatitis there. He did not produce any evidence in support of his position. B. The Court’s assessment 86. The Court observes at the outset that it has already examined cases concerning alleged violations of Article 3 of the Convention on account of poor conditions of detention entailing high risks of contracting tuberculosis (see, for example, Kalashnikov v. Russia, no.", "47095/99, § 98, ECHR 2002‑VI, and Solovyev v. Russia (dec.), no. 76114/01, 27 September 2007). Accordingly, it considers that the applicant’s complaint about risks of recurrence of tuberculosis and infection with hepatitis A could fall within the ambit of Article 3 of the Convention. 87. However, the Court notes that the applicant’s allegations were not supported by any proof.", "It takes into consideration that the applicant might have experienced difficulties in procuring documentary evidence. Nevertheless, the Court points out that in cases where detainees were unable to produce documents to support their complaints it has relied on other evidence, for example, written statements signed by eyewitnesses (see, for example, Khudobin v. Russia, no. 59696/00, § 87, ECHR 2006‑... (extracts)). Accordingly, it was open to the applicant to provide the Court with written statements by those of his inmates who had suffered from active tuberculosis or hepatitis A, which he failed to do. 88.", "Thus, the Court is not persuaded that the applicant made a prima facie case as regards the alleged risks of recurrence of tuberculosis and infection with hepatitis A. 89. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on account of INADEQUATE MEDICAL ASSISTANCE 90.", "The applicant complained under Article 3 of the Convention that the LIU-10 personnel had not provided him with medical treatment adequate to his hepatitis C concurrent with tuberculosis. A. Submissions by the parties 91. The Government contended that the medical assistance provided to the applicant while in detention had been adequate. The applicant had not been subjected to medical tests for hepatitis C upon his arrest and placement in custody because he had demonstrated no clinical evidence of the illness and the prison regulations then in force had not provided for mandatory hepatitis C tests. The Government submitted that they could not produce a copy of the applicant’s medical record for the period between 10 June 1996 and 28 May 1998 because it had been destroyed.", "On 29 November 2004 the applicant had been diagnosed with chronic hepatitis C. The absence of acute hepatitis had proven that the infection with the virus had occurred before the placement in the penitentiary facility. Once the illness had been revealed, the applicant had received essenciale, cerucal, riboksin and vitamins. The applicant had not suffered from acute hepatitis C while in LIU-10 and had not required inpatient treatment. In the absence of clinical evidence of acute hepatitis C the applicant had been provided with palliative care and subjected to monitoring of blood biochemical characteristics and dynamic therapeutic control. The applicant had been repeatedly placed in LIU-10 on account of tuberculosis where he had been prescribed with anti-tuberculosis treatment.", "However, on several occasions he had refused to take the prescribed medicines. According to the Government, the existing system of providing detainees with medical assistance is compatible with Article 3 of the Convention and the applicant’s complaint was entirely unsubstantiated. 92. The applicant maintained his submissions and insisted that his rights under Article 3 of the Convention had been infringed. B.", "The Court’s assessment 1. Admissibility 93. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) Establishment of facts 94. The Court observes that the parties to the present case presented differing accounts of the medical assistance rendered to the applicant in respect of his illnesses. It also notes the difficulties for the applicant in obtaining the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case of treatment contrary to Article 3 of the Convention and the Court is prevented from reaching factual conclusions for lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred (see, mutatis mutandis, Toğcu v. Turkey, no.", "27601/95, § 95, 31 May 2005; Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-... (extracts)). 95. The Court observes that, when communicating this case, it asked the Government whether the medical treatment available to the applicant on account of his tuberculosis and hepatitis C had been adequate for his condition and sufficient for preventing further deterioration of his health. 96.", "The Government submitted their written observations in this respect. Regrettably, they did not produce a copy of the applicant’s entire medical file. Instead they provided copies of a few documents, some of which were barely legible. The information that can be obtained from them relates mostly to the applicant’s tuberculosis. The data at the Court’s disposal relating to the treatment available to the applicant on account of his hepatitis C are sparse (see paragraphs 64 – 70 above).", "97. The Government stated that the applicant’s medical records for 1996 to 1998 had been destroyed. The Court reiterates that the authorities of the penitentiary institution should have kept a record of the applicant’s state of health and the treatment he underwent while in detention (see Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006‑... (extracts)). The Court further notes that the Government gave no reason for their failure to submit legible copies of the applicant’s medical file that should have contained records made after 1998.", "Moreover, the Government did not provide any medical record related to the applicant’s hepatitis made after 25 October 2005 (see paragraph 33 above). It follows that the Government disregarded the opportunity to support their submissions by evidence to which they had sole access. 98. The Court therefore considers that, where necessary, it can legitimately draw inferences from the Government’s failure to provide legible medical documents. (b) General principles enshrined in the Court’s case-law 99.", "The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Labita v. Italy, judgment of 6 April 2000, Reports of Judgments and Decisions 2000-IV, § 119). Such ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level 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 state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (e.g.", "Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII). 100. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita, cited above, § 120).", "Nevertheless, in the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person’s health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI), with the provision of the requisite medical assistance and treatment (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). 101. Although the medical assistance available in prison hospitals may not always be at the same level as in the best medical institutions for the general public, the State must ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła, cited above, § 94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp.", "15-16, § 79). Furthermore, if the authorities decide to maintain a seriously ill person in detention, they must demonstrate special care in guaranteeing such conditions of detention that correspond to his special needs resulting from his disability (see Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004). (c) Application of the above principles to the present case 102. In order to establish whether the applicant received requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for timely diagnosis and treatment of his illnesses (see Popov v. Russia, no.", "26853/04, § 211, 13 July 2006). 103. First, the Court will consider whether the applicant was promptly diagnosed with chronic hepatitis C. 104. According to the Government, the applicant was not subjected to blood tests for hepatitis C upon his incarceration on 28 October 2001 for the reason that by that time such tests had not been mandatory. The Court agrees that it may be excessive to subject each and every detainee to a range of medical tests for all contagious diseases.", "Nevertheless, certain tests may be indispensable for proper assessment of a patient’s state of health; a decision whether to carry out certain diagnostics or not should be based on an individual’s medical history. 105. The Court notes that from 1996 the applicant was regularly prescribed and received hepatotoxic anti-tuberculosis treatment (see paragraphs 8, 10 and 29 above), which may cause liver damage. In such circumstances it considers that the minimum scope of medical supervision required for the applicant’s condition could have included regular blood tests for hepatitis. 106.", "The Court observes that the evidence in its possession does not allow establishing with certainty the exact date on which the applicant was diagnosed with chronic hepatitis C. The medical records submitted by the Government indicate that the applicant had been diagnosed with hepatitis of unconfirmed aetiology by 18 December 2003 (see paragraph 66 above). In their observations the Government submitted that the applicant had undergone the first test for hepatitis on 29 November 2004 (see paragraph 91 above). The Court points out that more than eleven months elapsed between the moment when the applicant’s hepatitis had been for the first time mentioned in his medical record and the date when the first blood test was administered to confirm the diagnosis. In such circumstances the Court cannot conclude that the applicant was diagnosed with chronic hepatitis C in timely fashion. 107.", "Secondly, the Court must determine whether the applicant received requisite treatment in relation to his hepatitis C. 108. The medical documents at the Court’s disposal do not reveal whether the applicant received any antiviral treatment on account of his chronic hepatitis C after he had been diagnosed with it. According to the Government, the LIU‑10 doctors found that in the absence of active hepatitis process such treatment was unnecessary. The Court readily accepts that it was for the doctors who physically examined the applicant to assess whether he required antiviral treatment. However, the materials in the Court’s possession do not allow it to be established with clarity on what date and which doctor made such a decision.", "109. The Court takes note of the Government’s submissions that the applicant had been subjected to monitoring of blood biochemical characteristics and dynamic therapeutic control on account of his chronic hepatitis C (see paragraph 91 above). However, the Government did not submit detailed description of measures taken in the course of the monitoring and control. Furthermore, they provided no information as to whether the applicant had ever been examined by a hepatologist, which would be at least reasonable considering the hepatotoxic treatment that the applicant had received on account of his tuberculosis. 110.", "Neither did the Government provide the Court with information on the treatment available to the applicant after 25 October 2005 (see paragraph 33 above). In such circumstances the Court finds itself in a position to infer from the Government’s failure to submit copies of relevant medical documents that the applicant did not receive adequate medical assistance on account of his chronic hepatitis C after that date in LIU-10 and IK-18. 111. In the light of the above, the Court finds that the applicant was not provided with the minimum scope of medical supervision for timely diagnosis and treatment of his hepatitis C while in detention and thus did not receive the medical assistance required for his condition, which amounted to inhuman and degrading treatment. 112.", "Therefore, there has been a violation of Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION ON ACCOUNT OF CONVERSATIONS WITH THE OFFICIALS 113. The applicant complained under Article 34 of the Convention that the LIU-10 authorities had put illicit pressure on him in relation to his complaint to Strasbourg. In particular, he alleged that the LIU-10 authorities had demanded that he disclose the contents of his letters to the Court and that they had impeded his correspondence with the Court on a regular basis.", "He also insisted that the LIU-10 authorities had unfairly sanctioned him for his complaints to Strasbourg. Article 34 of the Convention reads, in so far as relevant, as follows: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. The parties’ submissions 114. The Government submitted that the LIU-10 officials had had ten conversations with the applicant related to Strasbourg proceedings: on 14, 17 and 28 February, 1 and 20 March, 3 and 14 April, 1 and 21 August, as well as on 13 October 2006.", "Two of those had been organised in order to clarify the reasons why he had lodged the application with the Court, but the applicant had refused to give any explanations. Eight conversations had been aimed at helping the applicant to resolve the questions he might have had while preparing the documents for the Court and at the protection of his rights and legitimate interests; the applicant had declined the assistance offered. The conversations had taken place in the presence of several officials and inmates, who had denied the applicant’s allegations of threats and psychological pressure. The Government submitted written statements by the LIU-10 officials, confirming that they had not put any pressure on the applicant in the course of their conversations with him concerning the application to Strasbourg. On 16 February and 12 April 2006 the LIU-10 officials had had meetings with the applicant concerning the translation of the Court’s letters into Russian.", "On several occasions two officials of the regional prosecutor’s office had discussed with the applicant the numerous complaints he had lodged with them, but they had not touched upon the application with the Court. The Government further claimed that the applicant’s sealed letters sent via the LIU-10 administration had not been opened or censored. The applicant had been served with all replies from the Court in sealed envelopes within seventy-two hours of their receipt by LIU-10. The Government also submitted that between 13 February 2002 and 13 October 2006 the applicant had been confined fifteen times in a punishment cell. Each confinement had been imposed on the applicant as a sanction for a breach of prison rules.", "Furthermore, between 18 March 2003 and 6 September 2006 the applicant had received nine reprimands for breaches of prison rules. None of the sanctions had been related to his application to the Court. In sum, they insisted that there had been no hindrance with the applicant’s right to individual petition. 115. The applicant contested the Government’s submissions and asserted that he had refused to disclose the contents of his letters to the Court to the LIU-10 authorities because he had not trusted them.", "He further submitted that he had been served with the Court’s letters with regular and substantial delays. According to the applicant, some of his letters sent via the LIU-10 authorities had never reached the Court. Furthermore, he insisted that he had never asked the LIU-10 authorities to translate the Court’s letters into Russian but had requested that they provide him with an independent translator. Lastly, the applicant disagreed with the Government and claimed that their allegations that he had breached the prison rules on many occasions had been false. B.", "The Court’s assessment 1. Conversations with the LIU-10 officials 116. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, cited above, § 105, and Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105). 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 contacts designed to dissuade or discourage them from pursuing a Convention remedy or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Fedotova v. Russia, no. 73225/01, §§ 48-51, 13 April 2006; McShane v. the United Kingdom, no.", "43290/98, § 151, 28 May 2002; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999-IV, with further references). 117. 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. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt judgments, cited above, p. 1219, § 105, and pp.", "1192-93, § 160, respectively). The applicant’s position might be particularly vulnerable when he is held in custody with limited contacts with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). 118. The Court notes that the LIU-10 authorities regularly held meetings with the applicant to discuss the contents of his sealed letters to the Court.", "The first meeting took place on 14 February 2006, shortly after the Court’s request for factual information had been sent to the Government. The Government admitted that the LIU-10 authorities had discussed the applicant’s complaints to Strasbourg with him ten times. Furthermore, the case file contains certificates confirming that further meetings were organised on 2 August, 19 and 27 October 2006, as well as on 9 January 2007. 119. According to the Government, the conversations had been organised with the sole intention of helping the applicant.", "The Court is disinclined to accept this argument. In its view, the LIU-10 officials should have inferred from the applicant’s constantly displayed reluctance to answer their questions that he had not needed their assistance. 120. The Court emphasises that the present application concerned primarily the quality of medical assistance available to the applicant in LIU‑10, where he had been detained for a lengthy period. In the Court’s view, his health and well-being depended largely on the LIU-10 personnel.", "In such circumstances regular conversations with the officials of the very same facility might have indeed had a “chilling effect” on the applicant’s intention of pursuing a Strasbourg remedy. 121. The Court considers that the applicant must have felt intimidated by the repeated conversations with the LIU-10 officials apparently held against his will and could have experienced a legitimate fear of reprisals (see Popov, cited above, § 250). Accordingly, such conversations constituted illicit pressure, which amounted to undue interference with the applicant’s right of individual petition. 122.", "Therefore, there has been a violation of Article 34 of the Convention in this respect. 2. The applicant’s correspondence with the Court 123. The Court reiterates that it is important to respect the confidentiality of its correspondence since it may concern allegations against prison authorities or prison officials. The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned (see Klyakhin v. Russia, no.", "46082/99, § 118, 30 November 2004). 124. The Court emphasises that, pursuant to the Russian law in force, correspondence of detainees with the Court is not subject to censorship (see paragraph 71 above). The Court further notes that at least five of its letters to the applicant bear LIU-10 incoming mail stamps in the letter body (see paragraphs 50 – 54 above). The Government did not put forward any explanation as to the origin of those stamps and insisted that the Court’s letters had been sealed when given to the applicant.", "125. Having regard to the materials at its disposal, the Court cannot accept the Government’s argument and is bound to conclude that the LIU‑10 authorities opened its letters to the applicant and stamped them as regular incoming mail. The Court further observes that it is not in a position to establish whether those letters were read by the authorities. Nevertheless, the mere fact that those letters were opened leaves room for reasonable suspicion that the applicant’s correspondence with the Court was censored by the authorities in breach of the domestic law and Article 34 of the Convention. 126.", "Therefore, there has been a violation of Article 34 of the Convention on this account. 3. Sanctions imposed on the applicant and threats by the LIU-10 official 127. The Court notes that the applicant insisted that he had been unlawfully persecuted by the LIU-10 authorities. However, there is nothing in the materials reviewed by the Court to suggest that the LIU-10 authorities had intended to punish the applicant for his complaint to the Court when confining him to a disciplinary cell or reprimanding him.", "The Court is satisfied with the Government’s explanations regarding the grounds for the disciplinary sanctions imposed on the applicant. Consequently, it finds that those sanctions did not amount to a hindrance of the applicant’s right to individual petition. 128. Furthermore, the applicant complained to the Court that one of the LIU‑10 officials had implied that his life would be endangered unless he withdrew his complaint to Strasbourg. However, those allegations were not supported by any evidence.", "129. Accordingly, the Court finds that there has been no violation of Article 34 of the Convention in this respect. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 130. The applicant raised a number of complaints alleging breach of his rights. In particular, he relied on Article 6 of the Convention complaining of overall unfairness of the proceedings against him that ended on 8 April 2002 and of lack of access to court as regards the civil proceedings against a private company.", "He further complained under Article 13 of the Convention that the domestic authorities had not provided him with a legal-aid lawyer to represent him before the Court. Moreover, the applicant relied on Article 1 of Protocol No. 1 to the Convention alleging that he had been deprived of property by the private company. He further complained under Article 2 of Protocol No. 4 that his freedom of movement had been restricted by the fact that after the collapse of the Soviet Union he had been granted Russian citizenship against his will.", "Lastly, the applicant complained under Article 1 of Protocol No. 12 that the domestic authorities’ refusal to conditionally release him on health grounds had been discriminatory and alleged that his infection with hepatitis C had amounted to capital punishment contrary to Article 1 of Protocol No. 13. 131. Having regard to all the material in its possession, and as far as it is within its competence, the Court finds that the applicant’s submissions disclose no appearance of violations of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VI. 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 applicant asked the Court to determine the amount of compensation for the suffering and distress caused by the alleged violations of his rights. 134. The Government noted that the applicant had not specified the amount of his claims for just satisfaction. 135. The Court considers that the applicant must have suffered distress and frustration resulting from the lack of adequate medical assistance available to him, aggravated by the fact that the State authorities had interfered with his right to individual petition, and that this cannot be sufficiently compensated for by the finding of a violation.", "Making its assessment on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 136. The applicant did not make any claim in respect of the costs and expenses incurred before the domestic courts and before the Court within the time-limits set by the Court. 137.", "Accordingly, the Court makes no award under this head. C. Default interest 138. 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 alleged lack of adequate medical assistance available to the applicant while in detention admissible and the remainder of the complaints inadmissible; 2.", "Holds that there has been a violation of Article 3 of the Convention on account of the inadequate medical assistance provided to the applicant while in detention; 3. Holds that the State has failed to fulfil its obligation under Article 34 not to hinder the effective exercise of the right of individual petition in respect of the State authorities’ conversations with the applicant and opening of his correspondence with the Court; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 7 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident [1] Names of medical substances are given hereafter in accordance with the classification of drugs adopted in the Russian Federation. [2] Hepatotoxic medication that may cause liver damage.", "[3] Idem." ]
[ "FOURTH SECTION CASE OF KURSKI v. POLAND (Application no. 26115/10) JUDGMENT STRASBOURG 5 July 2016 FINAL 05/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc,Gabriele Kucsko-Stadlmayer,Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 7 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "26115/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jacek Kurski (“the applicant”), on 5 May 2010. 2. The applicant was represented by Mr R. Janoś, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs. 3.", "The applicant alleged that his right to freedom of expression had been breached, in violation of Article 10 of the Convention. 4. On 1 September 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1966 and lives in Gdańsk. 6. At the relevant time, the applicant was a member of the Polish Parliament and a member of the Law and Justice party. 7. On 8 May 2006 the applicant and several other politicians, experts and journalists, participated in a live television programme, Warto rozmawiać (“It’s good to talk”), shown on TVP2.", "The programme was also broadcast on TVP Polonia on two consecutive days. 8. During the programme the applicant took out a copy of Gazeta Wyborcza, a Polish daily newspaper and, pointing to particular pages, said: “I would like to show you the nature of the relationship between this media agreement (“uklad”) ... and the attacks on Law and Justice. I will show you Gazeta Wyborcza, which for the first seven pages, for example today, is a frenzied attack on Law and Justice. Out of modesty I will not mention that a horrible piece about me, full of lies, is on the first page.", "On the second page, a frenzied attack on Kaczyński and the Polish Families League. Here, “Students fear flogging”, etc. etc., “Radio Maryja miracles”. This is just obsessive propaganda. But let’s go further, to page thirty-five.", "And what do we see? We see an advertisement entitled “We have built one of the world’s biggest stock markets with the participation of Polish shareholders. We are proud of that.” This is an advertisement for the company J&S S.A.... So the paradox is that usually in newspapers they advertise washing powders, cosmetics, beers, or cars, that is, widely available consumer goods (powszechnego nabycia). This [company] is a monopolist.", "It does not need any advertising. This company imports most of the crude oil into Poland and drives billions of euros away from Poland to another company, which is registered somewhere in Cyprus. This is not about an advertisement. This is [about] financing mass propaganda against Law and Justice through an agreement which has been threatened by Law and Justice, so that such dubious deals (geszefty) ... The point is that Law and Justice has interfered with extremely serious connections, which have been draining ... Just one sentence ... but the jokes are over, and this structure (układ) understood that there will be no early elections, there will be no minority government, this is a chance for an institutional construction ...” 9.", "During the applicant’s statement one of the journalists interrupted him by saying: “But this would be more appropriate if someone from Gazeta Wyborcza was here.” However, the applicant continued with his statement. 10. On 16 May 2006, Agora S.A., the publisher of Gazeta Wyborcza, brought a civil claim against the applicant for the protection of its rights. It claimed that the applicant’s statements during the television programme on 8 May 2006 had harmed its good name and credibility and asked that the applicant be made to have an apology published in Gazeta Wyborcza and broadcast on TVP2 and to pay 25,000 Polish zlotys (PLN) to a charity. 11.", "On 12 June 2007 the Warsaw Regional Court granted the claim and ordered the applicant to issue an apology via Gazeta Wyborcza and TVP2 for the statements he had made. It further ordered the applicant to pay PLN 10,000 (approximately 2,500 euros (EUR) to a charity and PLN 2,410 (approximately EUR 600) in court fees. 12. The text of the apology to be published by the applicant was as follows: “I declare that the public statement I made during the programme Warto rozmawiać, broadcast on 8 May 2006 on TVP2, included untrue, defamatory allegations and suspicions about AGORA S.A., a company registered in Warsaw, and about its publishing activity regarding Gazeta Wyborcza. I confirm that those allegations caused negative consequences for AGORA S.A in conducting their business activities, in particular a loss of indispensable credibility and trust.", "Consequently, I apologise to the Warsaw-registered company AGORA S.A. (the publisher of Gazeta Wyborcza) for having publicly disseminated untrue, defamatory statements which could have harmed its good name, credibility and reputation. The above statement is made as a consequence of losing a civil case. ” 13. During the proceedings the applicant submitted that it had not been his intention to offend the plaintiff. In the television programme he had merely expressed a value judgment relating to aggressive and clearly one-sided articles published in Gazeta Wyborcza.", "He further noted that as his statements had been value judgments he had not had to prove their veracity. 14. The court considered that the applicant had breached the plaintiff’s rights, in particular in respect of its good name, credibility and reputation. It could be seen from the applicant’s statement that he had wished to point out to the audience that the plaintiff and Gazeta Wyborcza had had some kind of media/business agreement, whereby articles against Law and Justice had been published in Gazeta Wyborcza and financed via advertisements. 15.", "The court observed that the applicant’s statement had contained both facts and conclusions drawn from those facts. 16. The court further observed that an accusation that a newspaper had published articles ordered by a sponsor was clearly offensive to the publisher. Likewise, it was offensive to the publisher to be associated with a company that allegedly conducted morally doubtful activities. The defendant had not submitted any evidence in support of his allegations.", "He had failed to explain on what basis he had drawn the conclusion that the income obtained from a particular advertisement had resulted in articles being published in Gazeta Wyborcza. Furthermore, there had been no reason to believe that the income obtained from the J&S S.A. advertisement had been connected with any particular articles in Gazeta Wyborcza, particularly the ones that the applicant had referred to as “a frenzied attack on Law and Justice”. 17. The court stressed that J&S S.A. had at the relevant time placed advertisements in several newspapers and magazines. However, the applicant had not alleged that those other newspapers or magazines had been involved in the alleged agreement (układ).", "The court pointed out that a publisher could not refuse to publish an advertisement unless one of the grounds set out in the press law existed, which had not been the situation in the present case. Moreover, as a rule, a publisher was not responsible for the content of advertisements. 18. The court did not agree with the applicant that he had not wished to infringe the plaintiff’s rights. It noted that the applicant had prepared in advance to make the statement in question.", "He had already had a copy of Gazeta Wyborcza when he had entered the television studio and he had had it in his hand while making the statement. In the court’s opinion, the declaration had not been made spontaneously. 19. Lastly, the court observed that the applicant’s statement could not have been explained on the grounds that it had been in the public interest. On the contrary, it was in the public interest that public figures such as the applicant, a member of parliament, should base the opinions they expressed in the media on verified facts and did not breach the rights of others.", "20. The applicant lodged an appeal against the judgment. He argued, amongst other things, that the Regional Court had wrongly classified his statements as facts and not as value judgments. 21. On 25 June 2008 the Warsaw Court of Appeal upheld the first‑instance judgment and ordered the applicant to pay 270 PLN (about EUR 67) in court fees for the proceedings at second instance.", "22. The Court of Appeal considered that the first-instance judgment had not related to the part of the applicant’s statement concerning articles about himself and Law and Justice, even though he had called them “frenzied attacks”, because it was well known that Gazeta Wyborcza was critical of Law and Justice and that was not something which needed to be proved. However, the applicant’s allegations that J&S S.A. had conducted unclear or even suspicious dealings under the cover of placing advertisements in Gazeta Wyborcza, and had in fact financed them only to destroy Law and Justice, which, for its part, had been fighting against the “agreement” between the company in question and Gazeta Wyborcza, had been statements of fact. Nevertheless, the applicant had not proved the truthfulness of his statements about the connections between the plaintiff and the J&S S.A. company. 23.", "The court agreed with the Regional Court that the applicant had prepared in advance to make the statement in question. The programme had concerned different issues and the statement had not been a response or reaction to the discussion between the participants. During the programme the applicant had kept a copy of Gazeta Wyborcza under his chair, which he had shown to the cameras at the relevant moment. 24. As regards the PLN 10,000 (about EUR 2,500) to be paid to a charity, the court considered that to be a modest sum and the costs of publishing an apology a normal consequence of the applicant’s wrongdoing.", "25. The applicant lodged a cassation appeal against the judgment. He argued that the Court of Appeal had wrongly applied the standards of Article 10 of the Convention and had thus considered his statement to be one of fact rather than a value judgment. In his opinion, he had expressed value judgments during a public debate and had therefore not undermined the plaintiff’s good name. 26.", "The applicant’s cassation appeal was dismissed by the Supreme Court on 5 November 2009. 27. The court considered that the statement in question, in so far as it had concerned relations between J&S S.A. and Gazeta Wyborcza, had been a statement of fact. The applicant had spoken of suspicious links between Gazeta Wyborcza and the publisher of the advertisement and the creation of fictional reasons for receiving funds from that publisher, which was all aimed at allowing Gazeta Wyborcza to oppose Law and Justice. Such a statement, according to the court, had gone further than being a simple opinion about an advertisement in the press.", "Adding more information had put J&S S.A.’s advertisement in a completely different, negative light. Asking the applicant to prove such a statement had not been excessive and had not interfered with the freedom of political debate, but had been necessary for the accuracy and pertinence of such a debate. 28. The court further referred to Article 10 of the Convention and stressed that freedom of expression was not absolute. Noting the case of Feldek v. Slovakia (no.", "29032/95, ECHR 2001‑VIII), it further reiterated that where a statement amounted to a value judgment, the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive. In the present case, the defendant had not even attempted to prove the accuracy of his statements about the alleged connections of which he had accused the plaintiff. 29. On 29 August 2008 Agora S.A. instituted enforcement proceedings in order to summon the applicant to comply with the obligations imposed by the Warsaw Regional Court’s judgment of 12 June 2007. 30.", "On 12 January 2010 the Warsaw District Court ordered the applicant to publish the apology in question in Gazeta Wyborcza (in a smaller size than originally indicated). Since the applicant failed to comply with that order, on 26 February 2010 the Warsaw District Court allowed Agora S.A. to publish the apology in Gazeta Wyborcza in the applicant’s name and ordered him to cover the costs of publication of PLN 34,897.36 (about EUR 8,700). II. RELEVANT DOMESTIC LAW AND PRACTICE 31. Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste).", "This provision states: “ The personal rights of an individual, such as health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.” 32. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.", "33. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant complained under Article 10 of the Convention of a breach of his right to freedom of expression. That Article 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.” 35. The Government contested that argument. 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 1.", "The applicant’s submissions 37. The applicant submitted that his statement on the television programme had been based on objective facts. The utterance which had allegedly infringed the rights of Agora S.A., the publisher of Gazeta Wyborcza, had been a conclusion based on those facts. Furthermore, the entire statement had been made in the course of a public debate and had been made in connection with the subject of the discussion, which had been on whether the new government coalition would change Poland. The applicant had presented facts and a logical conclusion based on those facts.", "While the conclusion might have been exaggerated, it had definitely been inferred from the facts that had been presented. 38. The applicant noted that the Court of Appeal had confirmed that Gazeta Wyborcza was critical of Law and Justice. He further pointed out that J&S S.A. had published an advertisement on page 35 of the copy of Gazeta Wyborcza in question. It was widely known that J&S S.A. imported most of Poland’s crude oil and that newspapers obtained funds for their activity from publishing advertisements.", "In addition, it was also widely known that Law and Justice was critical of the activities of J&S S.A. From those facts the applicant had presented a logical conclusion by saying: “This is not about advertisements. This is [about] financing through an agreement, which has been threatened by Law and Justice, about mass propaganda against Law and Justice so that such dubious deals (geszefty) ...” 39. Taking all those elements into account the applicant considered that his statement had not overstepped the limits of the protection afforded to him by Article 10 of the Convention. 2. The Government’s submissions 40.", "The Government submitted that part of the applicant’s declaration made during the television programme had amounted to a statement of fact rather than to a value judgment and that the applicant should therefore have demonstrated the authenticity of the facts he had referred to. Yet the applicant had failed to prove the veracity of his allegations. 41. They further noted that at the relevant time the applicant had been a public figure so the matter might have been considered to be of general public concern. However, the applicant had failed to show what kind of business agreement he had meant or who had allegedly been a party to it.", "Consequently, it was not possible to say that the matter was of general public concern as one newspaper’s unfavourable attitude towards a political party was not, per se, contrary to the public interest. 42. They further noted that freedom of expression could not justify making public statements that were untrue and which infringed the personal rights of others. In addition, the language used by the applicant had been unnecessarily sensationalist, utterly negative and had included words that had gone beyond the exercise of freedom of expression. 43.", "They concluded by saying that the domestic courts had provided detailed reasoning for their decisions. Furthermore, the interference had not been disproportionate as the applicant had only been ordered to publish an apology in Gazeta Wyborcza and to pay PLN 10,000 to charity. 44. Consequently, the Government invited the Court to find no violation of Article 10 of the Convention in the present case. 3.", "The Court’s assessment (a) The general principles 45. The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law. They were recently summarised and the case-law was cited in Perinçek v Switzerland ([GC], no. 27510/08, § 196, ECHR 2015 (extracts)). 46.", "The Court reiterates further that in its practice it has distinguished between statements of fact and value judgements. While the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 47, Reports of Judgments and Decisions 1997-I, and Feldek, cited above, § 76). 47. The Court also observes that there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see, among many other authorities, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V, and Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-IV).", "(b) Application of the above principles to the present case 48. It was not disputed that the courts’ decisions in the present case and the sanctions imposed on the applicant amounted to an “interference” with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such interference was undoubtedly prescribed by law, namely under Articles 23 and 24 of the Civil Code. The Court further accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name, reputation and credibility of Agora S.A., the publisher of Gazeta Wyborcza – within the meaning of Article 10 § 2 of the Convention. Accordingly, the only outstanding issue is whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.", "49. The applicant took part in a television programme where he showed a copy of Gazeta Wyborcza and, referring to particular articles, suggested that the newspaper, together with a company importing crude oil, J&S S.A., were in some kind of business agreement, and that the company financed articles that were critical of the Law and Justice party (see paragraphs 7 and 8 above). The domestic courts examined the veracity of his statements and concluded that it had not been proven that the income obtained from J&S S.A.’s advertisement had been connected with any particular article in Gazeta Wyborcza. The applicant’s statements were thus considered untrue and, according to the domestic courts, such untrue statements had to be regarded as illegal. 50.", "The Court takes note of the fact that while the applicant’s allegations were quite serious for Gazeta Wyborcza, they were made against a newspaper, which by covering matters of public concern, has been actively involved in a public debate. In this respect the essential function the press fulfils in a democratic society must be emphasized. Although the press must not overstep certain bounds, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In addition journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313).", "These considerations play a particularly important role, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed (see Stoll v. Switzerland [GC], no. 69698/01, § 104, ECHR 2007 V). In this context the Court considers journalists and publicists like other persons actively involved in public life should display a greater degree of tolerance for criticism against them (see, mutatis mutandis, I Avgi Publishing and Press Agency S.A. and Karis v. Greece, no. 15909/06, § 34, 5 June 2008; Seleckis v. Latvia (dec.), no. 41486/04, § 32, 2 March 2010).", "Therefore, in a democratic system the limits of permissible criticism are much wider with regard to newspapers than in relation to a private citizen (see, mutatis mutandis, Ärztekammer für Wien and Dorner v. Austria, no. 8895/10, § 65, 16 February 2016). 51. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. 52.", "In the present case, the domestic courts considered that the applicant’s statements on the television programme had included both statements of fact and value judgments, and that his conclusions had been drawn from those facts (see paragraphs 15, 22 and 27 above). They further examined the circumstances of the case and found that the applicant had failed to prove the veracity of his assertions, either at the time they were made or later, in the course of the civil proceedings (see, paragraph 16 above). 53. The Court notes that since the applicant actively and publicly commented on current affairs, his statement was a part of an ongoing debate on matters of public interest and it undoubtedly raised a matter of public concern, that is, the independence of the media in a democratic society. The Court reiterates in this regard that the Convention offers protection to all participants in debates on matters of legitimate public concern (see Braun v. Poland, no.", "30162/10, § 47, 4 November 2014). 54. As regards the Government’s arguments that the applicant adopted a sensationalist tone and used utterly negative language (see paragraph 42 above), the Court observes that while the applicant had recourse to a certain degree of hyperbole in his statements, at the same time it does not seem that he resorted to gratuitously offensive and inappropriate language or went beyond a generally acceptable degree of exaggeration (see Yordanova and Toshev v. Bulgaria, no. 5126/05, § 52, 2 October 2012). 55.", "The Court is further not called upon to judge whether the applicant relied on sufficiently accurate and consistent information. Nor will it decide whether the nature and degree of the allegations he made were justified by the factual basis on which he relied. That was the task of the domestic courts, which are in principle better placed to assess the factual circumstances of the case. However, when deciding such issues domestic courts should observe the standards of freedom of expression enshrined in the Convention. 56.", "The Court considers that the applicant was clearly involved in a public debate on an important issue (see Braun, cited above, § 50). Therefore the Court is unable to accept the domestic courts’ view that the applicant was required to prove the veracity of his allegations. It was not justified, in the light of the Court’s case-law and in the circumstances of the case, to require the applicant to fulfil a more demanding standard than that of due diligence. By following such an approach the domestic courts effectively deprived the applicant of the protection afforded by Article 10. 57.", "Lastly, the Court reiterates that the nature and severity of the sanction imposed are also factors to be taken into account when assessing the proportionality of the interference under Article 10 of the Convention (see Axel Springer AG v. Germany [GC], no. 39954/08, § 95, 7 February 2012). In the instant case the applicant was ordered to arrange for the publication of an apology (costing PLN 34,897.36, approximately EUR 8,700), and to pay PLN 10,000 (approximately EUR 2,500) to a charity. The Court finds that the publication of an apology entailed considerable costs for the applicant and that the combined total came to about eighteen times the average monthly wage at the material time. In those circumstances, the Court finds that the pecuniary sanctions imposed on the applicant were excessive (see Kwiecień v. Poland, no.", "51744/99, § 56, 9 January 2007). 58. Having regard to the foregoing considerations, the Court finds that the domestic courts did not convincingly establish any pressing social need for putting the protection of the rights of Agora S.A., the publisher of Gazeta Wyborcza, above the applicant’s right to freedom of expression and the general interest in promoting that freedom where issues of public interest are concerned. The reasons given by the courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant’s right to freedom of expression. The national authorities therefore failed to strike a fair balance between the interests in question.", "59. It follows that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 61. The applicant claimed 54,861.98 Polish zlotys (PLN) (approximately 12,450 euros (EUR)) in respect of pecuniary damage. That sum represented PLN 3,649 paid by the applicant to the plaintiff in reimbursement of the costs of the proceedings, PLN 10,000 paid to a charity, PLN 34,897.36 for the costs of publishing the apology ordered by the domestic courts and PLN 6,315.62 for enforcement proceedings. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage. 62.", "The Government considered that the claims were excessive and unsubstantiated. 63. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the applicant referred to the amount which he had been ordered to pay by the domestic courts (see Braun, cited above, § 55). The Court awards the applicant the sum claimed in full, that is, EUR 12,450. 64.", "As regards the claim for non-pecuniary damage, the Court considers that the finding of a violation of Article 10 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. B. Costs and expenses 65. The applicant, who was represented by a lawyer in the proceedings before the Court, did not make any claim for costs and expenses. C. Default interest 66.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the application admissible; 2. Holds, unanimously, that there has been a violation of Article 10 of the Convention; 3. Holds, by six votes to one, that the finding of a violation of Article 10 constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant; 4.", "Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,450 (twelve thousand four hundred and fifty euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás Sajó RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kūris is annexed to this judgment. A.S.M.T.", "PARTLY DISSENTING OPINION OF JUDGE KŪRIS 1. I disagree with the majority regarding point 3 of the operative part of the judgment. In paragraph 64 it is stated that “the finding of a violation of Article 10 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant” (see paragraph 64 of the judgment). In my opinion, that compensation had to be awarded. It is not explained why it was not.", "2. In Karácsony and Others v. Hungary ([GC] (nos. 42461/13 and 44357/13, 17 May 2016) the applicants, who also were politicians, were likewise not awarded compensation for non-pecuniary damage, although the Court found that there had been a violation of Article 10 in their regard. The Grand Chamber did not specify the reasons for that decision not to award just satisfaction (see Karácsony and Others, § 181). So, one may only guess what those reasons could have been.", "I have grounds to think that the reasons were similar to those indicated in my partly dissenting opinions in the two Chamber cases, which preceded that Grand Chamber case (see Karácsony and Others v. Hungary (no. 42461/13) and Szél and Others v. Hungary (no. 44357/13), both delivered on 16 September 2014). In those cases I disagreed with the majority, who awarded the applicants compensation for non-pecuniary damage. I argued that “awarding substantial financial ‘satisfaction’ to the applicants for the non-pecuniary damage which they [had] allegedly sustained encourage[d], even if indirectly, political conduct of such a kind that should normally be avoided in a parliamentary democracy”.", "Having regard to the political nature of that case, I maintained that “[f]or members of Parliament ..., winning such a case before the Court is, in itself, a satisfaction far greater than the money awarded ... for whatever non‑pecuniary damage [they] might have sustained”, so the “non-pecuniary damage allegedly sustained ... is already more than sufficiently compensated for by the findings of violations” of the Convention. The Grand Chamber, too, adjudged the conduct of the applicants in that case as “not a conventional manner for MPs to express their views” and as a “disrupt[ion of] order in Parliament” (see Karácsony and Others v. Hungary [GC], cited above, § 149). It also found that “the impugned disciplinary sanctions which were imposed on the applicants were supported by reasons that were relevant for the legitimate aims pursued” (ibid., § 151). Thus, the applicants were criticised for their actions. However, the “interference with [their] right to freedom of expression” was found by the Grand Chamber to be “not proportionate to the legitimate aims pursued” (ibid., § 161).", "3. The present judgment does not contain the slightest hint that the applicant might have committed any act which would be not only illegal, but inappropriate or reprehensible. Nor does the Court even hint that sanctioning the applicant could be at least to some extent supported by reasons “relevant for the legitimate aims pursued”. On the contrary, “while the applicant had recourse to a certain degree of hyperbole in his statements, ... it does not seem that he resorted to gratuitously offensive and inappropriate language or went beyond a generally acceptable degree of exaggeration” (see paragraph 54). Moreover, the Court disagreed with the view of the domestic courts “that the applicant was required to prove the veracity of his allegations” and found this requirement for the applicant “to fulfil a more demanding standard than that of due diligence” to be not in line with the Court’s case-law (see paragraph 56 of the judgment).", "This reasoning (with which I agree) also means that there is neither a factual, nor, consequently, a legal basis for not awarding just satisfaction for non-pecuniary damage to the applicant, whose rights under the Convention have been violated." ]
[ "FOURTH SECTION CASE OF LACHOWSKI v. POLAND (Application no. 27556/03) JUDGMENT STRASBOURG 5 December 2006 FINAL 05/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lachowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM.", "Pellonpää,MrK. Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 14 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27556/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Ireneusz Lachowski (“the applicant”), on 8 August 2003. 2. The applicant was represented by Ms D. Wojdyło-Nafalska, a lawyer practising in Chełm.", "The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 19 December 2005 the President of the Fourth Section decided to give notice of 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 4. The applicant was born in 1961 and lives in Rejowiec Fabryczny. 5. The applicant was arrested on 20 September 1999 on suspicion of homicide. On 22 September 1999 the Chełm District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody for a period of 3 months in view of a reasonable suspicion that he had committed homicide.", "It further held that the likelihood that he would be given a heavy sentence justified his detention on remand. 6. On 14 December 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 19 March 2000. It relied on the reasonable suspicion of his having committed the offence in question and the likelihood of a heavy sentence being imposed on the applicant. In addition, it had regard to the need to obtain expert evidence and a psychiatric examination of the suspects.", "7. On 8 March 2000 the Lublin Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 19 June 2000. It found that in the light of the evidence obtained there was a strong likelihood that the applicant had committed the offence. Furthermore, it relied on the severity of the likely sentence and the need to obtain further expert evidence. On 24 May 2000 the Court of Appeal prolonged the applicant’s detention until 4 September 2000, reiterating the grounds previously given.", "It appears that his detention was subsequently prolonged on an unspecified later date. 8. In the course of the investigation the Regional Prosecutor obtained voluminous evidence and took a series of investigative measures. On 10 July 2000 the prosecution service filed a bill of indictment with the Lublin Regional Court. The applicant was charged with two counts of homicide and armed robbery.", "There were four other defendants in the case. 9. On 20 March 2001 the Regional Court ordered that the applicant be kept in custody until 19 September 2001. It held that the gravity of the charges and the likelihood that the applicant would be given a heavy sentence confirmed the risk that he might obstruct the proceedings. It further held that the applicant’s detention on remand was the only measure which could secure the proper conduct of the proceedings.", "Lastly, when extending the applicant’s detention, the Regional Court had regard to its caseload. 10. On 19 September 2001 the Court of Appeal granted the Regional Court’s application and prolonged the applicant’s detention until 31 December 2001. It noted that the period of the applicant’s detention had reached the 2-year statutory time-limit (Article 263 § 3 of the Code of Criminal Procedure) and criticised the trial court for not having indicated any particular circumstances which would justify the prolongation beyond the statutory time-limit. However, it held that the prolongation was justified on account of other significant obstacles to progress in the proceedings, namely the fact that one of the defendants had failed to appear at the hearing which had led to the adjournment of the trial.", "The Court of Appeal also noted that although the bill of indictment had been filed on 10 July 2000, the trial court listed the first hearing only for 16 May 2001. 11. The applicant’s detention was subsequently prolonged on 28 November 2001 (until 15 March 2002), on 13 March 2002 (until 30 April 2002) and on 24 April 2002 (until 30 September 2002). In all those decisions the Court of Appeal relied on the same grounds as had been given in the earlier decisions. 12.", "The trial court held 20 hearings in the period from 16 May 2001 to 19 September 2002. On 23 September 2002 the Lublin Regional Court convicted the applicant as charged and sentenced him to 25 years’ imprisonment. The applicant, who remained in detention, appealed against the first-instance judgment. 13. On 22 October 2003 the Lublin Court of Appeal quashed the judgment of the Regional Court and ordered a retrial.", "14. It appears that the applicant’s detention was prolonged on further unspecified dates. On 7 May 2004 the Regional Court ordered that the applicant be kept in custody until 31 December 2004. The applicant’s detention was subsequently prolonged on 3 December 2004 (until 31 March 2005), on 29 March 2005 (until 30 September 2005) and on 19 September 2005 (until 31 December 2005). In all those decisions, the Regional Court relied on the reasonable suspicion that the applicant had committed the offences in question and the likelihood of a heavy sentence being imposed.", "15. The applicant appealed against the decision of 3 December 2004 to prolong his detention. He argued, in particular, that the Regional Court had failed to explain why other non-custodial measures were considered insufficient in his case. On 21 December 2004 the Court of Appeal upheld the contested decision. It agreed with the applicant that the reasons given by the Regional Court were very brief and general.", "However, referring to Article 5 § 3 of the Convention, it held that the applicant’s continued detention served the public interest of protecting society, given that the applicant had been charged with the homicide of two women, having first cruelly treated them. 16. In its decision of 20 April 2005 upholding the decision of 29 March on the prolongation of the applicant’s detention, the Court of Appeal held that his continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, it held that Article 258 § 2 established a presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings. 17.", "On 5 October 2005 the Court of Appeal, having examined the applicant’s appeal against the decision of 19 September 2005 on prolongation of his detention, ordered the applicant’s release under police supervision. It also imposed a ban on leaving the country. The Court of Appeal had regard to the excessive length of the applicant’s detention on remand and the fact that the process of hearing evidence was very advanced. In those circumstances, it was not necessary to prolong further the applicant’s detention. The Court of Appeal also noted that despite the significant length of the applicant’s detention, the Regional Court had failed to ensure the diligent conduct of the trial and, in particular, had not held hearings at reasonable intervals.", "Furthermore, it observed that the reasons for the continued detention as given by the Regional Court in its decision of 19 September 2005 were very terse. The applicant was released on 6 October 2005. 18. The Regional Court held 22 hearings in the period from 28 January 2004 to 11 April 2006. The proceedings are still pending.", "II. RELEVANT DOMESTIC LAW 19. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in 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.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 20. The applicant complained that the length of his detention on remand had been excessive. 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.” 21.", "The Government contested that argument. A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Period to be taken into consideration 23. The Court observes that the applicant was arrested on 20 September 1999 and remanded in custody on 22 September 1999. On 23 September 2002 the Lublin Regional Court convicted him of two counts of homicide and armed robbery and sentenced him to twenty-five years’ imprisonment.", "As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI). On 22 October 2003 the Lublin Court of Appeal quashed the applicant’s conviction. As from that date his detention was again covered by Article 5 § 3.", "It continued until 6 October 2005, when the applicant was released. 24. Consequently, the period to be taken into consideration under Article 5 § 3 lasted 4 years, 11 months and 19 days. 2. The reasonableness of the length of detention (a) The parties’ arguments 25.", "The Government argued that there had been valid reasons for holding the applicant in detention for the entire period in question. They stressed that the applicant’s detention had been justified by the persistence of a reasonable suspicion that he had committed the offences and by the gravity of the charges against him which attracted a heavy sentence. The Government further argued that there had been a risk that the applicant, if released, might obstruct the proceedings and tamper with evidence. That risk, in their submission, stemmed from the fact that there had been five defendants in the case and that on the date of the applicant’s remand in custody, the investigation was still in progress and a number of suspects were in hiding. There was thus a risk of collusion if the applicant were to be released.", "The Government also asserted that the sentence given by the trial court, although later quashed, justified the continuation of the applicant’s detention, since the severity of the likely sentence could have him tempted to go into hiding. The Government contended that there had been a risk that the defendants might exert pressure on witnesses. They submitted that according to the case file one of the defendants had attempted to intimidate a witness. Lastly, they maintained that the authorities displayed adequate diligence in dealing with the applicant’s case, having regard to its complexity and the need to obtain voluminous evidence. In conclusion, the Government refrained from expressing their opinion on the merits of the applicant’s complaint, having regard to the Court’s case-law in similar cases.", "26. The applicant disagreed and maintained that the length of his detention had been unreasonable. (b) The Court’s assessment (i) Principles established under the Court’s case-law 27. The presumption is in favour of release. As established in Neumeister v. Austria (judgment of 27 June 1968, Series A no.", "8, p.37, § 4), 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 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 (see McKay v. the United Kingdom [GC], no. 543/03 , § 41, ECHR 2006-...). 28. 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, §§ 110-111 with further references, ECHR 2000-XI). 29. 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 the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC], no.", "26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110). 30. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. 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.", "The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). 31. In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty.", "For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a moment when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case (see McKay, cited above, § 45). (ii) Application of the principles to the circumstances of the present case 32. The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on the severity of the penalty to which the applicant was liable and the serious nature of the charges against him. On account of those circumstances, they considered that there had been a risk that the applicant might obstruct the proceedings.", "Furthermore, the Government submitted that the applicant’s detention was also justified by the risk that the defendants would exert pressure on witnesses, since according to the case file one of the defendants had attempted to intimidate a witness. 33. The Court accepts that the reasonable suspicion that the applicant had committed the offences with which he had been charged may have warranted his detention in the early stage of the proceedings. However, with the passage of time that ground inevitably became less relevant. In particular, the Court considers that that ground cannot suffice to justify the entire period in issue.", "It must then establish whether the other grounds advanced by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of the applicant’s liberty. 34. The Court notes that the judicial authorities continuously relied on the likelihood that a heavy sentence might be imposed on the applicant given the serious nature of the offences with which he had been charged. In this respect, the Court recalls that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. It acknowledges that in view of the seriousness of the charges against the applicant the authorities could justifiably consider that such a risk existed.", "However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). 35. As to the risk that the applicant might obstruct the proceedings, the Court observes that the judicial authorities appear to have presumed that risk by basing themselves on the likelihood that a heavy sentence would be imposed on the applicant as well as on the nature of the offences in question. It notes however that the relevant decisions did not mention any argument capable of showing that these fears were well-founded.", "The Court considers that such a generally formulated risk based on the nature of the offences with which the applicant had been charged may possibly have justified his detention in the initial stages of the proceedings. Nevertheless, in the absence of other factors capable of showing that the risk relied on actually existed, the Court cannot accept those grounds as a justification for holding the applicant in custody for the entire period under consideration. Furthermore, it appears that this risk did not materialise following his release under police supervision on 6 October 2005. As regards the Government’s assertion that there was a risk of exerting pressure on witnesses given the fact that one of the defendants had intimidated a witness, the Court notes that the Government have failed to produce any evidence to substantiate their contention. In any event, the alleged intimidation of a witness was the work of one of the defendants, and not the applicant.", "36. Accordingly, in the circumstances of the present case, the Court finds that the severity of the likely sentence alone, or in conjunction with the other grounds relied on by the authorities, cannot constitute a “relevant and sufficient ground” for holding the applicant in detention for a period of 4 years and over 11 months. 37. The Court further observes that the applicant was detained on charges of homicide and armed robbery committed together with 4 accomplices. The defendants had not been formally charged with acting in an organised criminal group.", "In these circumstances, the Court is not persuaded that the instant case presented particular difficulties for the investigation authorities and for the courts to determine the facts and mount a case against the perpetrators as would undoubtedly have been the case had the proceedings concerned organised crime (see Celejewski v Poland, no. 17584/04, § 37, 4 May 2006). 38. The Court would also emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Neumeister, cited above, p. 36, § 3; and Jabłoński v. Poland, no.", "33492/96, § 83, 21 December 2000). 39. In the present case the Court notes that there is no specific indication that during the entire period in question the authorities gave consideration to the possibility of ensuring the applicant’s presence at trial by imposing on him other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraph 19 above). 40. What is more, it is not apparent from the relevant decisions why the judicial authorities considered that those other measures would not have ensured the applicant’s appearance before the court or in what way the applicant, had he been released, would have obstructed the course of the trial.", "Nor did they mention any factor indicating that there was a real risk of his absconding or obstructing the proceedings. In that regard the Court would also point out that, although such a potential danger may exist where an accused is charged with a serious offence and where the sentence faced is a long term of imprisonment, the degree of that risk cannot be gauged solely on the basis of the severity of the offence and the anticipated sentence (see Muller v. France, judgment of 17 March 1997, Reports 1997-II, p. 388, § 43). 41. The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in custody for 4 years and over 11 months. 42.", "That finding would, as a rule, absolve the Court from determining whether the national authorities displayed “special diligence” in the conduct of the proceedings. However, in that context the Court cannot but note that even though the applicant was indicted on 10 July 2000, the first hearing was listed only for 16 May 2001. It observes that the Court of Appeal criticised the trial court for the above-mentioned delay. Furthermore, during the re-trial stage of the proceedings, the Court of Appeal again censured the Regional Court for having failed to organise the conduct of the trial in a diligent manner (see paragraph 17 above). On account of the above circumstances, the Court considers that it cannot be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant.", "43. There has accordingly been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The applicant also complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair.", "45. However, the Court notes that the impugned proceedings are still pending and therefore it is premature to examine the applicant’s complaint. It follows that this complaint must be rejected under Article 35 § 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 47. The applicant claimed 144,000 Polish zlotys (PLN) in respect of pecuniary damage and PLN 60,000 in respect of non-pecuniary damage. 48. The Government argued that the applicant’s claims were exorbitant and should be rejected.", "They asked the Court to rule that a finding of a violation of Article 5 § 3 constituted in itself sufficient just satisfaction. In the alternative, they invited the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances. 49. 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, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention.", "Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 under this head. B. Costs and expenses 50. The applicant submitted no claim for costs and expenses. C. Default interest 51.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the applicant’s detention on remand 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas Bratza RegistrarPresident" ]
[ "FIRST SECTION CASE OF KUTSENKO v. RUSSIA (Application no. 12049/02) JUDGMENT STRASBOURG 1 June 2006 FINAL 01/09/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kutsenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens and Mr S. Nielsen, Section Registrar, Having deliberated in private on 11 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 12049/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Lyusya Ivanovna Kutsenko, on 20 February 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 24 May 2004 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 I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1937 and lives in in the village of Novoselye, the Leningradskiy Region. 5. In 1995 the applicant entered into a contract with a joint-stock company “Energomashstroy” (ОАО «Энергомашстрой»). The contract stipulated that the applicant was under an obligation to transfer a sum of money to the company, whilst the latter undertook to build a flat for the applicant. Having moved into the new flat in January 1998, the applicant detected a number of constructional defects.", "6. On 15 September 1998 the applicant brought an action against the company before the Lomonosovskiy District Court of the Leningradskiy Region (“the District Court”), seeking elimination of the above defects. Thereafter on 16 November 1998, 1 April and 17 September 1999, 26 April 2001, 21 July, 14 August and 15 December 2003 she supplemented and modified her claims, seeking the recovery of the money she had paid under the contract and damages. 7. On 10 December and 15 December 1998 the applicant requested the District Court to commence proceedings in her case.", "She received no responses to these requests. 8. On 1 March 1999 the applicant complained about delay in her case to the Court Administration Department at the Supreme Court of Russia (Управление Судебного департамента при Верховном Суде РФ, “the Court Department”). On 23 March 1999 the Court Department informed the applicant that the hearing in her case would be held on 26 March 1999. 9.", "On 26 March 1999 the District Court postponed the hearing until 14 May 1999 due to the parties’ failure to appear. The applicant submitted a request for examination of the case in her absence, whilst the defendant company requested the court to adjourn the hearing by reference to the belated delivery of the court summons. 10. On 14 May 1999 the hearing was postponed until 10 September 1999 because the judge was engaged in unrelated proceedings. 11.", "On 1 August 1999 the applicant requested the District Court to expedite the proceedings in her action. 12. On 10 September 1999 the hearing was adjourned until 8 October 1999 on the ground that the defendant’s representative was unable to appear as he was attending a hearing in an unrelated case, and then until 19 November 1999, as the court ordered the parties to submit certain documents. On the last mentioned date the hearing was postponed until 14 January 2000 and then until 25 January 2000 in view of the participation of the judge in unrelated proceedings. 13.", "On 23 November 1999 the applicant lodged a complaint about delays in her case with the Office of the President of Russia. In response, in a letter of 25 January 2000 the District Court notified the applicant that the hearing would take place on 26 January 2000. 14. On 26 January 2000 the District Court held a hearing and, upon the defendant’s request, ordered an expert examination of the applicant’s flat so as to ascertain its compliance with building standards. By the same decision the court suspended the proceedings pending the outcome of the examination.", "The applicant objected to the examination on the ground that such examination had already been performed by another expert body, and that she had already furnished its results with the court. According to the applicant, the District Court ignored her objection. 15. The applicant appealed against the above decision, and the case-file was transmitted to the Civil Section of the Leningradskiy Regional Court (“the Regional Court”). On 27 April 2000 the latter dismissed the applicant’s interlocutory appeal, thus upholding the decision of 26 January 2000.", "16. On 6 June 2000 the case-file was returned to the District Court and sent to the experts to enable them to carry out the requisite examination. 17. On 8 December 2000 the experts declined to undertake the examination and returned the case-file to the District Court, stating that the defendant company refused to bear the expenses for the examination. 18.", "On 9 January 2001 the District Court resumed the proceedings and fixed a hearing for 24 April 2001. 19. On 24 April 2001 the District Court postponed the hearing until 4 July 2001 and, upon the applicant’s request, ordered the defendant company to provide certain documents. 20. On 4 July 2001 the court adjourned a hearing until 4 September 2001 as the defendant had failed to submit the requested documents, and then until 28 September 2001, having ordered the parties to submit the original of the contract between them.", "On the last mentioned date the hearing was postponed until 19 October 2001, as the District Court invited to the expert body to submit a calculation of the expenses for the examination and ordered the reimbursement of those expenses. 21. On 19 October 2001 the hearing was postponed until 19 November 2001 because the judge was engaged in unrelated proceedings. 22. On 19 November 2001 the Lomonosovskiy District Court again stayed the proceedings and reaffirmed the order of 26 January 2000, as the defendant had agreed to reimburse the costs of the expert examination.", "On 23 January 2002 the Regional Court rejected the applicant’s interlocutory appeal against this decision. 23. On 27 February 2002 the case-filed was remitted to the District Court and sent to the experts. The latter examined the applicant’s flat on 25 July 2002 and returned the case-file to the District Court on 3 September 2002. 24.", "By letter of 4 September 2002 the Lomonosovskiy District Court notified the applicant that the hearing would take place on 11 October 2002. On 11 October 2002 the District Court adjourned the hearing until 1 November 2002 for an unspecified reason, and then until 6 December 2002 on account of the judge’s illness. The applicant objected, but the District Court did not address her objections. On 6 December 2002 the hearing was adjourned until 10 January 2003 upon the applicant’s request. 25.", "During 2002 the applicant lodged a number of complaints about the excessive length of the proceedings in her case with various administrative bodies. Mostly she received formal responses that her complaints had been forwarded to the District Court. 26. Between 10 and 15 January 2003 the hearing was repeatedly interrupted for various reasons, in particular for the failure of one of the lay assessors to appear. 27.", "On 15 January 2003 the Lomonosovskiy District Court delivered a judgment, dismissing the applicant’s claims and ordering her to reimburse the costs for the examination of the flat to the company. 28. On 14 May 2003 the Regional Court quashed the above judgment and remitted the case for a new examination. 29. The case-file was sent back to the District Court on 17 June 2003, and a hearing was scheduled for 14 August 2003.", "30. Between 14 and 29 August 2003 the hearing was interrupted and resumed on several occasions, in particular because the applicant supplemented her claims and twice requested the court to obtain certain documents. On 29 August 2003 the hearing was postponed until 2 October 2003 upon the applicant’s request to obtain certain documents, and thereafter until 20 November 2003, as the judge was ill. The proceedings were resumed on 24 November 2003, but the hearing was adjourned until 5 December 2003, as the representative of the defendant company had failed to appear on account of his illness. On the last mentioned date the proceedings resumed.", "31. By judgment of 17 December 2003 the Lomonosovskiy District Court rejected the applicant’s claims and ordered her to reimburse the costs of the expert examination to the defendant company. 32. On 10 March 2004 the Regional Court set aside the first instance judgment and remitted the case for a fresh consideration. On 13 April 2004 the case-file was remitted to the District Court, and on 20 April 2004 a hearing was fixed for 9 June 2004.", "33. On 9 June 2004 the hearing was postponed until 28 July 2004 pending the outcome of friendly settlement negotiations between the parties. It appears that on 28 July 2004 the proceedings were recommenced. 34. By judgment of 9 August 2004 the District Court granted the applicant’s claims in part and awarded her damages against the defendant company.", "35. On 3 November 2004 the Regional Court overturned the judgment of 9 August 2004 and remitted the case to the first instance for a new examination. 36. On 1 February 2005 the District Court granted the applicant’s claims in part and ordered the defendant company to pay her 409,724.2 Russian roubles. 37.", "On 13 April 2005 the Regional Court upheld the above judgment on appeal. II. RELEVANT DOMESTIC LAW 38. Article 99 of the Code of Civil Procedure of 1964, as in force at the relevant time, provided that civil cases were to be prepared for a hearing no later than seven days after the action had been filed in the court. In exceptional cases, this period could be extended for up to twenty days.", "Civil cases were to be examined no later than one month after the preparation for the hearing had been completed. 39. Article 74 of the Code provided that in cases where it was impossible to carry out an expert examination without the involvement of one of the parties to the proceedings and this party evaded participation, the court may establish, ascertain or refute the relevant fact to this party’s detriment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40.", "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 read, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 41. The period to be taken into consideration began on 15 September 1998, when the applicant lodged her action, and ended on 13 April 2005, when the last court decision determining the applicant’s claim was given. It thus lasted six years, six months and twenty-nine days, during which time the applicant’s claim was examined in four rounds of proceedings at two levels of jurisdiction. A. Admissibility 42. In their observations dated 14 September 2004 the Government contended that the complaint was premature since the proceedings in the applicant’s case were still pending.", "43. Leaving aside the fact that the proceedings have now come to an end, the Court recalls that according to the Convention organs’ constant case-law, complaints concerning length of procedure may be lodged before the final termination of the proceedings in question (see, among many other authorities, Kuzin v. Russia, no. 22118/02, § 31, 9 June 2005). 44. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 45. The Government argued that the delays in the examination of the applicant’s case were caused by the applicant’s conduct, and in particular by her failure to appear before the Court on 26 March 1999 and the fact that she had repeatedly supplemented and amended her claims as well as requested the court to obtain new evidence.", "Furthermore, the applicant’s case was rather complex because of the need to carry out an expert examination on building standards, and the first instance court’s decisions to that effect were twice quashed by a higher court. As regards the expert opinion submitted by the applicant, the Government stated that it had not met the requirements of national procedural law, and therefore could not be admitted as evidence in the case. 46. The applicant disagreed with the Government and maintained her complaint. She stated that the first instance court breached the time-limits for examination of her case provided for in national law.", "In particular, six months and eleven days elapsed between the date on which she applied to court and the date for which the first hearing was fixed, and the expert examination was only ordered more than a year after she had applied to court. Furthermore, the court had made no attempt to reprimand the defendant company for evading that examination, but instead reaffirmed its order and stayed the proceedings for an overall period of more than two years. The applicant further contended that she had never contributed to any delays in the proceedings and always complied with the statutory time-limits, that she had modified her claims because of the delays in the proceedings, and that, in any event, on most occasions she had merely increased the amount of the damages she had sought to obtain which in no way protracted the proceedings. The applicant also argued that she had requested the first instance court to obtain evidence because the defendant company had not submitted any evidence during the first three years of the proceedings, and the court had made no attempts to obtain it. Finally, she disputed the Government’s statement that she had not attended a hearing on 26 March 1999 and stated that she had arrived at the court and talked to the judge.", "47. 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). 48. The Court considers that the proceedings in the present case were of a certain complexity as they required the taking of an expert opinion and because the applicant amended and supplemented her claims on several occasions.", "While admitting that the task of the courts was rendered more difficult by these factors, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings (see Malinin v. Russia (dec.), no. 58391/00, 8 July 2004). 49. The Court next observes that the proceedings were mostly protracted during the first examination of the applicant’s case, and in particular between 15 September 1998, when the applicant filed her action, and 15 January 2003, when the judgment on the merits of the applicant’s case was delivered. After it was quashed on appeal on 14 May 2003, the proceedings were expedited noticeably, the case being examined three times at two levels of jurisdiction during the next twenty-three months.", "50. Having regard to the period between 15 September 1998 and 15 January 2003, the Court notes that the hearing was postponed twice, as the applicant had amended her claims and asked the court to obtain additional evidence. It reiterates in this respect that the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of her interest (see, mutatis mutandis, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 66). In any event, the aggregate delay resulting from the applicant’s requests did not exceed four months.", "In these circumstances the Court cannot conclude that the applicant’s conduct delayed the proceedings in any significant way. 51. As to the conduct of the authorities, the Court first notes that it is not convinced by the Government’s argument that the hearing scheduled for 26 March 1999 was postponed because of the applicant’s failure to appear. It notes in this respect that as it follows from a report on the developments in the applicant’s civil case submitted by the Government, even though the applicant did not attend the hearing in question, she requested the court to examine the case in her absence, while the defendant company, for its part, requested the court to adjourn the proceedings by reference to the belated delivery of the court summons. In such circumstances the Court considers that the ensuing delay is imputable to the authorities rather than to the applicant.", "It further notes that while the applicant’s claim was registered on 15 September 1998, it took the District Court over six months to fix a hearing for 26 March 1999. On the latter date the hearing was postponed for another month and nineteen days, this delay being imputed to the authorities. Moreover, on five occasions the proceedings were adjourned for an overall period of eight months and seventeen days on account of the judge’s involvement in other proceedings. In this respect the Court recalls that it is the States’ duty to organise their judicial systems in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria, no. 30546/96, § 21, 3 October 2000).", "52. The Court next observes that from 26 January 2000 to 9 January 2001 the District Court stayed the proceedings pending the outcome of the expert examination which was requested by the defendant company. Even though the latter then refused to bear the expenses for that examination with the result that the experts declined to carry it out, there is no indication that the court reacted in any way to such behaviour. Instead, on 19 November 2001 the court re-ordered the examination, which protracted the proceedings for over nine months. In such circumstances the Court is not convinced that the domestic court availed itself of the measures available to it under national law, e.g.", "under Article 74 of the Code of Civil Procedure then in force, to discipline the defendant so as to ensure that the case be heard within reasonable time (see, in a somewhat similar context, Sokolov v. Russia, no. 3734/02, § 40, 22 September 2005). 53. In the light of the criteria laid down in its case-law and having regard to the circumstances of the present case, and in particular to the fact that during the first examination of the applicant’s case the proceedings were pending for four years and four months before the first instance court, out of which at least four years directly imputable to the authorities, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 54.", "There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 55. In her letter of 24 May 2005 the applicant complained under Article 6 of the Convention, taken alone and in conjunction with Article 14, that the domestic courts were biased in favour of the defendant, incorrectly established the facts and based the judgment of 1 February 2005 and decision of 13 April 2005 on inadmissible evidence. She averred that the aforementioned violations of her right to a fair trial occurred because the defendant was a large building company while she was a pensioner, which, in her view, constituted discrimination against her on the ground of her property status.", "56. The Court first notes that the applicant has submitted no evidence of an objective or subjective bias on the part of the national courts. It further recalls that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that she was able to present her arguments as she wished, and the judicial authorities gave them due consideration. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.", "Finally, the Court observes that there is no indication that the applicant has ever brought the issue of the alleged discrimination before the domestic authorities, and that, in any event, she has not furnished it with any evidence confirming that she was treated differently from a person in a comparable position. 57. 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. 58. The applicant also referred to Article 1 of Protocol No.", "1 to the Convention in that on account of the defects that had not been eliminated by the defendant, the flat was unfit for habitation, and that the domestic courts had refused to award her the full amount of damages she had claimed, which infringed her right to the peaceful enjoyment of her possessions. 59. The Court recalls that the fact that one of the contracting parties did not perform the agreements and that the domestic judicial authorities provided a forum for the determination of a private dispute concerning those parties’ contractual arrangements, in which the applicant was unsuccessful, does not give rise to an interference by the State with property rights under Article 1 of Protocol No. 1 to the Convention, since it is the function of the courts to determine disputes between parties, with the inevitable consequence that one party may ultimately be unsuccessful in the litigation in question (see Kuchař and Štis v. the Czech Republic (dec.), no. 37527/97, 21 October 1998).", "The Court further notes that there is nothing on the facts of the instant case which would enable it to reach a different conclusion. 60. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof. 61. Lastly, the applicant complained under Article 2 of Protocol No.", "4 to the Convention about the infringement of her freedom to choose her residence, alleging that she had no sufficient means to purchase housing in another region of Russia, as the compensation awarded her by the domestic courts had been clearly insufficient. 62. The Court notes that Article 2 of Protocol No. 4 to the Convention cannot be interpreted as obliging the State to provide financial support for an individual to purchase housing of his choosing. 63.", "It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof. 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 70,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 66. The Government contested these claims. They considered that there was no causal link between the alleged violation of the applicant’s right to have her claims examined within a reasonable time, and that a token amount would constitute equitable compensation for the non-pecuniary damage suffered by the applicant. 67.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged, it therefore rejects the applicant’s claim in so far as it concerns the compensation for pecuniary damage. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,500 under that head. B. Costs and expenses 68.", "The applicant did not claim reimbursement of her costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court considers that there is no call to award her any sum on that account. C. Default interest 69. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 1 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenLoukis LoucaidesRegistrarPresident" ]
[ "FIFTH SECTION CASE OF DORON v. BULGARIA (Application no. 39034/04) JUDGMENT STRASBOURG 14 October 2010 This judgment is final but it may be subject to editorial revision. In the case of Doron v. Bulgaria, 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 21 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39034/04) 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 Dilian Spiridonov Doron (“the applicant”), on 25 October 2004.", "2. The applicant was represented by Mr M. Ekimdzhiev and Mrs K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs S. Atanasova, Mrs N. Nikolova and Mr V. Obretenov of the Ministry of Justice. 3. On 11 February 2009 the President of the Fifth Section decided to give notice of the application to the Government.", "In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1953 and lives in Sofia.", "A. The criminal proceedings against the applicant 5. On 7 March 1994 the applicant was charged with aiding and abetting large scale embezzlement. The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons. 6.", "On 8 March 1994 the applicant was questioned in connection to the above charges and a search of his business premises was carried out. 7. On 11, 15, 23 and 24 March 1994 the applicant, some of the other persons charged and witnesses were questioned. 8. On 28 March 1994 the applicant was also charged with documentary fraud, was questioned in that connection and bail was fixed for him.", "9. Between April and November 1994 at least fifteen questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement. 10. As the applicant did not pay the bail and could not be found for questioning, on an unspecified date in 1994 the Bulgarian authorities, with the assistance of Interpol, initiated a national and an international search for him. 11.", "On 5 December 1994 the applicant was found in Switzerland and on 26 January 1996 he was extradited to Bulgaria. 12. Meanwhile, the criminal proceedings against him were still pending and between 9 November 1994 and 8 January 1996 at least fourteen questioning sessions were carried out and two expert opinions were commissioned. 13. On 26 January 1996 the applicant was questioned and the findings of the investigation were presented to him.", "14. Between January and October 1996 a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved. 15. On 5 July 1997 a prosecutor from the Sofia city public prosecutor’s office dropped some of the charges against the applicant and prepared an indictment. Thus, the applicant remained charged only with aggravated documentary fraud, as a result of which he unlawfully received a large amount of money.", "16. On 5 September 1997 the indictment was sent to the Sofia City Court. 17. During the first hearing of 5 March 1998 it became clear that the applicant had returned the allegedly embezzled amount to the victim company. 18.", "For the period between 5 March 1998 and 12 January 1999 the Sofia City Court held at least fourteen hearings. 19. By a judgment of 12 January 1999 the Sofia City Court acquitted the applicant. 20. The prosecutor appealed.", "21. The Sofia Court of Appeal held at least three hearings. By a judgment of 13 March 2000 it upheld the acquittal. 22. The prosecutor appealed further.", "On 22 May 2000 the Supreme Court of Cassation held a hearing. 23. By a judgment of 3 October 2001 the Supreme Court of Cassation quashed the Sofia Court of Appeal judgment because of procedural breaches and remitted the case for fresh examination. 24. After the remittal the Sofia Court of Appeal held hearings on 20 May and 23 September 2002.", "25. In a judgment of 21 November 2003 the Court of Appeal upheld the Sofia City Court judgment of 12 January 1999. 26. So did the Supreme Court of Cassation in a final judgment of 24 June 2004. 27.", "Apparently, no civil claim was brought against the applicant throughout the proceedings. B. The seizure of the money 28. During the search of the applicant’s business premises, carried out on 8 March 1994, a metal safe was seized. On 11 May 1994 an investigator from the Sofia National Investigation Service opened the safe and seized the amount of 986,444 old Bulgarian levs (BGL) (the equivalent of 41,874 German marks at the time or 21,410 euros (EUR)).", "In the seizure record of 11 May 1994 it was stated that the amount had been seized pursuant to Article 156 of the Code of Criminal Procedure of 1974 (CCP). The amount was deposited in a special bank account under which no interest was due. 29. After the end of the criminal proceedings against the applicant, he requested the return of the seized amount. 30.", "In a decision of 2 September 2004 the Sofia City Court ordered the amount to be returned to the applicant. It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed. The applicant received 986.40 new Bulgarian levs (BGN), approximately EUR 504, which was the equivalent of the seized amount after the denomination of 1999. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Remedies in respect of length of criminal proceedings 31. The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs 34-42 of the Court’s judgment in the case of Atanasov and Ovcharov v. Bulgaria, no. 61596/00, 17 January 2008. B. Measures for guaranteeing the satisfaction of civil claims in the criminal proceedings 32.", "Article 156 of the CCP, as in force between 1974 and 1999, provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator, the payment of fines or the execution of confiscation orders. The provisions of the Civil Procedure Code of 1952 (CPC), including as regards appeals to higher courts, applied in respect of the attachment procedure. 33. In case no civil action had been lodged within the prescribed time-limit, the interested party could request from the court to lift the imposed measure (Article 322 of the CPC). C. Appeal against the orders of the investigator 34.", "Article 181 of the CCP provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank. D. Physical evidence in criminal proceedings 35. Articles 133-137 provided for the seizure of documents and other objects that could be of importance for the criminal proceedings. Pursuant to Article 106 of the CCP chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings. They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case (Article 108 § 2).", "As of 1 January 2000 Article 108 of the CCP was amended, thus clarifying that it was within the powers of the prosecutor’s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 37. The Government argued that the case had been complex and therefore time-consuming and that by fleeing the country the applicant had caused the slowing down of the proceedings.", "A. Period to be taken into consideration 38. The period to be taken into consideration began on 7 March 1994 when the applicant was charged with aiding and abetting large scale embezzlement (see paragraph 5 above). It ended on 24 June 2004, when the Supreme Court of Cassation gave a final judgment in the case (see paragraph 26 above). It thus lasted ten years, three months and seventeen days for a preliminary investigation and three levels of jurisdiction.", "B. Admissibility 39. The Court notes that the applicant’s complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 40. 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 (see, among many other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, § 67, ECHR 1999-II.). 41. The Court notes that the global length of the proceedings in the present case was more than ten years. 42. It accepts that the case was relatively complex as it initially involved charges against several persons, questioning of a number of witnesses and several expert options.", "43. In respect of the applicant’s conduct, the Court finds that significant delays during the preliminary investigation stage were caused by his absence from the country which lasted for more than a year (see paragraphs 10-12 above). 44. On the other hand, however, it observes a number of delays in the proceedings, which were attributable to the authorities, such as the delay of about three years because of the remittal of the case due to procedural breaches (see paragraph 23 above) and this of about one year and two months between the last hearing before the Sofia Court of Appeal of 23 September 2002 and the delivery of that court’s judgment on 21 November 2003 (see paragraphs 24 and 25 above). It also notes that the case was not handled with particular expediency by the Supreme Court of Cassation (see paragraphs 21-23 above).", "45. In view of the above, having regard to its case-law on the subject, the overall duration of the proceedings and the delays attributable to the authorities the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 46.", "The applicant further complained of the lack of an effective remedy in respect the excessive length of the proceedings against him. 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.” 47. The Government did not comment. 48. The Court notes that the applicant’s complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds.", "It must therefore be declared admissible. 49. 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). Referring to its reasoning in other cases against Bulgaria where it found that in similar circumstances Bulgarian law did not provide for an effective remedy (see, for example, Sidjimov v. Bulgaria, no.", "55057/00, § 40-43, 27 January 2005, Atanasov and Ovcharov v. Bulgaria, cited above §§ 57-61 and Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 32-34, 22 October 2009), the Court sees no reason to reach a different conclusion in the present case. 50. Accordingly, there has been a violation of Article 13 of the Convention. III.", "ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLE 13 51. The applicant complained under Article 1 of Protocol No. 1 that in violation of Article 156 of the CCP the seizure of the amount of BGL 986,444 had been ordered by an investigator and not by a court. He further complained that as a result of the lengthy criminal proceedings, inflation and the denomination of the Bulgarian currency in 1999, this amount depreciated in value.", "He contended that he could not receive interest on the seized amount and thus suffered a loss. He further complained under Article 13 that he did not have an effective remedy respect of his complaint under Article 1 of Protocol No. 1. 52. Article 1 of Protocol No.", "1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 53. The Government argued, inter alia, that the applicant never complained about the seizure of the money before the domestic courts and never appealed against the actions of the investigation authorities in connection to the seizure.", "He also did not claim any interest on the seized amount. Thus, he failed to exhaust all domestic remedies before bringing his complaint to the Court. 54. The applicant argued that he did not have at his disposal effective domestic remedies in respect of his complaint under Article 1 of Protocol No. 1.", "He contended that pursuant to Article 156 of the CCP the investigation and the prosecution authorities were under the obligation to undertake measures to guarantee the satisfaction of civil claims against the perpetrators of an offence and that therefore any claims and requests for returning of the seized amount or appeals against the seizure stood no chances of success. 55. The applicant further argued that the seizure had been unlawful as, if considering that it had been carried out pursuant to Article 156 of the CCP, the decision had not been taken by a court and, if considering that it had been carried out under Article 133 of the CCP, the seized objects had not been of importance for the criminal proceedings. He also argued that the seizure had resulted in a loss of EUR 20,905.87, which constituted the difference in value between the seized and the returned amount. B.", "The Court’s assessment 56. The Court observes that, the applicant never complained about the seizure of the money before any domestic authority. His complaints under Article 1 of Protocol No. 1 were raised for the first time directly before the Court. 57.", "The Court notes that under Bulgarian law, regardless of the grounds for the seizure and the procedure followed in that respect, all orders of investigators could be appealed before a prosecutor and all orders of prosecutors could be appealed before the higher rank prosecutor (see paragraph 34 above). Therefore the Court considers that the applicant could have challenged the investigator’s order to seize the amount. Furthermore, irrespective of whether the amount continued to be seized as a guarantee or as physical evidence, it was open for the applicant to request its return from the prosecutor or from the court (see paragraphs 32, 33 and 35 above). He however, did not try to avail himself of any of these remedies. As to his argument that he stood no chance of success (see paragraph 54 above), the Court reiterates that 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 domestic remedies (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996‑IV; Allaoui and Others v. Germany (dec.), no.", "44911/98, 19 January 1999; and Muazzez Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002). 58. In view of the above, the Court finds that the applicant failed to exhaust all remedies available to him in respect of the complaint under Article 1 of Protocol No. 1.", "It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention. It also follows that the applicant’s complaint under Article 13 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 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 60. The applicant claimed 17,000 euros (EUR) in non-pecuniary damage, stemming from the length of the criminal proceedings and the lack of effective remedies in that respect. 61. The Government contested this claim as excessive. 62.", "The Court observes that the applicant must have sustained non‑pecuniary damage as a result of the established violations (see paragraphs 45 and 50 above). Ruling on an equitable basis and taking into account all the circumstances of the case, it awards EUR 2,400 under this head. B. Costs and expenses 63. The applicant also claimed EUR 2,730 in lawyer’s fees for the proceedings before the Court, EUR 17 in postage and EUR 52 in office materials.", "In support of this claim the applicant presented an agreement with his lawyers and a time sheet for thirty nine hours at the hourly rate of EUR 70. The applicant requested that the sum for costs and expenses in excess of EUR 1,000 be paid directly to his lawyers. 64. The Government contested these claims as excessive. 65.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads. C. Default interest 66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning the length of the criminal proceedings against the applicant and the lack of effective remedies 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 excessive length of the proceedings; 3. Holds that there has been a violation of Article 13 in conjunction with Article 6 § 1 of the Convention on account of the lack of an effective remedy for the excessive length of the criminal proceedings; 4. Holds a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 600 (six 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 14 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait Maruste Deputy RegistrarPresident" ]