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[ "FIRST SECTION CASE OF DREYER v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 2040/04) JUDGMENT STRASBOURG 19 July 2011 This judgment is final but it may be subject to editorial revision. In the case of Dreyer v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Anatoly Kovler, President, Mirjana Lazarova Trajkovska, Linos-Alexandre Sicilianos, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 28 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 2040/04) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hartwig Dreyer (“the applicant”), on 9 January 2004.", "2. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. 3. On 14 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. 4.", "On 22 January 2009 the German Government was informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). 5. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1). The case was assigned to the newly composed First Section (Rule 52 § 1). In accordance with Protocol no.", "14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The applicant, Mr Hartwig Dreyer, is a German national who was born in 1926 and lives in Neumunster, Germany. 7. On 8 September 1983 the Paris International Court of Arbitration ordered the company М.", "(“the debtor”) to pay the company Ingenieurbüro, H.D., which was solely owned and managed by the applicant, 110,000 German marks (DM), plus interest. 8. By a final decision of 28 March 1991, the Federal Court in Belgrade recognised this decision. 9. On 13 September 1993 the applicant sought enforcement of that decision before the Skopje Municipal Court against the debtor’s legal successors, which had resulted from its division in 1982.", "10. On 16 September 1993 the Skopje Municipal Court granted this request. On 2 March 1994 the applicant further specified the debtors, namely companies which succeeded the debtor’s legal successors after their transformation in 1990 (“the companies”). On 24 March 1994 the Skopje Municipal Court dismissed the companies’ objections that they had lacked the requisite capacity to stand in the proceedings. 11.", "On 6 January 1995 the applicant specified that in 1989 the debtor had seized to exist and its rights and obligations had transferred to a newly created company M.c.o.. The applicant therefore sought the Skopje Municipal Court to amend the decision of 24 March 1994. This request remained undecided. 12. On 12 February 1998 the Skopje Court of Appeal upheld the companies’ appeals and remitted the case for re-examination.", "13. On 28 April 2000 the Skopje Court of First Instance requested the applicant to specify the respective debtor or debtors, having in mind his submission of 6 January 1995 (see paragraph 11 above). On 26 May 2000 the applicant reiterated his submission of 2 March 1994 (see paragraph 10 above). 14. On 1 March 2004 the Skopje Court of First Instance upheld the companies’ objections and set aside (“се става вон сила”) the enforcement order of 16 September 1993.", "The court found that the companies had not had capacity to stand in the proceedings since company M., referring presumably to M.c.o., had still existed and it was to be considered as the debtor’s legal successor liable to pay the debt. 15. On 27 September 2004 the applicant was served with the decision of 1 March 2004 through the Embassy of the respondent State in Germany. The parties did not dispute that the applicant’s appeal of 30 April 2005, which remained undecided, was lodged out of time. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that the length of the enforcement 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 17. The Court considers that the applicant can claim to be a victim of the alleged violation since he was the sole owner and manager of the company Ingenieurbüro, H.D., which was the party of the proceedings in question (see, mutatis mutandis, Graberska v. the former Yugoslav Republic of Macedonia, no. 6924/03, § 41, 14 June 2007). 18.", "The Government objected that the applicant had not exhausted domestic remedies since he had failed to appeal, in good time, against the first-instance court’s decision of 1 March 2004 (see paragraph 15 above). 19. The applicant disputed the Government’s objection. However he did not contest the fact that he had lodged his appeal out of time. 20.", "The Court considers that an ordinary appeal, which provides a remedy for errors of facts and law, allegedly made by a first-instance court, cannot be regarded as an effective remedy concerning the applicant’s complaint in respect of the length of the proceedings (see, Josifov v. the former Yugoslav Republic of Macedonia, no. 37812/04, § 20, 25 June 2009). 21. It follows that the Government’s preliminary objection must be rejected. 22.", "The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 23.", "The Government contended that there had been no violation of Article 6 § 1 of the Convention. In this connection they argued that the applicant had inaccurately specified debtors on several occasions. 24. The applicant disagreed. 25.", "The Court observes that, in order to determine the reasonableness of the delay in question, regard must also be had to the state of the case on the date of ratification (see Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, § 36, 3 July 2008). The Court further notes that the enforcement proceedings started on 13 September 1993 when the applicant requested enforcement of his claim. Thus, on 10 April 1997, the enforcement proceedings had already been pending for over three years and seven months. 26.", "Although there has been no formal decision rendered by the appeal court, in practice the enforcement proceedings ended with the first-instance court’s decision of 1 March 2004, served on the applicant on 27 September 2004, since the applicant’s appeal lacked any prospect of success (see paragraphs 15 and 19 above, see also, mutatis mutandis, Miltenovic v. the former Yugoslav Republic of Macedonia (dec.), no. 26615/02, 19 June 2006). 27. The proceedings, thus, lasted nearly eleven years and one month of which seven years, five months and twenty days fall within the Court’s temporal competence (since the ratification of the Convention by the respondent State on 10 April 1997) for two levels of jurisdiction. 28.", "Under the Court’s case law, the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see Markoski v. the former Yugoslav Republic of Macedonia, no. 22928/03, § 32, 2 November 2006). 29. The Court considers that the case was of some complexity, but that this cannot, in itself, justify the length of the proceedings. 30.", "As to the applicant’s behaviour, the Court is not convinced, as the Government argued, that his failure properly to establish the relevant debtor or debtors in accordance with their transformation, added much to the length of the enforcement proceedings. Moreover, the applicant’s submissions specifying his request cannot be considered to his detriment (see Ivanovski and Others v. the former Yugoslav Republic of Macedonia, no. 34188/03, § 28, 26 November 2009). 31. On the other hand, the Court considers that the domestic courts did not display the requisite vigilance when conducting the enforcement proceedings.", "In this connection, it observes that the proceedings, which lasted over seven years and five months within the Court’s temporal competence, were pending approximately six years before the Skopje Court of First Instance (see paragraphs 12 and 14 above). 32. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court considers that the length of the enforcement proceedings failed to satisfy the reasonable-time requirement. 33. There has, accordingly, been a violation of Article 6 § 1 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicant further complained under Article 14 of the Convention that he had been discriminated against by virtue of the Enforcement Proceedings Act, valid at the material time. He also alleged a violation of Article 1 of Protocol No. 1 for having not been able to honour his claim.", "35. The Court has examined these complaints and finds that, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 36. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 38. The applicant claimed EUR 2,892,859 in respect of pecuniary damage and EUR 1,053,400 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. However, it considers that the applicant must have sustained non-pecuniary damage for the protracted length of the proceedings. Ruling on an equitable basis, it awards him EUR 2,400 under that head.", "B. Costs and expenses 41. The applicant also claimed a global sum of EUR 1,700,974 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. The latter figure included, inter alia, the costs for mailing, translation and photocopy of documents, for which the applicant submitted a copy of receipts. 42.", "The Government contested these claims. 43. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation found, and reasonable as to quantum, are recoverable under Article 41 (see Jovanovski v. the former Yugoslav Republic of Macedonia, no. 40233/03, § 44, 25 March 2010). Concerning the applicant’s request for reimbursement of the costs incurred in the proceedings before the domestic courts, the Court notes that such costs had not been incurred in order to seek through the domestic legal order prevention and redress of the alleged violation complained of before the Court.", "Accordingly, it does not award any sum under this head (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34, 20 April 2006). In respect of the costs and expenses incurred before it, regard being had to the supporting documents submitted by the applicant, the Court awards the sum of EUR 1,464, plus any tax that may be chargeable to the applicant. C. Default interest 44. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the enforcement proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement: i) EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; ii) EUR 1,464 (one thousand and four hundred sixty-four euros) in respect of costs and expenses, 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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 28 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachAnatoly KovlerDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF KUROCHKIN v. UKRAINE (Application no. 42276/08) 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 Kurochkin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "42276/08) 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 Vladyslav Volodymyrovych Kurochkin (“the applicant”), on 1 August 2008. 2. The applicant was represented by Mr Kostyantyn Buzadzhy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3.", "The applicant alleged that annulment of the adoption of a minor boy in his case violated his rights under Articles 6 § 1, 8 and 13 of the Convention. 4. On 15 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3) and to give priority to the case under Rule 41 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Kyiv. 6. On 26 July 2004 the applicant and his wife, Mrs K., adopted V.G., an orphan boy born in 1993. 7.", "From January 2005, due to conflicts between the applicant's wife on one hand and the applicant and V.G. on the other, they ceased to keep a joint household and the applicant's wife subsequently moved to their summer house. 8. In October 2006 the applicant sought annulment of his marriage with Mrs K. before the Shevchenkivskyy District Court of Kyiv (the Shevchenkivsky Court). 9.", "On 27 October 2006 the child welfare authority of the Vyshgorod Administration (Вишгородська районна державна адміністрація Київської області) delivered its opinion, at the request of Mrs K., on annulment of the adoption of V.G. It found that the relations between the adoptee and Mrs K. were negative, while the applicant had authority over the adoptee and positive relations with him. The report also mentioned that the boy had expressed the wish to stay with his adoptive father and that the applicant was willing to take care of the boy's upbringing. It finally recommended cancelling the adoption with respect to the applicant and his wife, as the relations between the latter had deteriorated, which had a negative effect on the boy, so that it would not serve his interests to stay in his adoptive family. 10.", "In November 2006 the applicant's then wife requested the Vyshgorod Court to annul the adoption of the child by her and her husband, on the grounds that the child had attacked her physically on several occasions and that her husband, who had been present during one of the incidents, had refused to stop the attacks. She supported her claim by the report of 27 October 2006. 11. In the course of the proceedings both the applicant and the child objected to Mrs K.'s request for annulment of the adoption by the applicant. The applicant did not object to the annulment of the adoption in respect of Mrs K. He also denied that he had ever witnessed Mrs K. being physically attacked by V.G.", "12. Meanwhile, on 6 March 2007 the applicant and Mrs K. divorced. 13. On 20 July 2007 the applicant married Ms V.T. 14.", "On 9 August 2007 the Shevchenkivskyy Court allowed the request of the applicant's former wife and annulled the adoption of V.G. by her and by the applicant. In particular, referring to Article 238 § 1 (3) of the Family Code, the court held that the adoption by the applicant's former wife was to be annulled in view of the fact that relations between her and the adoptee had worsened, rendering it impossible for them to live as a family. The court based its findings on the statements of Mrs K. and medical evidence of injuries sustained by her. The court also referred to the testimonies of neighbours of the family and a report on V.G.", "'s personality of 9 August 2006 provided by his school that stated that he behaved aggressively, insulted and threatened the neighbours and on some occasions had beaten some of his schoolmates. The report of 9 August 2006 also mentioned that this aggressive attitude and lack of respect for others were hereditary traits and required treatment by specialists. The child welfare authority supported the claims of Mrs K. and submitted that annulment of the adoption would be to the benefit of the boy. 15. The court further held that the adoption of V.G.", "by the applicant was also to be annulled in the best interest of the child, regardless of the child's wish to stay with his adoptive father, which had been expressed before the court. It found that the applicant had disregarded the child's aggressive attitude towards his adoptive mother, which had caused the child to develop a negative attitude towards women and misconceptions about normal family relationships. The court ordered the child to be transferred to the child welfare authority for subsequent placement in an unspecified specialised institution. V.G. continued to reside with the applicant and has never been taken into care.", "16. On 28 August 2007 the Shevchenkivskyy Court divided the flat between the applicant and Mrs K., his former wife. They received a room each within the flat while other facilities remained in common use. 17. On 17 December 2007 the Kyiv City Court of Appeal upheld the judgment of 9 August 2007.", "It dismissed the applicant's appeal and found that he had not adduced any evidence testifying that he was able to influence the boy positively and secure his normal personal development. According to the court of appeal the adoption was correctly annulled by the first-instance court on the basis of Article 238 § 1 (3) of the Family Code, and the mere fact of positive relations between the applicant and the child and his desire to remain the boy's adoptive father could not serve as a basis for reversal of the above judgment. The court of appeal concluded as follows: “The court correctly took into consideration that the annulment of the adoption ... could be also regarded as a sanction imposed on the boy for his disgraceful behaviour” 18. On 27 February 2008 the Supreme Court found no grounds to review the applicant's case in cassation. 19.", "On 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv, at the request of the applicant and V.G. and in the interest of the latter, appointed the applicant guardian (піклувальник) of V.G. As guardian the applicant was entrusted with “protection of the rights and property interest of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development”. 20. On 11 September 2008 the applicant's former wife, Mrs K., lodged a claim with the Shevchenkivskyy Court and sought annulment of the decision of the Shevchenkivskyy District State Administration of Kyiv of 3 June 2008.", "She alleged that that decision had been taken in contradiction to the judgment of the Shevchenkivskyy Court given on 9 August 2007 and that V.G. 's residence in the flat posed a threat to her life. 21. On 23 September 2008 the Shevchenkivskyy Court assumed jurisdiction over the proceedings in the case. The parties did not inform the Court about further developments.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine, 28 June 1996 22. The relevant provisions of the Constitution read as follows: Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...” Article 51 “...The family, childhood, motherhood and fatherhood are under the protection of the State.” B. Family Code of Ukraine of 10 January 2002 23.", "The relevant provisions of the Family Code of Ukraine read as follows: Article 19. Participation of a child welfare authority in the protection of family rights and interests “(...) 4. The participation of a child welfare authority is obligatory during the examination of the cases concerning ... annulment of adoption by a court. 5. The child welfare authority shall submit to the court an opinion as to settlement of the dispute.", "The opinion should be based on the information obtained after inspection of the living conditions of the child, parents, other persons that wish to reside with the child or to take part in its upbringing, and any other documents related to the case. 6. The court may disagree with the opinion of the child welfare authority provided it is ill-founded and does not serve the interests of the child.” Article 150. Parents' obligations as to upbringing and development of a child “1. Parents shall bring up their child in the spirit of respect for the rights and freedoms of others and of love for one's family, people and Motherland.", "2. Parents shall take care of their child's health and well-being and of its physical, intellectual and ethical development. 3. Parents shall ensure that the child receives a full general secondary education... 4. Parents shall respect the child... 6.", "It shall be prohibited for parents to exploit their child. 7. It shall be prohibited for parents to apply corporal punishment to their child or any other punishment which may degrade the child's human dignity.” Article 232. Legal consequences of adoption “(...) 4. The adoption confers the same rights and imposes the same obligations on the adoptive parent in respect of the adoptee as the [biological] parents have in respect of their child.", "5. The adoption confers the same rights and imposes the same obligations on the adoptee in respect of the adoptive parents as the [biological] child has in respect of its parents.” Article 238. Annulment of adoption “1. A court may order the annulment of adoption if: 1) the adoption contravenes the interests of the child, or does not ensure that the child is brought up in a family environment; 2) the child is mentally retarded, or suffers from a mental or other serious incurable illness, of which the adoptive parent was not aware and could not have been aware at the moment of adoption; 3) relations between the adoptive parent and the adoptee, independently of the adoptive parent's will, render it impossible for them to live together and for the adoptive parent to fulfil his or her parental obligations.” Article 243. Children who may be placed under tutelage or guardianship “1.", "Orphans or children deprived of parental care may be placed under tutelage or guardianship. 2. (...) guardianship is assigned in respect of a child who is between fourteen and eighteen years old.” Article 244. Person eligible to act as tutor or guardian of a child “(...) The child welfare authority takes into consideration personal qualities, ability to bring up the child, attitude to the child and the wishes of the child itself when nominating a person as a tutor or guardian...” Article 249. Rights and duties of a tutor or guardian “1.", "The tutor or guardian shall bring up the child, take care of the child's health and well-being and of its physical, mental and ethical development, and ensure that the child receives a full general secondary education (...)” C. Law of Ukraine “On Protection of Childhood” of 26 April 2001 24. The relevant provisions of the Law read as follows: Section 14. Separation of a child and family “Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment” D. Resolution No. 3 of the Plenary Supreme Court of Ukraine of 30 March 2007 25. This Resolution on judicial practice in cases related to adoption, deprivation and restoration of parental rights repeats the grounds for annulment of an adoption set out in Article 238 § 1 of the Family Code.", "III. RELEVANT INTERNATIONAL INSTRUMENTS A. Convention on the Rights of the Child of 20 November 1989 26. The relevant provisions of the Convention read as follows: Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation is necessary in the best interests of the child.", "Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence (...)” B. European Convention on the Adoption of Children (Revised) of 27 November 2008 (not in force) 27. The relevant provisions of the Convention read as follows: Article 14. Revocation and annulment of an adoption “1. An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration.", "2. An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority.” THE LAW I. SCOPE OF THE CASE 28. The Court notes that in his response to the Government's observations the applicant introduced new complaints under Article 6 § 1 and complained of a violation of Articles 6 §§ 1-3, 7 § 1 and 8 of the Convention in respect of V.G., not an applicant in the present case, referring to the same events. 29.", "In the Court's view, these new complaints are not an elaboration of the applicant's original complaints, on which the parties have commented. The Court therefore considers that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 30.", "The applicant complained that the decisions of the domestic courts to annul his adoption of V.G. were unfair, and alleged that those decisions ruined his family. He relied on Articles 6 § 1, 8 and 13 of the Convention. 31. The Court reiterates that the characterisation to be given in law to the facts of the case is a matter for itself (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Kutzner v. Germany, no.", "46544/99, § 56, ECHR 2002‑I). 32. The Court therefore considers that the applicant's complaints fall to be examined under Article 8 of the Convention, which provides, in so far as relevant, as follows: “1. Everyone has the right to respect for his ... family life.... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 33.", "The Government submitted that the applicant had lost his victim status, as on 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv appointed him V.G. 's guardian. The Government further maintained that V.G. was not taken into care and continued to reside with the applicant after the adoption was annulled on 9 August 2007. 34.", "The applicant disagreed. 35. The Court considers that the Government's objection is closely linked to the merits of the applicant's complaint. In these circumstances, it joins this objection to the merits of the applicant's complaint. 36.", "The Court notes that the applicant's complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible. B. Merits 1.", "Whether there has been an interference 37. The Court recalls that the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention and such a relationship, arising from a lawful and genuine adoption, may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 140 and 148, ECHR 2004‑V (extracts)). 38. The Court considers that it is not disputed by the parties to the present case, that the annulment of the adoption of V.G.", "by the applicant constituted an interference with the applicant's right to respect for family life as guaranteed by Article 8 § 1 of the Convention. 39. The Court further notes that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 55, 26 October 2006, and Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 180, ECHR 2006‑V). In the present case the appointment of the applicant as V.G. 's guardian cannot be equalled to adoption, which under Article 232 of the Family Code confers and imposes on the adoptive parent and adoptee the same rights and obligations as exist in respect of biological parents and their children. The Court further observes that the respondent State has not in any way recognised that the applicant's rights have been violated and the decision of 3 June 2008 to appoint him as guardian of V.G. was not based on an alleged violation of Article 8 in respect of the applicant.", "40. The Court concludes that the appointment of the applicant as V.G. 's guardian did not remedy the interference with the applicant's right for family life guaranteed by Article 8 of the Convention and did not deprive him of his victim status under Article 34 of the Convention. Thus, the Government's preliminary objection should be dismissed. 2.", "Whether the interference was justified (a). The parties' submissions 41. The applicant submitted that the interference was not justified under Article 8 § 2 of the Convention. He argued that the grounds for annulment of adoption as formulated in Article 238 § 1 of the Family Code relied on by the courts could be interpreted too broadly. The applicant further submitted that the adoption was annulled as a punishment for V.G.", "'s behaviour and not to the benefit of the child. 42. The Government submitted that the impugned decision was based on the provisions of the Family Code (Article 238 §§ 1(1) and (3)) and was made in the best interest of the child, in particular to ensure a proper parental upbringing for V.G. They submitted that in its judgment of 9 August 2007 the domestic court had referred to various instances (see paragraph 12 above) of V.G. 's negative and aggressive behaviour towards people around him.", "According to the Government, this proved that the boy had wrong ideas about family and social life and that the applicant had failed to fulfil his parental duties as to the proper upbringing of V.G. and was not able to exercise any positive educational influence on the boy. They concluded that the decision to annul the adoption had sufficient and relevant reasons. (b). The Court's assessment 43.", "An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims (see Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, pp. 1001-02, § 52). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Kutzner, cited above, § 60, and Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008). i.", "In accordance with the law 44. The expression “in accordance with the law” under Article 8 § 2 requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among many other authorities, Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008). 45. It is not in dispute in the present case that the impugned measure was based on Article 238 § 1 of the Family Code, which provided an exhaustive list of grounds for annulment of an adoption.", "46. As to the applicant's submission that Article 238 § 1 (1) and (3) of the Family Code relied on by the courts was couched in general terms, the Court notes that the circumstances in which it may be necessary to take a child into public care and in which a care decision may fall to be implemented are so variable that it would scarcely be possible to formulate a law to cover every eventuality (see Olsson v. Sweden (no. 1), 24 March 1988, § 62, Series A no. 130, and Amanalachioai v. Romania, no. 4023/04, §§ 76-77, 26 May 2009).", "47. In the present case, even though the provisions concerned, namely Article 238 § 1 (1) and (3) of the Family Code, might be regarded as formulated in rather general terms, the decision on annulment of adoption was taken by a court and was subject to further judicial review on appeal and in cassation. Thus, safeguards against arbitrary interference were provided by the fact that the exercise of nearly all the statutory powers was entrusted to the courts and was subject to judicial review at several levels. The Court considers therefore that, taking these safeguards into consideration, the scope of the discretion conferred on the authorities by the laws in question appears to the Court to be reasonable and acceptable for the purposes of Article 8 of the Convention. 48.", "In the light of the foregoing the Court concludes that the measure at issue applied by the authorities was in accordance with the law within the meaning of Article 8 of the Convention. ii. Legitimate aim 49. The Court considers that the impugned decision pursued a legitimate aim of “protection of health and morals” and “of the rights and freedoms of others”. iii.", "Necessary in a democratic society 50. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, Olsson, cited above, § 68, and Kutzner, cited above, § 65, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001‑VII; P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI; and Moser v. Austria, no. 12643/02, § 64, 21 September 2006).", "51. In doing so, it is not the Court's task to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see the above-cited cases, K. and T. v. Finland [GC], § 154; Kutzner, § 66; P., C. and S v. the United Kingdom, § 115; and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). 52. The Court recognises that while the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, the Court must still be satisfied in the particular case that there are circumstances which justify the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into public care, is carried out prior to the implementation of such a measure (see above-cited cases Moser, § 66; P., C. and S. v. the United Kingdom, § 116; and K. and T. v. Finland [GC], § 166).", "53. The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be developed (see Kutzner, cited above, § 61). It is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000‑VIII).", "54. Turning to the facts of the present case, the Court observes that, unlike in most childcare cases, the reason for annulment of adoption by the applicant and the decision to take the child into care did not lie in the applicant's incapacity to care for the boy on account of any physical or mental illness or on account of any violent or abusive conduct (see, in contrast, the above-cited cases Scozzari and Giunta, §§ 149-50; K. and T. v. Finland, § 173, and P., C. and S. v. the United Kingdom [GC], § 134). It was based on the domestic courts' consideration that the applicant lacked authority over V.G. and had failed to show that he was able to ensure the child's proper upbringing. 55.", "In support of their conclusion on annulment of adoption and on the applicant's failure to exercise his parental duties, the domestic courts referred to V.G. 's assault on his adoptive mother, statements by the neighbours and his school report, all of which testified to V.G. 's aggressive behaviour. Based on these considerations the courts found that it was impossible for Mrs K. and V.G. to live as one family.", "As of the date of the court's judgment on annulment of adoption the applicant and Mrs K. were divorced and no longer constituted a family (see paragraphs 12 and 14 above). It appears therefore that the annulment of adoption by Mrs K. did not necessitate separation of the applicant and the boy. 56. Moreover, the domestic courts stated that annulment of the adoption could also be considered a sanction for V.G. 's disgraceful behaviour (see paragraph 17 above), which does not appear to be a relevant reason to apply a measure such as splitting up an established family unit.", "57. The facts of the case do not indicate that the domestic authorities carried out a careful assessment of the impact which the annulment of the adoption might have had on future well-being of the orphan child or explored any other less far-reaching alternatives which could have overcome the alleged deficiency in V.G. 's upbringing and development and would be in line with the State's obligation to promote family unity. Instead, they laid the burden of proof on the applicant and required him to show the ability to influence and bring up the child properly in order for the adoption not to be annulled, regardless of the fact that both the applicant and the boy wished to remain a family (see paragraphs 15 and 17 above). 58.", "The Court further observes that after the annulment of the adoption and the order to take the child into care, the boy continued to live with the applicant. Several months after the annulment of the adoption the child welfare authority appointed the applicant V.G. 's guardian and entrusted the applicant with “protection of the rights and property interests of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development” (see paragraph 19 above). These subsequent actions do not appear to support the domestic courts' findings on the applicant's inability to ensure V.G. 's upbringing in a family environment.", "59. In the light of the foregoing, in the Court's opinion the findings of the domestic courts on the annulment of the adoption of V.G. by the applicant were not supported by relevant and sufficient reasons to justify such interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aim pursued and cannot be considered “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. 60.", "Consequently, there has been a violation of Article 8 of the Convention. 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 10,000 euros (EUR) in respect of non‑pecuniary damage. 63. The Government contested this claim as groundless. 64. The Court accepts that the applicant has suffered damage of a non‑pecuniary nature as a result of the State's failure to comply with its obligation relating to the applicant's right to respect for his family.", "It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicant EUR 6,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's preliminary objection as to the applicant's victim status and rejects it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicant 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; 5.", "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. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF NOVAK v. CROATIA (Application no. 8883/04) JUDGMENT STRASBOURG 14 June 2007 FINAL 14/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Novak v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 24 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 8883/04) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Boris Novak (“the applicant”), on 1 March 2004. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.", "3. On 14 September 2006 the Court decided to communicate to the Government the applicant's complaints concerning the conditions in Varaždin Prison and his right to respect for 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 4.", "The applicant was born in 1968 and lives in Ludbreg. A. Criminal proceedings against the applicant 5. Following a conviction for a dangerous activity, the applicant was incarcerated in Lepoglava State Prison during an unspecified period in 1999 and 2000. 6.", "In a judgment of 4 July 2002 the Zagreb Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment. In addition, it ordered him to undergo compulsory psychiatric treatment as he had been diagnosed as suffering from post-traumatic stress disorder (PTSD). It appears that the suspension of the sentence was lifted because the applicant was again sent to Lepoglava State Prison from 17 May 2002 until 17 April 2003. 7. In a judgment of 17 February 2003 the Varaždin Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment.", "However, on an appeal by the State Attorney, on 24 September 2003 the Varaždin County Court altered the sentence to six months' unconditional imprisonment. 8. On 18 December 2003 a judge of the Varaždin County Court with responsibility for the execution of sentences ordered the applicant to start serving his prison sentence in Varaždin Prison on 28 January 2004. The applicant applied for the order to be postponed on account of his PTSD condition. On 12 January 2004 a Varaždin County Court judge responsible for the execution of sentences dismissed the application because the applicant had failed to submit medical documentation concerning his condition.", "9. The applicant appealed against that decision and on 22 January 2004 the Varaždin County Court dismissed his appeal. It found, firstly, that the medical documentation subsequently submitted by the applicant was outdated since it originated from 1991, 1998 and 2001, and, secondly, that during his prison term the applicant would be provided with adequate medical care. B. General conditions in Varaždin Prison 10.", "The applicant started to serve his sentence on 26 February 2004 in Varaždin Prison. He was placed in cell no. 8, measuring four by five metres, with thirteen beds. The number of inmates ranged from fifteen to twenty, so that some inmates had to sleep on the floor or on the table. The table in the cell was designed to accommodate four persons, so that the inmates had to eat on the beds or on the floor.", "There was one window in the cell, covered with wire so that light and air hardly reached the cell. 11. On 11 March 2004 the applicant was removed from cell no. 8 and placed in cell no. 5, measuring 21.87 square metres, which he shared with four other inmates.", "12. The applicant's correspondence with the Court was opened. C. The applicant's medical treatment in prison 13. The medical documentation presented by the applicant shows that he was examined on 26 February 2004 by the prison physician, who found that the applicant had suffered from PTSD since 1995 and also from a personality disorder. The prison doctor prescribed medication, a drug called Fluval.", "14. On 15 March 2004 the applicant was transferred to Zagreb Prison Hospital but was sent back to Varaždin Prison the same day because the psychiatrist at the hospital found no reason to keep him there. The applicant's treatment was changed to drugs named Amyzol and Xanax. On 16 March 2004 the applicant complained that the drugs prescribed were “too heavy”. On 17 March 2004 the medication prescribed to the applicant was again changed to Fluval.", "No psychiatric treatment was provided. D. Remedies used by the applicant 15. On 8 March 2004 the applicant applied for a transfer to another prison or the immediate termination of his prison sentence on account of the lack of adequate treatment for PTSD in Varaždin Prison. He further complained about the overcrowded conditions in the cell where he was being held. On 19 March 2004 a Varaždin County Court judge responsible for execution of sentences dismissed the application, finding that the applicant was not in need of any additional treatment.", "However, as to the overcrowded conditions, the judge found: “... the prisoner's allegations concerning the number of inmates placed in one cell are true. However, such placement of prisoners is due to the considerable fluctuation in their number because persons sentenced to up to six months' imprisonment serve their sentences in [Varaždin] Prison. The Varaždin Prison authorities shall remove the said insufficiencies so as to afford enough space to inmates ...” 16. The applicant appealed against that decision, but his appeal was dismissed by a three-judge panel of the same court on 30 March 2004. 17.", "On an unspecified date the applicant filed an application for early release from the prison because he had not received adequate treatment for PTSD. On 26 May 2004 the Varaždin County Court dismissed the application. 18. On an unspecified date the applicant contacted the Croatian Helsinki Committee to complain about the inhuman conditions in Varaždin Prison, alleging that he was being held in a cell measuring 4 by 5 metres with thirteen beds and that the number of inmates in the cell surpassed the number of beds. He alleged that such cramped conditions had had an adverse effect on his health since he was suffering from PTSD.", "Furthermore, he complained that there was insufficient daylight in the cell. 19. In a letter of 17 June 2004 the Committee informed the Department for the Enforcement of Sanctions (Uprava za izvršenje sankcija) about the applicant's allegations and sought an answer from it. On 6 July 2004 the Prison Administration of the Ministry of Justice (Uprava za zatvorski sustav Ministartsva pravosuđa) answered the Committee's enquiry. As to the applicant's health condition, it was stated that he had been diagnosed with PTSD and therefore sent to the psychiatric ward of Zagreb Prison Hospital on 15 March 2004.", "However, a psychiatrist from that hospital had found that there had been no indications requiring the applicant's hospitalisation. Furthermore, the applicant himself had asked not to be kept in the hospital. During his detention in Varaždin Prison he had been administered drugs. As to the applicant's allegations about the inhuman conditions in his cell, it was stated that the conditions of the execution of his sentence complied with the standards prescribed in Part XI of the Enforcement of Prison Sentences Act and that each cell had access to daylight. 20.", "In a decision of 12 July 2004 the Varaždin Prison Administration released the applicant on licence. His licence expired on 26 August 2004. E. Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 21. The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to Zagreb Prison Hospital were as follows (extract from the report to the Croatian Government on the visit to Croatia from 20 to 30 September 1998, CPT/Inf.", "(2001) 4): “157. ... However, occupancy rates in the psychiatric ward were rather high, a drawback which was exacerbated by the fact that patients tended to spend most of the day in their rooms... In all wards, the general atmosphere in the patients' rooms was rather drab; efforts should be made to provide a more positive therapeutic environment. The practice observed in the hospital of having patients wear pyjamas/nightgowns continuously should also be reviewed.", "As regards, in particular, psychiatric patients, this practice is not conducive to strengthening personal identity and self-esteem; individualisation of clothing should form part of the therapeutic process. ... 159. ... The delegation was less impressed by the quality of psychiatric treatment, which was limited essentially to pharmacotherapy (though there were no indications of the misuse of medication). The hospital's doctors acknowledged that there was a clear need to develop rehabilitative and other therapeutic activities (occupational therapy, group therapy, individual psychotherapy, etc.)", "for the establishment's psychiatric patients; however, they commented that limited staff resources and the very nature of the establishment hindered progress in this area. 160. The CPT recommends that serious efforts be made to develop rehabilitative and other therapeutic activities for psychiatric patients at the hospital; the present state of affairs is untenable from a therapeutic standpoint. ...” II. RELEVANT DOMESTIC LAW AND PRACTICE 22.", "Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows: “No one shall be subjected to any form of ill-treatment...” 23. The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows: COMPLAINTS Section 15 “(1) Inmates shall have the right to complain against an act or decision of a prison employee.", "(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...” JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION Section 17 “(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” ACCOMODATION, FURNISHINGS AND NUTRITION Section 74 “(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions. (2) Inmates shall as a general rule be accommodated in separate rooms... (3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.", "(4) Every room ... must have daylight and artificial light... (5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so. (6) Inmates shall have drinking water at their disposal at all times.” HEALTH PROTECTION Section 103 “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...” CORRESPONDENCE Section 124 “(1) Inmates shall have the right to unlimited correspondence at their own expense. ... (4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters...” 24. Rule 13 of the Varaždin Prison House Rules (Kućni red za zatvorenike i kažnjenike Zatvora u Varaždinu) provided that letters addressed to lawyers, State authorities or international organisations for the protection of human rights were not to be opened by the prison authorities. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. The applicant complained about the conditions in the two prisons where he had been incarcerated. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Complaint in respect of Lepoglava State Prison 26. The applicant firstly complained about the conditions in Lepoglava State Prison, where he had been incarcerated for an unspecified period during 1999 and 2000, and again from 17 May 2002 until 17 April 2003.", "27. The Court notes that the applicant was released from Lepoglava State Prison on 17 April 2003, whereas his first letter to the Court was sent on 1 March 2004, more than six months after he had been released. 28. It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. B.", "Complaint in respect of Varaždin Prison 29. Secondly, the applicant complained about the conditions in Varaždin Prison, where he had been incarcerated from 26 February until 12 July 2004. In particular he complained about the overcrowded conditions in cell no. 8, where he had been detained, and the lack of adequate medical treatment for his psychiatric condition, namely PTSD. 30.", "The Government contested those submissions. 1. Admissibility 31. The Government requested the Court to declare the application inadmissible for failure to exhaust domestic remedies. They submitted that under section 17 of the Enforcement of Prison Sentences Act the applicant could have lodged a complaint concerning the conditions of his detention in cell no.", "8 at Varaždin Prison. However, the applicant had not lodged a specific complaint with the judge responsible for execution of sentences, but had mentioned the prison conditions only sporadically in his application of 8 March 2004 by which he had sought a transfer to another prison or the termination of his prison sentence owing to the lack of adequate treatment for PTSD in Varaždin Prison. 32. As to the lack of adequate medical treatment for the PTSD, the applicant had failed to lodge a constitutional complaint against the appellate decision of 30 March 2004. 33.", "The applicant submitted that he had exhausted all remedies available within the domestic legal system in respect of the alleged violations. 34. Contrary to the Government's first contention regarding the overcrowded conditions in cell no. 8, the Court considers that the applicant did apply to a competent judge for the execution of sentences since from the decision of 19 March 2004 by the relevant judge of the Varaždin County Court it transpires that the judge examined a complaint on that subject. Moreover, the judge accepted the applicant's complaint concerning the overcrowded conditions in cell no.", "8 and ordered the Varaždin Prison authorities to take measures to provide him with adequate conditions. The prison authorities, however, had already removed the applicant from cell no. 8 on 11 March 2004 and placed him in cell no. 5, where there was an area of 4.47 square metres per prisoner. In this connection the Court notes that in its decision in Štitić v. Croatia ((dec.), no.", "9660/03, 9 November 2006) it found that the applicant, whose situation in prison had been remedied by a decision of a judge responsible for execution of sentences and who, following such a decision, had been transferred to an adequate cell, could have brought a civil action against the State claiming damages for the suffering hitherto sustained. Whilst the institution of civil proceedings for damages in itself could not be regarded as an effective remedy for addressing adverse prison conditions, such proceedings in combination with an urgent decision of a judge responsible for execution of sentences, with an immediate effect on the actual conditions of an individual applicant, did satisfy the requirements of effectiveness. Since the applicant in that case had failed to institute civil proceedings against the State, his complaint under Article 3 of the Convention concerning the prison conditions was declared inadmissible for non-exhaustion of domestic remedies. 35. The Court sees no reason to take a different stance in the circumstances of the present case.", "It follows that in respect of his complaint concerning the overcrowded conditions in cell no. 8 the applicant has not exhausted domestic remedies and that this complaint must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 36. It remains to be determined whether the applicant exhausted domestic remedies in respect of his complaint concerning the allegedly inadequate medical treatment for his PTSD. 37.", "The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that 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. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210 and 1211, §§ 65 and 68).", "38. Turning to the present case, the Court observes that the established practice of the Constitutional Court is to declare inadmissible constitutional complaints which do not concern the merits of a given case. Having regard to such a practice and the failure of the Government to produce before the Court any case-law supporting their argument concerning the sufficiency and effectiveness of that remedy, and leaving aside the question of the adequacy of a constitutional complaint as a remedy capable of providing redress in respect of the applicant's complaint, the Court concludes that a constitutional complaint about the lack of adequate medical treatment in prison is not a remedy whose existence has been established with sufficient certainty. 39. The Court finds that the applicant, by complaining to the competent judge for the execution of sentences and appealing in respect of that judge's decision against him, made use of all the remedies that were at his disposal in respect of his complaint concerning the inadequate medical treatment for his PTSD while serving his prison sentence in Varaždin Prison.", "Accordingly, this complaint cannot be dismissed for failure to exhaust domestic remedies. 40. 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 41. As to the merits of the applicant's complaint concerning the lack of adequate medical treatment for his PTSD, the Government submitted that the applicant had been sent to Zagreb Prison Hospital's psychiatric ward. However, he himself had requested to be returned to prison and had refused consultation with the prison doctor and the psychiatrist from Zagreb Prison Hospital, insisting on having therapy with a specific psychiatrist, which the State was not obliged to provide. Upon his return to Varaždin Prison, the applicant had regularly received drugs prescribed for his condition and his mental health had not deteriorated during his prison term.", "42. The applicant argued that he had seriously suffered as a result of the lack of adequate medical treatment for his psychiatric condition. 43. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no.", "215, p. 36, § 107). 44. 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. Measures depriving a person of his liberty may often involve such an element. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no.", "30210/96, §§ 93-94, ECHR 2000-XI). 45. The Court firstly notes that the CPT report, issued after the visit to Zagreb Prison Hospital in 1998, indicates that psychiatric treatment was limited to pharmacotherapy and that there were no rehabilitative or other therapeutic activities (occupational therapy, group therapy, individual psychotherapy, etc.). The Court notes that the Government did not provide information indicating any improvement in this respect and acknowledged the lack of such therapeutic options in Varaždin Prison or any other prison in Croatia. It is undisputed that the applicant received prescription drugs only for his psychiatric condition.", "46. The Court finds it regrettable that the Croatian authorities have not yet provided adequate treatment for prisoners suffering from PTSD, a very serious and damaging psychiatric condition. However, in relation to the circumstances of the present case the Court notes that the applicant was incarcerated for a relatively short period of four months and eighteen days and that, apart from a fourteen-day placement in cell no. 8, he did not complain of the general living conditions in Varaždin Prison. Furthermore, there is no indication from the documents submitted by the applicant that the conditions of his detention had led to a deterioration of his mental health.", "The lack of additional therapeutic treatment for PTSD does not seem to have had such serious effects on his mental health as to be classified as inhuman or degrading and hence to fall within the scope of Article 3. 47. In conclusion, the Court considers that there has been no breach of Article 3. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48.", "The applicant further alleged that the prison authorities had opened his correspondence with the Court. He relied on Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 49.", "The Government firstly argued that the applicant had failed to exhaust domestic remedies because he had not addressed this complaint to the domestic authorities such as the Varaždin Prison administration or the judge responsible for the execution of sentences. They further argued that the applicant had not specified the events of which he was complaining. 50. The applicant made no comments on the Government's observations on this point. 51.", "The Court notes that the applicant did not address a complaint concerning the opening of his correspondence with it to any domestic authority, although under section 15(2) of the Enforcement of Prison Sentences Act he was able to lodge such a complaint with either the Varaždin Prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. 52. It follows that in respect of this complaint the applicant has not exhausted domestic remedies and that therefore this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 53.", "Lastly, the applicant complained under Article 6 § 1 of the Convention about the unfairness of the criminal proceedings against him and under Article 7 of the Convention, without further substantiating this complaint. 54. In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the lack of adequate medical treatment for the applicant's PTSD while he served his sentence in Varaždin Prison admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 3 of the Convention; Done in English, and notified in writing on 14 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF PISKURA v. SLOVAKIA (No. 2) (Application no. 3817/07) JUDGMENT STRASBOURG 16 October 2012 This judgment is final but it may be subject to editorial revision. In the case of Piskura v. Slovakia (no. 2), The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alvina Gyulumyan, President,Ján Šikuta,Nona Tsotsoria, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 25 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 3817/07) 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 is a Slovak national, Mr Mr František Piskura (“the applicant”), on 11 January 2007. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.", "On 5 December 2011 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1953 and lives in Fintice. A. Background 5.", "On 29 December 1994 the applicant lodged an action with the Prešov District Court (Okresný súd) seeking an order for payment of outstanding wages. 6. On 28 February 2002 the Constitutional Court (Ústavný súd) found that there had been a violation of the applicant’s right under Article 48 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to a hearing without unjustified delay in the proceedings. 7.", "On 27 May 2003 the Court came to a similar conclusion in a judgment, in which it found a violation of the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time (see Piskura v. Slovakia, no. 65567/01, 27 May 2003). 8. Meanwhile, the action had been allowed by the District Court. Following the defendant’s appeal, it was also allowed by the Prešov Regional Court (Krajský súd), on 21 June 2005.", "9. The judgment became final and binding on 2 August 2005 and enforceable on 18 August 2005. It contained an order that the defendant pay the applicant the equivalent of some 35,500 euros (EUR). B. Insolvency and related constitutional complaints 1.", "Insolvency proceedings 10. In the course of the proceedings described above, on 16 December 2003, the Košice Regional Court declared the defendant insolvent. 11. On 27 January 2003 the applicant registered in the insolvency proceedings a claim, which appears to be identical to the claim asserted by way of his action of 29 December 1994 (see paragraph 5 above). 12.", "At a hearing held on 21 May 2003 the insolvency receiver contested the applicant’s claim, in response to which he lodged a new action with a view to having the claim acknowledged by a court. 13. On 27 September 2005, upon the applicant’s action, the Regional Court ruled that his claim in the insolvency proceedings was valid and fell to be satisfied of the proceeds of the realisation of the insolvency estate. The judgment became final and binding on 10 December 2005 and enforceable on 14 December 2005. 14.", "On 28 April 2008 the applicant registered a further claim in the insolvency proceedings and the receiver acknowledged it on 3 July 2008. 15. On 20 January 2011 the Regional Court issued a decision approving a final report by the receiver on the realisation of the estate and on his fees and expenses (konečná správa o speňažovaní majetku úpadcu a o vyúčtovaní odmeny a výdavkov správcu). Following the applicant’s appeal, on 30 March 2011 the Supreme Court (Najvyšší súd) quashed the decision and remitted the matter to the Regional Court for re examination. It found, inter alia, that the Regional Court had omitted to deal with the applicant’s objections to the report.", "16. On 17 October 2011 the Regional Court issued a fresh decision approving the report and it was upheld by the Supreme Court on 13 January 2012, following the applicant’s appeal. 17. The insolvency proceedings are still pending in their phase aimed at distribution of the proceeds of the realisation of the estate, the applicant having thus far not recovered any part of his claim. 2.", "Constitutional complaints 18. On 19 August 2009, following the applicant’s complaint under Article 127 of the Constitution, the Constitutional Court found that, in the insolvency proceedings, there had been a violation of his constitutional right to a hearing without unjustified delay. At the same time, it ordered that the enforcement proceedings be proceeded with without unjustified delay and awarded the applicant EUR 1,600 by way of compensation in respect of non-pecuniary damage. 19. As to the just satisfaction award, the Constitutional Court also ruled that it was payable within two months of the day on which the constitutional judgment (nález) became final and binding.", "It became final and binding on 24 September 2009 and enforceable the following day. The award was actually paid on 3 September 2010. 20. The applicant’s previous constitutional complaint of alleged delays and subsequent five constitutional complaints of alleged continuing delays in the insolvency proceedings were unsuccessful. C. Damages and related constitutional complaints 1.", "Claim for damages 21. On 28 November 2005 the applicant lodged a claim under the State Liability Act (Law no. 514/2003 Coll.) with the Ministry of Justice, arguing that there had been “wrongful official conduct” consisting of unjustified delays in the insolvency proceedings and seeking damages. 22.", "Not having received any compensation from the Ministry voluntarily, presumably on 29 November 2006, the applicant lodged his claim with the Bratislava I District Court. After the question of the court fees was dealt with at three levels of jurisdiction and the question of legal aid at two, the action has been pending at first instance. 2. Constitutional complaints 23. Meanwhile, the applicant had three times unsuccessfully contested before the Constitutional Court alleged unjustified delays in the proceedings in his action.", "His latest complaint was declared inadmissible as being manifestly ill-founded on 4 May 2011. D. Other facts invoked by the applicant 24. On 24 October 2003 the applicant filed a criminal complaint accusing one or more persons unknown of having unlawfully failed to pay him wages. However, this has not resulted in the opening of any criminal proceedings in the matter. The applicant also unsuccessfully sought enforcement of the judgment concerning his wages and made a number of various other submissions including complaints against various persons involved in his case and a motion to the Public Prosecution Service seeking, inter alia, a challenge to the constitutionality of the Insolvency and Restructuring Code (Law no.", "8/2005 Coll., as amended). THE LAW I. ALLEGED VIOLATION OF THE RIGHT UNDER ARTICLE 6 § 1 OF THE CONVENTION TO HEARING WITHIN REASONABLE TIME 25. The applicant complained that the length of the insolvency proceedings and the proceedings in his action under the State Liability Act had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1. Insolvency proceedings 26.", "The applicant argued that the length of the proceedings had been excessive; that there had been significant delays in payment of the compensation awarded to him under the constitutional judgment of 19 August 2009 (see paragraphs 18 and 19 above); and that there had been continued unjustified delays in the insolvency proceedings despite the Constitutional Court’s preventive order. 27. Referring to the Constitutional Court’s judgment of 19 August 2009, the Government admitted that the complaint was not manifestly ill‑founded. However, relying on Article 34 of the Convention and the constitutional judgment quoted, the Government argued that in view of the compensatory and preventive redress afforded to the applicant at the domestic level he could no longer claim to be a victim of the asserted violation. In particular, they considered the amount of the compensation awarded adequate and submitted that the date of the payment of the award reflected the Regional Court’s budgetary capacity.", "Lastly, they submitted that there had been no further unjustified delay in the proceedings after the constitutional judgment. 28. In reply, the applicant recapitulated the chronology of his case, pointed out that his insolvency claim had been pending for more than ten years, and emphasised that it had previously been examined and upheld in the original proceedings, the length of which had equally been contrary to the requirements of Article 6 § 1 of the Convention. In addition, he considered that the fact that the Regional Court’s decision of 20 January 2011 had to be quashed on account of the Regional Court’s omission to deal with his objections (see paragraph 15 above) only demonstrated that there had been continuous delays in the insolvency proceedings even after and despite the Constitutional Court’s preventive ruling. In conclusion, the applicant emphasised that despite two constitutional judgments and one judgment by the Court, his employment related claim was still pending.", "29. The Court notes that in its judgment of 19 August 2009 the Constitutional Court found that there had been a violation of the applicant’s constitutional right to a hearing without unjustified delay and granted him redress aimed at prevention as well as compensation. In particular, the Constitutional Court ordered that the case be proceeded with without delays and awarded the applicant just satisfaction. 30. The Court also notes that the insolvency proceedings are still pending today, more than three years after the Constitutional Court’s judgment.", "This period has to be viewed in the light of the subject matter of the proceedings and the length of the proceedings as a whole. 31. For that matter, the Court observes that the applicant’s claim concerns outstanding wages and reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230-D). The Court also observes that the entire period to be taken into consideration began on 27 January 2003, when the applicant registered his claim in the insolvency proceedings (see paragraph 11 above), and has not yet ended.", "It has thus lasted more than nine years and seven months, for two levels of jurisdiction. 32. Having regard to all the circumstances, the Court considers that the Constitutional Court’s judgment cannot be said to have had preventing effect in terms of accelerating the proceedings. Moreover, in view of the overall length of the proceedings, the lack of accelerating effect of the Constitutional Court’s judgment, and its own practice in similar cases, the Court concludes that the compensation awarded to the applicant at the domestic level is disproportionately low (see Scordino v. Italy (no. 1) [GC], no.", "36813/97, §§ 178-213, ECHR 2006-V and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-...). Accordingly, the applicant can still claim to be a victim within the meaning of Article 34 of the Convention and the Government’s objection based on that provision must be dismissed. 33. In the light of the parties’ submissions, in particular the Government’s admission (see paragraph 27 above), the Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. 2. Action under the State Liability Act 34. The Government objected that the applicant had failed to respect the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that, following the Constitutional Court’s decision of 4 May 2011 to declare his complaint of the length of the proceedings inadmissible as manifestly ill‑founded (see paragraph 23 above), the applicant had failed to assert his rights a fresh constitutional complaint.", "35. The Court observes that the applicant contested the length of the proceedings in his action under the State Liability Act by way of a constitutional complaint. It notes in particular that his last complaint was rejected as manifestly ill founded on 4 May 2011, that is to say some four years and five months after it had been lodged with a court on or around 29 November 2006. In assessing this finding the Court finds it of relevance that the applicant’s action under the State Liability Act is linked to his claim for outstanding wages in that it was lodged as a remedy in respect of the length of the proceedings on the original claim and is in that sense an extension of the underlying proceedings. In that context the Court also finds it of relevance that the complex of various sets of proceedings in relation to the applicant’s employment-related claim have been intertwined and thus far in total lasting more than seventeen years.", "36. In view of all the circumstances and bearing in mind that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Jakub v. Slovakia, no. 2015/02, § 56, 28 February 2006), the Court considers that the Constitutional Court’s assessment of the applicant’s claim cannot be accepted. The requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention thus cannot be interpreted as requiring of the applicant to avail himself of the remedy under Article 127 of the Constitution anew (see Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007) and the Government’s objection of non-exhaustion of domestic remedies must accordingly be dismissed.", "37. The period under consideration started on or around 29 November 2006 and has not yet ended. It has thus lasted more than five years and nine months in which period the merits of the claim have been under examination at a single level of jurisdiction. 38. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 39. 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 particular sensitivity employment disputes has already been noted (see Ruotolo, cited above, § 17). 40. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 41.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act 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 42.", "Relying on Article 1 of Protocol No. 1, the applicant also complained that it had been impossible for him to obtain enforcement of his adjudicated claim to compensation for lost wages. Furthermore, the applicant alleges a violation of Article 14 of the Convention in that, being a natural person, he is treated less advantageously than legal entities in insolvency proceedings. Lastly, without further specification, the applicant also asserts a violation of Articles 1 and 13 of the Convention. 43.", "However, in the light of all the material in its possession, and in so far as the matters complained of have been substantiated and 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 provisions invoked. It follows that remainder 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 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 EUR 90,314 in respect of pecuniary damage and EUR 165,969 in respect of non-pecuniary damage. The amount of the former claim consisted of the amounts adjudicated by the ordinary courts and late-payment interest. The amount of the latter claim had been calculated with reference to “17 years lasting lawsuit” and the resultant stress and repercussions on the applicant’s health. 46.", "The Government contested both claims, the former in substance and the latter as to its amount, which they considered excessive. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, with reference to the violation found (see paragraph 41 above), on equitable basis, and taking into account the redress already obtained at the national level, it awards the applicant EUR 5,200 in respect of non-pecuniary damage. B.", "Default interest 48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,200 (five thousand and two hundred euros), plus any tax that may be chargeable, in respect of non pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 16 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaAlvina GyulumyanRegistrarPresident" ]

[ "FORMER SECTION II CASE OF RODRIGUES DA SILVA AND HOOGKAMER v. THE NETHERLANDS (Application no. 50435/99) JUDGMENT STRASBOURG 31 January 2006 FINAL 03/07/2006 In the case of Rodrigues da Silva and Hoogkamer v. the Netherlands, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Jean-Paul Costa, President,András Baka,Corneliu Bîrsan,Karel Jungwiert,Volodymyr Butkevych,Wilhelmina Thomassen,Antonella Mularoni, judges, and Sally Dollé, Section Registrar, Having deliberated in private on 14 September 2004 and on 5 January 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 50435/99) 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 Brazilian national, Ms Solange Rodrigues da Silva, and her daughter, Ms Rachael Hoogkamer, who is a Netherlands national (“the applicants”), on 9 July 1999. Rachael Hoogkamer was represented by her father, Mr Daniël Hoogkamer, who exercises parental authority (ouderlijk gezag) over her.", "2. The applicants, who had been granted legal aid, were represented by Ms G. van Atten, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking, of the Ministry of Foreign Affairs. 3.", "The applicants alleged that the Government's refusal to allow the first applicant to reside in the Netherlands breached their right to respect for their family life as guaranteed by Article 8 of the Convention. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.", "By a decision of 14 September 2004, the Chamber 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 were given the opportunity to reply in writing to each other's observations. Neither party availed itself of this opportunity. 7.", "On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former Second Section. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant was born in 1972 and lives in Amsterdam. The second applicant was born in 1996 and lives in Amsterdam and Uithoorn.", "9. The first applicant came to the Netherlands in June 1994, leaving her two sons from a previous relationship, Jean (born in 1990) and Carlos (born in 1992), with her parents. In the Netherlands she lived with her partner Mr Hoogkamer, who was in paid employment at that time. The first applicant submitted that they had looked into applying for a residence permit allowing her to reside in the Netherlands with her partner, but that, owing to the unavailability of documents concerning Mr Hoogkamer's income, such an application had never actually been made. 10.", "In April 1995 the first applicant's son Carlos joined his mother and Mr Hoogkamer. Her other son Jean remained in Brazil with his grandparents. 11. On 3 February 1996 Rachael, the second applicant, was born to the first applicant and Mr Hoogkamer. The first applicant was invested ipso jure with parental authority (ouderlijk gezag) over Rachael.", "Rachael was recognised (erkenning) by Mr Hoogkamer on 28 March 1996, as a result of which she obtained Dutch nationality. 12. The first applicant and Mr Hoogkamer split up in January 1997. Rachael stayed with her father, who subsequently applied to the Amsterdam District Court (kantonrechter) seeking to be awarded parental authority over Rachael. The District Court granted the application on 20 February 1997.", "The first applicant subsequently appealed to the Amsterdam Regional Court (arrondissementsrechtbank) against that decision. The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to examine which attribution of parental authority would be in Rachael's best interests. 13. On 12 August 1997 the first applicant applied for a residence permit which would allow her to reside in the Netherlands, either – depending on the outcome of the proceedings concerning parental authority – with her daughter Rachael, or in order to have access to her. She also made an application on behalf of her son Carlos.", "14. The Child Care and Protection Board found, in its report of 26 August 1997, that parental authority should remain with Mr Hoogkamer. In view of the likelihood of the first applicant having to return to Brazil, awarding her parental authority over Rachael could lead to a break-off in contact between Rachael and her father and also between Rachael and her paternal grandparents, who were very important to her. It was felt that this would be a traumatic experience for Rachael, who had her roots in the Netherlands and whose bonding with all the persons concerned had taken place in that country. 15.", "In a decision of 26 November 1997, the Amsterdam Regional Court nevertheless quashed the decision of the District Court and awarded the first applicant parental authority over Rachael. Mr Hoogkamer lodged an appeal on points of law with the Supreme Court (Hoge Raad). 16. On 12 January 1998 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the first applicant's application for a residence permit. The first applicant lodged an objection (bezwaar) against this decision.", "At the hearing on this objection before an official committee (ambtelijke commissie) on 27 May 1998, it was stated on behalf of the first applicant that she worked (illegally, as she was not in possession of a residence permit allowing her to do so) from Monday to Thursday and that on those days Rachael stayed either with her father or with her grandparents. Rachael stayed with her mother on the remaining days of the week. 17. On 12 June 1998 the Deputy Minister of Justice dismissed the objection, holding that, even if account was taken of Rachael's right to reside in the Netherlands and to be brought up and educated there, the interests of the economic well-being of the country outweighed the interests of the first applicant. Although the first applicant did not claim welfare benefits, she did not pay taxes or social security contributions either, and there were sufficient numbers of nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill the post she was occupying.", "The general interest also prevailed over Mr Hoogkamer's interest in being able to lead his family life with Rachael in the Netherlands. In this context it was noted that, at the time Mr Hoogkamer started his relationship with the first applicant, the latter had not been entitled to reside in the Netherlands. He had thus accepted that family life with Rachael might have to be enjoyed elsewhere or in a different manner. It was further noted that Mr Hoogkamer did not make a substantial financial contribution to Rachael's care and upbringing since he only took care of those expenses on the days Rachael stayed with him and, as he was in receipt of welfare benefits, those costs were borne by public funds. 18.", "The first applicant lodged an appeal against this decision with the Regional Court of The Hague, sitting in Haarlem. 19. On 30 October 1998 the Supreme Court quashed the Amsterdam Regional Court's decision of 26 November 1997 in the proceedings concerning parental authority and referred the case to the Amsterdam Court of Appeal (gerechtshof). 20. The Regional Court of The Hague, sitting in Haarlem, dismissed the appeal against the refusal to grant the first applicant a residence permit.", "In its decision of 12 February 1999, the Regional Court held that Article 8 of the Convention did not oblige national authorities to ensure that Rachael's parents would not have to choose between leaving Rachael with her father in the Netherlands or letting her go to Brazil with her mother. Both these options were considered to be feasible. According to the Regional Court, the fact that Rachael would have to be without either her father or her mother was, strictly speaking, the result of the parents' choice to conceive a child at a time when the first applicant was not allowed to reside in the Netherlands. No further appeal lay against this decision. 21.", "On 28 June 1999 a hearing took place before the Amsterdam Court of Appeal in the proceedings concerning parental authority, during which an officer of the Child Care and Protection Board told the court that the Board's report of 26 August 1997 remained pertinent and that it was in Rachael's best interests for the status quo – with Mr Hoogkamer having parental authority over her – to be maintained. In its decision of 15 July 1999 the Amsterdam Court of Appeal upheld the decision of the Amsterdam District Court of 20 February 1997 awarding parental authority over Rachael to Mr Hoogkamer. The Court of Appeal accepted that Mr Hoogkamer, supported by Rachael's grandparents, was sufficiently capable of providing Rachael with the necessary upbringing and care, and that he was indeed doing so in practice. It was of the opinion that the submissions made by the first applicant in support of her argument that Rachael's interests would be better served if parental authority were awarded to her – even if this meant Rachael living in Brazil without contact with her father and grandparents – were of insufficient weight compared to the possibilities the father had to offer and was offering. The first applicant lodged an appeal on points of law against this decision, which was dismissed by the Supreme Court on 27 October 2000.", "22. Despite having received a letter dated 8 July 1999 from the local police informing her that she had to leave the Netherlands within two weeks, the first applicant remains in the Netherlands. She works from Monday to Friday. Rachael stays with her at the weekend and with her paternal grandparents during the week. This arrangement is confirmed in a letter dated 20 March 2002 written by Rachael's grandparents to the applicants' legal representative: “The access arrangement we have concluded with [the first applicant], the mother of our granddaughter Rachael Hoogkamer, is fully satisfactory for all parties.", "According to the arrangement, Rachael stays with us during the week. On Friday evening we take her to her mother and collect her again late on Sunday afternoon. No disagreement whatsoever has arisen on this point in the past years. We further confirm that the weekend visits of our granddaughter to her mother pass off in a very pleasant fashion and that she enjoys telling us about them. In other words, the close contact with her mother has a beneficial effect on our granddaughter.” 23.", "In January 2002 the first applicant applied for a residence permit allowing her to reside in the Netherlands with her new Dutch partner. In this application the first applicant indicated that Rachael was being brought up partly by her grandparents and partly by her new family. The application was rejected on 18 April 2002 as the first applicant was not in possession of the required temporary residence permit (machtiging tot voorlopig verblijf). The first applicant did not challenge this decision. 24.", "The second son of the first applicant, Jean, has been living with his mother in the Netherlands since February 2002. II. RELEVANT DOMESTIC LAW AND PRACTICE 25. Parental authority comprises the duty and the right of a parent to care for and bring up his or her child (Article 247 § 1 of the Civil Code (Burgerlijk Wetboek)). The parent invested with parental authority is the child's statutory representative (wettelijk vertegenwoordiger) and administers the child's possessions (Article 245 § 4 of the Civil Code).", "26. At the material time, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act came into force, but this has no bearing on the present case. 27. The government pursues a restrictive immigration policy due to the population and employment situation in the Netherlands.", "Aliens are eligible for admission only on the basis of obligations arising out of international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. 28. The admission policy for family reunion purposes was laid down in the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994). These provided that the spouse, the partner, a minor child born of the marriage or relationship and actually belonging to the family unit (gezin), and a minor child born outside the marriage but actually belonging to the family unit could be eligible for family reunion if certain conditions (relating to public order, accommodation and livelihood) were met. In the context of family reunion with other family members (so-called extended family reunion), such other members actually belonging to the family unit might also be eligible if they would otherwise suffer disproportionate hardship.", "29. The phrase “actually belonging to the family unit” (feitelijk behoren tot het gezin) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The alien in question must belong to the family unit with which he or she intends to live in the Netherlands in order to qualify for admission. If it is concluded that the requirement of “actually belonging to the family unit” has not been met, an independent investigation is then carried out to ascertain whether the concept of family life within the meaning of Article 8 of the Convention applies and, if so, whether this provision obliges the State to allow the person concerned to live in the Netherlands, having regard to the specific circumstances of the case. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties' submissions 1. The applicants 30. The applicants complained that the refusal to grant the first applicant a residence permit constituted a breach of their right to respect for their family life. They relied on Article 8 of the Convention, the relevant parts of which provide: “1.", "Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... 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 applicants argued that if paramount importance was attached to the fact that the first applicant was not lawfully resident in the Netherlands, the balancing exercise which had to be carried out by the domestic authorities was reduced to unacceptable proportions. Rachael – who was an independent party to the present proceedings – had her own, individual, interests which also required consideration: it could not and should not be held against her that she had been conceived while her mother was not lawfully resident. 32.", "In the view of the applicants, the present case could be compared with that of Şen v. the Netherlands (no. 31465/96, 21 December 2001), which concerned a young girl who, like the first applicant, had not previously been lawfully resident in the Netherlands. In that case the Court had considered that the parents' strong ties with the Netherlands constituted an essential element to be taken into account in the balancing exercise. Rachael also had very strong ties with the Netherlands. In addition, just as in Şen, there existed a major obstacle in the instant case to family life being developed in Brazil.", "Since the first applicant was not entrusted with parental authority over Rachael, she did not have the power to make decisions relating to her daughter's place of residence – and Rachael's father had always maintained that he would not give permission for Rachael to leave for Brazil. If the first applicant were forced to leave Rachael behind in the Netherlands, the latter would be without the close proximity and care of her mother – elements of essential importance to a young girl. The applicants emphasised that an annual visit to the Netherlands by the mother would not even come close to securing Rachael's interests. 33. Finally, it was the applicants' distinct impression, obtained in the course of the proceedings concerning parental authority, that it was precisely in order to avoid a situation whereby the Netherlands national Rachael would accompany her mother when the latter left for Brazil that parental authority had been awarded to her father, despite the fact that he did not, and still does not, play a significant role in her care and upbringing.", "There was no other identifiable reason why the father, who was not the parent looking after Rachael, should have been entrusted with parental authority rather than the mother, who was. 2. The Government 34. The Government stressed that the family life relied on by the applicants had developed while the first applicant was living in the Netherlands illegally. In their opinion, this constituted a decisive difference compared with the situation in Berrehab v. the Netherlands (21 June 1988, Series A no.", "138), since that case related to a refusal to allow continued residence, whereas in the present case the first applicant had not previously resided lawfully in the Netherlands. This was mainly the result of the first applicant's own actions, or lack thereof: neither she nor her partner Mr Hoogkamer had made any serious effort to legalise her residence on the basis of the fact that from June 1994 to January 1997 they had been in a lasting relationship with each other, which would have made lawful residence in the Netherlands possible. 35. The Government further submitted that Rachael's father had long since ceased to play a prominent part in her daily care and upbringing. This being so, the parents might have agreed that Rachael would be cared for by the first applicant and would accompany her to Brazil.", "Since Rachael had only been three years old at the time of the contested decision, she did not have such deep roots in the Netherlands that she would have been unable to adapt to life in Brazil, especially as her half-brothers, along with her mother, might be assumed to provide her with a familiar and supportive environment there. Even if Rachael were to live with her grandparents in the Netherlands, the first applicant would be able to maintain family ties to some extent, since she had the right to visit the Netherlands for short periods. In this context the Government pointed to the fact that even now the first applicant was not living with Rachael all of the time. 36. The Government concluded that Rachael having to forsake family life with either her father or her mother did not give rise to a positive obligation on their part to admit the first applicant, since this state of affairs had come about as a direct result of Rachael's parents' deliberate decision to enter into a relationship and develop family life with each other and the daughter born of their relationship, even though the mother had no right to reside in the Netherlands.", "B. The Court's assessment 37. The Court observes at the outset that there can be no doubt that there is family life within the meaning of Article 8 of the Convention between the first applicant and her daughter Rachael, the second applicant: Rachael was born from a genuine relationship, in which her parents cohabited as if they were married. 38. Next, it observes that the present case concerns the refusal of the domestic authorities to allow the first applicant to reside in the Netherlands; although she has been living in that country since 1994, her stay there has at no time been lawful.", "Therefore, the impugned decision did not constitute interference with the applicants' exercise of the right to respect for their family life on account of the withdrawal of a residence status entitling the first applicant to remain in the Netherlands. Rather, the question to be examined in the present case is whether the Netherlands authorities were under a duty to allow the first applicant to reside in the Netherlands, thus enabling the applicants to maintain and develop family life in their territory. For this reason the Court agrees with the parties that this case is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation (see Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996‑VI). 39. The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole.", "However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996-I). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles to the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000).", "Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998, and Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999). 40.", "Turning to the circumstances of the present case, the Court notes that the first applicant moved from her native Brazil to the Netherlands in 1994 at the age of 22. Even though she has now been living in the latter country for a considerable time, she must still have links with Brazil, where she presumably grew up and underwent her schooling. 41. However, if the first applicant were to return to Brazil she would have to leave her daughter Rachael behind in the Netherlands. The Court observes in this connection that at the time the final decision on her application for a residence permit was taken on 12 February 1999, the first applicant no longer had parental authority over Rachael, the Supreme Court having quashed the decision of the Amsterdam Regional Court which had awarded her such authority (see paragraphs 19 and 20 above).", "It was Rachael's father, Mr Hoogkamer, to whom parental authority was subsequently, and finally, attributed. In its assessment of this issue, the Amsterdam Court of Appeal had regard to a report which had been drawn up by the Child Care and Protection Board in August 1997 – prior to the final decision in the residence proceedings – according to which it would be traumatic for Rachael if she had to leave the Netherlands in view, inter alia, of the strong bond she had with her paternal grandparents (see paragraph 14 above). Parental authority having been awarded to Mr Hoogkamer, the first applicant is thus simply not able to take Rachael with her without his permission which, as has not been disputed by the Government, will not be forthcoming. In these circumstances, the Court considers that the Government's claim that the first applicant and Mr Hoogkamer might have agreed that Rachael would move to Brazil with her mother is untenable, bearing in mind that it was the Dutch courts, following the advice of the Dutch child welfare authorities, who concluded that it was in Rachael's best interests to stay in the Netherlands. 42.", "The Court further notes that, from a very young age, Rachael has been raised jointly by the first applicant and her paternal grandparents, with her father playing a less prominent role. She spends three to four days a week with her mother (see paragraphs 16 and 22 above), and, as confirmed by her grandparents (see paragraph 22 above), has very close ties with her. The refusal of a residence permit and the expulsion of the first applicant to Brazil would in effect break those ties as it would be impossible for them to maintain regular contact. This would be all the more serious given that Rachael was only three years old at the time of the final decision and needed to remain in contact with her mother (see Berrehab, cited above, § 29). 43.", "Whilst it does not appear that the first applicant has been convicted of any criminal offences (see Berrehab, cited above, § 29, and Cılız v. the Netherlands, no. 29192/95, § 69, ECHR 2000-VIII), she did not attempt to regularise her stay in the Netherlands until more than three years after first arriving in that country (see paragraphs 9 and 13 above) and her stay there has been illegal throughout. The Court reiterates that persons who, without complying with the regulations in force, confront the authorities of a Contracting State with their presence in the country as a fait accompli do not, in general, have any entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003). Nevertheless, the Court finds relevant that in the present case the Government indicated that lawful residence in the Netherlands would have been possible on the basis of the fact that the first applicant and Mr Hoogkamer had a lasting relationship between June 1994 and January 1997 (see paragraph 34 above).", "Although there is no doubt that a serious reproach may be made of the first applicant's cavalier attitude to Dutch immigration rules, this case should be distinguished from others in which the Court considered that the persons concerned could not at any time have reasonably expected to be able to continue family life in the host country (see, for example, Solomon, cited above). 44. In view of the far-reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael's best interests for the first applicant to stay in the Netherlands, the Court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants' rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael's birth. Indeed, by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism. The Court concludes that a fair balance was not struck between the different interests at stake and that, accordingly, there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 46. The applicants submitted no claims in respect of pecuniary damage, but sought compensation for non-pecuniary damage relating to the stress and fear they had suffered as a result of the uncertainty surrounding the first applicant's residence status in the Netherlands.", "They claimed 10,000 euros (EUR) under this head. 47. The Government argued, firstly, that the applicants had not submitted any documents attesting to their suffering from the psychological condition of stress. Secondly, they were of the view that any uncertainty the applicants experienced as a consequence of their considered decision to remain in the Netherlands illegally was a circumstance that could not be imputed to the State. 48.", "The Court considers that the present judgment constitutes in itself sufficient just satisfaction with regard to the non-pecuniary damage alleged (see Mehemi v. France, 26 September 1997, § 41, Reports 1997-VI). B. Costs and expenses 49. The applicants claimed a total of EUR 145.30 for the costs and expenses the first applicant had incurred in the domestic court proceedings relating to her application for a residence permit: EUR 50 for court fees, and EUR 95.30 for the mandatory personal contribution (eigen bijdrage) she had to pay her lawyer. 50.", "The Government submitted that they had no observations to make in relation to this claim. 51. The Court finds the claim reasonable, and consequently allows it in full. C. Default interest 52. 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 8 of the Convention; 2. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; 3. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 145.30 (one hundred and forty-five euros thirty cents) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 31 January 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléJean-Paul Costa RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MUSA KARATAŞ v. TURKEY (Application no. 63315/00) JUDGMENT STRASBOURG 5 January 2010 FINAL 05/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Musa Karataş v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Işıl Karakaş, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "63315/00) 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 Musa Karataş (“the applicant”), on 25 September 2000. 2. The applicant, who had been granted legal aid, was represented by Mr Özcan Kılıç, a lawyer practising in Istanbul. 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 he had been ill-treated in police custody and that he had been convicted on the basis of statements extracted from him while being ill-treated and in the absence of his legal representative. He invoked Articles 1, 3, 6 and 13 of the Convention. 4. On 8 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and is currently serving a life sentence in Kocaeli prison. A. Introduction 6.", "The facts of the case are disputed between the parties. The facts as presented by the applicant are set out in section B below (see paragraphs 7‑13). The Government’s submissions concerning the facts are summarised in section C below (see paragraphs 14-17). Documentary evidence submitted by the parties is summarised in section D below (see paragraphs 18‑48). B.", "The applicant’s submissions on the facts 7. On 24 October 1997 the applicant, his wife, their 11-year old son, the applicant’s brother and the latter’s partner and a female friend were arrested on suspicion of membership of an illegal organisation, namely Türkiye Komünist Emek Partisi/Leninist (the Communist Labour Party of Turkey/Leninist, (“the TKEP-L”)). They were taken into custody at the anti-terrorist branch of the Istanbul police headquarters. The applicant was allegedly subjected to ill-treatment amounting to torture while in police custody and was coerced into signing statements. 8.", "On 27 October 1997 the applicant was taken to a doctor. The doctor observed that both of the applicant’s wrists were swollen, that the functioning of his right wrist was restricted and that the left wrist was sensitive. 9. On 31 October 1997 the applicant and the other detainees were brought before the public prosecutor at the Istanbul State Security Court. The applicant denied the veracity of the statements that had been taken from him by the police.", "He further alleged that he had been subjected to torture, and gave a detailed account of the treatment he had suffered. He also requested the public prosecutor to initiate an investigation against the police officers who had ill-treated him. 10. On the same day, the applicant was examined by a forensic expert who observed that the applicant’s wrists and fingers were unable to perform certain movements. 11.", "The prosecutor’s office at the Istanbul State Security Court asked for an investigation to be carried out into the applicant’s allegations of ill‑treatment. On an unspecified date, the Fatih public prosecutor instigated an investigation against the police officers working at the anti-terrorist branch of the Istanbul police headquarters. This investigation was concluded by a decision taken by the prosecutor on 3 February 1998 not to prosecute the police officers for want of sufficient evidence. The objection lodged by the applicant against that decision was rejected by the Beyoğlu Assize Court on 17 May 2000. 12.", "On an unspecified date the applicant was transferred to Kandıra prison. During that transfer he was allegedly subjected to ill-treatment by military officers. 13. On 16 February 2001 the applicant’s lawyer visited him in Kandıra prison. The prison authorities prevented the lawyer from giving the applicant a number of documents concerning the applicant’s appeal because the lawyer had refused to submit those documents to the authorities for inspection first.", "C. The Government’s submissions on the facts 14. The applicant was arrested by police officers on 24 October 1997 in the course of an investigation into the activities of the TKEP/L. He was placed in police custody at the anti-terrorist branch of the Diyarbakır (sic) police headquarters. It was established that the applicant was the Secretary General of the TKEP/L. 15.", "On 25 October 1997 the prosecutor at the Istanbul State Security Court authorised the applicant’s detention in custody until 28 October 1997. On 28 October 1997, a judge at the Istanbul Security Court extended the applicant’s detention until 31 October 1997. 16. The applicant was examined by a doctor on 27 October 1997 at the Haseki hospital. On 31 October 1997 he was examined once more at the Forensic Medicine Institute.", "17. On 29 October 1997 a statement was taken from the applicant by the police. On 19 April 2000 the applicant was sentenced to life imprisonment by the Istanbul State Security Court. His conviction was upheld by the Court of Cassation on 19 May 2001. D. Documentary evidence submitted by the parties 18.", "The following information appears from the documents submitted by the parties. 1. The applicant’s arrest and detention 19. According to an arrest report drawn up on 24 October 1997, police officers at the anti-terrorist branch of the Istanbul police headquarters established, on the basis of intelligence reports, the address in Istanbul’s Moda district where the applicant – who was wanted by the authorities – had been living. When a number of police officers went to the address, they saw a man leaving the building in which the applicant’s apartment was situated.", "The police officers approached the man and asked to see his identification card. Upon this, the man started to run away but was caught by six police officers after “a chase and a scuffle”. When the man refused to get into the police car, the police officers “used force to make him get into the vehicle”. An identification card, in the name of Sedat Kılıç, was found on the man. 20.", "The police officers took the man to the police headquarters where he was questioned. It was established that the arrested man was in fact the applicant and the identity card in the name of Sedat Kılıç had been forged. Two keys were found in his pockets. The applicant claimed that the keys were for the door of an apartment which he shared with a certain N.P., a female. The police then took the applicant to that apartment where they found, inter alia, a pistol and bullets, a canister of CS gas, a number of left-wing magazines, books and 400 US dollars.", "21. According to a forensic medical report drawn up by a doctor at the emergency department of the Haseki hospital in Istanbul on 27 October 1997, the doctor observed the following: “A swelling on the right wrist and restraint of the functioning of the right wrist, as well as a slight swelling and sensitivity of the left wrist ...” 22. On 29 October 1997 a twelve-page statement was taken from the applicant – who was still in police detention – by two police officers. No lawyer was present during the questioning. In this statement the applicant said, inter alia, that he was the secretary general of TKEP/L.", "23. On 30 October 1997 statements were taken from the applicant, the applicant’s brother, the latter’s partner, and a certain M.A.A., also without a lawyer being present. These statements were taken in the course of a confrontation during which all of the above-mentioned persons were present in the same room in the police station. The applicant stated that “he was the leader of the illegal armed organisation TKEP/L” and that “M.A.A., his brother and his brother’s partner were also members of that organisation”. The applicant’s brother and M.A.A.", "stated that the applicant was the leader of TKEP/L. The same day the applicant was shown a number of photographs of persons who, the applicant stated, were also members of TKEP/L. 24. At the end of his police custody on 31 October 1997 the applicant was transferred to the prosecutor’s office at the Istanbul State Security Court. A report, prepared by the police and setting out the information obtained in the course of the police investigation, was also forwarded to the prosecutor.", "It appears from this report that the applicant’s wife and a female with the name of N.P. had also been taken into custody on 24 October 1997. Six other persons, including the applicant’s brother, had been detained on 26 October 1997. 25. A statement was taken from the applicant by the prosecutor at the State Security Court the same day.", "The applicant, who was not represented by a lawyer, stated, inter alia, that he had not made the statements in police custody of his own free will. He had been subjected to ill-treatment which included being suspended by his arms. The police officers had also squeezed his testicles and sworn at him. The applicant further submitted that it was true that he had been a member of TKEP/L, but he had never been the leader of TKEP/L. Although he had taken part in a number of activities within TKEP/L, none of those activities had involved violence or arms.", "The items found in the course of the investigation, including the pistol, were his – the other suspects had nothing to do with them. The applicant also asked the prosecutor to prosecute the police officers responsible for the ill‑treatment. 26. Another statement was taken from the applicant on the same day by the duty judge at the State Security Court in the course of which the applicant was not represented by a lawyer. The applicant stated that the contents of his statements made before the prosecutor earlier that day had been correct.", "He denied the accuracy of the contents of the twelve-page statement taken from him on 29 October 1997 in police custody in so far as they contradicted his statement given before the prosecutor. He confirmed that he had seen his brother, his brother’s partner and M.A.A. in police custody, but stated that he had told the police officers that he did not know any of the persons whose photographs were being shown to him. 27. The applicant’s brother and the remaining detainees, who were also questioned by the duty judge the same day, all denied being members of any illegal organisation.", "28. The duty judge ordered the applicant’s detention in prison, pending the introduction of criminal proceedings. 29. Also on 31 October 1997 the applicant and eight other persons were examined at the Forensic Medicine Institute in Istanbul and a medical report was prepared. According to the report, the applicant complained of “a loss of flexibility in his right wrist, a loss of function of the fingers of his right hand and pins and needles and numbness on the outside of his left hand”.", "The report also states that “... it appears from the report prepared by the Haseki hospital that the [applicant] had been unable to perform certain hand and wrist movements”. There was no “orthopaedic pathology”. According to this report, two of the applicant’s co-accused, including M.A.A., complained of pain in their testicles. 2. The investigation into the applicant’s complaints of ill-treatment 30.", "On an unspecified date the prosecutor’s office sent a letter to the prosecutor’s office in the Fatih district of Istanbul and asked for “the necessary action to be taken” in relation to the applicant’s complaints of ill-treatment. Copies of the two medical reports referred to above (see paragraphs 21 and 29 above), together with the statement taken from the applicant in which he complained of ill-treatment (see paragraph 25 above), were also appended to the prosecutor’s letter. This letter was received by the Fatih prosecutor on 12 December 1997. 31. On 16 December 1997 the Fatih prosecutor asked the anti-terrorist branch of the Istanbul police headquarters to identify the police officers who had questioned the applicant in police custody.", "32. On 13 January 1998 the Fatih prosecutor questioned police officers H.Y. and K.Ç. Officer H.Y. accepted that he had participated in the questioning of the applicant, but denied ill-treating him.", "33. Officer K.Ç. stated that he had been present when the applicant was arrested. According to him, the applicant had resisted arrest and a number of police officers had to tackle him to the ground before they were able to control him. Upon being handcuffed and put into the police car, the applicant had attempted to take the handcuffs off and to set himself free.", "The applicant had not been ill-treated in custody. He had made a number of statements of his own free will and had not denied his involvement in the organisation. Officer K.Ç. further stated that there were no orthopaedic findings in the medical reports. 34.", "On 3 February 1998 the Fatih prosecutor decided not to prosecute anyone in relation to the applicant’s allegations of ill-treatment. In the opinion of the Fatih prosecutor, other than the applicant’s own “abstract allegations”, there was no proof to justify the instigation of a prosecution. On an unspecified date the applicant lodged an objection against the prosecutor’s decision not to prosecute. 35. On 17 May 2000 the Beyoğlu Assize Court dismissed the applicant’s objection.", "The decision of the Assize Court reads as follows: “Having regard to the contents of the report pertaining to the complainant’s medical examination, the defence arguments of the suspects, and the prosecutor’s reasoning in his decision not to prosecute, [it is hereby decided] to dismiss the objection.” 3. The applicant’s trial and conviction 36. In the meantime, on 3 December 1997, the prosecutor at the Istanbul State Security Court filed a bill of indictment and charged the applicant with the offence defined in Article 146 § 1 of the Criminal Code, which was in force at the time and which carried the death penalty. The prosecutor alleged that the applicant was the Secretary General of TKEP/L whose object was to undermine the constitutional order, an offence within the meaning of Article 146 of the Criminal Code. The prosecutor further stated that, although the applicant had accepted in the statements made in police custody that he had been the leader of TKEP/L, he had denied it when he was brought before the prosecutor but had accepted that he was a member of TKEP/L.", "Nevertheless, in the opinion of the prosecutor, the statement taken from M.A.A. in police custody proved that the applicant had been the Secretary General of TKEP/L. The prosecutor observed in his indictment that when brought before the prosecutor and the judge, M.A.A. had denied the accuracy of that statement. 37.", "Throughout the hearings before the Istanbul State Security Court (hereinafter “the trial court”), the applicant denied the veracity of the allegation that he had been the leader of TKEP/L; although he had been a member of the organisation, he had not had decision-making authority. The applicant also maintained that he had been subjected to torture in police custody. Given that the accuracy of those statements had repeatedly been denied by him, it was unacceptable to use them against him as they had no probative value. 38. The applicant’s brother informed the trial court that the contents of the statement he had made in police custody in the course of the confrontation (see paragraph 23 above) were not true.", "39. In the course of one of the hearings M.A.A. informed the trial court that the contents of the statements he had made in the course of his police custody were not true and he did not know any of the defendants present in the court room. According to verbatim records of this hearing the applicant was present in the courtroom when M.A.A. made that statement.", "40. Also in the course of the trial, the applicant confirmed that he had resisted arrest and that there had been a scuffle with the police officers who had threatened him with their weapons. Although he had done all that he could to resist the attempts of the police officers, he had been overpowered. 41. On 12 May 1999 the prosecutor submitted his final observations on the merits of the case against the applicant to the trial court.", "The prosecutor stated that a certain T.T., who was being tried in another case on the grounds that he was the leader of the TKEP, had submitted that the applicant had been a member of TKEP but had left and founded the TKEP/L. In the opinion of the prosecutor, the statement made by T.T. corroborated the statement made by the applicant in police custody. 42. On 16 July 1999 the applicant’s lawyer requested the trial court to broaden the scope of the investigation.", "He submitted that the statements made by the applicant and his co-defendants in police custody did not have evidential value in Turkish law. In any event, most of those co-defendants had later retracted their statements. He asked the trial court to summon all those persons who had given evidence against his client so that they could be heard and questioned. 43. On the same day the trial court declined the applicant’s request to widen the scope of the investigation because “it had already examined those requests and the relevant documents had already been put in the file.", "The other requests made by the [applicant] would not shed new light on the case”. 44. In another set of written defence petitions submitted to the trial court on 24 January 2000 the applicant’s lawyer argued that that while, on the basis of the evidence in the file, the applicant might conceivably be charged with membership of an armed organisation, that is the offence defined in Article 168 § 2 of the Criminal Code, there was no material or legal basis for accusing his client of the offence defined in Article 146 § 1 of the Criminal Code. The statements made in the course of another trial in which his client was implicated could not be relied on in evidence. The lawyer repeated his requests of 16 July 1999 and asked the trial court to reconsider its decision not to summon those witnesses.", "45. On 19 April 2000 the trial court convicted the applicant as charged. In convicting the applicant, the trial court relied on the statements made by the applicant and his co-defendants in police custody. According to the trial court, the statements made by the applicant in police custody had been “precise and accurate”. The statements made by the applicant before the prosecutor and the duty judge after his release from police station, that is the statements in which the applicant accepted being a member of TKEP/L but denied being its leader, on the other hand, were regarded by the trial court as “insincere”.", "In the opinion of the trial court, when the statements made by the applicant and his co-defendants in police custody were examined together with the statements made by persons accused of membership of the same organisation, it became evident that the applicant had been the leader of TKEP/L. On that premise, the trial court considered it appropriate to hold the applicant responsible for all the activities carried out by TKEP/L. Noting that TKEP/L was an organisation involved in activities aimed at replacing the prevailing system, through violence, with that of a proletarian dictatorship based on Marxist-Leninist principles, the trial court decided that the applicant was guilty of the offence defined in Article 146 § 1 of the Criminal Code and sentenced him to death. This sentence was commuted to life imprisonment. 46.", "The trial court acquitted six of the seven co-defendants on grounds of lack of evidence. It observed that, although these co-defendants had made statements in police custody in which they accepted being members of TKEP/L, they had later denied the accuracy of those statements. 47. On 21 February 2001 the applicant appealed against the judgment of the trial court and argued that the principle of equality of arms had been breached on account of the trial court’s refusal to widen the scope of the investigation. 48.", "On 19 March 2001, after a hearing, the Court of Cassation upheld the trial court’s judgment in so far as it concerned the applicant and quashed the acquittals of the six co-defendants on the ground of the trial court’s failure to collect further evidence against them by failing to summon a number of defendants who were being tried in other cases. II. THE RELEVANT DOMESTIC LAW APPLICABLE AT THE TIME 49. Article 146 § 1 of the Criminal Code which was in force at the time of the events provided as follows: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.” 50. Article 168 § 2 of the Criminal Code provided: “1.", "It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Article 125. 2. It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.” 51. Under the Criminal Code it was an offence for a government employee to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). A public prosecutor who was informed by whatever means of a situation that gave rise to the suspicion that an offence had been committed was under a duty to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Criminal Procedure).", "52. According to the principles established by the Turkish criminal courts, the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage, and not a measure designed to obtain evidence against him. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless have been made voluntarily, and statements obtained through use of pressure or force are not admissible in evidence (see Dikme v. Turkey, no. 20869/92, § 38, ECHR 2000‑VIII). 53.", "Furthermore, according to Article 247 of the Code of Criminal Procedure in force at the time of the events, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor’s office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Nevertheless, even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence unless supported by additional evidence (ibid). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION 54.", "The applicant complained that the respondent Government had failed to secure him the rights and freedoms defined in the Convention as provided in Article 1 of the Convention, which reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 55. The Government contested that argument. 56. The Court reiterates that Article 1 contains an entirely general obligation and that it should not be seen as a provision which can be the subject of a separate breach, even if invoked at the same time and in conjunction with other Articles (Doğan and Others v. Turkey, nos. 8803‑8811/02, 8813/02 and 8815-8819/02, § 120, ECHR 2004‑VI (extracts) and the cases cited therein).", "It thus considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION 57. The applicant complained that while in the custody of the police he was subjected to ill-treatment amounting to torture within the meaning of Article 3 of the Convention. Under the same Article he also alleged that he had been ill-treated in the course of his transfer to prison.", "Invoking Article 13 of the Convention the applicant complained that the authorities had failed to carry out an effective investigation into his allegations of ill‑treatment and had thus deprived him of an effective remedy. 58. The Court considers that these complaints should 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.” 59. The Government argued that the applicant’s complaint should be declared inadmissible on account of his failure to exhaust a number of civil and administrative remedies. 60.", "Furthermore, the Government denied that the applicant had been ill-treated. There was no indication in the medical reports that ill-treatment had taken place. According to the Government, the injuries found on the applicant’s wrists had been caused in the course of his resisting arrest. In this connection, the Government referred to the arrest report of 24 October 1997 and submitted that the police officers had to pursue the applicant who was trying to escape, and force him into the police car. The Government also drew the Court’s attention to the fact that, in the course of the trial, the applicant had accepted that he had resisted arrest and had been involved in a physical struggle with the police officers.", "61. The applicant stated that he had complied with the obligation to exhaust domestic remedies by exhausting the criminal remedies in relation to his complaint of ill-treatment. Had the investigation by the prosecutor been carried out adequately, the circumstances surrounding the ill-treatment would have been clarified. The civil and administrative remedies referred to by the Government, on the other hand, did not represent effective remedies in relation to his complaint of ill-treatment. 62.", "The applicant further submitted that his allegations of ill-treatment were supported by medical evidence. He had brought his allegations to the attention of the judicial authorities from the moment of his release from police custody, and had continued to raise them in the course of the trial. In the applicant’s opinion, the Government’s submission that his injuries had been caused in the course of the arrest as a result of his resistance was baseless as it was not true that he had resisted arrest. 63. The Court does not deem it necessary to determine whether the applicant has complied with the obligation to exhaust domestic remedies in respect of his complaint under Article 3 of the Convention, since it considers that the complaint is in any event manifestly ill-founded for the following reasons and must be declared inadmissible.", "64. The Court reiterates that, according to its well-established case-law, where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241‑A). Furthermore, the Court has repeatedly held that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see, inter alia, Mathew v. the Netherlands, no. 24919/03, § 177, ECHR 2005‑IX, and the cases cited therein).", "65. Although the applicant in the present application had not yet been taken into police custody at the police station when, according to the Government, his injuries were caused, he was nevertheless in the hands and under the supervision of the police officers from the moment of his apprehension. In the light of the foregoing, the Court considers that the applicant’s apprehension amounted to his being in the custody of the State (see, mutatis mutandis, Yasin Ateş v. Turkey, no. 30949/96, § 140, 31 May 2005). It follows that the burden of providing a plausible explanation for the applicant’s injuries lies with the Government.", "66. According to the medical report of 27 October 1997, the applicant’s wrists were swollen and the functioning of his wrists was restricted (see paragraph 21 above). Furthermore, it appears from the medical report of 31 October 1997 that the applicant had complained of “a loss of flexibility in his right wrist, a loss of function of the fingers of his right hand and pins and needles and numbness on the outside of his left hand” (see paragraph 29 above). No other injuries are mentioned in the medical reports. 67.", "In order to explain the injuries to the applicant’s wrists, the Government argued that they had been caused when the applicant resisted arrest. In support of their explanation the Government referred to the arrest report (see paragraph 19 above) and the applicant’s own statement made in the course of the trial (see paragraph 40 above) from which it appears that the applicant had resisted arrest by physical means and had also been in a scuffle with the police officers when they were handcuffing him and putting him into the car. The Court further notes that the statement taken from one of the arresting police officers also supports this version of the events. According to that statement, a number of police officers had to tackle the applicant to the ground before being able to control him; even after having been handcuffed and put into the police car, the applicant had attempted to take the handcuffs off and free himself (see paragraph 33 above). 68.", "The Court observes that the injuries mentioned in the medical reports are consistent with the above mentioned version of the events. In this connection the Court also notes that, other than alleging that he had been subjected to torture, the applicant has not provided the Court with precise information about the alleged ill-treatment in his application form or in his observations. As regards the allegations made by the applicant when he was brought before the prosecutor at the State Security Court on 31 October 1997, that is, that he had been suspended by his arms and that his testicles had been squeezed by the police officers (see paragraph 25 above), the Court would expect that being suspended by the arms would have left visible signs of injury. Nevertheless, neither of the medical reports mentions any injuries that might have been caused by this kind of ill-treatment. Furthermore, unlike two of his co-accused, the applicant did not mention to the doctor that he had pain in his testicles (see paragraph 29 above).", "In this connection the Court notes that the applicant has not challenged the accuracy and veracity of the medical reports or argued that the medical records did not reflect the true extent of his complaints and injuries, or that his complaints were not recorded accurately in the medical reports. 69. In the light of the foregoing, and taking into account, in particular, the nature and the extent of the injuries mentioned in the medical reports, the Court considers plausible the Government’s explanation that the applicant’s injuries were caused when he resisted arrest. The Court thus concludes that recourse to the use of force by the police officers had been made strictly necessary by the applicant’s own conduct. 70.", "As regards the applicant’s allegation that he had been ill-treated in the course of his transfer to prison, the Court observes that the applicant has not submitted any documents indicating that such ill-treatment had actually taken place, or showing that he had brought a complaint to that effect to the attention of the national investigating authorities. 71. Concerning the complaint relating to the effectiveness of the investigation into the applicant’s allegations of ill-treatment, the Court observes that the applicant alleged in front of the prosecutor at the State Security Court that he had been subjected to ill-treatment in police custody (see paragraph 25 above). The prosecutor forwarded the applicant’s complaints and the medical reports to the Fatih prosecutor and asked for an investigation to be instigated (see paragraph 30 above). 72.", "The Fatih prosecutor identified the police officers who were responsible for the applicant’s arrest and questioning, and summoned and questioned them directly (see paragraphs 32-33 above). 73. Taking into account the statements made by the police officers and the arrest report, the Fatih prosecutor decided not to prosecute the police officers (see paragraph 34 above). In the course of its examination of the applicant’s objection against the Fatih prosecutor’s decision not to prosecute, the Beyoğlu Assize Court made an assessment of the evidence and the investigation (see paragraph 35 above). 74.", "The Court considers that, in the circumstances of the case, and in view of the evidence in their possession, the investigating authorities took all reasonable steps and showed diligence in establishing the cause of the injuries to the applicant’s wrists. Indeed, the conclusion reached by those authorities formed the basis for the Court’s assessment that recourse to the use of force by the police officers had been made strictly necessary by the applicant’s own conduct (see paragraph 69 above). 75. Consequently, the investigation carried out by the national authorities met the requirements of Article 3 of the Convention. 76.", "In the light of the foregoing, the Court considers that the applicant’s complaints under Article 3 are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 77. Invoking Article 6 of the Convention the applicant complained that he had been unable to consult a lawyer while he was detained in police custody and when he was brought before the prosecutor and the judge. He also alleged that he had been convicted on the basis of statements extracted from him under ill-treatment and that he had not been afforded adequate time and facilities for the preparation of his defence as his lawyer was prevented by prison authorities from giving him a number of important documents.", "78. Article 6 of the Convention, in so far as relevant, provides as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself ... through legal assistance of his own choosing ...” 79. The Government contested the applicant’s allegations and, referring to the above-mentioned judgment in the case of Dikme (§ 109), argued that the manner in which Article 6 § 3 (c) was applied during the preliminary investigation depended on the special features of the proceedings involved and on the circumstances of the case.", "In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the proceedings conducted in the case. 80. They pointed out in this connection that, both throughout the criminal proceedings before the trial court and in the course of the hearing before the Court of Cassation, the applicant had been represented by a lawyer. 81. The Government further pointed to the fact that the applicant had been arrested in possession of a false identification card.", "A number of items, such as a pistol, two chargers, bullets and documents pertaining to TKEP/L had been found in his two apartments. The applicant had admitted to being the owner of those items and had also accepted that he was a member of that organisation. 82. Furthermore, in the course of criminal proceedings before different State Security Courts concerning the same organisation, that is, the TKEP/L, defendants had made statements implicating the applicant. 83.", "In the opinion of the Government, all the documents and statements in the case file of the State Security Court were coherent. Referring to the Court’s case-law, the Government submitted that it was for the national courts to assess the evidence and its relevance in a criminal trial. Although Article 6 of the Convention guaranteed the right to a fair trial, it did not lay down any rules on the admissibility of evidence, which was primarily a matter for regulation under national law. A. Admissibility 84. As regards the applicant’s allegation that he was convicted on the basis of statements extracted from him while being ill-treated, the Court notes that it has not been established that the applicant was subjected to ill-treatment in police custody.", "85. Concerning the applicant’s submission that his lawyer was prevented by the prison authorities from giving him a number of documents concerning his appeal, the Court notes that the applicant has not supported this allegation with any evidence. 86. It follows that these complaints under Article 6 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. 87.", "Concerning the applicant’s complaint under Article 6 § 1 of the Convention taken in conjunction with 6 § 3 (c), that is, that he had not had access to a lawyer in police custody and when brought before the prosecutor and the judge, 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 88.", "The Court observes that the applicant was questioned on three occasions by police officers while being held in police custody for a period of seven days, from 24 October 1997 to 31 October 1997. At the end of his police custody the applicant was further questioned by a public prosecutor and a judge of the State Security Court. Under the applicable law in force at the time, the applicant did not have the right to request legal representation in the course of the preliminary investigation and, as a result, when questioned by the police and then by the prosecutor and the judge, he did not receive legal assistance. 89. The Court observes that the applicant made a number of self-incriminating statements in the course of being questioned in police custody and those statements became crucial elements in the prosecutor’s indictment (see paragraph 36 above) and submissions (see paragraph 41 above), and were a major contributing factor to the applicant’s conviction (see paragraph 45 above).", "90. The Court stresses at the outset that Article 6 may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it (see Salduz v. Turkey [GC], no. 36391/02, § 50, 27 November 2008 and the cases cited therein). Furthermore, 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 from initial questioning 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. Even where compelling reasons may exceptionally justify the denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 of the Convention.", "The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid, § 55). 91. In the present case, the applicant’s conviction was based on the statements made by him in police custody – which were retracted by him at all subsequent stages of the criminal proceedings – in which he confessed, in the absence of his lawyer, to being the leader of TKEP/L. Despite the fact that, according to Article 247 of the Code of Criminal Procedure in force at the time of the events any confessions made to the police or the public prosecutor’s office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution (see paragraph 53 above), the trial court admitted the applicant’s confession in evidence, and relied on it in convicting the applicant. For the Court, that finding is in itself sufficient to conclude that there has been a breach of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1.", "92. Notwithstanding that conclusion, the Court considers it appropriate to address the other infringements of the fairness requirements guaranteed by Article 6 of the Convention. It notes that the trial court considered that the applicant’s confession was corroborated by two groups of evidence. The first group consisted of the statements made by the applicant’s co-accused in the course of the same police custody (see paragraph 23 above), also without any lawyer being present. The second group consisted of statements made by persons in the course of trials before different criminal courts where they were being tried for the offence of membership of the parent organisation of TKEP/L, i.e.", "TKEP (see paragraph 45 above). 93. As regards the first group of evidence, the Court observes that the statements made by the applicant’s co-accused while detained in police custody, in which they implicated both themselves and each other, were subsequently retracted by them and, as a result, the trial court considered that there was no other evidence against them and acquitted them. Nevertheless, the trial court did not take into account that same retraction when it concluded that the co-accuseds’ statements corroborated the applicant’s confession. 94.", "As regards the second group of evidence, the Court reiterates that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. Fairness requires that the rights of the defence are 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 is making his statements or at a later stage of the proceedings (see, among other authorities, Isgrò v. Italy, 19 February 1991, § 34, Series A no. 194-A, and Lucà v. Italy, no. 33354/96, §§ 40-43, ECHR 2001‑II).", "The corollary of that is that where a conviction is based solely, or to a decisive degree, on depositions that have been made by a person who the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see, among other authorities, Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 65, ECHR 2001-VIII, and the cases cited therein). 95. The Court observes that, as acknowledged by the respondent Government, statements made by persons in different trials were used against the applicant (see paragraph 82 above). This is clear from the trial court’s judgment (see paragraph 45 above).", "Furthermore, it is not disputed that the persons who made statements against the applicant before different criminal courts were not summoned to appear before the applicant’s trial court, despite the fact that the applicant requested the trial court to summon them on at least two occasions (see paragraphs 42 and 44 above). 96. The Court considers that the shortcomings highlighted above exacerbated the consequences of the applicant’s inability to consult a lawyer when making statements in police custody. 97. In the light of the foregoing, the Court concludes that the applicant’s inability to consult his lawyer at the initial stages of the criminal proceedings restricted the rights of the defence to an extent that is incompatible with the guarantees provided by Article 6 of the Convention.", "There has, therefore, been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. 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 argued that he had been submitted to inhuman treatment and sentenced to death at the end of an unfair trial and on the basis of statements extracted from him while being ill-treated. He claimed 30,000 euros (EUR) in respect of non-pecuniary damage on account of the pain and suffering caused as a result of his ordeal. 100. The Government contested the applicant’s claim. 101.", "The Court, taking into account the awards made in comparable cases, and deciding on an equitable basis, awards the applicant EUR 2,000 in respect of non-pecuniary damage flowing from the violation of Article 6 § 1 of the Convention (see, in particular, Salduz, cited above, § 73). 102. Furthermore, the Court considers that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Salduz, cited above, § 72 and the cases cited therein). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no.", "53431/99, § 27, 23 October 2003). B. Costs and expenses 103. The applicant also claimed 12,310 Turkish liras (TRY) (approximately EUR 6,000) for the costs and expenses incurred both before the domestic courts and before the Court. This sum included TRY 650 in respect of his costs and TRY 11,660 in respect of his lawyer’s fees.", "In support of his claims the applicant submitted a schedule of the hours spent by his lawyer on the case. 104. The Government contested the applicant’s claim. 105. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads less the amount of EUR 715 received by way of legal aid from the Council of Europe. 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 1. Declares unanimously the complaint concerning the applicant’s right to defend himself through legal assistance admissible; 2.", "Declares by a majority the complaint under Article 3 of the Convention inadmissible; 3. Declares unanimously the remainder of the application inadmissible; 4. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c); 5. 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, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement: i. EUR 2,000 (two thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; ii. EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, less EUR 715 (seven hundred and fifteen euros) received from the Council of Europe by way of legal aid; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF IVANOV v. BULGARIA (Application no. 19988/06) JUDGMENT STRASBOURG 11 December 2012 This judgment is final but it may be subject to editorial revision. In the case of Ivanov v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Zdravka Kalaydjieva,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy 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. 19988/06) 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 Manol Georgiev Ivanov (“the applicant”), on 12 May 2006.", "2. The applicant was represented by Mr G. Georgiev, a lawyer practising in Veliko Tarnovo. The Bulgarian Government (“the Government”) were represented by their then Agent, Ms N. Nikolova, of the Ministry of Justice. 3. The applicant alleged, in particular, that the prolonged failure of the authorities to complete the restitution procedure in his case was in violation of his property rights and that he had not had en effective remedy in that respect.", "4. On 15 September 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1951 and lives in Silistra. A. The restitution proceedings 6. The applicant’s father owned a vineyard in Silistra. In 1963 part of the land was expropriated.", "7. In 1991 the applicant’s father requested restitution of the land in its “actual boundaries”. In a decision of 24 November 1992 the Silistra land commission decided that the land should be restored through a land redistribution plan. 8. The applicant’s father died in 1994 and was inherited by the applicant and two other heirs.", "It appears that only the applicant, but not the other heirs, participated in the subsequent proceedings concerning the vineyard. 9. In a decision of 7 February 1994 the land commission decided that the restitution procedure envisaged in paragraph 4k of the transitional and concluding provisions of the Agricultural Land Act of 1991 (“the restitution procedure under paragraph 4k of the ALA”) was applicable to the area in which the applicant’s vineyard was situated because that area comprised both land restored in “actual boundaries” and land allocated to usufructuaries. That procedure envisaged the preparation of a plan of newly formed plots (“план на новообразуваните имоти”) based on the cadastral plan for the area. 10.", "A cadastral plan for the area in which the vineyard was situated was drawn up in 1990 but was never approved. On an unspecified date the governor of Silistra Region ordered the elaboration of such a plan and appointed a contractor. 11. On 19 October 1995 the land commission decided to compensate the applicant and the other heirs of the applicant’s father with another property. The applicant appealed.", "12. In a judgment of 26 June 1998 the Silistra District Court quashed the decision of 19 October 1995 and held that the heirs of the applicant’s father were entitled to the restitution of 3,590 square meters of the vineyard in their “actual boundaries”. The judgment was not appealed against and became final on 20 July 1998. 13. In a decision of 30 June 1998 the land commission ordered the restitution of the land to the heirs in its “actual boundaries”.", "However, it expressly noted that a plan showing the precise boundaries of the real estate was to be drawn up after the approval of the cadastral plan so as to enable the heirs to conclude any transactions with the property. B. The rei vindicatio claim against third parties 14. Since the vineyard was possessed by third parties, in 1998 the applicant brought a rei vindicatio claim against them. During the proceedings the municipality informed the court that it could not issue a plan of the vineyard because the cadastral plan for the area had not been finalised.", "15. In a final decision of 16 March 2001 the Supreme Court of Cassation rejected the claim as premature. It held that since the plan was not ready, the restitution procedure could not be deemed completed because the property was not sufficiently individualised. C. The applicant’s attempts to obtain a plan of the vineyard 16. On an unknown date in 2004 the applicant retained a licensed expert to prepare a plan of the vineyard and requested the land commission to validate it.", "The latter refused. Following an appeal, in a final judgment of 21 March 2005 the Supreme Administrative Court upheld the refusal. It held that the plan of newly formed plots for the area had not yet been approved and therefore no plans for particular properties could be issued. 17. On 25 May 2005 the applicant requested the local Agriculture and Forestry Department (“AFD”) to issue a plan for the vineyard.", "On 2 June 2005 it refused. Following an appeal, in a final judgment of 27 March 2006 the Supreme Court of Cassation upheld the refusal. It held that the plan of newly formed plots for the area was not yet in force, which prevented the AFD from issuing a plan for the property. It went on to note that if the applicant deemed that his claim should have been examined under a more simplified restitution procedure than the one under paragraph 4k of the ALA (see paragraph 9 above), he should have appealed against the respective decision, which he had not done. D. The approval of the cadastral plan for the area and the subsequent attempt of the applicant to evict the third parties 18.", "On 17 November 2006 the Governor of the Silistra Region approved the plan of newly formed plots for the area in which the applicant’s land was situated. 19. On an unknown date in 2006 the applicant brought a second rei vindicatio claim against the third parties, seeking to recover the entire vineyard. A plan of the property was issued on 19 January 2007 and submitted to the court. In a judgment of 25 June 2007 the District Court granted the claim in respect of all heirs.", "20. Following an appeal, on 10 April 2008 the Regional Court upheld the judgment of 25 June 2007 only in respect of the applicant’s one-third share. Relying on section 32 of the Property Act, it held that a rei vindicatio claim was more than a simple act of property management. Therefore, the applicant could not seek to vindicate the rights of the other heirs in such proceedings. Accordingly, the Regional Court ordered the defendants to deliver the possession of a one-third share of the vineyard to the applicant.", "21. The applicant appealed to the Supreme Court of Cassation, arguing that the judgment of 10 April 2008 went against the established case-law, which considered a rei vindicatio claim an act of property management that could be carried out by any co-owner on behalf of the others. 22. In a decision of 17 September 2010 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law, finding that the applicant had failed to show that an important substantive or procedural issue had been decided by the lower courts out of line with the Supreme Court of Cassation’s case-law. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Restitution 23. The applicable domestic law and practice concerning the restitution of agricultural land is summarised in the Court’s judgments in the cases of Mutishev and Others v. Bulgaria, no. 18967/03, §§ 57-75, 3 December 2009, and Naydenov v. Bulgaria, no. 17353/03, §§ 21-42, 26 November 2009.", "B. The State and Municipalities Responsibility for Damage Act 1988 24. Section 1 of the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 25.", "The applicant complained that the prolonged failure of the authorities to issue a plan of his property had prevented him from entering into possession, using and disposing of it. 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.", "The parties’ submissions 26. The Government submitted that the applicant had received a plan for his plot in 2007 and had therefore lost his status of a victim. They further stated that the applicant had failed to appeal against the applicability of the restitution procedure under paragraph 4k of the ALA to his case. Finally, they submitted that the applicant could have brought a compensation claim under the SMRDA. 27.", "The applicant submitted, without elaborating further, that the plan he had received in 2007 had been issued for litigation purposes, in connection with the second set of rei vindicatio proceedings brought by him, and that he could not apply for and obtain one for other purposes. As for the authorities’ decision to apply the restitution procedure under paragraph 4k of the ALA in his case, he stated that he had had no interest in challenging that decision since it would have delayed the restitution procedure even further. All he had wanted from the authorities had been to issue him a plan, which would have enabled him to enjoy his property rights and recover the vineyard from the third parties. However, the authorities had failed to discharge their duties. The applicant finally submitted that a claim under the SMRDA had not been an effective remedy in his case because it could not have resulted in a decision compelling the authorities to act, and therefore, could not have accelerated the procedure of elaboration of the plan of newly formed plots.", "Furthermore, the applicant stated that the domestic courts had already dismissed his appeals against the authorities’ refusals to issue the plan, finding those refusals lawful under the national law, while one of the conditions for a successful claim under the SMRDA had been the establishment of the unlawfulness of the act causing the damage. 2. Victim status 28. Concerning the applicant’s victim status, the Court notes that the authorities issued a plan delimiting the applicant’s property on 19 January 2007 (see paragraph 19 above). Therefore, in the absence of any arguments from the applicant as to why he deems himself prevented from obtaining such a plan for purposes different from litigation against third parties, the Court is satisfied that the authorities discharged their obligation to issue a plan on the above-specified date.", "However, the Court notes that it took the authorities more than eight years to do so and that this delay is the focus of the present complaint. It follows that the Government’s objection regarding the applicant’s victim status should be rejected. 3. Exhaustion of domestic remedies 29. The Court considers that the question of exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaint under Article 13 of the Convention.", "Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of the exhaustion of domestic remedies should be joined to the merits of the applicant’s complaint under Article 13. 4. Conclusion on 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 or inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 31. The applicant submitted that the authorities had failed to issue a plan of his vineyard, a document of a purely technical nature, and had attached undue legal significance to that plan, thus preventing him from exercising his property rights and from recovering the property from third parties for a considerable period of time.", "32. The Government submitted that the authorities had complied with the national legislation and that their refusal to issue a plan of the applicant’s plot before 2006 had not been unjustified, seeing that the plan of newly formed plots for the area had not been approved. They stated that the applicant’s restitution procedure had been completed after the approval of the plan of newly formed plots in 2006 and that the applicant had received a plan of his property. They further noted that the State had introduced such laws as it had deemed necessary to control the use of property in accordance with the general interest. Finally, they stated, without elaborating further, that the proportionality requirements of Article 1 of Protocol No.", "1 had been complied with. 2. The Court’s assessment 33. The Court refers to its established case-law in similar cases (see Naydenov, cited above, §§ 64-70, and Vasilev and Doycheva v. Bulgaria, no. 14966/04, §§ 37-42, 31 May 2012) and is satisfied that the applicant, whose right to restitution “in actual boundaries” had been recognised by the Silistra District Court in a final judgment of 26 June 1998 (see paragraph 12 above), had a sufficiently established “asset” within the meaning of Article 1 of Protocol No.", "1. 34. It also considers that the authorities’ failure to issue a plan of the applicant’s property for a considerable period of time, thus preventing him from entering into possession of that property and from exercising his property rights, amounts to an interference with his right to peaceful enjoyment of his possessions (see Naydenov, § 72, and Vasilev and Doycheva, § 44, both cited above). 35. Furthermore, the Court accepts that this interference was lawful, as there were no special time-limits for issuing such a plan under the relevant legislation, and might have pursued a legitimate aim in the public interest, namely to protect the rights of others, as the authorities needed to accommodate the claims of numerous former owners in the rather complex restitution process.", "36. Turning to the question of proportionality, the Court has to examine whether the delay in issuing the plan meant that the applicant had to bear a special and excessive burden (see Lyubomir Popov v. Bulgaria, no. 69855/01, § 120, 7 January 2010). 37. The Court has already examined a number of cases raising similar issues (see Naydenov, Lyubomir Popov, and Vasilev and Doycheva, all cited above) and refers to the principles developed therein.", "It notes that the applicant’s legitimate expectation to enter into possession of his vineyard arose not later than June 1998 (see paragraph 12 above). The plan for that vineyard, which enabled him to initiate rei vindicatio proceedings and thus recover it from third parties, was received in January 2007 (see paragraph 19 above). The delay was therefore almost eight years and seven months. During that considerable period of time the applicant was left in a state of uncertainty as to the realisation of his property rights and was prevented from enjoying his possessions. The Court acknowledges that the relevant events happened in a period of social and economic transition in Bulgaria and that the authorities needed to take into account the claims of numerous interested parties (see Lyubomir Popov, cited above, § 122, with further references).", "However, in the absence of any specific justifications for the delays in issue, the Court cannot but accept that the delays were unreasonable and placed an excessive burden on the applicant (ibid., and Ramadhi and Others v. Albania, no. 38222/02, § 83, 13 November 2007). 38. It follows that there has been a violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 39. The applicant complained that he had not had an effective remedy allowing him to obtain a plan of his property. He relied on Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 40. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "B. Merits 41. The Government reiterated the arguments they had raised in respect of the admissibility of the complaint under Article 1 of Protocol No. 1 (see paragraph 26 above). In their view, the applicant had not exhausted all domestic remedies as he had neither appealed against the authorities’ decision to apply the restitution procedure under paragraph 4k of the ALA nor brought a compensation claim under the SMRDA.", "42. Apart from his observations concerning the exhaustion of domestic remedies (see paragraph 27 above), the applicant did not put forward any additional arguments under Article 13. 43. The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. This Article therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision.", "The remedy must be “effective” in practice as well as in law (see Rotaru v. Romania [GC], no. 28341/95, § 67, ECHR 2000‑V). 44. In respect of the Government’s submission that the applicant could have challenged the restitution procedure applicable in his case, the Court observes that the procedure chosen by the authorities (see paragraph 9 above) eventually resulted in the realisation of the applicant’s restitution rights and could not therefore be dismissed as inappropriate. Furthermore, it is not the Court’s task to determine which procedure was more appropriate in the circumstances but rather whether, by applying the chosen procedure as they did, the authorities restricted the applicant’s property rights in an unlawful or disproportionate manner.", "45. The Government also submitted that a compensation claim under the SMRDA could have provided the applicant with an adequate redress for the prejudice he had suffered from the delays in the restitution process. The Court reiterates that a claim for damages may sometimes be deemed a sufficient remedy, in particular where compensation is the only means of redressing the wrong suffered. However, it could not be an alternative to the measures which the authorities should have afforded the applicant in order to comply with a final judgment in his favour (see Naydenov, cited above, § 51, with further references). It follows that a compensatory remedy could be regarded as capable of providing redress only after the authorities have taken all reasonable measures to comply with their obligations under the Convention (ibid.).", "In the present case, the authorities completed the restitution procedure in early 2007 (see paragraph 19 above). It follows that a compensation claim could in principle be an effective remedy in respect of the delays which had occurred in the applicant’s case (see Naydenov, cited above, § 53). However, the Court notes that in Naydenov it already rejected the Government’s argument that an action under the SMRDA would be an effective remedy in cases of delayed restitution procedures, finding that the Government had failed to show that there was sufficient case-law of domestic courts on such claims (see § 56 of that judgment). The Court observes that the Government have not put forward any fact or argument capable of persuading it that there had been any domestic developments in that respect (see also Vasilev and Doycheva, cited above, § 29). Furthermore, it notes that one of the prerequisites for a successful claim under the SMRDA is the establishment of the unlawfulness of the act causing the damage (see paragraph 24 above).", "However, the domestic courts dismissed the applicant’s appeals against the refusals of the authorities to issue a plan, finding them lawful under the national law (see paragraphs 16‑17 above). Moreover, the Court is of the view that the applicant, who could not have known when the requisite plan would be issued, cannot have been expected to periodically bring claims for damages in order to obtain redress for the delays. Had he been required to do so, this might have erected a permanent barrier to bringing matters before the Court (see Lyubomir Popov, cited above, § 105). In the specific circumstances of the case, therefore, a claim under the SMRDA did not represent an effective remedy which the applicant should have used. 46.", "The Government did not refer to another remedy, and the Court is not aware of any. Moreover, in Vasilev and Doycheva it noted that the problem was recurrent and expressed the view that the Bulgarian authorities had to provide for clear time‑limits for the adoption and enforcement of administrative decisions necessary for the completion of the process of restitution of agricultural land (see § 69 of that judgment). 47. In view of the above considerations, the Court dismisses the Government’s objection of non‑exhaustion of domestic remedies and holds that there has been a violation of Article 13 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48. On 22 April 2010 the applicant also complained, without relying on a particular Convention provision, that in the second set of rei vindicatio proceedings brought by him the domestic courts had deprived him of the right to use the entire property and to evict the third parties from it. He argued that without a writ of execution for the entire property his entry into possession of a one-third share of it would prove impossible. 49. The Court examined the remainder of the applicant’s complaints as submitted by him.", "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. 50. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 applicant claimed 2,513 levs (BGN), the equivalent of approximately 1,285 euros (EUR), in respect of lost rent for his vineyard from 1998 to 2008. In support of this claim he submitted a rental contract and a notice from the tenant. He also claimed EUR 1,000 in respect of non‑pecuniary damage.", "53. The Government contested these claims as unsubstantiated and excessive. 54. The Court considers that the applicant must have sustained pecuniary and non-pecuniary damage as a result of the breaches of his rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, it awards the applicant EUR 2,000 under this head.", "B. Costs and expenses 55. The applicant sought reimbursement of EUR 1,500 incurred in lawyer’s fees for work on the proceedings before the Court. He submitted a fees agreement between him and his legal representatives. 56.", "The Government contested this claim. 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 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 1,000 covering costs under all heads. C. Default interest rate 58.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government’s objection on the issue of exhaustion of domestic remedies and rejects this objection after having examined the merits; 2. Declares the complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention admissible and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds that 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, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary and 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 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF GUTKA v. UKRAINE (Application no. 45846/05) JUDGMENT STRASBOURG 8 April 2010 FINAL 08/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gutka v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 16 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "45846/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Paraskoviya Volodymyrivna Gutka (“the applicant”), on 28 November 2005. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 5 March 2009 the President of the Fifth Section decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1932 and lives in Lutsk, Ukraine. 5. By judgment of 14 December 1998 the Lutsk City Court partitioned a property inheritance between the applicant's mother and her relatives.", "6. On 26 August 1999 the applicant's mother gifted the applicant part of an apartment in Lutsk awarded to her by the above-mentioned judgment. 7. In September 1999 the applicant's mother instituted proceedings in the Lutsk City Court against Z.V., M.V. and three other persons (her relatives), seeking their eviction from her apartment.", "8. On 18 December 1999 the applicant's mother died. On 12 January 2000 the applicant was admitted to the proceedings as her next of kin. 9. In February 2000 Z.V.", "and M.V. lodged a counterclaim, seeking to have the contract of 26 August 1999 declared void; subsequently they sought invalidation of the applicant's mother's will which was in favour of the applicant. They also sought to have property rights over the relevant parts of the disputed apartment acknowledged as theirs. 10. On 29 January 2003 the court found for the applicant and ordered the defendants to vacate the apartment.", "It dismissed the counterclaim by Z.V. and M.V. 11. The defendants appealed but due to the shortcomings of their appeal the proceedings were protracted for four months. 12.", "On 13 August 2003 the Volyn Regional Court of Appeal, having found, inter alia, that the lower court had failed to examine crucial pieces of evidence, set aside that judgment and remitted the case for fresh examination. 13. On 5 September 2003 the applicant appealed in cassation against the latter decision; on 12 October 2006 the Supreme Court of Ukraine dismissed her appeal. 14. Of almost thirty hearings held between September 1999 and 12 October 2006 seven were adjourned due to the defendants' failure to appear before the court.", "Within this period three forensic examinations were held staying the proceedings in total for one year and four months. 15. In November 2006 the Lutsk City Court took over the case. 16. From 15 March to 23 July 2007 the proceedings were stayed as the additional forensic examination had been ordered.", "17. On 20 December 2007 the Lutsk City Court declared the contract of 26 August 1999 and the applicant's mother's will void. It dismissed the applicant's request to have the defendants evicted. 18. Of the eleven hearings held by the first instance court one was adjourned due to the applicant's and two due to the defendants' failure to appear before the court.", "19. On 2 April and 7 October 2008 the Volyn Regional Court of Appeal and the Supreme Court of Ukraine dismissed the applicant's appeals and upheld the judgment. THE LAW I. LENGTH OF PROCEEDINGS 20. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” She also complained that there was no effective remedy for her complaint that the length of the civil proceedings in her case had been excessive.", "She relied in that respect on Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 21. The period to be taken into consideration began on 12 January 2000, when the applicant joined the proceedings, and ended on 7 October 2008. It thus lasted eight years and almost nine months for three levels of jurisdiction. A. Admissibility 22. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 6 § 1 of the Convention 23.", "The Government submitted that the length of the proceedings in question had been caused by the complexity of the case. In this regard they referred to the number of litigants and other participants, the number of claims the courts had had to adjudge, the complexity of legal and factual issues raised in the case and that the courts needed forensic examinations on several occasions. They also maintained that the parties, whose conduct was not imputable to the respondent State, themselves caused considerable delays in the proceedings at issue, for example, by failing to attend court hearings, requesting additional pieces of evidence, modifying their claims, lodging appeals against courts decisions, failing to comply with procedural requirements and so on. In sum they concluded that the domestic judicial authorities were acting with due diligence in the present case. 24.", "The applicant, albeit agreeing that the case was complex and needed more time for examination, disagreed that period in question was reasonable. In particular, she pointed at the deficiency of the judgment of 29 January 2003, which brought about retrial, and at the delay caused by the Supreme Court of Ukraine (see paragraph 13 above). 25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "26. Turning to the circumstances of the present case, the Court agrees with the parties that the number of participants, number of claims, and the legal and factual issues involved complicated the case before the domestic courts. However, for the reasons set out below, such complexity itself cannot justify the length of proceedings under consideration. 27. The Court further accepts in part the Government's contention that the parties contributed to the length of the impugned proceedings.", "It is true that, although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001). By failing to comply with the procedural requirements for lodging of an appeal the defendants protracted the proceedings for four months (see paragraph 11 above), whereas the applicant, by lodging appeals which were ultimately dismissed as unfounded, extended the proceedings for additional ten months (see paragraph 19 above). 28. The remainder of the Government's arguments concerning the parties' conduct does not exonerate the respondent State as it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, for example, Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 183, ECHR 2006‑V and Nesterova v. Ukraine, no. 10792/04, § 43, 28 May 2009). 29. Moreover, the Court, agreeing with the applicant, points out that her appeal in cassation was pending before the Supreme Court of Ukraine for more than three years (see paragraph 13 above) and that cannot be considered as reasonable and proper administration of justice.", "30. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above, and Efimenko v. Ukraine, no. 55870/00, § 58, 18 July 2006). 31. 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. 2. Article 13 of the Convention 32. Referring to their conclusion that there was no violation of Article 6 § 1 of the Convention in the present case, the Government contended that there was no violation of Article 13 of the Convention either.", "33. The applicant disagreed. 34. The Court has frequently found violations of Article 13 of the Convention, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see Efimenko v. Ukraine, cited above, §§ 48-50 and 64 and subsequent case-law). In the present case the Court finds no reason to depart from that case-law.", "There has accordingly also been a breach of Article 13. II. OTHER COMPLAINTS 35. The applicant also complained under Article 6 § 1 of the Convention about the courts' assessment of the evidence and interpretation of the law and challenged the outcome of the proceedings. She also relied on Article 1 of Protocol No.", "1. 36. Having carefully considered the applicant's submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 37. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.", "40. The Government contested the claim. 41. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 1,200 under that head.", "B. Costs and expenses 42. The applicant did not submit any claim under this head. The Court therefore makes no award. C. Default interest 43.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 6 § 1 and 13 of the Convention concerning the length of proceedings and 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; 3. Holds that there has been a violation of Article 13 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into 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; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF SHAIPOVA AND OTHERS v. RUSSIA (Application no. 10796/04) JUDGMENT STRASBOURG 6 November 2008 FINAL 06/02/2009 This judgment may be subject to editorial revision. In the case of Shaipova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 October 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10796/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals listed below (“the applicants”), on 9 February 2004.", "2. The applicants, who had been granted legal aid, were represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court.", "4. On 7 May 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The Government objected to the joint examination of the admissibility and merits of the application.", "Having considered the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are: (1) Ms Tamara Daliyevna Shaipova, born in 1953; (2) Ms Yakhita Musayevna Shaipova, born in 1974; (3) Mr Ramzan Akhmedovich Shaipov, born in 1995; (4) Mr Askhab Akhmedovich Shaipov, born in 1998; and (5) Mr Magomed Akhmedovich Shaipov, born in 2002. They live in the town of Urus-Martan in the Chechen Republic.", "7. The first applicant is the mother of Mr Akhmed Musayevich Shaipov, born in 1972. Akhmed Shaipov was married to the second applicant; they are the parents of the third, fourth and fifth applicants. A. Abduction of Akhmed Shaipov 1. The applicants’ account 8.", "On the night of 8 to 9 April 2003 the applicants and Akhmed Shaipov were in their family house at 79 Sportivnaya Street, Urus-Martan. 9. At about 2.30 a.m. on 9 April 2003 Akhmed Shaipov went to the courtyard for a smoke and then hastily returned inside the house. He told the second applicant that he had heard a noise. The second applicant stepped outside into the courtyard and saw a group of armed men wearing camouflage uniforms coming in the direction of their house.", "She went back into the house and awakened her sister-in-law, Ms Petimat Shaipova, and the first applicant. Akhmed Shaipov went to his bedroom. 10. Meanwhile a large group of armed men entered the applicants’ courtyard; they sat there for six or seven minutes. Then around ten of them broke into the applicants’ house.", "They were armed with machine guns, some of which were equipped with silencers, and wore masks. The applicants saw through holes in the masks that the men had blue eyes and Slavic features. The armed men spoke Russian without an accent. The applicants inferred that they were Russian federal servicemen. 11.", "Without identifying themselves, the servicemen ordered the applicants to turn the light on and searched the house. When they entered the room where Akhmed Shaipov was sleeping, they woke him up and took him into the corridor. There the servicemen forced Akhmed Shaipov to the floor. One of them pressed his knee against Akhmed Shaipov’s back and pointed a machine gun at him. The armed men told the Shaipov women that they were carrying out a routine check and demanded that they produce Akhmed Shaipov’s identity papers.", "Having examined the papers, the men tied Akhmed Shaipov’s arms behind his back and plastered his mouth with adhesive tape, while some of the servicemen sent the applicants back to their rooms and leaned against the doors to stop them leaving. 12. The servicemen took Akhmed Shaipov out of the house. He was barefoot; the servicemen allowed him to put on a pair of running shoes and then blindfolded him. The whole group left the applicants’ courtyard.", "13. The first and second applicants rushed out into the street and asked neighbours if anyone had seen their relative. Some witnesses noticed that the armed men had led Akhmed Shaipov in the direction of the centre of Urus-Martan via Sovetskaya Street in which two Russian federal troops’ checkpoints were based. The applicants submitted to the Court relevant witness statements and plans of their neighbourhood as evidence. 2.", "Information submitted by the Government 14. At about 3 a.m. on 9 April 2003 unidentified men wearing camouflage uniforms and masks and armed with machine guns kidnapped Akhmed Shaipov from the house at 79 Sportivnaya Street, Urus-Martan. B. The search for Akhmed Shaipov and the investigation 1. The applicants’ account 15.", "In the morning of 9 April 2003 the first applicant visited the head of the local administration and asked him to help find her son. On the same date she also applied to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”). 16. In quest of Akhmed Shaipov, the applicants contacted, both in person and in writing, various official bodies, such as the military commander of the Urus-Martan District, the Urus-Martan district department of the interior, the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms and the prosecutors’ offices at different levels. In their complaints they constantly referred to the circumstances of Akhmed Shaipov’s abduction and requested assistance in establishing his whereabouts and fate.", "They also sent requests concerning their relative to penitentiary institutions, but to no avail. The applicants retained copies of a number of those complaints and submitted them to the Court. 17. On 12 May 2003 the district prosecutor’s office instituted an investigation into the disappearance of Akhmed Shaipov under Article 126 § 2 (aggravated kidnapping) of the Russian Criminal Code, assigned the case number 34055 and informed the first applicant accordingly. 18.", "On 19 May 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 19. On 1 July 2003 the district prosecutor’s office granted the first applicant victim status in case no. 34055. 20.", "On 12 July 2003 the district prosecutor’s office suspended the investigation in case no. 34055 for failure to identify those responsible. 21. On 31 July 2003 the first applicant requested the district prosecutor’s office to admit her to the proceedings in case no. 34055 as a victim and to inform her of progress in the investigation into her son’s kidnapping by servicemen of law enforcement agencies.", "Shortly after that she was provided with a copy of the decision of 1 July 2003. 22. At the end of July 2003 the first applicant received a copy of the decision on suspension of the investigation dated 12 July 2003. 23. On 4 August 2003 the first applicant wrote to the prosecutor’s office of the Chechen Republic alleging that her son had been apprehended by servicemen of law enforcement agencies.", "In support of her allegations she submitted that Akhmed Shaipov had been detained by around fifty men who had moved freely about the town past curfew and had not been stopped at two federal checkpoints. The first applicant requested the prosecutor’s office of the Chechen Republic to order the district prosecutor’s office to resume the investigation in case no. 34055 and take the requisite investigative measures. 24. On 18 August 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office and requested that all investigative measures necessary to solve the crime be taken and the perpetrators be identified.", "25. On 12 November 2003 the first applicant complained to the Russian Prosecutor General about ineffectiveness of the investigation into her son’s kidnapping by “servicemen of federal law enforcement agencies”. She submitted in particular that the district prosecutor’s office and the prosecutor’s office of the Chechen Republic had not taken the requisite measures to verify the alleged federal servicemen’s implication in the crime, requesting that the investigators’ inactivity be declared unlawful and that the proceedings be resumed. 26. On 27 November 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that “on 13 December 2003 the acting prosecutor of the Urus-Martan District [had] quashed the decision on suspension of the preliminary investigation” into Akhmed Shaipov’s kidnapping and that investigative measures were being taken to solve the crime.", "27. On 16 April 2004 the Urus-Martan Town Court of the Chechen Republic upon the second applicant’s request declared Akhmed Shaipov missing as from 9 April 2003. 28. On 11 November 2005 the first applicant requested the district prosecutor’s office to resume the investigation and to grant her access to the investigation file. 29.", "On 18 November 2005 the district prosecutor’s office dismissed the first applicant’s request in part and stated that pursuant to domestic law a victim could only study records of investigative measures taken in his or her presence. 30. On 30 March 2006 the first applicant again requested the district prosecutor’s office to allow her access to the investigation file. She was informed that she could study the documents related only to the investigative measures taken with her participation. 31.", "On 18 December 2006 the first applicant requested the district prosecutor’s office to resume the investigation in case no. 34055 if it had been suspended. 32. On 15 January 2007 the first applicant requested the district prosecutor’s office to admit her to the criminal proceedings as a civil party and claimed the amount of 5,000,000 Russian roubles in respect of non-pecuniary damage. On 23 January 2007 her request was granted.", "2. Information submitted by the Government 33. On 12 May 2003 the district prosecutor’s office instituted an investigation into Akhmed Shaipov’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 34055. 34.", "On an unspecified date the crime scene was inspected, but this brought no positive results. 35. On 14 May 2003 the first applicant was questioned as a witness. She submitted that at about 2.50 a.m. unknown armed men in camouflage uniforms and masks had entered her house, handcuffed her son and taken him outside. Then they had blindfolded Akhmed Shaipov with adhesive tape and taken him away.", "The following morning she had found footprints on the road that had been left by her son’s running shoes; they had led her to the town centre of Urus-Martan where the military commander’s office of the Urus-Martan District had been located. She had talked to a serviceman of the military commander’s office and he had advised her to file an application with law enforcement agencies. Her son had not participated in any illegal armed groups. 36. On 16 May 2003 the second applicant was questioned.", "She submitted that at about 3.50 a.m. on 9 April 2003 unknown armed men in camouflage uniforms and masks had entered her house and searched it. They had checked her husband’s identity papers, handcuffed him, taken him outside and blindfolded him. In the morning she and her mother-in-law had followed the footprints of her husband’s running shoes and visited the military commander’s office. Akhmad Shaipov had not been a member of illegal armed groups. 37.", "On 21 May 2003 the investigators requested information concerning Akhmed Shaipov and any special operations involving his arrest from the prosecutors’ offices of various towns and districts of the Chechen Republic. According to the replies received, Akhmed Shaipov had not been under criminal investigation; neither had he been kept in temporary detention facilities. 38. On 1 July 2003 the first applicant was granted victim status and questioned. She repeated her statement of 14 May 2003.", "39. On 11 July 2003 the military prosecutor’s office of military unit no. 20102 informed the investigators that the military commander’s office of the Urus-Martan District and military units under its control had not carried out any special operations on 8 and 9 April 2003 in the Urus-Martan District. 40. On 12 July 2003 the district prosecutor’s office suspended the investigation in case no.", "34055 for failure to find those responsible. 41. On 27 August 2003 the military commander’s office of the Urus-Martan District informed the investigators that they had not detained Akhmed Shaipov and had no information on his whereabouts. 42. On 13 December 2003 the district prosecutor’s office resumed the investigation for the reason that it had been incomplete.", "43. On 20 December 2003 the second applicant was questioned and submitted the following. Those who had kidnapped her husband had been armed with machine guns without butt stocks and fitted with silencers, together with grenade launchers. All the men had been masked; three or four of them had been wearing dark-blue running shoes with white stripes. The men had been wearing khaki uniforms.", "They had mentioned no names while conversing amongst themselves. In 2000 the second applicant had found out that her husband had been taking drugs. He had borrowed a lot of money from unknown persons. 44. On 20 December 2003 a witness stated that Akhmed Shaipov had been a drug-addict.", "He had not had any connections with Wahabees and his family had not been involved in any feud. 45. On 21 December 2003 the first applicant was questioned and submitted that her son had been unemployed and that he had been taking drugs since 1994. He had borrowed money from different persons unknown to the first applicant. Those persons had often visited their household.", "46. On 21 December 2003 Akhmad Shaipov’s father was questioned. He submitted that he had not been at home on the night of his son’s abduction. He had disapproved of his son’s lifestyle because the latter had borrowed money and had not repaid his debts. 47.", "On 22 December 2003 the father of an acquaintance of Akhmad Shaipov was questioned and submitted that he did not know where his son was or whether he had been in contact with Akhmad Shaipov. 48. On 23 December 2003 the district prosecutor’s office suspended the investigation. 49. On 23 January 2004 the department of the interior of the Urus-Martan District informed the investigators that investigative measures taken to find Akhmed Shaipov had so far been fruitless; that they had no information concerning Akhmed Shaipov’s participation in illegal armed groups.", "Akhmed Shaipov had not been kept in the temporary detention facility. He had not applied for medical help in any hospitals. His body had not been found among unidentified corpses. 50. The departments of the Federal Security Service, the penitentiary facilities IZ-20/1 and IZ-20/2 and other law enforcement agencies submitted that they had not detained Akhmed Shaipov and had no information on him.", "51. On 18 November 2005 the district prosecutor’s office quashed the decision of 23 December 2003 and resumed the proceedings. They stated that it was necessary to carry out a number of investigative measures, for instance, to order that law enforcement agencies take steps to identify the perpetrators, to collect recommendations concerning Akhmad Shaipov, and to send requests to penitentiary facilities of the Southern Federal Circuit, as well as to question witnesses and Akhmad Shaipov’s relatives. 52. On 21 November 2005 the investigators requested information on Akhmed Shaipov’s arrest from all departments of the interior in the Chechen Republic.", "From the replies received it followed that no criminal proceedings against Akhmed Shaipov had been pending and that he had not been detained in temporary detention facilities. 53. The information centre of the Russian Ministry of the Interior submitted that in 2001 Akhmed Shaipov had been convicted of drug trafficking and sentenced to nine months’ imprisonment and that he had served his sentence. No other criminal proceedings against him had been pending. 54.", "On 5 December 2005 the first applicant was questioned and submitted that in 2001 Akhmad Shaipov had been convicted of drug trafficking. Her other son had fought the federal troops and had been killed in the course of the anti-terrorism campaign. 55. On 18 December 2005 the district prosecutor’s office suspended the investigation. 56.", "On 18 January 2007 an investigator of the district prosecutor’s office accepted the investigation in case no. 34055. 57. On 18 February 2007 the investigation was suspended. 58.", "On 31 March 2007 the district prosecutor’s office resumed the proceedings in case no. 34055. 59. On 1 May 2007 the investigation was suspended and the first applicant was informed accordingly. 60.", "On 17 May 2007 the district prosecutor’s office resumed the investigation and then suspended it on 17 June 2007. 61. On 19 and 29 May 2007 the investigators questioned the applicants’ neighbours, Ms and Mr I., respectively. Both witnesses submitted that they had not seen anyone on the night of Akhmed Shaipov’s kidnapping and learned of it from the applicants some time in April 2003. 62.", "On 23 July 2007 the Russian Ministry of Defence submitted that it had no information on any special operations allegedly carried out in Urus-Martan on 8 and 9 April 2003. 63. The investigation failed to establish the whereabouts of Akhmed Shaipov but was not completed. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime solved. The investigation found no evidence to support the involvement of law enforcement agencies in the crime.", "64. The Government further submitted that the investigating authorities were taking measures to verify whether persons involved in drug trafficking had been implicated in Akhmed Shaipov’s kidnapping. 65. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in case no. 34055, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives.", "Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. II. RELEVANT DOMESTIC LAW 66. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.", "THE LAW I. The government’s objection REGARDING ABUSE OF THE RIGHT OF PETITION 67. The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application was clearly political as the applicants wanted to “incriminate the Russian Federation [for] allegedly adopting [a] policy infringing upon human rights in the Chechen Republic”. They concluded that there had been an abuse of the right of petition on the part of the applicants and that the application should be dismissed pursuant to Article 35 § 3 of the Convention.", "68. The Court observes that the complaints the applicants brought to its attention concerned their genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed. II.", "The government’s objection regarding non-exhaustion of domestic remedies A. The parties’ submissions 69. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Akhmed Shaipov had not yet been completed. They further argued that it had been open to the applicants to challenge in court or before higher prosecutors any actions or omissions of the investigating or other law enforcement authorities, but that the applicants had not availed themselves of that remedy.", "They also argued that it had been open to the applicants to lodge with courts civil claims for damage caused by actions and omissions of the investigators, but they had failed to do so. 70. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective and that they had not been obliged to apply to civil courts in order to exhaust domestic remedies. B.", "The Court’s assessment 71. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51‑52, Reports of Judgments and Decisions 1996-VI; Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV Akdivar and Others; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no.", "41964/98, § 64, 27 June 2006). 72. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65). 73. 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.", "74. 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). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.", "75. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities shortly after the kidnapping of Akhmed Shaipov and that an investigation has been pending since 12 May 2003. The applicants and the Government dispute the effectiveness of the investigation into the kidnapping. 76. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints under Article 2.", "Thus, it considers that these matters fall to be examined below. III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. The parties’ arguments 77. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Akhmed Shaipov had been State agents.", "In support of their complaint they referred to the following facts. The perpetrators had been wearing military uniforms, had Slavic features and spoke Russian without an accent, which proved that they were not of Chechen origin. Their machine guns had been equipped with silencers used by security forces. The armed men had moved freely around Urus-Martan past curfew; on their way to the centre of Urus-Martan they must have passed two military checkpoints. The authorities had taken no measures to find and arrest the perpetrators.", "The applicants had recognised the footprints left by their relative’s running shoes, because no one had walked over those footprints at an early hour. Russian servicemen could have worn running shoes to make less noise when walking. The applicants also pointed out that the ground given for the Government’s refusal to submit the file in criminal case no. 34055 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”. 78.", "The Government submitted that the Russian authorities had no reasons to apprehend Akhmed Shaipov. He could have been a victim of vengeance by drug dealers to whom he had owed money, or he could also have staged his kidnapping to escape such vengeance. It was doubtful that the prints of running shoes seen by the first and second applicants had been left by Akhmed Shaipov, because some of the perpetrators had worn running shoes as well and that type of shoe had been quite popular among Urus-Martan residents. Moreover, State agents on a mission could not wear running shoes because that would be a breach of military rules on dress-code; accordingly, the kidnappers were not federal servicemen. They further contended that the investigation into the incident was pending, that there was no evidence that the armed men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights.", "They further pointed out that groups of Ukrainian, Belorussian and ethnic Russian mercenaries had committed crimes in the territory of the Chechen Republic and emphasised that the fact that the perpetrators had Slavic features and spoke Russian did not prove their attachment to the Russian military. They also observed that a considerable number of armaments had been stolen by illegal armed groups from Russian arsenals in the 1990s and that anyone could purchase masks and camouflage uniforms. In sum, the Government insisted that involvement of State agents in Akhmed Shaipov’s kidnapping had not been proven beyond reasonable doubt. B. The Court’s evaluation of the facts 79.", "In cases where there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants’ allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005‑...). 80. The Court points out that a number of principles have been developed in its case-law as regards cases where it is faced with the task of establishing facts on which the parties disagree.", "As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others, cited above, § 160). 81.", "The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place. 82.", "The Court reiterates that it has noted the difficulties for applicants to obtain 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 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 applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).", "83. The Court notes that despite its requests for a copy of the investigation file concerning the abduction of Akhmed Shaipov, the Government produced only a part of the material from the investigation file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)).", "84. The Court has found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-... (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; Imakayeva, cited above; and Baysayeva v. Russia, no. 74237/01, 5 April 2007).", "It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum v. Turkey, cited above, § 211; and Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008). 85.", "However, in the present case the Court has little evidence on which to draw such conclusions. The applicants submitted that the kidnappers had been armed, spoke Russian and wore camouflage uniforms. It was not alleged that they had used military vehicles, such as armoured personnel carriers. The mere fact that the armed men’s machine guns were equipped with silencers does not necessarily prove that the men were State servicemen. The camouflage uniform that they were wearing bore none of the insignia that should normally appear on uniforms of State agents.", "It appears that silencers and camouflage uniforms with no insignia could have been obtained by persons not belonging to the military via various, possibly illegal channels. According to the applicants, the perpetrators spoke Russian fluently; however, lack of accent does not necessarily show that they were Russian servicemen. Some of the kidnappers wore running shoes, which do not normally form part of the regular uniform of any Russian law enforcement agencies. There are no witness statements confirming that Akhmed Shaipov was seen being brought to the military commander’s office or any other State agency after his abduction. The applicants’ assertion that they identified footprints from their relative’s running shoes and followed them to the centre of Urus-Martan has been rather vague and unsubstantiated.", "The Court is not persuaded that the first and second applicants could so easily identify with a naked eye the footprints left by a pair of running shoes with no distinctive marks. Furthermore, given that the perpetrators used no vehicles and walked, they could have moved around the town unbeknownst to servicemen at military checkpoints with greater ease than, for example, groups of armed men riding in an armoured personnel carrier. Accordingly, the information at the Court’s disposal does not suffice to establish that the perpetrators belonged to the security forces or that a security operation had been carried out in respect of Akhmed Shaipov. 86. At the same time the Court takes into account the Government’s submission that the crime could have been committed by drug dealers with whom Akhmed Shaipov had allegedly had certain connections.", "In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect. 87. To sum up, it has not been established to the required standard of proof “beyond reasonable doubt” that the security forces were implicated in the kidnapping of Akhmed Shaipov; nor does the Court consider that the burden of proof can be entirely shifted to the Government. IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 88.", "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 89. The Government contended that the domestic investigation had obtained no evidence to the effect that Akhmed Shaipov was dead or that any servicemen of federal law enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 90.", "The applicants argued that Akhmed Shaipov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for five years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. 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 91. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 76 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2.", "Merits (a) The alleged violation of Akhmed Shaipov’s right to life 92. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324 and Avşar, cited above, § 391). 93.", "As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons who committed the kidnapping. The applicants did not submit persuasive evidence to support their allegations that State agents were the perpetrators of the crime. The Court has already found above that, in the absence of relevant information, it is unable to find that security forces were implicated in the kidnapping of the applicants’ relative (see paragraph 87 above). Neither has it established “beyond reasonable doubt” that Akhmed Shaipov was deprived of his life by State agents. 94.", "In such circumstances the Court finds no State responsibility, and thus no violation of the substantive limb of Article 2 of the Convention. (b) The alleged inadequacy of the investigation into the kidnapping 95. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161; and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998‑I). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no.", "24746/94, §§ 105-09, ECHR 2001‑III (extracts); and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 96. The Court notes that there is no proof that Akhmed Shaipov has been killed. However, it reiterates that the above-mentioned obligations also apply to cases where a person has disappeared in circumstances which may be regarded as life-threatening (see Toğcu, cited above, § 112).", "The applicants informed the investigating authorities that Akhmed Shaipov had been kidnapped by a large group of unknown armed men. Given a considerable number of reported enforced disappearances of persons in the Chechen Republic and enduring confrontation between illegal armed groups and federal troops in the region in the early 2000s, the Court considers that the disappearance of Akhmed Shaipov could be regarded as life-threatening. Furthermore, after a certain lapse of time during which no information on the fate of the missing man had been received, both the applicants and investigators could have presumed that he had been deprived of his life at the hands of the kidnappers. Accordingly, the Court concludes that the State authorities were under a positive obligation to investigate the crime in question. 97.", "Given that there was an investigation into the kidnapping of Akhmed Shaipov, the Court must now assess whether it met the requirements of Article 2 of the Convention. 98. 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. 99.", "The Court notes that the authorities were immediately made aware of the crime by the applicants’ submissions. The investigation in case no. 34055 was instituted on 12 May 2003, that is, more than a month after Akhmed Shaipov’s abduction. Such a delay per se was liable to affect the investigation into the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. Furthermore, it transpires from the documents submitted to the Court that at least several investigative measures were unreasonably delayed (see paragraphs 42 and 51 above).", "Moreover, it remains unclear whether they have ever been taken at all. 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. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). 100.", "The Court also notes that even though the first applicant was eventually granted victim status in case no. 34055, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Her requests for access to the investigation file were constantly rejected. 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. 101.", "Finally, the Court notes that the investigation in case no. 34055 was suspended and resumed six times and that there were lengthy periods of inactivity on the part of the district prosecutor’s office. For instance, no proceedings were pending between 23 December 2003 and 18 November 2005, nor between 18 December 2005 and 18 January 2007. 102. The Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities, in the context of the exhaustion of domestic remedies.", "The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, taking into account the fact that the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures, it is highly doubtful that the remedy in question would have had any prospects of success. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies in the context of the criminal investigation. 103. 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 Akhmed Shaipov, in breach of Article 2 in its procedural aspect.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 104. The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured mental distress in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 105. The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention and that the State was not responsible for the applicants’ mental distress.", "106. The applicants maintained their submissions. B. The Court’s assessment 107. Referring to its settled case-law, the Court reiterates that, where a person has been abducted by State security forces and subsequently disappeared, his or her relatives can claim to be victims of treatment contrary to Article 3 of the Convention on account of their mental distress caused by the “disappearance” of their family member and the authorities’ reactions and attitudes to the situation when it is brought to their attention (see, among many other authorities, Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports of Judgments and Decisions 1998‑III; and Timurtaş v. Turkey, no.", "23531/94, §§ 96-98, ECHR 2000‑VI). 108. Turning to the circumstances of the present case, the Court notes that the applicants are close relatives of Akhmed Shaipov. Accordingly, it has no doubt that the applicants have indeed suffered from grave emotional distress following the kidnapping of their son, husband and father. 109.", "The Court recalls that it has already found violations of Article 3 of the Convention in respect of relatives of missing persons in a series of cases concerning the phenomenon of “disappearances” in the Chechen Republic (see, for example, Luluyev and Others, cited above, §§ 117-18; Khamila Isayeva v. Russia, no. 6846/02, § 143-45, 15 November 2007; and Kukayev v. Russia, no. 29361/02, §§ 107-10, 15 November 2007). It is noteworthy, however, that in those cases the State was found to be responsible for the disappearance of the applicants’ relatives. In the present case, by contrast, it has not been established to the required standard of proof “beyond reasonable doubt” that the Russian authorities were implicated in Akhmed Shaipov’s kidnapping (see paragraph 87 above).", "In such circumstances the Court considers that this case is clearly distinguishable from those mentioned above and therefore concludes that the State cannot be held responsible for the applicants’ mental distress caused by the commission of the crime itself. 110. Furthermore, in the absence of a finding of State responsibility for Akhmed Shaipov’s kidnapping, the Court is not persuaded that the investigating authorities’ conduct, although negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, among other authorities, Cruz Varas and Others v. Sweden, 20 March 1991, § 83, Series A no. 201). 111.", "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. VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 112. The applicants further stated that Akhmed Shaipov 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 113.", "In the Government’s opinion, no evidence was obtained by the investigators to confirm that Akhmed Shaipov had been deprived of his liberty by State agents in breach of the guarantees set out in Article 5 of the Convention. 114. The applicants reiterated the complaint. B. The Court’s assessment 115.", "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 and Others, cited above, § 122). 116. Nevertheless, the Court has not found it established “beyond reasonable doubt” that Akhmed Shaipov was apprehended by Russian servicemen (see paragraph 87 above).", "Similarly, it cannot presume that upon his kidnapping the missing man was placed in unacknowledged detention under the control of State agents. 117. The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. VII. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 118.", "The applicants alleged that the intrusion by Russian servicemen into their house on 9 April 2003 had infringed their right to respect for their home. They also complained under the same head that their right to respect for family life had been breached as a result of Akhmed Shaipov’s abduction. They relied in this respect 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. ” 119. The Court reiterates that, according to its above findings, it has not been proven that the armed men who intruded into the applicants’ home on 9 April 2003 and kidnapped their relative were State agents (see paragraph 87 above). It thus concludes that the State cannot be held liable for the alleged violation of the applicants’ rights guaranteed by Article 8 of the Convention. 120.", "The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 121. 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.” 122. 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 those remedies.", "The applicants had had an opportunity to challenge the actions or omissions of the investigating authorities before higher prosecutors or courts. They could also submit a claim for non-pecuniary damage caused by unlawful actions of investigating authorities. 123. The applicants reiterated the complaint. 124.", "The Court observes that the complaint made by the applicants under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the findings of a violation of Article 2 under its procedural head (see paragraph 87 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need to make a separate examination of this complaint on its merits (see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 84-86, ECHR 2004‑XI, and Anık and Others v. Turkey, no. 63758/00, § 86, 5 June 2007). IX.", "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 applicants did not submit any claims for pecuniary damage. As regards non-pecuniary damage, the first and second applicants claimed 40,000 euros (EUR) each, while the third, fourth and fifth applicants claimed EUR 20,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relative.", "127. The Government considered the amounts claimed to be exaggerated. 128. The Court has found a violation of Article 2 in its procedural aspect. It thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation.", "It finds it appropriate to award the applicants EUR 6,000 jointly in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B. Costs and expenses 129. The applicants claimed costs for legal representation at the rate of EUR 80 per hour, EUR 5,390 in total. They also claimed administrative expenses in the amount of EUR 366 and translation fees in the amount of EUR 552.", "130. The Government contested those claims as unfounded. 131. The Court has to establish first whether the costs and expenses indicated by the applicants’ relative were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220). 132.", "Having regard to the details of the information, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representative. 133. 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’ representative submitted the observations on admissibility and merits in one set of documents.", "Furthermore, the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representative. 134. Having regard to the details of the claims submitted by the applicants, the Court finds it appropriate to award the applicants’ representatives EUR 5,000, less EUR 850 received by way of legal aid from the Council of Europe. C. Default interest 135.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government’s objection regarding abuse of the right of petition; 2. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it; 3. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible; 4.", "Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Akhmed Shaipov; 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 Akhmed Shaipov disappeared; 6. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Article 2; 7. 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 the applicants jointly: (i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount; (ii) EUR 4,150 (four thousand one hundred and fifty euros) in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants on that 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; 8. Dismisses the remainder of the applicants’ claims for just satisfaction.", "Done in English, and notified in writing on 6 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BISER KOSTOV v. BULGARIA (Application no. 32662/06) JUDGMENT STRASBOURG 10 January 2012 FINAL 10/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Biser Kostov v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,David Thór Björgvinsson,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 32662/06) 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 Biser Milanov Kostov (“the applicant”), on 1 August 2006. 2. The applicant was represented by Ms Zh. Aldinova, a lawyer practising in Yambol.", "The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice. 3. The applicant alleged, in particular, that the authorities had failed to prosecute diligently individuals who had assaulted him. 4. On 4 March 2010 the President of the Fifth Section decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. The application was later transferred to the Fourth Section of the Court, following the re‑composition of the Court’s sections on 1 February 2011. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1951 and lives in Yambol. A. The incident of 21 April 2004 7. Around 9 a.m. on 21 April 2004, while shopping in a small supermarket in the town of Yambol, the applicant was stopped by supermarket employees on suspicion of stealing a small bottle of vodka. The bottle cost 1.2 Bulgarian levs, the equivalent of approximately 61 euro cents.", "The supermarket employees took the applicant to an office at the back of the supermarket and left him with the manager, S.F. The owner of the store, P.D., was also informed and arrived at the supermarket before the police came. 8. Meanwhile, someone called the police and notified them that a theft had been committed in the supermarket. 9.", "According to the applicant, he was searched and his shopping basket was taken away from him. S.F. then accused him of theft, punched him in the face, knocked him down and began kicking his chest, while the applicant was yelling and pleading with him to stop. When S.F. stopped, the applicant managed to stand up and realised that a small amount of his money was missing.", "When he asked for the money back, as well as his glasses, which had fallen off during the beating, S.F. punched him again in the side of the head and knocked him down, after which P.D. also kicked him several times and told him that people like him caused damage to his business. 10. Shortly thereafter, two police officers arrived and found the applicant squatting by the wall in the presence of S.F.", "and P.D. The latter left immediately after the police had arrived, apparently using the back door. 11. According to the applicant’s statements, made during the ensuing investigation, he had told the police officers that he had been beaten up by two men and that he needed medical help. He also claimed that after the incident he could hardly walk and the police officers had helped him to the police car.", "During the investigation the police officers stated that upon their arrival they had been informed by the applicant about the beating. They contested the applicant’s assertions that he had requested medical help and maintained that he had not been injured and had been able to walk on his own. 12. The policemen drove the applicant to the police station in order to establish the circumstances surrounding the theft. While waiting in the reception hall to meet the officer in charge of the case, the applicant apparently felt severe pain, so he left and asked a stranger to drive him home.", "13. Soon after that two police officers headed towards the applicant’s apartment. They found him sitting on a bench in front of the apartment building and accompanied him to the apartment. There the applicant signed a record in connection with the theft. During the ensuing investigation one of the police officers contended that while the officers had been at his apartment the applicant had lain in bed and had looked ill. 14.", "After the police officers had left, the applicant felt very sick and his wife called an ambulance. B. The applicant’s medical condition 15. On the same day the applicant was admitted to the emergency department of the Yambol Hospital, where it was established that he had five broken ribs, bilateral pneumothorax, subcutaneous emphysema of the upper part of the body and bruising to the head, chest and abdomen. 16.", "Two days later, on 23 April 2004, the applicant was transferred to Stara Zagora Hospital, where he underwent several examinations. According to the medical reports he had ten broken ribs, subcutaneous emphysema, haematomas on the front, the back, and both sides of the chest, large hematomas in the lumbar area and bilateral hemopneumothorax. On 28 April 2004 he underwent an abdominal ultrasound scan which revealed two-sided pleurisy and traumatic functional changes in the kidneys. 17. The applicant underwent several medical procedures, including, inter alia, thoracentesis for the removal of 200 ml of liquid from the pleural space.", "18. The applicant was discharged on 5 May 2004 and was granted forty‑five days’ sick leave. 19. On 14 May 2004 the applicant underwent a chest and lung examination. In his report the doctor noted, in particular, old fractures of ten ribs and pulmonary fibrosis.", "At another check up, on 4 June 2004, the doctors reiterated those conclusions. C. The criminal investigation 20. In the afternoon of 21 April 2004 the authorities of Yambol Hospital informed the police about the admission of the applicant and his condition. A police officer was dispatched to the hospital but was unable to see the applicant because of the latter’s serious medical condition. 21.", "On the next day, 22 April 2004, the same police officer visited the applicant in hospital. This time the applicant was able to communicate and informed the officer that he had been beaten up by two men at the supermarket who he could identify. 22. On the same day a police investigation (дознание) was instituted against unknown perpetrators. 23.", "On 23 April 2004 the applicant’s wife filed an official complaint with the Yambol District Police Administration, describing the events and requesting that an investigation be opened and the responsible individuals punished. 24. Between 23 April and 18 May 2004 a police investigator questioned P.D., S.F. and two employees of the shop, the police officers who had been dispatched to the scene of the incident, the police officer who had visited the applicant in hospital and the applicant. The policemen who had been in the supermarket stated that the applicant had smelled of alcohol and had told them he had been beaten up, but that there had been no visible signs of violence on his body.", "They further stated that he had been able to walk unaided and had not requested medical help. S.F. claimed that while he had been calling the police, the applicant had tried to leave the room. S.F had put a hand against the applicant’s chest to stop him and the latter had bumped into the door. He denied having beaten the applicant up and maintained that the applicant had been drunk and had threatened him.", "P.D. claimed that when he had arrived at the supermarket the applicant and S.F. had indeed been in the back room but the applicant had been drunk and had not had any injuries. He denied having hit the applicant. He further added that he was not aware of what had happened between the applicant and S.F.", "while they had been by themselves in the room. The applicant provided a detailed account of the events, although he claimed to have vague memories of certain moments immediately after the incident due to the shock he had experienced. 25. On 18 May the police investigator ordered a forensic medical report, which was submitted on 23 May 2004. It reiterated the information contained in the applicant’s hospital file.", "The expert concluded that the applicant’s injuries could have been inflicted in the manner described by the applicant, namely by punching and kicking, but not in the manner asserted by S.F. 26. The investigator organised a line up on 25 May 2004 during which the applicant identified the supermarket manager, S.F., and the owner, P.D., as the individuals who had beaten him up. 27. On 27 May 2004 the applicant was questioned before a judge of the Yambol District Court.", "He reiterated his account of the events and said that he would bring a civil claim against the alleged perpetrators during the judicial phase of the proceedings. 28. On 2 June 2004 S.F. was questioned as a suspect (уличен). He decided to remain silent.", "On the same day the police investigator concluded the police investigation and transferred the file to the Yambol district prosecutor’s office with the opinion that S.F. should be brought to trial for causing the applicant an intermediate bodily harm. It appears that no charges were brought against P.D. 29. On 8 June 2004 prosecutor R.L.", "at the Yambol district public prosecutor’s office terminated the proceedings against S.F., finding that there was not sufficient evidence that he and P.D. had beaten the applicant up. The prosecutor stated, in particular, that the account of the events asserted by the applicant had been contradictory. She made two points in this regard. First, the applicant had not informed the police officers that he had needed medical help.", "Secondly, despite his allegations that he had been punched in the head twice the witnesses had not reported any injuries and the doctors who had examined the applicant had not recorded any such injuries in their reports. She further added that in addition, the applicant had vague memories of the period immediately after the incident. 30. On an unknown date the applicant appealed to the court. He maintained that he had informed the police officers that he had been beaten up and that it had been natural for his injuries to become visible later.", "He also contested the prosecutor’s version of events, which, in the applicant’s view, could have been interpreted as implying that the applicant had inflicted his injuries by himself. 31. On 2 July 2004 the Yambol District Court quashed the prosecutor’s decree as ill-founded and remitted the case for further investigation. Judge D.S. held that there was substantial circumstantial evidence that the applicant had been beaten up by two men in the shop.", "As regards the conclusions of the prosecutor, the court noted that right after the incident the applicant had informed the police officers that he had been beaten up by two individuals and had later identified them and that the alleged punching in the head had been recorded in the medical documents which stated, inter alia, that the applicant had suffered from subcutaneous emphysema of the upper part of the body and contusion of the head. The court also specifically referred to the expert’s report, which found that the applicant’s injuries could have been inflicted in the manner described by the applicant, namely, by punching and kicking, but not in the manner asserted by S.F. 32. Following the remittal, on 15 July 2004 the prosecutor instructed the investigator to question the police officers who had seen the applicant in the police department in order to elucidate whether the applicant had had visible injuries, had requested medical help, had needed assistance walking and whether he had consumed alcohol. On 16 and 19 July 2004 the police investigator questioned several officers.", "The witnesses stated, in particular, that the applicant had been able to move on his own and had not had any visible injuries. 33. On 20 July 2004 the police investigator concluded the investigation and transferred the file to the prosecutor’s office with the opinion that S.F. should be brought to trial for inflicting intermediate bodily harm. 34.", "On 22 July 2004 prosecutor R.L. once again terminated the criminal proceedings against S.F., finding with identical reasoning that despite the additional investigative measures taken there was no evidence that the alleged perpetrators had beaten the applicant up. She stated, in particular, that the applicant had not requested medical help and had had no visible injuries. 35. The applicant appealed against that decree, maintaining that the prosecutor had failed to discuss crucial evidence.", "He further argued that the evidence collected supported accusations not only against S.F., but also against P.D. 36. On 4 October 2004 the Yambol District Court quashed the decree of 22 July 2004 as ill-founded and remitted the case. Judge G.K. noted, in particular, that the applicant had complained to the police officers that he had been beaten up and had later identified the alleged offenders; furthermore, his statements regarding his injuries had been corroborated by the doctors’ opinions. In view of that the court concluded that there was sufficient evidence allowing the prosecutor to bring the accused to trial.", "Nevertheless, in order to supplement the evidential material, the court instructed the prosecution authorities to question the applicant’s wife and an employee at the shop, who had not been questioned earlier. 37. Following the remittal, in accordance with the court’s instructions the police investigator questioned the said witnesses. On 15 October 2004 the police investigator concluded the investigation and transferred the file to the prosecutor with the opinion that S.F. should be brought to trial.", "38. On 3 November 2004 prosecutor R.L. once again terminated the criminal proceedings against S.F. with identical reasoning. She further concluded that the statements of the witnesses who had been additionally questioned could not alter her prior conclusions.", "39. The applicant appealed, reiterating his earlier arguments against the discontinuation. In a decision of 9 December 2004 the District Court quashed the decree of 3 November 2004 and remitted the case to the prosecution authorities for a third time. Judge N.N. noted that most of the inflicted injuries had been internal and therefore the witnesses could not have noticed them.", "The court found that the prosecutor’s conclusions did not correspond to the facts of the case, that she had failed to take into account the medical reports and that there had been sufficient evidence to bring the offenders to trial. It also instructed the prosecutor to question one of the police officers who had been at the scene of the incident. 40. In the meantime the applicant filed a complaint with the Yambol regional public prosecutor’s office, stating that prosecutor R.L. was not impartial and should be replaced.", "By a decree of 27 December 2004 the regional prosecutor dismissed the complaint. He stated that the discontinuation of the investigation had been based on the prosecutor’s opinion, which had been formed on the basis of the additional investigation carried out in compliance with the court’s instructions, and that in the absence of other indications the mere fact that the prosecutor had discontinued the proceedings on several occasions did not cast doubt on her impartiality. 41. On 17 January 2005 the police investigator questioned one of the police officers who had been in the supermarket and on 21 January 2005 concluded the investigation with the opinion that the accused should be brought to trial. On 25 February 2005 the same prosecutor terminated the criminal proceedings for the fourth time with identical reasoning.", "She stated that the applicant’s memory about events was extremely vague and that there was no information indicating what exactly had happened in the period between his leaving the police department and his arrival at his home. 42. The applicant appealed. On 11 July 2005 the District Court quashed the decree of 25 February 2005 as unlawful and unsubstantiated and remitted the case. Judge A.A. held, inter alia, that the prosecutor’s conclusions suggested that after leaving the police department the applicant had somehow injured himself or had been attacked by unknown individuals.", "The court stated that, having regard to the time and location of the incident as suggested by the prosecutor, namely while the applicant was retuning home, it was very unlikely that it would have gone unnoticed. D. The discontinuation of the criminal proceedings 43. Meanwhile on an unspecified date S.F. made a request under Article 239a of the Code of Criminal Procedure 1974 that the case against him be examined by a court or terminated as the proceedings had already lasted for too long. In a decision of 24 November 2005 the District Court instructed the prosecutor to either submit an indictment within two months or terminate the proceedings.", "44. It appears that no investigation was conducted in the period between 11 July and 2 December 2005. On 2 December 2005 the case was assigned to another prosecutor as prosecutor R.L. had been promoted. 45.", "On 10 January 2006 the prosecutor instructed a different police investigator to proceed with the investigation. 46. On 17 January 2006 the police investigator ordered a medical report. On an unspecified date before 2 February 2006 the medical expert presented his conclusions. He stated that the injuries sustained by the applicant had aggravated with time, therefore he had been able to walk independently immediately after the incident.", "He also stated that it normally took thirty minutes to up to two hours for haematomas to become visible; therefore it was possible that the applicant’s injuries could not have been seen immediately after they had been inflicted. 47. As in the meantime the two-month deadline under Article 239a for discontinuing the proceedings or filing an indictment to the court had expired, by a decision of 9 February 2006 the District Court terminated the criminal proceedings. 48. The applicant appealed against the decision, arguing that although intermediate bodily harm was a serious offence within the meaning of Article 93 § 7 of the Criminal Code and the accused was therefore entitled to request discontinuation of the proceedings after two years of investigation, the two-year period had not expired and the accused’s request in this respect had therefore been premature.", "49. On 8 May 2006 the Yambol Regional Court upheld the decision. It held that intermediate bodily harm was an offence which did not fall within the scope of Article 93 § 7 of the Criminal Code and therefore the accused’s request had not been premature. It reasoned that pursuant to Article 239a of the Code of Criminal Procedure of 1974 after a certain period of time the suspect was entitled to have his case examined by the court or terminated and that in this case the court was only competent to verify whether the prosecution authorities had observed the statutory deadlines and could not examine the merits of the case. E. Other developments 50.", "On 3 August 2006 the applicant lodged a complaint with the Chief Public Prosecutor, stating, in particular, that prosecutor R.L. had repeatedly terminated the criminal proceedings despite the court’s instructions to bring the accused to trial and that the second prosecutor in charge of the case had been inactive, which had led to the termination of the proceedings. 51. On 16 August 2006 a prosecutor from the Supreme Cassation Prosecutor’s Office opened an inquiry into the applicant’s allegations and requested an explanation from the second prosecutor in charge of the case and his superior in respect of the delay in filing an indictment with the court. 52.", "On 30 August 2007 the district prosecutor of Yambol informed the Supreme Cassation Prosecutor’s Office that no disciplinary penalty had been imposed on the prosecutor as he was considered a reliable employee and that the failure to file an indictment on time had been an unintentional mistake. 53. There is no information on whether disciplinary action was pursued against prosecutor R.L. II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "Intermediate bodily harm 54. The Criminal Code 1968 defines intermediate bodily harm (средна телесна повреда) as, inter alia, involving a temporary life-threatening health disorder or a permanent non-life-threatening health disorder (Article 129 § 2). At the relevant time the wilful infliction of intermediate bodily harm was an offence punishable by up to five years’ imprisonment (Article 129 § 1). It is publicly prosecutable (Article 161). 55.", "Article 93 § 7 provides that offences punishable by more than five years’ imprisonment shall be considered “serious” for the purposes of the Code. 2. Taking a case to court at the request of the accused 56. Article 239a of the Code of Criminal Procedure of 1974, in force at the relevant time, provided, inter alia, that individuals accused of committing a crime, the preliminary investigation against whom had not been completed within one year, were entitled to request to have their case examined by a court or terminated. For serious offences such a request could be lodged if the authorities failed to complete the preliminary investigation within two years.", "57. In such instances the court would send the case to the public prosecutor’s office with instructions to either submit an indictment within two months or discontinue the criminal proceedings. If the prosecutor’s office failed to take action, the court had to terminate the criminal proceedings. 58. The provision was reproduced almost verbatim in Articles 368 and 369 of the new Code of Criminal Procedure 2005.", "On 25 March 2010 Parliament repealed Articles 368 and 369 with effect from 28 May 2010. In a decision of 28 September 2010 (реш. № 10 от 28 септември 2010 г., по к. д. № 10/2010 г., обн., ДВ, бр. 80 от 12 октомври 2010 г.)", "the Constitutional Court dismissed the request of the President of the Republic to strike down the repeal, finding that the repeal was not contrary to the Constitution. It noted, inter alia, that the main weakness of the repealed procedure was that it used a formal, purely quantitative criterion to determine what constituted a “reasonable time” for the pre‑trial phase of the proceedings to last. It further stated that while in most cases that approach would lead to a correct assessment, in some complex cases that criterion might, contrary to the public interest that all offenders be brought to justice, give the accused an undue advantage. 3. State liability for damages 59.", "Pursuant to section 1 of the State and Municipalities Responsibility for Damage Act of 1988 (hereafter “the State Responsibility Act”) the State is liable, in particular, for damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s case‑law, the actions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative action and those authorities are therefore not liable under section 1 of the Act (тълк. реш. № 3 от 22 април 2005 г. на ВКС по тълк.д. № 3/2004 г., ОСГК).", "60. Section 2 of the State Responsibility Act sets out that the State is liable for damage caused to individuals by, inter alia, the organs of investigation and prosecution for: (i) unlawful pre-trial detention, (ii) unlawful accusation of a crime, (iii) execution of a sentence above and beyond the specified period. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 61. The applicant complained that the criminal investigation into the act of violence against him had been ineffective.", "He relied on Article 6 § 1 of the Convention. 62. The Court considers that this complaint falls to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The Government 63.", "The Government submitted that the applicant had failed to exhaust domestic remedies as he did not bring an action against the investigative authorities under the State Responsibility Act or a civil claim against the alleged perpetrators. 64. In addition, the Government noted that the investigation into the alleged ill-treatment had started immediately and had been swift and comprehensive. The prosecutor had strictly followed the court instructions at remittal and had undertaken additional investigatory steps accordingly. 65.", "The authorities had made efforts to establish the facts and had gathered significant evidential material. Thus in the Government’s view it had been established that the applicant had consumed alcohol, had committed theft in the supermarket and instead of having sought assistance from the police officers had practically fled from the police station. 66. The Government further argued that the applicant’s account of the events had been contradictory and had not been corroborated by the witnesses’ statements or by the medical documents. The Government stated that the expert report had not established with sufficient certainty that the applicant’s injuries had been inflicted in the manner asserted by him and that the doctor’s record of 4 June 2004 had noted “old injuries” on his ribs, thus casting doubt on the exact moment when these fractures had been inflicted.", "2. The applicant 67. The applicant stated that the State Responsibility Act was not applicable in his case as he had been neither accused nor convicted. 68. The applicant further argued that he had never committed theft and even if he had done so, the latter could not have justified his ill-treatment.", "Furthermore, he had requested medical help on the day of the incident and several medical documents had recorded his injuries. In view of the Government’s statement that the expert report had not been convincing enough, the applicant asserted that it clearly stated that the injuries could have been inflicted in the manner described by him. 69. The applicant further argued that the investigation could not be regarded as effective. He pointed out that the prosecutor had failed to conduct a proper investigation despite the court’s numerous instructions in this regard.", "As a result of the protracted and belated investigation, the accused had obtained discontinuation of the proceedings under Article 239a of the Code of Criminal Procedure 1974. B. The Court’s assessment 1. Admissibility 70. The Government contended that the applicant had failed to exhaust domestic remedies as he could have lodged an action under the State Responsibility Act against the investigative authorities or a civil claim against the alleged perpetrators.", "71. The Court notes that a potential claim against the investigative authorities does not appear to fall within the scope of the State Responsibility Act. Under the domestic case-law investigative and prosecuting authorities are not liable under section 1 of the State Responsibility Act. At the same time, while section 2 contains a list of specific circumstances under which the responsibility of the investigative authorities can be engaged, this list does not include a situation similar to that of the applicant (see paragraphs 59-60 above). In any event the Government failed to substantiate its assertion that the State Responsibility Act was applicable in the present case by providing relevant domestic case-law concerning awards of damages in similar situations.", "72. In respect of a possible claim against the alleged perpetrators for the damage sustained, the Court considers that having exhausted the possibilities available to him within the criminal justice system, the applicant was not required to use the civil remedy invoked by the Government (see, mutatis mutandis, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports of Judgments and Decisions 1998‑VIII). Moreover, the civil remedy relied on by the Government cannot be regarded as sufficient for the fulfilment of a State’s obligation under Article 3 in cases such as the present one, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009). 73.", "It follows that the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 must be dismissed. 74. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other ground. It must therefore be declared admissible. 2.", "Merits a) General principles 75. The Court reiterates that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 76. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention.", "The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998‑VI). 77. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, Šečić v. Croatia, no. 40116/02, § 52, 31 May 2007). 78.", "Where an individual raises an arguable claim of ill-treatment, including of ill-treatment administered by private individuals, Article 3 of the Convention gives rise to a procedural obligation to conduct an independent official investigation (see Šečić, cited above, § 53; Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 67, 27 September 2007 and, mutatis mutandis, Menson and Others v. the United Kingdom (dec.), no. 47916/99, 6 May 2003). The investigation must be capable of leading to the identification of those responsible with a view to their punishment. 79.", "The scope of this obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see Nikolay Dimitrov, cited above, § 69, and, mutatis mutandis, Menson and Others, cited above). A requirement of promptness and reasonable expedition is implicit in this context. Tolerance by the authorities towards such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law (see, for example, Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, § 97, ECHR 2007‑V, and Milanović v. Serbia, no. 44614/07, § 86, 14 December 2010).", "b) Application of those principles to the present case 80. On the basis of the submitted medical evidence, which appears reliable and comprehensive and which established that the applicant had ten broken ribs, large bruises on the upper part of his body, suffered from emphysema and pneumothorax and was in need of major surgery, the Court considers that the treatment complained of was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. 81. Therefore the authorities had a procedural obligation to conduct an official investigation. The Court notes at the outset that the authorities took a number of investigatory steps.", "They instituted criminal proceedings shortly after the incident, questioned a number of witnesses, commissioned a medical report and conducted a line up. At the close of both the original and the renewed investigations the police investigator, having assessed the evidence, proposed to the prosecutor that S.F. be brought to trial. All of that shows that in the early stages of the investigation the authorities deployed reasonable efforts to gather the evidence and establish the facts. 82.", "Having said that, the Court further observes that the prosecutor decided to terminate the proceedings, concluding that no ill-treatment had taken place in the supermarket, on two main grounds: the fact that the applicant had not requested the police officers to provide him with medical help and the fact that despite his allegations that he had been punched in the head twice the witnesses had not reported any injuries on his person and the doctors who had examined him had not recorded any such injuries. The Court notes that the applicant sought judicial review of the prosecutor’s decrees, contesting on all occasions her reasoning, and when examining the applicant’s appeals the domestic court acceded to his arguments and rejected the prosecutor’s conclusions as ill-founded (see paragraphs 30 and 31 above). Nevertheless, despite the court’s findings, which clearly disproved the two basic arguments for the discontinuation of the proceedings, the prosecutor terminated the proceedings three more times with identical reasoning, thus rendering the judicial review practically ineffective. 83. In the light of the aforementioned, while acknowledging the fact that the prosecutor has a certain discretion when assessing the evidence and deciding whether to bring an accused to trial, the Court considers that in the particular circumstances of the instant case, by discontinuing the criminal proceedings on four occasions with identical reasons despite court findings which disproved the prosecutor’s position and even explicitly stated that there was sufficient evidence to bring the accused to trial, the prosecution authorities failed to act diligently and also unjustifiably delayed the proceedings.", "84. Furthermore, following the District Court’s decision of 24 November 2005, which gave a two-month deadline for submitting an indictment, the prosecution authorities were required to react promptly. Instead, they did not resume working on the case until 10 January 2006 and only commissioned a medical report on 17 January 2006. The report was presented to the authorities before 2 February 2006 but despite its findings the authorities failed to react immediately. Thus, as a result of the procrastination of the prosecutor, the proceedings were terminated under Article 239a of the Code of Criminal Procedure of 1974.", "85. In respect of the procedure under Article 239a, the Court has already observed that it was the only remedy which could be considered effective (at least in some situations) in respect of complaints about the excessive length of criminal proceedings. However, as was pointed out by the Bulgarian Constitutional Court (see paragraph 58 above), that remedy used a formal criterion to measure “reasonable time”, which in some cases could, contrary to the public interest that offenders be brought to justice, result in the undue discontinuance of criminal prosecutions (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 119, 10 May 2011). In the Court’s view, that is precisely what occurred in the instant case.", "The successful invocation by the accused of the Article 239a remedy brought to an abrupt end a deficient investigation marked by an obstinate refusal of the prosecutor to address the concerns repeatedly expressed by the courts. The result must be regarded as at variance with the requirements of the respondent State’s procedural obligation under Article 3 (see, in this connection, Beganović, cited above, §§ 85-87). 86. In the light of the foregoing the Court concludes that in the present case the authorities failed to conduct an effective investigation into the applicant’s allegations of ill-treatment which led to the expiration of the relevant deadline and the impossibility to prosecute any further. Accordingly, there has been a violation of Article 3 of the Convention in its procedural limb.", "II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS 87. The applicant also complained, relying on Article 6 § 1, that the inactivity of the public prosecutor had precluded him from seeking damages from his attackers. 88. 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. 89. 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 90.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 91. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. 92. The Government contested this claim as unfounded and excessive.", "93. The Court considers that the applicant must have suffered anxiety and frustration as a result of the violation found. Accordingly, deciding on an equitable basis, it awards him EUR 4,000. B. Costs and expenses 94.", "The applicant also claimed EUR 1,500 for costs and expenses incurred for legal work carried out by his lawyer after the communication of the present application to the Court. In support of the claim he submitted a contract for legal representation, stipulating the said amount as remuneration for the legal services provided. 95. The Government contested this claim as unfounded and excessive. 96.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court, noting that the exact number of hours of legal work done was not indicated and that the applicant’s lawyer did not represent him at the initial stage of the proceedings (see, for the same approach, Bachvarovi v. Bulgaria, no. 24186/04, § 40, 7 January 2010), considers it reasonable to award the sum of EUR 1,000 covering costs and expenses under all heads. C. Default interest 97. 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 ineffectiveness of the criminal investigation into the applicant’s ill-treatment admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs 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 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 10 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLech GarlickiDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Kalaydjieva and De Gaetano is annexed to this judgment. LGFA JOINT SEPARATE OPINION OF JUDGES KALAYDJIEVA AND DE GAETANO 1. We fully subscribe to the conclusion that the Bulgarian authorities failed to meet their obligations under the procedural limb of Article 3 of the Convention. However, quite apart from considerations relating to delay, we are of the view that the case raises serious questions concerning another aspect of the positive obligation to conduct “an independent official investigation...capable of leading to the identification of those responsible with a view to their punishment” (§ 78), which aspect has not been adequately addressed in the present judgment.", "2. While we are prepared to accept that a prosecutor must be accorded a degree of discretion to decide whether the facts and the evidence justify a decision to bring an alleged offender before the courts in order to seek his punishment, we also believe that this power is based on the premise that the discretion is exercised in good faith; and, generally speaking, the exercise of this discretion will be compatible with the positive obligation under Article 3 only if accompanied by some system of appropriate checks and balances capable of preventing abuse. Where this discretion is capable of being exercised arbitrarily or in bad faith, as is suggested by the facts of the instant case, the very object of the procedural requirement of Article 3 is undermined, since the punishment component can never materialise notwithstanding that the investigation was capable of identifying the offender or offenders. 3. The applicant’s appeals against the successive orders for the discontinuation of the investigation proceedings provided for a semblance of such checks at the national level and, indeed, resulted in four different independent judges expressing in clear terms their concern as to the good faith of the prosecution authorities when the latter repeatedly found the facts and evidence in the case insufficient for the purposes of indictment.", "Even assuming that the prosecutors in the present case acted in the sincere belief that these facts and evidence did not justify a decision to indict the suspect/s in question, we fail to see any justification for the absence of further diligent investigation of other avenues which the prosecution authorities might have seen as a more plausible explanation of the origin of the applicant’s serious injuries. In the opinion of one of the judges in the appeal proceedings, “the prosecutor’s conclusions suggested that ... the applicant had somehow injured himself or had been attacked by unknown individuals...[H]aving regard to the time and location of the incident as suggested by the prosecutor, namely while the applicant was retuning home, it was very unlikely that this would have gone unnoticed.” 4. The questionable good faith with which the investigation proceedings were repeatedly discontinued also raised a sufficient degree of concern with the higher prosecution authorities which led them to consider the possibility of disciplinary measures against the responsible prosecutors. We see no reason not to share their concerns. However, such concerns were clearly insufficient to either bring the identified suspects before the courts, or to trigger any further investigation to ascertain other circumstances or perpetrators.", "5. In the instant case the situation amounted to de facto tolerance by the authorities towards violence causing suffering beyond the threshold of Article 3, which cannot but undermine public confidence in the principle of lawfulness and maintenance of the rule of law. We regret that the present judgment fails to examine the extent to which the demonstrated arbitrary exercise of prosecutorial discretion contributed to the respondent Government’s failure to meet the obligations under Article 3. Unaccountable discretion renders meaningless the positive obligation to conduct an investigation capable of leading to punishment and, in practice, relegates the victim to the position obtaining before the development of the positive obligation doctrine in the context of Articles 2 and 3." ]

[ "FIRST SECTION CASE OF INDERBIYEVA v. RUSSIA (Application no. 56765/08) JUDGMENT STRASBOURG 27 March 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Inderbiyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 March 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "56765/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Deshi Inderbiyeva (“the applicant”), on 10 July 2008. 2. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged that two of her sisters had been killed by Russian servicemen in Grozny in January 2000. She alleged a violation of Articles 2, 3, 6 and 13 of the Convention. 4. On 11 September 2009 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of former 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 1968. She lives in Grozny. She is the sister of Shema (also spelt Sheima) Inderbiyeva, who was born in 1963, and Shamani Inderbiyeva, who was born in 1966. A. The killing of Shema and Shamani Inderbiyeva and subsequent events 1.", "The applicant’s account 7. At some point in 1999 due to heavy hostilities between Russian forces and Chechen fighters the applicant moved to a refugee camp in Ingushetia. Two of her sisters, Shema Inderbiyeva and Shamani Inderbiyeva, and her mother Yakhita Inderbiyeva remained in their flat – no. 10 in the block of flats at 154B, Pugacheva Street in the Staropromyslovskiy District of Grozny. Most of the other residents of the district left for safer areas, but the applicant’s relatives stayed to look after the family property.", "According to the applicant, Russian forces regained control over the Staropromyslovskiy District at the beginning of January 2000. 8. In December 1999 the applicant’s mother and her sisters Shema and Shamani Inderbiyeva moved from their flat to the basement under the pavilion situated in the courtyard of their block of flats. On 1 January 2000, owing to the intensity of a fire, Shema and Shamani Inderbiyeva decided to hide in the basement of the applicant’s block of flats at no. 285 (in the documents submitted the address is also stated as no.", "287) in Derzhavina Street in the Staropromyslovskiy District of Grozny. Their mother, Yakhita, remained in the basement at 154B, Pugacheva Street as she was sick and could not walk. The applicant’s sisters regularly visited their mother and brought her food. 9. On 8 February 2000 (in the submitted documents the date was also referred to as 12 February 2000) the applicant, together with an acquaintance, Ms F.A., went to visit her relatives in Grozny.", "She did not find anybody in her family’s flat in Pugacheva Street and went to find out about her sisters and mother from the neighbours who lived in her block of flats in Derzhavina Street. In the basement of the house the applicant found her mother, who was in bed, in a state of shock and incoherent, and who kept saying: “Russian soldiers, smoke, fire”. 10. Having spent the night with her mother in the basement, on the following day the applicant went to look for her sisters in Pugacheva Street. In the basement located in the courtyard of her family’s block of flats she found the two burnt corpses of Shema and Shamani Inderbiyeva.", "The applicant was able to identify her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns. 11. The applicant collected the remains in pillow cases and returned with them to Derzhavina Street, where she met Ms M.Z., an elderly ethnic Russian. The woman told her that on 10 January 2000 she and her husband had been walking next to the basement at 154B, Pugacheva Street when they had seen three servicemen looking into the basement under the pavilion. One of the servicemen, a senior one, had said to someone in the basement: “Mother, come out and let’s go to the military commander’s office for an identity check”.", "Then he had leaned over and pulled the applicant’s mother out. He had walked her away from the pavilion by hand whereas two other servicemen had remained next to the basement. Next, one of the two soldiers had thrown something inside. A powerful explosion followed as a result of which the pavilion had been partially destroyed and smoke had been coming out from the basement. The applicant’s mother had turned back and fainted; looking at her the soldiers had started laughing.", "Ms M.Z. and her husband had become scared and walked away. 12. On 10 February 2000 the applicant and Ms F.A. went to the Staropromyslovskiy District military commander’s office to obtain permission to bury her sisters’ remains in the cemetery of the village of Valerik in the Urus-Martan District.", "After she explained to the servicemen that her sisters had been killed by Russian soldiers, the servicemen wanted to detain her and even opened gunfire to stop her, but she managed to run away. Then she saw a group of Chechens in military uniforms and asked them for help. The servicemen from the military commander’s office requested that the Chechens hand the applicant over to them, but they refused. Then the Chechen servicemen took her to the 36th District of Grozny (36-й участок); from there the applicant managed to get a lift to Valerik. 13.", "On the same date, 10 February 2000, the applicant buried her sisters’ remains in the Valerik cemetery. After that, she returned to the refugee camp in Ingushetia. 14. According to the applicant, her mother Yakhita, after witnessing the murder of her daughters Shema and Shamani by the soldiers, suffered a severe psychological breakdown and became mentally ill. 15. In support of her statements, the applicant submitted her own statement dated 22 February 2010; a statement by Ms G.P.", "dated 29 January 2004; a statement by Mr S.Kh. dated 1 March 2010; a statement by Ms Z.T. dated 1 February 2004, a copy of the witness statement by the applicant’s mother Yakhita Inderbiyeva dated 5 July 2000 and copies of other documents received from the authorities. The applicant also enclosed a Human Rights Watch report “Civilian Murders in the Staropromyslovskiy District of Grozny” of February 2000 and a sketched map of the district indicating the place where the bodies of her sisters had been discovered. The applicant also referred to the Court’s judgments Khashiyev and Akayeva v. Russia (nos.", "57942/00 and 57945/00, 24 February 2005), Makhauri v. Russia (no. 58701/00, 4 October 2007), Tangiyeva v. Russia (no. 57935/00, 29 November 2007), Goncharuk v. Russia (no. 58643/00, 4 October 2007), and Goygova v. Russia (no. 74240/01, 4 October 2007), and the witness statements contained therein, stating that the events she complained of had been examined by the Court in those judgements and that they concerned the same events which had taken place in the Staropromyslovskiy District of Grozny in January 2000.", "2. Information submitted by the Government 16. The Government did not challenge the matter as presented by the applicant. They stated that the circumstances of the events were still under criminal investigation and that unidentified persons had killed the applicant’s sisters. B.", "The official investigation of the murder 1. Information submitted by the applicant 17. The death of Shema and Shamani Inderbiyeva was initially investigated as part of criminal case no. 12038 opened on 3 May 2000 by the Grozny Town Prosecutor’s Office (the town prosecutor’s office). The criminal investigation was initiated after the publication in the newspaper Novaya Gazeta on 27 April 2000 of an article entitled “Freedom or death” concerning the mass murder of civilians by servicemen of the 205th brigade on 19 January 2000 (in the documents submitted the date was also referred to as 19 February 2000) in Grozny.", "18. On 5 and 17 July 2000 the applicant’s other sister Mobarik Inderbiyeva (in the documents submitted also spelt Moberik) and her mother Yakhita Inderbiyeva were questioned by the investigators. 19. The applicant was neither kept informed of the progress in the investigation of criminal case no. 12038 nor granted victim status in the criminal case.", "20. On 2 July 2003 the Staropromyslovskiy District Prosecutor’s Office in Grozny (the district prosecutor’s office) opened criminal case no. 50080 in connection with the murder of the applicant’s sisters. 21. On 6 December 2007 the applicant requested that the investigators allow her to access the investigation file.", "On 10 December 2007 her request was granted in part and she was able to obtain copies of a few basic procedural decisions. 22. On 15 April 2008 the applicant complained to the Staropromyslovskiy District Court of Grozny (the district court) that the investigation in criminal case no. 50080 was ineffective. She requested that the court order the district prosecutor’s office to resume the investigation and conduct it in a thorough and effective manner.", "23. On 19 May 2008 the district court rejected the applicant’s complaint stating that on 16 May 2008 the district prosecutor’s office had already resumed the investigation of the criminal case. 24. According to the applicant, throughout the investigation the authorities failed to provide her with information on the progress of the criminal proceedings in case no. 50080.", "2. Information submitted by the Government 25. On 3 May 2000 the town prosecutor’s office opened criminal case no. 12583 in connection with the publication of the article “Freedom or death” in Novaya Gazeta concerning the mass murder of civilians on 19 February 2000 by the 205th brigade of the Russian military forces in the Katayama (also spelt Katoyama) settlement in the Staropromyslovskiy District of Grozny. 26.", "On 17 June 2000 the investigators from the town prosecutor’s office questioned the applicant who stated that on 9 February 2000 she had returned to Grozny from Ingushetia and found out that her sisters Shema and Shamani had been killed by servicemen from military unit no. 3737. On the same date she had found her sisters’ bodies in the basement at no. 154B Pugacheva Street and had subsequently buried them at a cemetery in the Achkhoy‑Martan District. 27.", "On the same date the investigators questioned the applicant’s sister Mobarik Inderbiyeva who stated that on 12 February 2000 the applicant had returned home with the remains of their sisters Shema and Shamani who had been blown up by military servicemen with a flamethrower on 10 January 2000 while they had been hiding in the basement. The witness further stated that she had been able to identify the remains of her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns. The witness stressed that her sisters could have been killed only by Russian soldiers as the area in question had at the time been under the full control of the Russian military and it had been impossible for persons who had not belonged to the federal forces to access the premises without a special pass. 28. On 5 July 2000 the investigators questioned the applicant’s mother Yakhita Inderbiyeva who stated, amongst other things, that at some point in January 2000 the applicant had told her that she had found the burnt remains of her daughters Shema and Shamani in the basement next to the pavilion.", "29. On 27 July 2000 the investigators questioned Ms Ya.Z. whose statement concerning the circumstances surrounding the death of the applicant’s sisters the Government did not give to the Court. 30. On 11 June 2003 the Chechnya Prosecutor’s Office forwarded part of criminal case file no.", "12038 to the district prosecutor’s office to be severed into a separate criminal case. The relevant part of the file concerned the discovery by the applicant on 12 February 2000 of the burnt bodies of her sisters Shema and Shamani Inderbiyeva. 31. On 16 June 2003 the investigators in criminal case no. 12583 requested that the military prosecutor of the United Group Alignment (the UGA) inform them which military units had participated in the military operation in the Staropromyslovskiy District of Grozny in January and February 2000.", "32. On 25 June 2003 an investigator from the district prosecutor’s office initiated a preliminary inquiry into the discovery by the applicant of her sisters’ bodies. 33. On 2 July 2003 the district prosecutor’s office opened criminal case no. 50080 under Article 105 § 2 of the Russian Criminal Code (murder) in connection with the discovery on 12 February 2000 of the bodies of Shema and Shamani Inderbiyeva in the basement situated across the courtyard from the block of flats at no.", "154B Pugacheva Street in Grozny. 34. On 3 July 2003 the investigators examined the crime scene at no. 154B Pugacheva Street. Nothing was collected from the scene.", "35. On 29 July 2003 the investigators requested that the Staropromyslovskiy District Department of the Interior (the ROVD) identify any witnesses to the applicant’s sisters’ murder and that those witnesses be brought in for questioning. 36. In reply to the above request, on 1 August 2003 the ROVD informed the investigators that the applicant’s mother and Ms Ya.Z. had been summoned for questioning.", "37. On 15 September 2003 the investigators again requested that the ROVD identify witnesses to the murder, bring the applicant, her mother, her sister Mobarik Inderbiyeva and Ms Ya.Z. for questioning and identify the place of the applicant’s sisters’ burial. 38. On 17 September 2003 the ROVD reported to the investigators that it was impossible to establish other witnesses to the events, other than the applicant and Mobarik Inderbiyeva, as the buildings in the area had been destroyed as a result of the armed hostilities and residents who had resided there in 2000 had moved elsewhere.", "39. On 17 September 2003 the applicant provided the ROVD officers with a short statement concerning the circumstances surrounding the discovery of her sisters’ bodies and stated that her mother Yakhita Inderbiyeva had developed a mental illness as a result of her daughters’ murder. 40. On 23 September 2003 the investigators again requested that the ROVD identify the witnesses to the events and bring them for questioning stating that the ROVD had provided them with superficial replies and failed to take meaningful steps to identify the witnesses. 41.", "On 5 October 2003 the investigators granted the applicant victim status in criminal case no. 50080 and questioned her. The applicant stated that on 9 February 2000 she had gone from Ingushetia to visit her sisters and mother in Grozny. On 10 February 2000 she had gone to Pugacheva Street where she had met a woman who had told her that her mother had became mentally ill and was living in a basement situated in a former dentist’s office. The applicant had found her mother in an incoherent state.", "Then the applicant had met an elderly, ethnically Russian couple and the woman had told her about the circumstances of her sisters’ murder by servicemen from military unit no. 3737. According to the woman, the soldiers had conducted a ‘sweeping-up’ operation in the area; they had pulled Yakhita Inderbiyeva out from the basement and let her go, but they had killed her daughters Shema and Shamani who had remained in the basement, with a flamethrower. Then the applicant had gone to the basement, found the burnt bodies of her sisters and had taken the remains to the village of Valerik for burial. 42.", "On 17 October 2003 the investigators ordered that the bodies of Shema and Shamani Inderbiyeva be exhumed. 43. On 21 October 2003 the investigators examined the bodies. It was impossible to establish any traces of physical violence, other than burns, owing to the state of decomposition. 44.", "On 22 October 2003 the investigators ordered forensic medical examinations of the remains of Shema and Shamani Inderbiyeva and requested that the experts determine the cause of their death, possible origins and the extent of the injuries, traces of gunshot wounds and their number. 45. On 23 October 2003 the Chechnya Bureau of Forensic Expert Evaluations (the Bureau) reported to the investigators that the state of the bodies of Shema and Shamani Inderbiyeva, which must have been exposed to high temperatures, precluded them from obtaining the information necessary to reply to the investigators’ questions. 46. On 2 November 2003 the investigation in criminal case no.", "50080 was suspended for failure to identify the perpetrators. 47. On 3 April 2004 (in the documents submitted the date was also referred to as 1 April 2004) the deputy Chechnya prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume the proceedings and take a number of steps, such as identifying the servicemen from military unit no. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000 and providing an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z. 48.", "On 10 April 2004 the investigators again requested that the ROVD identify among the neighbourhood’s residents the witnesses to the applicant’s sisters’ murder. 49. On 12 April 2004 the investigators again examined the crime scene; no evidence was collected. 50. On various dates in April 2004 the investigators questioned a number of witnesses, including Ms M.S., Mr R.M., Ms M.Ib., Ms T.Sh., Ms Kh.D., Mr R.Kh., Mr A.Kh., Ms F.M., Ms M.Kh., and Ms M.O., all of whom stated that at the material time they had lived elsewhere and had not witnessed the events in question; however, at some point they had learnt from their relatives and neighbours that the applicant’s sisters Shema and Shamani had been killed by Russian servicemen and their corpses had been found later in the basement.", "51. On 15 May 2004 the investigators requested that the Central Archives of the Russian Ministry of the Interior (the MVD) provide them with the following information: “....the investigation established the involvement in the crime [the murder of the applicant’s sisters] of military servicemen from military brigade no. 205. According to the reply from the North-Caucasus Headquarters of the Internal Troops of the Ministry of the Interior to our request for information, documents concerning special operations conducted in the Chechen Republic in 1999, 2000, 2001 and 2002 were transferred to the Central Archives of the Ministry of the Interior. Based on the above information, I ask you .... to identify which regiments of which military units and troops of the Ministry of the Interior carried out their service duties or were stationed between October 1999 and February 2000 inclusive in the Staropromyslovskiy District of Grozny... and to establish the location of these regiments and units at present... ...you are also requested to declare which troops of military brigade no.", "205 of the Russian Military Forces participated in the military operation in Grozny... between October 1999 and February 2000 in the Staropromyslovskiy District of Grozny...” 52. On 16 May 2004 the investigators again requested that the ROVD identify the witnesses to the events, including the elderly Russian couple who had informed the applicant of the circumstances of her sisters’ murder, and bring them for questioning. 53. On 8 June 2004 the investigation in the criminal case was again suspended for failure to identify the perpetrators. 54.", "On 9 July 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume it and take a number of steps, such as identifying the servicemen from military unit no. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000. The prosecutor also ordered the investigators to provide an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z., and to identify the elderly Russian couple who had informed the applicant about the circumstances of her sisters’ murder. 55. On 15 July 2004 the investigators again questioned the applicant’s sister Mobarik Inderbiyeva who stated that she had found out about the circumstances of her sisters’ murder from the applicant and that the area where her sisters had been killed had at the time been under the full control of the Russian military.", "56. On 2 August 2004 the investigators questioned Mr I.A. who stated that he had not witnessed the murder, but had learnt from his relatives and neighbours that the applicant’s sisters had been killed during a ‘sweeping‑up’ operation by Russian military servicemen who had been called by the local population ‘the jailers’ (‘тюремщики’). 57. On the same date, 2 August 2004, the investigators questioned Mr A.G. whose statement about the events was similar to the one given by Mr I.A.", "58. On 9 August 2004 the investigation in the criminal case was suspended for the third time for failure to identify the perpetrators. 59. On 18 October 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps ordered on 9 July 2004. The investigation was resumed on the same date.", "60. On 21 October 2004 the investigators questioned Mr K.S. whose statement about the events was similar to that given by Mr I.A. (see paragraph 56 above). 61.", "On 18 November 2004 the investigation in the criminal case was suspended for the fourth time for failure to identify the perpetrators. 62. On 14 December 2004 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July and 18 October 2004. The investigation was resumed on the same date and the applicant was informed of this decision. 63.", "On 14 January 2005 the investigation in the criminal case was again suspended for failure to identify the perpetrators without having taken any of the steps ordered by the supervising prosecutor. 64. On 27 January 2005 the investigators requested that the ROVD identify the witnesses to the murder and bring them for questioning. On the same date the investigators requested that the Archives of the North‑Caucasus Military Circuit inform them which military unit had been stationed in the area of the events at the material time. 65.", "On 6 December 2007 the applicant complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators allow her to access the investigation file. 66. On 10 December 2007 the investigators granted the applicant’s request in part and allowed her to access the procedural documents reflecting the investigative steps taken with her participation. 67. On 8 April 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings.", "No reply was given to this request. 68. On 16 May 2008 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July, 18 October and 14 December 2004. The investigation was resumed on the same date. 69.", "On 20 May 2008 the investigators requested that the investigative department of the UGA assist them in identifying the military unit which had been stationed in the area of the events in January and February 2000, provide them with a list of its servicemen for the period and inform them of the stationing of the military unit at present. 70. On 2 June 2008 the investigators questioned Ms Ya.Z. The Government did not furnish a copy of this statement to the Court either (see paragraph 29 above). 71.", "On 9 June 2008 the ROVD informed the investigators that it was impossible to establish the identities of the elderly Russian couple who had witnessed the applicant’s sisters’ murder. 72. On 16 June 2008 the investigation in the criminal case was suspended for the sixth time for failure to identify the perpetrators. 73. On 26 June 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings.", "74. On 30 June 2008 the investigators replied to the applicant’s complaint stating that she was entitled to a copy of the last decision to suspend the investigation. 75. On an unspecified date in January 2009 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered the investigators to take the necessary steps. The Government did not furnish the Court with a copy of this document.", "76. On 19 January 2009 the investigation in the criminal case was resumed. 77. The Government submitted that although the investigation had failed to establish the perpetrators of the murder of Shema and Shamani Inderbiyeva, the proceedings were still in progress. The information gathered by the investigators demonstrated that the applicant’s sisters had been killed by unidentified persons and that “it cannot be seen from the case file that Shema and Shamani Inderbiyeva were killed as a result of the use of lethal force by representatives of the State”.", "The Government further submitted that the domestic authorities had been taking all possible steps to have the crime resolved. 78. In reply to the Court’s request for the full contents of the investigation file in criminal case no. 50080, the Government stated in a Memorandum of 20 January 2010 that they enclosed the contents of the criminal case file ‘in full’ and that it ran to 171 pages. However, from the documents submitted and their pagination it follows that a number of documents, such as witness statements, were not furnished by the Government and no explanation had been given for the failure to submit the remaining documents to the Court.", "II. RELEVANT DOMESTIC LAW 79. For a summary of the relevant domestic law see Goygova v. Russia (no. 74240/01, §§ 63‑64, 4 October 2007). THE LAW I.", "THE ISSUE OF EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ submissions 80. The Government submitted that the investigation into the murder of the applicant’s sisters had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicant to lodge court complaints about any acts or omissions of the investigating authorities. She could also have applied for civil damages.", "81. The applicant contested the Government’s submission. She stated that the only available remedy, the criminal investigation, had proved to be ineffective. B. The Court’s assessment 82.", "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). 83. 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. 84.", "As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, cited above, §§ 119‑21, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed. 85. As regards criminal-law remedies, the Court observes that the investigation into the murders has been pending since 3 May 2000.", "The applicant and the Government dispute the effectiveness of the investigation. 86. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 87. The applicant alleged that her sisters had been unlawfully killed by agents of the State and that no effective investigation had been carried out into the matter. She relied on Article 2 of the Convention, which 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. Admissibility 88. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the issue of exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 86 above). The complaint under Article 2 of the Convention must therefore be declared admissible.", "B. The alleged violation of the right to life of Shema and Shamani Inderbiyeva 1. The parties’ submissions 89. The applicant alleged that her sisters had been unlawfully killed by agents of the State and referred to the Court’s conclusion in the cases of Khashiyev and Akayeva, Goygova, Makhauri, Goncharuk, and Tangiyeva (all cited above), noting that, at the relevant time, the area was under the full control of the Russian federal forces. She argued that the Government had not suggested any other version of the events.", "90. The Government denied any involvement of State agents in the killing of the applicant’s sisters and stated that they had been murdered by unidentified criminals. 2. The Court’s assessment 91. It was not disputed by the parties that the applicant’s sisters had been killed.", "The Government did not suggest that the exceptions provided for in the second paragraph of Article 2 could be applicable in the present case. The question remains whether the respondent State may be held responsible for their death. 92. 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 a violation of Article 2 (for a summary of these, see Estamirov and Others, cited above, §§ 98‑101). In the light of these principles, the Court will decide whether the death of the applicant’s sisters can be attributed to the State and whether there has been a violation of Article 2 in this respect.", "93. The Court finds that the factual circumstances as presented by the applicant were not disputed by the Government and were not contradicted by the documents in the investigation file. As it appears, the only version of the events pursued by the investigation was that suggested by the applicant. The Government did not present any alternative account of the attack and, moreover, the investigation obtained information proving the applicant’s allegations of the State agents’ responsibility for her sisters’ death (see paragraph 51 above). 94.", "In addition, the Court has long held that where the events in issue lie wholly, or to a large extent, within the exclusive knowledge of the authorities – as in the case of persons in custody under those authorities’ control – strong presumptions of fact will arise in respect of injuries and deaths occurring during such detention. Thus, it has found that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).", "Indeed, in such situations the burden of proof may be regarded as resting on the authorities (see, inter alia, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII). 95. The Court has also considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State is held responsible, and the situation of persons found injured or dead in an area within the exclusive control of the State authorities. Such a parallel is based on the salient fact that in both situations the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities (see Akkum and Others v. Turkey, no.", "21894/93, § 211, ECHR 2005‑II (extracts)). 96. The Court will assess the effectiveness of the investigation into the death of the applicant’s sisters below (see paragraphs 100 - 107), but it is clear that it failed to establish the military units presumably involved in the incident or to indict the individuals responsible. Taking this into account and the Court’s finding in the judgments referred to by the applicant, the Court finds that she has made a prima facie case that her sisters were killed by servicemen during a security operation on or around 10 January 2000 in the Staropromyslovskiy District of Grozny, and that the Government have failed to provide any other satisfactory and convincing explanation of the events. Their reference to the absence of conclusions from the criminal investigation is not enough to absolve them from their burden of proof under Article 2 of the Convention.", "97. On the basis of the above, the Court finds that the death of Shema and Shamani Inderbiyeva can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 under its substantive limb. C. Alleged inadequacy of the investigation 1. The parties’ submissions 98.", "The applicant alleged that the authorities had failed to conduct an effective investigation into the circumstances of her sisters’ death, in violation of their procedural obligation under Article 2. She argued that the investigation had fallen short of the standards established by the Convention and national legislation. In particular, the investigation had not been prompt because of the delay in opening it and in taking important steps. A number of investigative measures had never been taken, such as securing the relevant evidence and questioning servicemen who could have been involved. The investigation had been ongoing for more than ten years without producing any tangible results.", "The authorities had systematically failed to inform her of the progress of the proceedings and that she had been given no information about important procedural steps. 99. The Government contended in reply that the investigation was being carried out in accordance with the relevant domestic legislation and Convention standards. 2. The Court’s assessment 100.", "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 see, for example, Bazorkina v. Russia, no. 69481/01, §§ 117‑19, 27 July 2006). 101. In the present case, an investigation was carried out into the murder of the applicant’s sisters.", "The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 102. The Court notes from the outset that it has previously found the investigation into the murders of the inhabitants of the Staropromyslovskiy District perpetrated in January and February 2000 to be ineffective and in breach of the requirements of Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, cited above, §§ 156-66; Goygova, cited above, §§ 76-85; Makhauri v. Russia, cited above, §§ 105‑14; Goncharuk v. Russia, cited above, §§ 65‑71; and Tangiyeva v. Russia, cited above §§ 88‑95). It can be seen from the documents submitted that no different conclusion could be arrived at in the present case for the following reasons. 103.", "The Court notes that the authorities were aware of the crime by at least May 2000, when a criminal investigation into the killings committed in the Staropromyslovskiy District was opened by the town prosecutor’s office. In June and July 2000, within the scope of this investigation, the applicant, her sister and her mother were questioned and confirmed information about the circumstances in which their relatives’ bodies had been found and their burial. However, it does not appear that any other steps were taken at that time in order to solve the murders. More than three years later, in June 2003, the documents relating to the murder of the applicant’s sisters were transferred to the district prosecutor’s office with an instruction to carry out a separate investigation but the authorities only initiated a separate set of proceedings to investigate the matter in July 2003. 104.", "The Court further notes that even the most basic procedural steps in the investigation were taken after September 2003, that is, more than three and half years after the events in question. The measures taken after September 2003 included such crucial steps as the questioning of other witnesses, examination of the crime scene, attempts to identify the military units that could have been involved in the murders and the carrying out of a forensic medical examination. 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 certainly as soon as the investigation had commenced. The Court reiterates that it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no.", "46477/99, § 86, ECHR 2002‑II). These delays, unexplained in this 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. 105. The Court also notes that the applicant was granted victim status only in October 2003. Even after that she was only informed of the suspension and reopening of the proceedings, and not of any other significant developments.", "Accordingly, the investigators did not ensure sufficient public accountability to provide the investigation and its results with the required level of public scrutiny; nor did it safeguard the interests of the next of kin in the proceedings. 106. Finally, the Court notes that the investigation was suspended and resumed a number of times and that on several occasions the supervising prosecutors pointed out the deficiencies in the proceedings and ordered measures to remedy them, but that these instructions were not complied with. 107. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the death of Shema and Shamani Inderbiyeva.", "This rendered recourse to the criminal domestic remedies, referred to by the Government, ineffective in the circumstances. The Court accordingly dismisses the Government’s objection in this respect and holds that there has been a violation of Article 2 under its procedural limb as well. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 108. The applicant relied on Article 3 of the Convention, submitting that prior to their killing Shema and Shamani Inderbiyeva were subjected to ill‑treatment and that as a result of her sisters’ death and the State’s reaction thereto, she had endured psychological suffering in breach of Article 3 of the Convention.", "Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 109. Turning to the first part of the applicant’s complaint, the Court notes that the applicant neither raised it with competent domestic authorities nor enclosed any documents with the application to substantiate her allegations. 110. As for the second part of the complaint, the Court notes that the present case concerns the instantaneous death of the applicant’s sisters as a result of an explosion. In this regard, the Court refers to its practice by which the application of Article 3 is usually not extended to the relatives of persons who have been killed by the authorities in violation of Article 2 (see Yasin Ateş v. Turkey, no.", "30949/96, § 135, 31 May 2005) or to cases of unjustified use of lethal force by State agents (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 229, 24 February 2005), as opposed to the relatives of the victims of enforced disappearances. The latter approach is exercised by the Court in view of the continuous nature of the psychological suffering of the applicants whose relatives disappeared and the applicants’ inability for a prolonged period of time to find out what happened to them (see, among many other authorities, Bazorkina, cited above, § 141; Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)).", "As for the present case, even though the Court does not doubt that the tragic death of her sisters caused the applicant profound suffering, it nonetheless, owing to the instantaneous nature of the incident, does not find that it amounts to a violation of Article 3 of the Convention (see, for a similar situation, Udayeva and Yusupova v. Russia, no. 36542/05, §§ 82‑83, 21 December 2010). 111. It therefore follows that the applicant’s complaint under Article 3 should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 112. The applicant complained that the proceedings brought by her against the investigators were unfair (see paragraph 22 above). She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows: “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...” 113. The Court finds that Article 6 § 1 of the Convention is inapplicable to the proceedings in question, as they did not involve the determination of the applicant’s civil rights or obligations or a criminal charge against the applicant, within the meaning of the Convention (see, among many other authorities, Udayeva and Yusupova, cited above, § 86).", "114. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 115. The applicant complained that she had been deprived of effective remedies in respect of the alleged violations of Article 2 contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 116.", "The Government contended that the applicant had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using those remedies. The applicant had the opportunity to challenge the acts or omissions of the investigating authorities in court. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13. 117.", "The applicant maintained the complaint. B. The Court’s assessment 1. Admissibility 118. 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 119. The Court reiterates that in circumstances where, as in the present case, a criminal investigation into a murder has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligations under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).", "120. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 121. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 122. The applicant did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she stated that she had endured emotional suffering in relation to the loss of her sisters and the authorities’ failure to effectively investigate their death. She left the determination of the amount of compensation to the Court. 123.", "The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case. 124. The Court has found a violation of both aspects of Article 2 and of Article 13 of the Convention on account of the death of the applicant’s sisters and the authorities’ failure to effectively investigate the matter. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant 100,000 euros (EUR) plus any tax that may be chargeable thereon.", "B. Costs and expenses 125. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The applicant submitted a contract with her representative and an itemised schedule of costs and expenses that included legal research and drafting, as well as administrative and translation expenses. The overall claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 4,306.", "The applicant submitted the following breakdown of costs: (a) EUR 3,637 for 24.25 hours of interviews and drafting of legal documents submitted to the Court and the domestic authorities, at the rate of EUR 150 per hour; (b) EUR 125 of administrative expenses; (c) EUR 544 in translation fees based on the rate of EUR 80 per 1000 words. 126. The Government regarded the claim as unsubstantiated, pointing out that the relevant documents were not sufficiently itemised or supported by documentary evidence. 127. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no.", "324) 128. Having regard to the details of the information submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses incurred. The Court notes that this case was rather complex and required the amount of research and preparation claimed by the applicant. 129. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 4,000 together with any tax that may be chargeable to the applicant, the net award to be paid into the representative’s bank account, as identified by the applicant.", "C. Default interest 130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government’s objection as to the issue of exhaustion of criminal domestic remedies and rejects it; 2. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible; 3.", "Holds that there has been a substantive violation of Article 2 of the Convention in respect of Shema and Shamani Inderbiyeva; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Shema and Shamani Inderbiyeva died; 5. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 6. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement: (i) EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "FOURTH SECTION CASE OF VELIKOVA v. BULGARIA (Application no. 41488/98) JUDGMENT STRASBOURG 18 May 2000 FINAL 04/10/2000 In the case of Velikova v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,MrG. Ress,MrA. Pastor Ridruejo,MrI.", "Cabral Barreto,MrV. Butkevych,MrJ. Hedigan,MrsS. Botoucharova, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 20 January and 27 April 2000, Delivers the following judgment, which was adopted on the last‑ mentioned date: PROCEDURE 1. The case originated in an application (no.", "41488/98) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Ms Anya Velikova, a Bulgarian national, on 12 February 1998. The applicant was represented by Mr I. Dimitrov and Mr Y. Grozev, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs V. Djidjeva, of the Ministry of Justice. The applicant complained under Articles 2, 6, 13 and 14 of the Convention in respect of the death in police custody of Mr Tsonchev, the man with whom she had been living for about twelve years, the alleged ineffective investigation into this event, the alleged obstacles to the determination of her civil right to compensation arising out of the death of Mr Tsonchev, the alleged lack of effective remedies in this respect and the alleged discrimination on the basis of Mr Tsonchev's Romany ethnic origin. 2.", "On 7 September 1998 the Commission decided to communicate the application to the Government. Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with Article 5 § 2 thereof, the application was examined by the Court. In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within that Section included ex officio Mrs S. Botoucharova, the judge elected in respect of Bulgaria (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr M. Pellonpää, President of the Section (Rule 26 § 1 (a)).", "The other members designated by the latter to complete the Chamber were Mr G. Ress, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić and Mr J. Hedigan (Rule 26 § 1 (b)). 3. The Government's written observations were submitted on 14 December 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 February 1999. 4.", "The Court declared the application admissible on 18 May 1999[1]. 5. On 9 August 1999 the applicant submitted written observations on the merits and just satisfaction claims, in support of which she filed additional documents on 7 October 1999. On 27 September 1999 the Government submitted, of their own motion, written observations on the facts and the admissibility of the application. They also requested a hearing.", "6. On 14 October 1999 the Court examined the state of the proceedings in the case. It decided to invite the Government to comment in writing on the merits of the application and to submit “copies of all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev”. The Court also decided to invite the parties to a hearing on the merits of the case. 7.", "The Government submitted their observations on the merits and “copies of all documents contained in the files” on 11 November 1999. On 14 January 2000 the Government submitted observations on the applicant's claims for just satisfaction. These observations were accepted by decision of the President of the Chamber, acting under Rule 38 § 1. On 14 January 2000 the applicant submitted an additional claim for just satisfaction in respect of the costs of the hearing in Strasbourg, which was accepted for examination by the President of the Chamber, acting under Rule 60 § 1. The Government replied on 28 January 2000.", "8. Having originally been designated by the initials A.V., the applicant subsequently agreed to the disclosure of her name. 9. Having declared the application admissible, the Court, acting in accordance with Article 38 § 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. No friendly settlement was reached.", "10. Pursuant to a decision of the Chamber of 13 January 2000, the President of the Chamber held on 20 January 2000, before the commencement of the public hearing, a preparatory meeting concerning, inter alia, the Government's objection as to the authenticity of the application. The meeting was attended by the representatives of the parties and the applicant herself. The President of the Chamber and the representative of the Government put questions, to which the applicant replied. The hearing took place in public in the Human Rights Building, Strasbourg, on 20 January 2000.", "There appeared before the Court: (a) for the GovernmentMrsV. Djidjeva, Ministry of Justice,Agent; (b) for the applicantMrY. Grozev, Lawyer,Counsel. The applicant herself was also present. The Court heard addresses by Mr Grozev and Mrs Djidjeva.", "11. As Mrs Vajić was unable to attend the deliberations on 27 April 2000, she was replaced by Mr A. Pastor Ridruejo, substitute judge, as a member of the Chamber (Rule 26 § 1 (c)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 12. The applicant is a Bulgarian national, born in 1942 and residing in Pleven.", "At the relevant time she lived in Bukovlak, a village in the district of Pleven. A. Circumstances surrounding the death of Mr Tsonchev 13. In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft. 14.", "On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven. There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter.", "15. In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.” It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames. 16. The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev.", "They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”. 17. According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that.", "According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally. 18. The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed.", "Mr Tsonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but ... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered.", "According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30 p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty. 19. Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr Tsonchev had been seated on a couch in the hallway.", "Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr Tsonchev had defecated into his trousers. It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note.", "Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows. 20. At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned. Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova.", "The order stated that it was issued on 24 September 1994 at 7 p.m. 21. According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance. At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr Tsonchev had displayed signs of ill-health.", "Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government. According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7 p.m. The note did not specify the source of this information. 22. According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly.", "The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up. No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established. 23. At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there.", "According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government. 24. According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed.", "He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch.", "Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station. The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25 September 1994. The source of the information about the hour was not mentioned.", "25. According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2 a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy. B.", "The investigation into the death of Mr Tsonchev 26. Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene. According to the written record of the inspection, the dead body of Mr Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear.", "The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator.", "Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof. 27. Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death.", "He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death. 28. On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr Tsonchev. On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov.", "The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station. 29. The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions: “1.", "What traumatic injuries are to be found on the corpse [of Mr Tsonchev]? 2. What was the cause of his death? 3. How were the injuries inflicted?” 30.", "The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1 cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5 cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18 cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left thigh, perpendicular to the femur, measuring 8 to 10 cm by 1.5 to 2 cm. The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand[1]. The report concluded: “The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face. The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy.", "The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2 cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face.", "The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.” The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator. 31.", "On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening. 32.", "On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen. 33. On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government.", "34. On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected.", "35. The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994. 36. In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times.", "Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994. 37. On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура).", "On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia: “Tsonchev's death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District ... In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.” 38.", "In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation. By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia: “[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete.", "Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded ... ... it is necessary to establish Mr Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred.", "[This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.” 39. According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation.", "On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case. Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8 July 1996.", "Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings. 40. On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”.", "She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov. The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case. II. RELEVANT DOMESTIC LAW 41.", "Under Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)). In accordance with the law as in force at the relevant time and until 1 January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1 January 2000). No further remedies existed under the relevant law. FINAL SUBMISSIONS TO THE COURT 42.", "At the hearing on 20 January 2000, the Government invited the Court to reject the application as being inadmissible, or to dismiss the applicant's claims as unfounded. 43. On the same occasion the applicant reiterated her request to the Court to find violations of Articles 2, 6, 13 and 14 of the Convention. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS 44.", "The Government raised a number of preliminary objections, whereas the applicant maintained that the case should be examined on the merits. A. The authenticity of the application 45. In their written observations on the merits of 11 November 1999, the Government noted that a declaration of means, made on 1 July 1999 before a notary and submitted by the applicant in support of her legal aid request, contained the applicant's thumb-print and a note from the notary stating that the applicant was illiterate. The Government further observed that the power of attorney, whereby the applicant had authorised her lawyers to represent her before the Convention organs and which was dated 9 February 1998, contained a signature.", "The Government submitted that a power of attorney issued by an illiterate person could only be valid, in accordance with Article 151 § 1 of the Bulgarian Code of Civil Procedure, if it contained that person's thumb-print and if it was co-signed by two witnesses. Since this was not the case in respect of the power of attorney of 9 February 1998, it followed that the application had been submitted by persons who were not duly authorised to do so on behalf of the applicant. The Government requested the Court to declare the application inadmissible. 46. During the preparatory meeting before the public hearing on 20 January 2000 (see paragraph 10 above), the applicant declared that she had signed the document in issue and explained in detail the circumstances in which she did so.", "She stated, inter alia, that she had been assisted in filling out the form and had signed it herself. Asked whether she wished to demonstrate her ability to sign, she put her signature on a piece of paper, in the presence of the President of the Chamber and the representatives of the parties. At the close of the preparatory meeting, the representative of the Government did not comment on the authenticity of the applicant's signature on the power of attorney, but stated that she maintained the Government's preliminary objection. 47. The Court observes that the Government are not estopped from raising the above objection, as it is based on a document which was created and came to light after 18 May 1999, the date of the admissibility decision in the present case (see the Ergi v. Turkey judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1770, § 62).", "48. The Court further recalls that in cases of similar challenges by Governments a question was put to the applicant as to whether he or she had signed the document in issue. A general assessment of all the evidence and, in particular, of the question whether the applicant maintained an interest in pursuing the case, was also relevant (see the Ergi v. Turkey judgment cited above, pp. 1770-71, §§ 63-64; Kurt v. Turkey, application no. 24276/94, Commission decision of 22 May 1995, Decisions and Reports 81-A, p. 112; Sarli v. Turkey, application no.", "24490/94, Commission's report of 21 October 1999, § 107, unpublished; and Aslan v. Turkey, applications nos. 22491/93 and 22497/93, Commission's report of 22 May 1997, unpublished). 49. In the present case the Government do not allege in express terms that the application was made without the applicant's consent. Their objection appears to be centred on the question whether the power of attorney of 9 February 1998 is legally valid.", "50. In so far as the Government rely on the requirement of Bulgarian law that a document emanating from an illiterate person must carry a thumb-print placed in the presence of two witnesses, the Court first observes that it is unclear whether a genuine document, signed by the hand of someone who had on another occasion stated to be illiterate, would be considered null and void under Bulgarian law. In any event, the Court recalls that the representative of the applicant must produce a “power of attorney or a written authority to act” (Rule 45 § 3 of the Rules of Court and Rule 43 § 3 of the Rules of Procedure of the Commission, as in force at the time the present application was filed with the Commission). Therefore, a simple written authority would be valid for purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant's understanding and consent. 51.", "As regards this latter point, the Court takes into account all evidence before it, including the meeting with the applicant in person in the presence of the President of the Chamber and the representative of the Government (see paragraph 46 above). It further considers that at no point has there been serious doubt as to the will of the applicant to pursue her complaints. Finally, the Court notes that one of the two lawyers, whose names appear on the impugned power of attorney dated 9 February 1998, has been her representative before the domestic authorities since at least 1995 (see paragraphs 1 and 36 above). 52. The Court finds, therefore, that the application has been validly submitted on behalf of the applicant and dismisses the first preliminary objection by the Government.", "B. The remaining preliminary objections 53. In their written observations of 27 September 1999, the Government stated that the admissibility decision of 18 May 1999 contained a number of incorrect statements of fact and unjustified conclusions. In particular, on pages 7 to 12 of the admissibility decision, there were unacceptable statements. The Government further reiterated their position that the application should be rejected for failure to exhaust domestic remedies.", "They maintained, as they did at the admissibility stage of the proceedings, that, inter alia, the applicant should have brought a civil action for damages and should have joined the criminal investigation into the death of Mr Tsonchev as a private prosecutor. The Government further stated that the Court's finding as regards the six-month time-limit was “contrary to the letter and the meaning of Article 35 of the Convention”. In their observations of 11 November 1999 and at the hearing before the Court, the Government also maintained that the application amounted to an abuse of the right of petition. On the basis of the above considerations, the Government requested the Court to declare the application inadmissible. 54.", "The applicant replied that the application should be examined on the merits. 55. The Court takes cognisance of the Government's observations on the facts and takes them into account fully, along with all other evidence. Indeed, it is precisely after declaring an application admissible that the Court proceeds to a final establishment of the facts, in accordance with Article 38 of the Convention, on the basis of the submission of the parties and, if need be, its own investigation. 56.", "The Court further notes that the alleged unacceptable statements in its admissibility decision are all to be found in the summary of the applicant's complaints and submissions, which forms part of the text of the decision as much as the summary of the Government's position does, without any of them being the expression of the Court's opinion. 57. In respect of the Government's request that the application be declared inadmissible, the Court recalls that the provision of Article 35 § 4 in fine of the Convention, according to which the Court may declare an application inadmissible at any stage of the proceedings, does not signify that a respondent State is able to raise an admissibility question at any stage of the proceedings if that question could have been raised earlier (see paragraph 88 of the explanatory report to Protocol No. 11 to the Convention and Rule 55 of the Rules of Court). In the present case the Government, for the most part, reiterate their objections as to the admissibility of the application, which were already examined by the Court and rejected by its decision of 18 May 1999.", "The Court sees no new element justifying a re-examination of these matters. In any event, looking into the substance of the Government's preliminary objections, the Court finds no merit in any of them. 58. The Court dismisses, therefore, the remainder of the Government's preliminary objections. II.", "ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 59. The applicant alleged violations of Article 2 of the Convention in that Mr Tsonchev had died as a result of injuries intentionally inflicted by the police, that he had not received adequate medical treatment while in police custody and that there had not been a meaningful investigation into the circumstances of his death. Article 2 provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Arguments of the parties 1. The applicant 60. In the applicant's view all available evidence indicated that Mr Tsonchev was in good health at the time he first encountered the police in the early afternoon of 24 September 1994.", "The fact that he had been drinking alcohol (not more than four beers) did not affect his general state of health, which was apparently good. 61. The applicant submitted that the Government had not provided any explicit explanation, let alone a plausible one, for what had happened, and had thus failed to show that its agents had not been responsible for the death of Mr Tsonchev. The Government had only implied, in their submissions to the Court, that Mr Tsonchev might have received his injuries by falling on the ground, due to his alcohol intoxication. However, it sufficed to examine the conclusions of the forensic report concerning the type and the size of the injuries which had caused Mr Tsonchev's death to discard such a version of the facts as implausible.", "62. The applicant further submitted that Mr Tsonchev had not received adequate medical treatment for several hours, while he had been in police custody apparently suffering from life-threatening injuries. The applicant stated that Bulgarian legislation contained no provisions guaranteeing access to a doctor for persons deprived of their liberty. She further disputed the Government's position that everything possible had been done. She recalled that, according to the police officers' testimonies, the doctor who had seen Mr Tsonchev, and whose identity was never disclosed, had stated that Mr Tsonchev had been too drunk to be examined.", "In the applicant's view these facts, if they were true, could only serve to establish the doctor's liability for medical malpractice, and not as grounds for the conclusion that adequate measures had been taken. She submitted that there were two possible explanations: either the doctor had arrived after the death of Mr Tsonchev and, appalled by what the police had done, had refused cooperation, or no doctor had ever arrived, the whole story having been made up by the police. In either case, Mr Tsonchev had been denied appropriate and timely medical care. 63. The applicant also alleged that the authorities had failed in their duty under Article 2 of the Convention to undertake a prompt, thorough and effective investigation into the circumstances surrounding Mr Tsonchev's death.", "Although the investigation had started promptly, nothing had been done since December 1994, despite the applicant's repeated requests. 64. The applicant further contended that the investigation had been characterised by a number of omissions and inconsistencies which had resulted in most of the questions surrounding the death of Mr Tsonchev remaining unanswered. In the applicant's view these omissions were so numerous and so striking that they could only be described as an effort by the investigation authorities to cover up for the police, rather than to investigate their acts. 2.", "The Government 65. The Government contended that the complaints under Article 2 were manifestly ill-founded. In their view, the applicant's allegation that Mr Tsonchev had died as a result of ill-treatment by police officers was not supported by the evidence in the case. The investigation had established that prior to his arrest he had consumed a large quantity of alcohol and that he had been staggering and falling when apprehended and later at the police station. At the same time little and highly contradictory evidence was available regarding the manner in which he had spent the hours prior to his arrest.", "The Government submitted that the forensic medical experts had concluded that the fatal injuries could have been the result of falling. These considerations and the fact that no evidence of police brutality was established during the investigation should, in their view, lead to the conclusion that the applicant's allegations were unfounded. 66. The Government further maintained that until 10 p.m. on 24 September 1994, Mr Tsonchev had not complained of any ailment. He had been under the influence of alcohol and had not been communicative.", "It was normal in these circumstances that the police officers had decided to leave him to sober up. When Mr Tsonchev had complained that he felt unwell, an emergency medical team had urgently been dispatched, but the doctor had found it impossible to examine him due to his state of alcohol intoxication. In the Government's view, therefore, the police could not be held responsible for not having provided adequate medical treatment. In fact, everything possible was done. 67.", "The Government also affirmed that all necessary investigation steps had been undertaken promptly. An investigator had visited the site immediately after Mr Tsonchev's death and had then proceeded with questioning witnesses. An autopsy had been ordered and promptly performed. Therefore, the allegation that the investigation was not effective was also unfounded. B.", "The Court's assessment 1. As to the alleged killing of Mr Tsonchev 68. The Court recalls that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2, the Court must subject to the most careful scrutiny complaints about deprivation of life (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV).", "69. In the present case it is alleged by the applicant that the authorities were responsible for the death of Mr Tsonchev. It is alleged that he was severely beaten while in the hands of the police, that he did not receive proper medical treatment despite the grave injuries thus inflicted, and that he died as a consequence. 70. The Court considers that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which the authorities must be held responsible under Article 2 of the Convention (see, mutatis mutandis, Selmouni v. France [GC], no.", "25803/94, § 87, ECHR 1999-V). In assessing evidence, the general principle applied in cases has been to apply the standard of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, § 61). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control while in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. 71. The “cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock”. The autopsy disclosed no other ailment or injury which could have led to the fatal outcome (see paragraph 30 above). 72.", "It is undisputed that Mr Tsonchev had consumed a certain quantity of alcohol prior to his arrest. However, it is also undisputed that, at the moment of his arrest, he was enjoying drinks in the company of others, that he could walk, that there was some verbal communication between him and the police officers and other persons, that in the course of this verbal communication, at the time of the arrest and within the next two hours, Mr Tsonchev did not complain of any ailment, and that none of those having been in contact with him, including the police officers involved, reported any visible sign of such grave injuries as were found later by the autopsy (see paragraphs 14-19 above). On the basis of the above the Court finds implausible the Government's suggestion that Mr Tsonchev might have received his fatal injuries prior to his arrest. 73. The Government's other supposition, that Mr Tsonchev might have been injured by falling on the ground, when apprehended and later at the police station, as he was allegedly staggering, is equally implausible.", "The post-mortem report mentioned such a possibility only in respect of the bruises on Mr Tsonchev's face. These bruises were not among the injuries that led to the acute loss of blood and, eventually, to the fatal outcome. As regards the fatal injuries, the Court notes that according to the prosecutor's decision of 19 March 1996 they had been the result of “deliberate beating” (see paragraph 37 above). Indeed, the acute loss of blood was the result of symmetrical haematomas on the upper limbs, measuring 40 by 18 cm each, and a haematoma on the left buttock, which was 8 to 10 cm long and 1.5 to 2 cm wide. The forensic expert did not mention falling on the ground as a possible means of inflicting injuries of such gravity and of such particular characteristics.", "According to the post‑mortem report, the injuries on the left buttock “resulted from the impact of a long hard object(s), with a limited narrow surface, longish, approximately 2 cm wide” and, those on the upper limbs, from “the impact of − blows by or collision with − a hard blunt object”, the shape of which could not be determined (see paragraph 30 above). The above evidence does not support the Government's contention that Mr Tsonchev could have injured himself by falling on the ground. 74. The Court finds, therefore, that there is sufficient evidence on which it may be concluded beyond reasonable doubt that Mr Tsonchev died as a result of injuries inflicted while he was in the hands of the police. The responsibility of the respondent State is thus engaged.", "75. The Court also finds that there is no evidence of Mr Tsonchev having been examined with the care one would expect from a medical professional at any time while in custody, and suffering from severe injuries (see paragraph 22 above). 76. The Court concludes, therefore, that there has been a violation of Article 2 of the Convention in respect of the death of Mr Tsonchev. 2.", "As to the alleged lack of a meaningful investigation 77. The Court observes at the outset that certain references in the material submitted to it could lead to the supposition that there exist documents concerning the investigation into the death of Mr Tsonchev, copies of which have not been provided by the Government (see, inter alia, paragraphs 22 and 33 above). In this respect the Court recalls that it is of utmost importance for the effective operation of the Convention system of individual petition that States furnish all necessary facilities to enable a proper and effective examination of applications, as required by Article 38 of the Convention (see Çakıcı cited above, § 76). In the particular circumstances of the case, it is nevertheless not necessary to examine whether the Government have complied with their obligations under Article 38 of the Convention. For the purposes of the applicant's complaint that there has been no effective investigation into the death of Mr Tsonchev, it suffices to note that the Government were requested to submit “copies of all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” and that in reply, on 11 November 1999, the Government submitted “copies of all documents contained in the files” (see paragraphs 6 and 7 above).", "The Court is thus entitled to draw the inference that the material submitted to it contains all information about the investigation (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, § 103). 78. The Court notes that the investigation into the death of Mr Tsonchev commenced promptly, immediately after he was found dead at the police station in Pleven, with a visit on the site, a questioning of witnesses and an autopsy. It is observed, however, that there were numerous unexplained omissions from the very beginning and throughout the investigation.", "79. In the first hours after the tragic event, when ordering an autopsy, investigator Enchev failed to ask the forensic expert to state his opinion as to the time the fatal injuries occurred, despite the obvious crucial importance of obtaining an answer to that question (see paragraph 29 above). Strikingly, throughout the investigation, no expert was ever asked to comment on the time at which the victim sustained his injuries. It is also highly significant that the investigation file contains no trace of any attempt by investigator Enchev to identify the members of the medical team who, according to the statements of the police officers involved, visited the Pleven police station twice during the night when Mr Tsonchev died. Copies of the records of the hospital emergency unit, which would normally contain information about the alleged visit, are not to be found in the investigation file (see paragraphs 22, 25 and 38-40 above).", "Furthermore, a number of important witnesses were never examined or were not asked certain key questions. Police officer Petranov, who arrested Mr Tsonchev together with his colleague Ivanov, was never questioned. It appears that Mr I.P., who was detained at the Pleven police station during the night in question, and who must have observed Mr Tsonchev's deterioration, was not questioned either. Finally, the investigator did not deem it necessary to obtain the testimony of any of the twenty to thirty persons who had gathered in front of the cattle owners' home and who, according to the police officers involved, “wanted to beat up [Mr Tsonchev]” (see paragraphs 14, 18, 21 and 23 above). 80.", "The Court recalls that the State's obligation under Article 2 to protect the right to life, read in conjunction with its general duty under Article 1 to “secure to everyone within their jurisdiction the rights and freedoms defined [therein]”, 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. The investigation must be, inter alia, thorough, impartial and careful (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, §§ 161-63, and Çakıcı cited above, § 86). The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation's effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work.", "It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-10, ECHR 1999-IV; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 325-26, §§ 89-91; and the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1732-33, §§ 79-81). 81.", "In the present case the applicant submits that the deficiencies of the investigation were so grave and numerous that the only possible explanation could be that the investigator and the prosecutor were biased and endeavoured to cover up the crime committed against Mr Tsonchev. 82. The Court considers that unexplained failure to undertake indispensable and obvious investigative steps is to be treated with particular vigilance. In such a case, failing a plausible explanation by the Government as to the reasons why indispensable acts of investigation have not been performed, the State's responsibility is engaged for a particularly serious violation of its obligation under Article 2 of the Convention to protect the right to life. 83.", "The Court observes that there existed obvious means to obtain evidence about the time at which Mr Tsonchev's injuries occurred and further important evidence about the circumstances surrounding his arrest, his state of health and, consequently, about the perpetrators of the grave crime committed against him (see paragraph 79 above). However, the investigator did not proceed to collect such evidence, an omission which was sanctioned through the order of 19 March 1996 and the letter of 3 June 1997 by the regional prosecutor (see paragraphs 37 and 40 above). Furthermore, the investigation remained dormant, nothing having been done since December 1994 to uncover the truth about the death of Mr Tsonchev. The applicant's numerous complaints of the authorities' inactivity were to no avail (see paragraphs 35-40 above). No plausible explanation for the reasons of the authorities' failure to collect key evidence was ever provided by the Government.", "84. The Court finds, therefore, that there has been a violation of the respondent State's obligation under Article 2 of the Convention to conduct an effective investigation into the death of Mr Tsonchev. III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 85. The applicant alleged that the excessive length of the investigation into the death of Mr Tsonchev amounted to a violation of her right under Article 6 § 1 of the Convention to a determination “within a reasonable time” of her civil right to compensation arising out of the death.", "She also submitted that there had been violations of Article 13 of the Convention in that the authorities had failed to carry out a thorough, effective and timely investigation into Mr Tsonchev's death and in that Bulgarian law did not provide for an effective remedy against the inactivity of the prosecution authorities. 86. The Court considers that these complaints fall to be examined under Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 87. The applicant submitted that there had been an inexcusable inactivity on the part of the authorities. She asserted that the failure to carry out a thorough and effective investigation in this case reflected a broader pattern in Bulgaria, which had been noted by intergovernmental organisations.", "She referred to the report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (UN Document E/CN.4/1997/7 of 10 January 1997), which stated, inter alia, that “[t]he Special Rapporteur [was] concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. [The Special Rapporteur] believes the government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies”. The applicant finally referred to the most recent annual report of the United Nations' Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (UN Document E/CN.4/1999/15 of 15 January 1999), where it was stated that “police abuse of Roma in custody [was] widespread in Bulgaria ... Since 1992, at least fourteen Roma men in Bulgaria have died after having last been seen alive in police custody, or as a result of the unlawful use of firearms by law enforcement officers ... As a rule investigative and judicial remedies are rare”.", "88. The Government submitted that if the applicant had been a legal successor of Mr Tsonchev, she could have applied to be admitted as a party to the criminal proceedings (as a private prosecutor or as a plaintiff claiming damages). As a party to the criminal proceedings, she would have been entitled to request the collection of evidence and would have had access to the case file. In the event of a refusal of a prosecutor to admit the applicant or Mr Tsonchev's heirs as parties to the proceedings, appeals could have been lodged with the higher prosecutor. The Government also submitted that the applicant could bring a civil action for damages in separate civil proceedings and concluded that Bulgarian law provided for effective legal remedies, which had not been used by the applicant or Mr Tsonchev's heirs.", "As to the length of the investigation, the Government maintained that it was justified and not unreasonable in view of the complex factual issues in the case and the time needed for various procedural acts. Finally, the Government submitted that the criminal investigation had not been terminated and that the authorities were under a legal obligation to act if new evidence came to light. 89. The Court recalls 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 scope of the obligation under Article 13 also 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. A violation of Article 2 cannot be remedied exclusively through an award of damages (see the Kaya judgment cited above, p. 329, § 105). Given the fundamental importance of the right to protection of life, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation likely to lead to those responsible being identified and punished, and in which the complainant has effective access to the investigation proceedings (see Çakıcı cited above, §§ 112-13). 90. In the instant case, having regard to paragraphs 78 to 84 above, the Court finds that the respondent State has failed to comply with its obligation to carry out an effective investigation into the death of Mr Tsonchev.", "This failure undermined the effectiveness of any other remedies which might have existed. Therefore, the question about the applicant's status in the criminal investigation does not call for a separate examination. There has been, therefore, a violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 91.", "The applicant claimed that there had been discrimination contrary to Article 14 of the Convention on the basis of Mr Tsonchev's Roma (Gypsy) ethnic origin. Article 14 of the Convention provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 92. The applicant submitted that popular prejudice against the Roma people in Bulgaria was widespread and frequently manifested itself in acts of racially motivated violence against Roma, to which the authorities reacted by inadequate investigation leading to practical impunity. The applicant stated that this phenomenon had been documented by human rights monitoring organisations and had been acknowledged by the Bulgarian government. She referred, inter alia, to the 14th Periodic Report of States Parties (Addendum – Republic of Bulgaria) of 26 June 1996, issued by the United Nations Committee on the Elimination of Racial Discrimination; to the reports of 25 January and 24 December 1996 (E/CN.4/1996/4 and E/CN.4/1997/60) by Mr Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, commissioned by the United Nations Commission on Human Rights; to the report of the European Committee for the Prevention of Torture of 6 March 1997; and to reports of non-governmental organisations.", "The applicant maintained that Mr Tsonchev's ethnic origin had been known to the police officers who had apprehended him and held him in custody and that the officers' perception thereof had been so strong that at least one of them, Sergeant Ivanov, in testimony during the investigation, had made explicit references to his ethnic origin. The remark of investigator Enchev that no injuries were visible on Mr Tsonchev's body due to the “dark colour of the skin” was also an expression of bias. In the applicant's view, based on her experience over many years with law enforcement and investigation authorities in Bulgaria, the police officers' perception of Mr Tsonchev's ethnicity was a decisive factor in contributing to his ill‑treatment and murder. Prejudice was also the reason for the refusal to investigate. 93.", "The Government replied that there was nothing to indicate that the police acted on the basis of Mr Tsonchev's ethnic origin. He was arrested on the suspicion of having committed a serious crime. Mentioning the word “Gypsy” was not discriminatory because his ethnic origin was indeed that of a “Gypsy”. The Government further submitted that they were actively working on the better integration in society of persons of Gypsy origin. A National Council on Ethnic and Demographic Issues, whose members are representatives of non-governmental organisations and State officials, was created in 1997.", "There exist in the country a number of non-governmental organisations defending the interests of persons of Gypsy origin. In April 1999, following an extensive dialogue with representatives of the community, the National Council adopted a programme on the integration of Gypsies in society. The Government are thus actively working on maintaining a climate of ethnic tolerance and social cohesion. 94. The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments.", "It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events (see paragraphs 69-76 and 81-84 above). The Court recalls, however, that the standard of proof required under the Convention is “proof beyond reasonable doubt”. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's death and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant. It follows that no violation of Article 14 has been established. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 95.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 96. The applicant claimed 100,000 French francs (FRF) in compensation for the pain and suffering resulting from the violations of the Convention and an order of the Court that this amount be paid directly to her in full, free of taxes or of any claim or attachment by the government or by third persons. The applicant also requested the Court to order that there should be no negative consequences for her, such as reduction in social benefits due to her, as a result of the receipt of the above amount. The applicant stated that Mr Tsonchev was the person with whom she had been living for twelve years and who was the father of her three children. The pain experienced at the loss of someone so close was aggravated by the failure of the competent authorities to investigate the tragic events and to render justice.", "The applicant further stated that she still cared for their children and that any amount awarded in damages would also benefit them. 97. The Government submitted that the amount was excessive, referring to the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998-VIII). They argued that the standard of living in Bulgaria should be taken into account and that the finding of a violation of the Convention would be sufficient just satisfaction. 98.", "The Court considers that the applicant must have suffered gravely as a result of the serious violations, found in the present case, of the most fundamental human rights enshrined in the Convention. The Court notes, inter alia, that the case concerns the death of the applicant's partner and father of three of her children. The Court considers, in the light of its case-law (see Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III, and the following judgments cited previously: Kaya, p. 333, § 122; Ergi, p. 1785, § 110; Yaşa, pp. 2444-45, § 124; Çakıcı, § 130; Tanrıkulu, § 138; and Güleç, p. 1734, § 88), that the applicant's claim is not excessive and, accordingly, awards it in full.", "99. In respect of the applicant's request for an order that there be no attachment of the above amount, the Court considers that the compensation fixed pursuant to Article 41 and due by virtue of a judgment of the Court should be exempt from attachment. It would be incongruous to award the applicant an amount in compensation for, inter alia, deprivation of life constituting a violation of Article 2 of the Convention if the State itself were then allowed to attach this amount. The purpose of compensation for non‑pecuniary damage would inevitably be frustrated and the Article 41 system perverted, if such a situation were to be deemed satisfactory. However, the Court has no jurisdiction to make an order exempting compensation from attachment (see, among other authorities, the Philis v. Greece (no.", "1) judgment of 27 August 1991, Series A no. 209, p. 27, § 79; the Allenet de Ribemont v. France judgment of 7 August 1996, Reports 1996-III, p. 910, §§ 18-19; and Selmouni cited above, § 133). It must therefore leave this point to the discretion of the Bulgarian authorities. B. Pecuniary damage 100. The applicant claimed FRF 39,047.55 (being 11,295.85 new Bulgarian levs (BGN)) for pecuniary damage.", "She stated that Mr Tsonchev had been the main support of the family and that his death had resulted in a significant loss of income for herself and their three children. The applicant was unable to present documentary proof of Mr Tsonchev's income. She claimed that its source was mainly petty trade of services for goods or food. This activity was never documented, as in the case of most Romanies in Bulgaria, the majority of whom are unemployed and for whom irregular, unofficial and low-paid work in the shadow economy remains the only viable supplement to what the applicant described as the inadequate social-welfare payments. The applicant submitted that in these circumstances strict adherence to the requirement of supporting documents would make impossible any award of pecuniary compensation to Romanies or other persons who live in a strictly cash economy.", "That, in turn, would be incompatible with the purpose of Article 41. The applicant, therefore, proposed to calculate the pecuniary damage suffered by her on the basis of the average life expectancy for men in Bulgaria and the minimum monthly salary in the country, with a 20% reduction for the deceased person's own living expenses. 101. The Government stated that the applicant was not entitled to a survivor's pension as she was never married to Mr Tsonchev. They further noted that no documentary proof had been submitted in respect of his income.", "Furthermore, it was unclear whether he would have lived to the average life expectancy. The Government also noted that the minimum monthly salary of BGN[2] 67 (the equivalent of FRF 225), which was used by the applicant in her calculation, was in force since July 1999, whereas at the time of Mr Tsonchev's death it was 2,143 old Bulgarian levs (BGL) (about FRF 190 at that time) and had always been fluctuating. 102. The Court finds that the applicant must have suffered pecuniary damage in the form of loss of income resulting from the death of Mr Tsonchev. However, the method used by her in calculating the loss of income for the family is far from precise.", "The applicant has not presented an actuarial report. The Court is therefore obliged to deal with the claim on an equitable basis. As regards the Government's arguments, the Court notes that the applicant's claim is based on the fact that she was living with Mr Tsonchev and that, as alleged by her, he was providing for the family, and would have continued to do so if he were alive. The question whether the applicant was entitled to a survivor's pension is therefore irrelevant. Deciding on an equitable basis, the Court awards BGN 8,000.", "C. Costs and expenses 103. The applicant claimed 5,081 United States dollars (USD) and FRF 6,304 in respect of 103 hours of work on the domestic proceedings and the Strasbourg proceedings performed by her counsel, Mr Dimitrov and Mr Grozev, out-of-pocket expenses, as well as air fares and expenses related to the appearance of the applicant and Mr Grozev at the hearing before the Court in Strasbourg. The amount claimed by the applicant is the equivalent of about BGN 12,000. The Government objected that the lawyers' claim for fees at the rate of USD 40 per hour was excessive, regard being had to the fact that a judge of high rank in Bulgaria earned the equivalent of about USD 3 per hour. The Government submitted that there was an alarming tendency of transforming cases before the Court into a business intended to benefit not the applicants, who were seeking their own rights, but their lawyers.", "The Government maintained that, once a case came to an advanced stage, lawyers had little difficulty in obtaining the signature of an applicant under any agreement on legal fees, with the expectation that the State would be paying. The Government accepted as reasonable the claims related to the costs and expenses for the hearing in Strasbourg. 104. The Court considers that, as a whole, the sums claimed by the applicant are not excessive, regard being had to its case-law and, in particular, the sums awarded in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, § 79, ECHR 1999-II).", "Deciding on an equitable basis, the Court awards under the head of costs and expenses BGN 10,000, together with any value-added tax that may be chargeable, less FRF 14,693 received by the applicant by way of legal aid, to be converted into Bulgarian levs at the rate applicable on the date of settlement. D. Default interest 105. According to the information available to the Court, the statutory rate of interest applicable in Bulgaria at the date of adoption of the present judgment is 13.23% per annum and in France 2.74% per annum. FOR THESE REASONS, THE COURT unanimously 1. Dismisses the Government's preliminary objections; 2.", "Holds that there has been a violation of Article 2 of the Convention in respect of the death of Mr Tsonchev; 3. Holds that there has been a violation of Article 2 of the Convention in respect of the respondent State's obligation to conduct an effective investigation; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds that there has been no violation of Article 14 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) for non-pecuniary damage, FRF 100,000 (one hundred thousand French francs); (ii) for pecuniary damage, BGN 8,000 (eight thousand Bulgarian levs); (iii) for costs and expenses, BGN 10,000 (ten thousand Bulgarian levs), plus any value-added tax that may be chargeable, less FRF 14,693 (fourteen thousand six hundred and ninety three French francs) to be converted into Bulgarian levs at the rate applicable on the date of settlement; (b) that simple interest shall be payable from the expiry of the above‑mentioned three months until settlement at an annual rate of 13.23% in respect of the amounts in Bulgarian levs and at annual rate of 2.74% in respect of the amounts in French francs; 7.", "Dismisses the remainder of the applicant's claims for just satisfaction. Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 May 2000. Vincent BergerMatti Pellonpää RegistrarPresident [1]1. Note by the Registry. See Velikova v. Bulgaria (dec.), no.", "41488/98, ECHR 1999-V (extracts) The full text of the Court’s decision is obtainable from the Registry. [1]1. Under Bulgarian law, driving with a blood alcohol level of over 0.5 per thousand is an administrative offence (section 174 of the Road Traffic Law as in force since 1 September 1999). [2]1. As of July 1999, 1,000 old Bulgarian levs (BGL) became 1 new Bulgarian lev (BGN)." ]

[ "THIRD SECTION CASE OF BUGARIĆ v. SERBIA (Application no. 62208/13) JUDGMENT STRASBOURG 19 April 2016 This judgment is final but it may be subject to editorial revision. In the case of Bugarić v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Stephen Philips, Section Registrar, Having deliberated in private on 22 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62208/13) 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, Ms Zorica Bugarić (“the applicant”), on 25 September 2013.", "2. The applicant was represented by Mr R. Marinković, a lawyer practising in Novi Pazar. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić. 3. On 16 September 2014 the application was communicated to the Government.", "4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1957 and lives in Novi Pazar. 6. She was employed by DP “Raška Holding Kompanija” AD, a socially-owned company based in Novi Pazar (hereinafter “the debtor”). A. Civil proceedings brought by the applicant 7.", "On 30 June 2004, 25 September 2009 and 21 December 2009 respectively, the Novi Pazar Municipal Court ordered the debtor to pay the applicant certain amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. These judgments became final on 15 September 2004, 20 October 2009 and 5 October 2010 respectively. 8. On 5 October 2004 and 11 July 2011 respectively, upon the applicant’s request to that effect, the Novi Pazar Municipal Court ordered the enforcement of the said judgments; it further ordered the debtor to pay the applicant the enforcement costs. B.", "The debtor’s status 9. On 11 September 2013 the Kraljevo Commercial Court opened preliminary insolvency proceedings against the debtor. 10. On 25 October 2013 the same court opened insolvency proceedings against the debtor. 11.", "The insolvency proceedings are still ongoing. II. RELEVANT DOMESTIC LAW AND PRACTICE 12. The relevant domestic law concerning the status of socially-owned companies, as well as the enforcement and insolvency proceedings, is outlined in the cases of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., §§ 57-64 and 71-76, 15 January 2008 and Jovičić and Others v. Serbia (dec.), no.", "37270/11, §§ 88-93, 15 October 2013. Furthermore, the case-law of the Constitutional Court in respect of socially-owned companies, together with the relevant provisions concerning constitutional redress are outlined in the admissibility decision in Marinković v. Serbia (dec.), no. 5353/11, §§ 26 -29 and 31-44, 29 January 2013, the judgment in Marinković v. Serbia, no. 5353/11, §§ 29-31, 22 October 2013, and the decision in Ferizović v. Serbia (dec.), no. 65713/13, §§ 12-17, 26 November 2013.", "THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 13. The applicant complained of the respondent State’s failure to enforce final court judgments rendered in her favour and of the lack of an effective remedy in that connection. She relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No.", "1, which, in so far as relevant, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 14. The Government submitted that the application should be declared inadmissible due to the applicant’s failure to exhaust effective domestic remedies.", "They relied on Court’s case law, namely on the case of Marinković, cited above, and pointed out that since the insolvency proceedings against the debtor were opened on 11 September 2013 the applicant should have lodged a constitutional appeal before bringing her application to the Court. 15. The applicant disagreed. 16. The Court has already ruled that as regards the non-enforcement of final judgments rendered against socially-owned companies undergoing insolvency proceedings and/or those which have ceased to exist, a constitutional appeal should, in principle, be considered as an effective remedy in respect of all applications lodged from 22 June 2012 onwards (see Marinković (dec.), cited above, § 59).", "17. In the present case, the Court notes that the applicant submitted her application on 25 September 2013, namely before the insolvency proceedings were formally opened against the debtor (see paragraph 10 above). 18. The Court considers that the applicant had indeed had no obligation to use constitutional redress before turning to the Court. The Court, therefore, rejects the Government’s objection in this regard.", "19. Since the applicant’s complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible. B. Merits 20. The Court notes that the final judgments rendered in the applicant’s favour remain unenforced to the present date.", "21. The Court observes that it has frequently found violations of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to those raised in the present case (see R. Kačapor and Others, cited above, §§ 115-116 and 120; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, §§ 123-124 and 133-134, 13 January 2009; Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, §§ 74 and 79, 31 May 2011; and Adamović v. Serbia, no.", "41703/06, § 41, 2 October 2012). 22. 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 have, accordingly, been violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.", "23. Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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, costs and expenses 25. The applicant requested that the State be ordered to pay, from its own funds: (i) the sums awarded by the final judgments rendered in her favour; (ii) 5,500 euros (EUR) in respect of non-pecuniary damage; (iii) an unspecified amount for the costs and expenses incurred before the Court. 26. The Government contested these claims.", "27. Having regard to the violations found in the present case and its own case-law (see R. Kačapor and Others, cited above, §§ 123-126, and Crnišanin and Others, cited above, § 139), the Court considers that the applicant’s claims for pecuniary damage concerning the payment of the outstanding judgment debt must be accepted. The Government shall therefore pay the applicant the sums awarded in the final domestic judgments adopted on 30 June 2004, 25 September 2009 and 21 December 2009 as well as the costs of the enforcement proceedings, less any amounts which may have already been paid in respect of the said judgments. 28. The Court further takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s finding of a violation alone (see Radovanović, cited above, § 39).", "Having regard to its case-law (Stošić v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013), the Court awards EUR 2,000 to the applicant. This sum is to cover non-pecuniary damage, costs and expenses. B. Default interest 29.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there have been violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to 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, from its own funds and within three months, the sums awarded in the court judgments rendered in her favour, less any amounts which may have already been paid in this regard; (b) that the respondent State is to pay the applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable to the applicant, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhilipsHelena JäderblomRegistrarPresident" ]

[ "SECOND SECTION CASE OF AYHAN ERDOĞAN v. TURKEY (Application no. 39656/03) JUDGMENT STRASBOURG 13 January 2009 FINAL 13/04/2009 This judgment may be subject to editorial revision. In the case of Ayhan Erdoğan 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 9 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39656/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ayhan Erdoğan (“the applicant”), on 17 September 2003.", "2. The applicant was represented by Ms Ş. Özdemir, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 11 September 2007 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the alleged interference with the applicant’s freedom of expression 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 1952. He is a practising lawyer and lives in Istanbul.", "5. On an unspecified date the applicant, on behalf of his client Mr O.M., filed an action with the Istanbul Administrative Court seeking the annulment and suspension of execution of a competition to fill 49 posts announced in the Akit newspaper on 10 December 1997 by the office of the mayor of the Ümraniye district in Istanbul. In his petition, the applicant stated, inter alia, that 111 out of 137 workers who had been dismissed on 13 June 1994 had won their cases before the Administrative Courts but despite this fact they had not been reinstated. In this regard, the applicant submitted that the municipality had refused to reinstate 20 of the workers on the ground that there were no available posts. As to the other 91, they had been reinstated for a day before being dismissed again.", "The applicant complained that pending another set of administrative proceedings against the Municipality regarding a competition announced in the same newspaper on 30 March 1997 for 49 posts, the Municipality had announced this new competition, through which it was aiming to fill the available posts, rendering impossible the enforcement of the court judgments in favour of the dismissed employees, including his client. He further claimed that the vacancy notice had been published only in the editions of Akit which were distributed to various associations affiliated with the Refah party and not in the normal edition of Akit as distributed in Istanbul that same day. 6. In one paragraph of his petition, the applicant made the following remark: “As stated by political historians, the most dangerous cruel [person] (zalim) in the world is the one who considers himself and his acts as fair or who presents himself as such. The elected head of the accused administration, who has placed my clients in their current situation, is such a cruel [person](zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz).” 7.", "On 24 April 1998 Mr Bingöl, mayor of Ümraniye and member of the Refah party, brought an action against the applicant claiming compensation for the damage he had incurred as a result of the applicant’s serious attack on his honour and integrity. 8. In the course of the proceedings before the Üsküdar Civil Court of First Instance (hereafter the “Üsküdar Court”), the applicant unsuccessfully asked the court to appoint expert witnesses to analyse the impugned words and to hear a number of witnesses. In his written observations, the applicant maintained, inter alia, that his statements had not been an attack against Mr Bingöl but mere observations, since there were documents proving to what degree the latter had acted in accordance with the laws, the Constitution and ethics over the previous five years. He made a number of accusations regarding Mr Bingöl’s actions as mayor and referred to the fact that the latter and his administration had been the subject of media attention many times.", "The applicant stated that he had used the impugned words in the course of his defence duties; it had not been his aim to insult Mr Bingöl. He had referred to the plaintiff as “cruel” because the dismissals had had serious adverse effects on the lives of his 137 clients. He had used the word “bigot” as a reference to an intolerant person. In this connection, the applicant also referred to the reasons voiced by the Constitutional Court when it decided to ban the Refah party. The applicant also accused the plaintiff of misleading and lying to the domestic courts.", "9. In his written observations Mr Bingöl claimed, inter alia, that the applicant’s accusations were false and unfounded, that he had repeated his insulting remarks before the Üsküdar Court and that this attack on his personality had transgressed the standards and boundaries of objective debate. 10. On 27 September 1999 the Üsküdar Court ordered the applicant to pay compensation to Mr Bingöl in the amount of 2,500,000,000 Turkish liras (TRL - approximately 5,200 euros [EUR]) plus interest at the statutory rate applicable at the date of the court’s decision. The Üsküdar Court considered that the word yobaz used by the applicant meant a person “whose religious beliefs were so extreme as to cause discomfort to other persons” and a person who was “provocative, vulgar and unsophisticated”.", "The word was used in daily life to describe an “unlikeable, ignorant and vulgar” person. In any event, the applicant’s written submission, when read as a whole, had employed “sharp and harsh” language. According to the Üsküdar Court, whether or not the applicant had had the intention to insult the mayor was irrelevant; what was important was how the public would interpret those words. After all, Mr Bingöl was the elected mayor of a district where one million people lived. The applicant appealed.", "11. On 22 February 2000 the 4th Chamber of the Court of Cassation’s Civil Division held a hearing and, by a majority, quashed the Üsküdar Court’s decision of 27 September 1999 on the ground, inter alia, that the applicant’s witnesses had not been heard. The president of the Chamber dissented. 12. On 14 December 2000 the Üsküdar Court, considering that hearing the applicant’s witnesses and examining the administrative court’s case file would not have changed the outcome, insisted on its decision of 27 September 1999.", "The applicant appealed again. 13. On 20 March 2002 the Grand Chamber of the Court of Cassation’s Civil Division rejected the appeal and upheld the Üsküdar Court’s decision of 27 September 1999. The court noted that there was no dispute that, inter alia, the municipality headed by Mr Bingöl had failed to execute certain court judgments. However, it remained to be determined whether the words used by the applicant in the course of the administrative proceedings had a valid basis and whether these words constituted an attack against Mr Bingöl’s personal rights.", "In this connection, it considered that the applicant had overstepped the standards and boundaries of objective debate by using the terms “bigot”, “cruel” and “no regard for the rule of law”. The applicant had attacked Mr Bingöl’s personal rights. It also considered that the sanctions for the non-execution of a court decision – of which the mayor had been accused – were provided for by statute and that this could not be considered to be a valid reason for the applicant to cross the legally permissible boundaries and use the words he had. Finally, it held that listening to witnesses or examining the case file before the administrative courts would not have changed the outcome. The Grand Chamber of the Court of Cassation’s Civil Division also decided to remit the case to the 4th Chamber of the Court of Cassation’s Civil Division for an examination of the applicant’s complaints concerning the excessive amount of compensation.", "A request by the applicant for the review of that decision was rejected on 25 September 2002. 14. On 16 January 2003 the 4th Chamber of the Court of Cassation’s Civil Division rejected the applicant’s appeal concerning the amount of compensation, which he considered excessive when account was taken of his resources, and upheld the decision of the Üsküdar Court. A request by the applicant for the review of that decision was rejected on 24 April 2003. 15.", "The applicant paid the due amount of TRL 9,627,000,000 (approximately EUR 5,637[1]), in three instalments, on 27 February 2003, 20 March 2003 and 8 May 2003 respectively. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Saygılı and Others v. Turkey (no. 19353/03, §§ 16-17, 8 January 2008), and Turhan v. Turkey (no.", "48176/99, § 20, 19 May 2005). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 17. The applicant complained that he had been ordered to pay damages on account of statements made in his capacity as a lawyer, in breach of Article 10 of the Convention, which, in so far as relevant, 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... 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 18. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 19. The Government submitted that the interference with the applicant’s right to freedom of expression had been based on Article 49 of the Code of Obligations and Article 24 of the Civil Code, and was thus “prescribed by law”. Moreover, it had pursued the legitimate aim of protecting the rights and reputation of others.", "The Government maintained that the interference had also been necessary. In this connection, they considered, with reference to the State’s margin of appreciation, that the domestic courts, having examined the facts of the case, had struck a proper balance between protecting Mr Bingöl’s reputation and the applicant’s freedom of expression. The Government pointed out that no criminal proceedings had been brought against the applicant. 20. The applicant disputed the Government’s arguments.", "In particular, he maintained that the impugned statements had not been intended to insult Mr Bingöl but had been made in the course of judicial proceedings as part of defence submissions. The applicant submitted that the words highlighted by the Government had not been chosen in vain. In this connection, he pointed out that Mr Bingöl had refused to comply with court judgments, thus having no regard for the rule of law. The word “cruel” had been intended to highlight the difficult situation in which Mr Bingöl had put his clients and the word “bigot” to mean conservative. In this connection, the applicant noted that Mr Bingöl had belonged to a party which had subsequently been dissolved by the Constitutional Court for its reactionary actions.", "Finally, he emphasised that his petition, which contained the impugned statements, had not been disseminated in the press but was in a file in the domestic courts. 2. The Court’s assessment 21. It is not in dispute that there has been an interference with the applicant’s freedom of expression, prescribed by law and intended to protect “the reputation or rights of others”. The Court sees no reason to conclude otherwise.", "22. It remains to be established whether the interference was necessary in a democratic society. On this point, the Court relies on the basic principles laid down in its judgments concerning Article 10 (see, in particular, Nikula v. Finland, no. 31611/96, §§ 44-46, ECHR 2002‑II, Pakdemirli v. Turkey, no. 35839/97, §§ 32-33, 22 February 2005, Cumpǎnǎ and Mazǎre v. Romania [GC], no.", "33348/96, §§ 88-91, ECHR 2004-XI, Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI, and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §§ 45-46, ECHR 2007‑...). It will examine the present case in the light of these principles. 23.", "The Court reiterates that in exercising its supervisory jurisdiction it must look at the interference with the applicant’s right to freedom of expression in the light of the case as a whole, including the statements concerned, the context in which they were made and also the particular circumstances of those involved (see Feldek v. Slovakia, no. 29032/95, § 77, ECHR 2001-VIII). It must ascertain whether on the facts of the case a fair balance was struck between, on the one hand, the need to protect the reputation and rights of Mr Bingöl and, on the other hand, the protection of the applicant’s freedom of expression in his capacity as a lawyer (see, mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, § 177, ECHR 2005‑...). 24.", "One factor of particular importance for the Court’s determination in the present case is the distinction 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. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Turhan v. Turkey, cited above, § 24). 25. Moreover, the Court reiterates that while limits of critical comment are wider if a public figure is involved, as he or she is inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Kuliś v. Poland, no.", "15601/02, § 47, 18 March 2008), the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention (see Lindon, Otczakovsky-Laurnes and July v. France, [GC], cited above, § 57, ECHR 2007-...). 26. However, as the Court has previously pointed out, the special nature of the profession practised by members of the Bar must be considered. In their capacity as officers of the court, they are subject to restrictions on their conduct, which must be discreet, honest and dignified, but they also benefit from exclusive rights and privileges that may vary from one jurisdiction to another – among them a certain latitude regarding arguments used in court (see Steur v. the Netherlands, cited above, § 38). 27.", "In the present case the applicant filed a petition with the administrative court, on behalf of his client, against the municipality in order to annul a vacancy notice. In that petition, he made a number of accusations as regards the manner in which the vacancy notice had been published and the reasons behind it. The applicant also likened Mr Bingöl to a cruel person (zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz) (see paragraph 6 above). The domestic courts considered that the applicant’s statements, particularly the use of the term “bigot”, amounted to an insult against the personal integrity of Mr Bingöl, and awarded the latter compensation. 28.", "The Court has examined the petition in question and the reasons given in the domestic courts’ decisions to justify the interference with the applicant’s right to freedom of expression. It has carefully weighed the applicant’s professional interest in pleading his client’s case and in voicing his criticism against Mr Bingöl’s interests, a politician, in being protected against personal insult. In this connection, the Court considers that the language and expressions used in the impugned petition, particularly those highlighted by the domestic authorities, were provocative and inelegant and could legitimately be qualified as offensive. They were, however, value judgments which were made in the context of judicial proceedings by the applicant, who was acting in his capacity of a legal representative, and were set against a particular context connected to those proceedings. As such, the Court considers that they could not be construed as a gratuitous personal attack against Mr Bingöl.", "It is clear that the applicant’s statements, coloured by emotion, were of a nature to discredit the mayor. However, the Court reiterates in this context that the limits of acceptable criticism are wider as regards a politician than as regards a private individual. 29. Moreover, the applicant’s value judgments were conveyed in a petition, a medium where his client’s rights were naturally to be vigorously vindicated. Hence they were confined to the courtroom, unlike criticism against a third-party voiced in the media, for instance.", "In this connection, the Court observes that there is no indication in the case file that there was a real risk that the contents of the petition in question would have appeared in the media. In such circumstances the Court finds that the negative impact, if any, of the applicant’s words on Mr Bingöl’s reputation was therefore quite limited. 30. The Court considers, therefore, that the domestic courts, in their examination of the case, only had regard to the dictionary definition of these words and omitted to set these remarks within the context and the form in which they were expressed. 31.", "In view of the above, the Court finds that the interference with the applicant’s freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society”. This finding makes it unnecessary for the Court to pursue its examination in order to determine whether the amount awarded in the applicant’s case was proportionate to the aim pursued. 32. There has therefore been a violation of Article 10 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed, in total, EUR 25,500 in respect of pecuniary damage. This sum corresponded to the current value, together with interest, of the amount he had had to pay to the plaintiff in the defamation proceedings, which he assessed at EUR 25,000, and the costs and expenses incurred in those proceedings.", "He also claimed EUR 20,000 for the non-pecuniary damage suffered as a result of distress and frustration caused by the proceedings. 35. The Government contested the amounts. 36. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage in so far as the applicant refers to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no.", "61513/00, § 101, 21 December 2004). However, it finds the overall amount requested by the applicant excessive. Accordingly, the Court awards the sum of EUR 8,300 by way of pecuniary damage in respect of the amount which the applicant was ordered to pay to the complainant in compensation. 37. With regard to the costs of the domestic proceedings, the Court notes that the applicant’s claim concerns court fees which he had to pay in the course of the compensation proceedings, and that he submitted the corresponding receipts, amounting to EUR 500.", "The Court considers that this sum sought should be awarded in full since the costs to which the applicant referred were incurred in an attempt to prevent the violation established by the Court. 38. In total, the Court awards the applicant EUR 8,800 in respect of pecuniary damage. 39. As to the claim for non-pecuniary damage, the Court considers that the applicant may be taken to have suffered a certain amount of distress in the circumstances of the case.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards him EUR 1,000 under this head. B. Costs and expenses 40. The applicant also claimed EUR 3,111 for costs and expenses incurred before the Court. In support of his claims, the applicant submitted the fee agreement concluded between him and his legal representative, the Istanbul Bar Association’s recommended minimum fees list for 2008 and a receipt regarding translation costs.", "41. The Government contested the amount considering it excessive. 42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession, the complexity of the case and the above criteria, the Court considers it reasonable to award the sum of EUR 2,111 for the proceedings before the Court.", "C. Default interest 43. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of 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 according to Article 44 § 2 of the Convention, the following amounts to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 8,800 (eight thousand eight hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 2,111 (two thousand one hundred and eleven 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 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1] This amount now corresponds, given the intervening inflation, to approximately EUR 8,300 at the time of the adoption of the judgment." ]

[ "FIRST SECTION CASE OF TRIFKOVIĆ v. CROATIA (Application no. 36653/09) JUDGMENT STRASBOURG 6 November 2012 FINAL 18/03/2013 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Trifković v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Anatoly Kovler, President,Nina Vajić,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36653/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Milan Trifković (“the applicant”), on 12 June 2009. 2. The applicant was represented by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "On 10 November 2010 complaints concerning the lawfulness and length of the applicant’s detention and alleged flaws in the procedure of challenging his pre-trial detention were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1976 and lives in Split.", "A. Criminal proceedings against the applicant 5. An investigation was opened against the applicant and twenty other individuals on 24 November 2006 by an investigating judge of the Split County Court (Županijski sud u Splitu) in connection with a suspicion that between 2003 and November 2006 they had organised distribution of heroin in Dubrovnik and on the island of Korčula. 6. During the investigation, the investigating judge heard evidence from a number of witnesses, ordered searches, seizures and freezing of assets, and commissioned psychiatric, telecommunications and financial expert reports.", "7. Following an order by the investigating judge, on 24 November 2006 the police carried out a search of the applicant’s flat and on 5 February 2007 the psychiatrist submitted his report in respect of the applicant. He found that the applicant had used drugs for a relatively short period of time and had not developed an addiction. 8. On 15 May, 15 June, 8 August and 5 October 2007 the investigating judge established that all the necessary evidence had not been obtained and asked the president of the Split County Court to extend the investigation.", "The president of the Split County Court granted the requests and the investigation was extended on each of those occasions. 9. The State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”) indicted the applicant and sixteen others on 15 November 2007 in the Split County Court on charges of conspiracy to supply heroin in Dubrovnik and on the island of Korčula between 2003 and November 2006. 10. The applicant lodged an objection against the indictment on 7 December 2007, arguing that it had numerous substantive and procedural flaws.", "On 7 February 2008 the Split County Court sent the indictment back to the State Attorney’s Office on the ground that it needed further clarification. 11. The State Attorney’s Office submitted an amended indictment against the applicant and sixteen others before the Split County Court on 22 February 2008, reiterating the same charges of conspiracy to supply heroin. On 5 March 2008 the applicant lodged an objection against the above amended indictment, arguing that it had numerous substantive and procedural flaws. A three-judge panel of the Split County Court dismissed the applicant’s objection on 14 March 2008 as ill-founded.", "12. At a hearing on 13 November 2008 the applicant pleaded not guilty to the charges against him. 13. At hearings held on 17 and 18 December 2008 the trial court heard evidence from two witnesses. Further hearings scheduled for 11 and 12 February 2009 were adjourned indefinitely as one of the defendants had broken his leg and could not attend.", "14. A hearing scheduled for 29 June 2009 was also adjourned because the first accused had asked for members to be removed from the trial panel. 15. Further hearings were held on 28 August, 8, 15, 16 and 28 September, 20, 21 and 22 October, 2, 3, 4, 17 and 18 November and 21 December 2009, 27 and 29 January, 15, 17, 18 and 19 February, and 15, 29 and 30 March 2010. 16.", "At a hearing on 13 May 2010 the applicant gave oral evidence denying all the charges. At hearings held on 14, 17, 21 and 24 May 2010 the other accused gave oral evidence and the parties made their closing statements. 17. On 24 May 2010 the Split County Court found the applicant guilty as charged and sentenced him to three years and six months’ imprisonment. 18.", "The applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment on 31 January 2011. 19. The appeal proceedings are still pending. B. Decisions on the applicant’s detention 20.", "On 22 November 2006 the applicant was arrested on suspicion of supplying heroin. 21. The investigating judge of the Split County Court heard the applicant on 23 November 2006 and remanded him in custody for a further forty-eight hours under Article 98 § 2 of the Code of Criminal Procedure. The applicant appealed against this decision, arguing, inter alia, that he was permanently employed by company K.-V. and had not been engaging in any criminal activity. To support his arguments he submitted his employment contract with company K.-V. On 24 November 2006 a three-judge panel of the Split County Court dismissed his appeal.", "22. On 24 November 2006 the investigating judge remanded the applicant in custody under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The pre-trial detention was ordered in respect of the defendants listed under [heading] II of this decision under Article 102 § 1(4) of the Code of Criminal Procedure, because it is possible to order pre-trial detention on this ground for the offence at issue and because [the charges] concern a large quantity of heroin, which the defendants supplied to a larger number of people and for a longer period of time, therefore probably damaging the health of a significant number of people, which all contributes to the particularly grave circumstances of the offence... The pre-trial detention was ordered under Article 102 § 1(3) of the Code of Criminal Procedure in respect of defendants ... Milan Trifković, ... and ... since they have already been convicted of similar or other offences they now have no permanent income, so there is justified fear that they will reoffend.” 23. The applicant lodged an appeal on 6 December 2006, arguing that the charges against him suggested that he had had only a minor role in the alleged organisation of supply of heroin.", "As to the risk of reoffending, he argued that it was not true that he had no permanent income, as he was employed by company K.-V. In this connection he indicated his employment contract and submitted further documents as evidence of his income. The applicant also asked that the detention be replaced by another preventive measure that the court deemed appropriate. 24. The appeal was dismissed on 8 December 2006 by a three-judge panel of the Split County Court.", "The relevant part of the decision reads: “In view of the offence [the accused] are charged with, this panel finds that there are particularly grave circumstances justifying their detention under Article 102 § 1(4) of the Code of Criminal Procedure given that ..., Milan Trifković and ... have already been convicted of similar or other offences, so that for them the detention under Article 102 § 1(3) of the Code of Criminal Procedure is also justified.” 25. The investigating judge extended the applicant’s detention on 20 December 2006, under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the arguments in his decision of 24 November 2006. 26. The applicant appealed on 29 December 2006, pointing out that according to the charges held against him he had had only a minor role in the alleged organisation of heroin supplying. He also argued that nothing suggested that he might reoffend, since he was not a drug addict and his previous conviction for the possession of a small quantity of drugs could not in any respect be associated with the charges against him in the present case.", "He again asked that the detention be replaced by another preventive measure that the court deemed appropriate. 27. That appeal was dismissed on 17 January 2007 by a three-judge panel of the Split County Court. They reiterated their previous arguments. As to the risk of reoffending they added: “...and since [the defendants] are users of illegal drugs and do not have a permanent income, the investigating judge properly extended their detention under Article 102 § 1(3) of the Code of Criminal Procedure.” 28.", "On 19 January 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating the arguments in his previous decisions. 29. The applicant appealed on 23 January 2007, again stating that he had had only a minor role in the organisation of the supply of heroin and argued that the finding that he had no permanent income was not true, because he was employed. The applicant again asked for his detention to be replaced with another preventive measure. 30.", "The appeal was dismissed on 8 February 2007 by a three-judge panel of the Split County Court which reiterated its previous arguments. 31. On 20 February and 20 March 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as before. 32. The applicant lodged an appeal on 21 March 2007 where he argued, relying on the Court’s case-law, that the investigating judge had failed to provide sufficient reasons for extending his detention and that he had failed to consider the possibility of applying another preventive measure.", "33. The appeal was dismissed on 4 April 2007 by a three-judge panel of the Split County Court which reiterated that the gravity of the charges and the fact that the applicant had already been convicted of similar offences and that he was a drug user, justified his detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure. 34. On 20 April 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions. 35.", "The applicant appealed on 23 April 2007, arguing, inter alia, that the investigating judge had insisted that he had no permanent income, which was not true, because he was employed, and in that respect he had provided sufficient evidence. He also asked that the detention be replaced with another preventive measure. The appeal was dismissed on 4 May 2007 by a three-judge panel of the Split County Court, which endorsed the reasoning of the investigating judge. 36. On 18 May 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions.", "37. The applicant appealed on 21 May 2007, reiterating his arguments that there were no grounds for his continued detention. He again asked for the detention to be replaced with another preventive measure. On 30 May 2007 a three-judge panel of the Split County Court dismissed the applicant’s appeal, reiterating its previous arguments. 38.", "The investigating judge extended the applicant’s detention on 20 June 2007 again under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using identical phrases as in his previous decisions. 39. The applicant lodged an appeal on 21 June 2007 against the above decision, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure: on 27 June 2007 a three-judge panel of the Split County Court dismissed his appeal, on the same grounds as before. 40. On 19 July 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions.", "41. The applicant lodged an appeal on 25 July 2007, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure, but on 31 July 2007 a three-judge panel of the Split County Court dismissed the applicant’s appeal, using identical phrases to those in its previous decision. 42. On 20 August 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, again using identical reasoning. 43.", "The applicant lodged an appeal on 21 August 2007 and on 28 August 2007 a three-judge panel of the Split County Court dismissed it, using the same formulation as in its previous decisions. 44. The investigating judge extended the applicant’s detention on 20 September 2007 under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using identical phrases as in his previous decisions. 45. The applicant lodged an appeal on 25 September 2007.", "He again pointed out that the same effect of extending his detention could be achieved by ordering another preventive measure. On 3 October 2007 a three-judge panel of the Split County Court dismissed the appeal, using the same formulation as in its previous decisions. 46. On 19 October 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating his previous reasoning. 47.", "The applicant lodged an appeal on 23 October 2007, reiterating his previous arguments, but it was dismissed by a three-judge panel of the Split County Court on 26 October 2007. 48. On 16 November 2007, after the applicant had been indicted in the Split County Court, a three-judge panel of that court extended the applicant’s detention, again under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The criminal record ... shows that the accused ... Milan Trifković ... [has] already been convicted of a criminal offence of the same type as the one concerned in these proceedings ... Furthermore, the report drawn up by a neuropsychiatrist ... shows that the defendant... Milan Trifković ... [is a] drug user ...", "Therefore since the accused ... Milan Trifković ... [are] drug users ... there is a risk that they might reoffend. Also, since the accused are charged [with having] organised a group with the aim of trafficking in illegal drugs on the island of Korčula, and were engaged [in that activity for] a long period of time, together with J.C., who was the leader of the group and of all [the criminal] activities, and particularly having in mind the gravity [ of the offences at issue] and the danger to society, as well the prevalence of such offences, this panel considers that in the case at issue there are particularly grave circumstances which significantly differ from the usual manner in which the offence at issue is committed.” 49. Against that decision the applicant lodged an appeal with the Supreme Court on 28 November 2007. As to his previous conviction, he argued that he had been convicted only of possession of illegal drugs for his personal use, which could not in any respect be associated with the charges against him in the present case. Moreover, the psychiatric report showed that he had no addiction to drugs and that there was no risk that he would reoffend.", "He also pointed out that he was permanently employed and that he had a regular source of income. As to the gravity of the charges, the applicant argued that the charges against him suggested that he had had only a minor role in the alleged organisation of the supply of heroin. The applicant also asked for the detention to be replaced with any preventive measure that the court deemed appropriate. 50. On 7 December 2007 the Supreme Court dismissed the applicant’s appeal, endorsing the reasoning of the Split County Court.", "It made no reference to the applicant’s request that his detention be replaced with another preventive measure. 51. The applicant’s detention was further extended on 7 February 2008 by a three-judge panel of the Split County Court under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating its previous arguments. 52. On 12 February 2008 the applicant lodged an appeal against the above decision, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure.", "The Supreme Court dismissed the applicant’s appeal on 29 February 2008 in the following terms: “According to the indictment, the activities with which the accused are charged took place between the beginning of 2003 and mid-2006, and the accused J.C., in the broader area of Dubrovnik and Korčula, organised a criminal group in which he recruited ... Milan Trifković ... all in order to supply heroin. Since all the accused were engaged in a criminal activity for a longer period of time, between the beginning of 2003 and mid-2006, in the broader area of Dubrovnik and Korčula, and since they showed a high degree of criminal resolve by organising continuous [criminal] activity, which shows a particular degree of persistence and criminal resolve, and taking this together with the fact that the accused ... Milan Trifković ... were on more occasions convicted of, [inter alia], the same or similar offences, and ... since the accused ... Milan Trifković are users of illegal drugs, there is a fear that they might reoffend... Also, since the subject of the alleged [criminal] activity was distribution of the illegal drug heroin in large quantities, and since it could have been used for a large number of small packages for individual use, which, if sold on the illegal drug market, could endanger a large number of mostly young people, suggests... that there are particularly grave circumstances surrounding the offence ... The preventive measures under Article 90 of the CCP in respect of the accused Milan Trifković would not have the same effect as detention on the basis of Article 102 § 1(3) and (4) of the Code of Criminal Procedure.” 53. A three-judge panel of the Split County Court on 29 April 2008 extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, on the same grounds as before. 54.", "The applicant lodged an appeal on 6 May 2008, reiterating his previous arguments, but on 30 May 2008 the Supreme Court dismissed it. 55. On 24 July 2008 a three-judge panel of the Split County Court extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating the same reasons as in its previous decisions. 56. The applicant lodged an appeal against the above decision on 29 July 2008.", "He argued that the evidence from the case file showed that he had not been a member of the alleged criminal organisation. As to the risk of reoffending, he pointed out that his previous conviction had concerned small amounts of drugs, for his personal use only, and that he was not a drug addict. He also argued that he was employed and had a regular source of income. On 10 September 2008 the Supreme Court dismissed the appeal, reiterating the same arguments as in its previous decisions. 57.", "On 10 November 2008 a three-judge panel of the Split County Court extended the applicant’s detention, again under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure. The relevant part of the decision reads: “The criminal record ... shows that the defendant ... Milan Trifković ... [has] already been convicted of a criminal offence of the same type as the one concerned in these proceedings ... Furthermore, the report drawn up by a neuropsychiatrist ... shows that the defendant... Milan Trifković ... [is a] drug user ... Also, the defendants are charged with organising a group with the aim of trafficking in illegal drugs on the island of Korčula, that they had been engaging [in that activity for] a long period of time, together with J.C., who was the leader of the group and of all [the criminal] activities. The above-mentioned circumstances, together with the fact that the defendants were allegedly members of a group which was continually [and for a long] period of time engaged in trafficking in illegal drugs, namely heroin, one of the hardest drugs, and that they thus put at risk the health of a large number of people, justify the extension of detention in respect of the defendants ... [including] Milan Trifković ... under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure. These circumstances justify the fear of reoffending and also amount to particularly grave circumstances [in which] the offence [is alleged to have taken place].” 58.", "The applicant lodged an appeal on 13 November 2008, in which he argued that the evidence thus far obtained had not implicated him in the offences in question, save for a statement given by a witness, Ž.T. However, he claimed that her statement was unreliable because it was both contradictory and hearsay evidence, and also contradicted the evidence given by other witnesses. The transcripts of telephone conversations of his which had been taped did not show that he had discussed details of drug trafficking with anyone. Furthermore, no material evidence which could connect him with trafficking in illegal drugs had been found on him. As regards the risk of reoffending, the applicant argued that, even if he had been a drug addict before being detained, during the period of his detention he would surely stop being one because he would not be able to take any drugs during his detention.", "As regards the argument that he had already been convicted of the same type of offence, he argued that his previous conviction concerned the possession of a small amount of drugs for his personal use, and that he was permanently employed. Against that background, he argued that there was no need for him to remain in detention and asked that his detention be replaced by another preventive measure. 59. A three-judge panel of the Split County Court on 13 January 2009 again extended the applicant’s detention, under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, and with the same reasoning as it had previously given. On 19 January 2009 the applicant lodged an appeal against this decision, reiterating his previous arguments.", "60. On 13 February 2009 the Supreme Court dismissed the applicant’s appeal against the decision of 10 November 2008. The relevant part of the decision reads: “The circumstances which show that there is a risk of reoffending ... are that the defendants are charged [with having been] ... members of a criminal organisation organised by the defendant J.C. in the period between the beginning of 2003 and November 2006, [operating in] the broader area of Dubrovnik and Korčula, and in which sixteen individuals were involved and mutually connected, among whom [were] the defendants Milan Trifković and ..., all [having the] aim of purchasing, storing, transferring and selling the drug heroin in order to obtain significant material gain. They delivered heroin previously bought by the defendant J.C. in Serbia, Bosnia and Herzegovina, and Montenegro for the needs of drug addicts on the island of Korčula, in daily amounts of at least 32 grams. Furthermore, the defendants Milan Trifković and ... have already been convicted several times of criminal offences of the same type – abuse of illegal drugs ...", "This shows that their previous life was not in conformity with the law and that their previous conviction has not taught them about the peril of committing criminal offences. Also, the documents in the file show that the defendants Milan Trifković and ... are users of illegal drugs ... Therefore, the long period of engaging in such criminal activity, which shows their determination, high level of organisation and criminal resolve ..., together with the fact that they are users of illegal drugs, ... and previous conviction, amount in the view of the Supreme Court ... to specific circumstances which justify the fear that the defendants Milan Trifković and..., if at large, would continue to commit new criminal offences of the same type ... The decision to extend the defendants’ detention on the basis of Article 102 paragraph 1(4) of the Code of Criminal Procedure is justified and lawful in view of the fact that the... charges concern a significant amount of the illegal drug heroin. The fact that there was such a large amount of this drug, which could be divided into a large number of individual doses and thus put at risk the health of a large number of people, especially youngsters, [together with] the international elements of the offence, surpasses by far the usual gravity of such offences.", "The defendants’ arguments pointing to the lack of evidence that they had committed the criminal offences at issue ... have no bearing on the decision [on their detention]. When deciding upon an appeal against a decision on detention, the appeal court has no competence to assess the factual background of the case or the defendants’ criminal responsibility. For detention to be ordered it suffices that the indictment and the documents in the case file indicate that there is reasonable suspicion. Neither has the principle of proportionality been infringed, because the defendant Milan Trifković has so far spent less than two years and three months in pre-trial detention ... When applying that principle, the relevant factors to be taken into account are not only the time already spent in detention but also the gravity of the criminal charges brought against the defendants and the severity of the sentence faced, as well as the need to order and extend detention.", "The statement of the defendant Milan Trifković that he is not a drug addict ... is also irrelevant, because drug addiction and drug use are not the decisive motives for committing such criminal offences, and they cannot put into question the importance of all the other above-mentioned points which show at the risk of reoffending ... “ 61. On the same day, the Supreme Court dismissed the applicant’s appeal against the Split County Court’s decision extending his detention of 13 January 2009, using the same arguments. 62. On 5 March 2009 the applicant lodged two constitutional complaints with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of the Supreme Court of 13 February 2009 dismissing his appeal against the Split County Court’s decision of 10 November 2008 and the decision of the Supreme Court of 13 February 2009 dismissing his appeal against the Split County Court’s decision of 13 January 2009. 63.", "The applicant’s detention was again extended on 9 April 2009 by a three-judge panel of the Split County Court under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same reasons as in its previous decisions. 64. The applicant lodged an appeal against the above decision on 16 April 2009. He argued that for several years his detention had been repeatedly extended, always using the same reasoning as to the gravity of the charges, without any assessment of his individual position in the alleged criminal organisation. He also pointed out that his previous conviction was minor and that he was employed, with a regular source of income.", "He further argued that the trial had been adjourned indefinitely and that there was a real risk that his detention was becoming a penalty. Finally, he pointed out, relying on the Court’s case-law, that the reasons justifying his detention were no longer relevant and sufficient, and that the domestic courts had never examined the possibility of applying another preventive measure. 65. On 29 April 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the Supreme Court dismissing his appeal against the Split County Court’s decision of 10 November 2008 inadmissible on the ground that the impugned decisions were no longer in effect, because in the meantime the Split County Court had adopted a fresh decision on his detention on 13 January 2009. 66.", "On 6 May 2009 the Supreme Court dismissed the applicant’s appeal against the decision extending his detention of 9 April 2009, reiterating its previous arguments. It also found that the purpose of the detention could not be achieved with any other preventive measure. 67. On 27 May 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the Supreme Court dismissing his appeal against the Split County Court’s decision of 13 January 2009 inadmissible on the ground that that the impugned decisions were no longer in effect, because in the meantime the Split County Court had adopted a fresh decision on his detention, on 9 April 2009. 68.", "A three-judge panel of the Split County Court on 6 July 2009 again extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in its previous decisions. 69. The applicant lodged an appeal against the above decision on 9 July 2009, pointing out that he had no addiction to drugs and that he was employed and therefore had a regular source of income. He also asked that the detention be replaced by another preventive measure. On 4 August 2009 the Supreme Court dismissed the appeal, reiterating its previous arguments.", "It added that the fact that the applicant had been detained and therefore had not had any opportunity to obtain drugs was not of a decisive influence on the conclusion that he might reoffend. As to his arguments that he was employed and had a regular source of income, the Supreme Court held that it also had no decisive effect, since the proceeds of the offence at issue were significantly higher than his personal income. 70. On 1 October 2009 a three-judge panel of the Split County Court again extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in its previous decision. 71.", "The applicant lodged an appeal on 5 October 2009 in which he argued that the principle of proportionality had been infringed with his continuous detention but on 14 October 2009 the Supreme Court dismissed it, reiterating its previous arguments. As to the proportionality of the detention, the Supreme Court held that this principle had not been infringed, since the charges concerned the most serious offences, for which there was also a possibility of extending the detention for an additional six months under section 28 paragraph 3 of the Act on the Office for the Suppression of Corruption and Organised Crime (hereinafter “the AOSCOC”). 72. On 20 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention for a further six months. The relevant part of the decision reads: “ ... since the maximum limits for detention under Article 109 of the Code of Criminal Procedure were about to expire, [this panel] has examined whether there are grounds for extending the accused’s detention or for his release.", "In the situation at issue, in view of the sentence that the offence at issue carries, the maximum statutory limit under Article 109 § 1(5) of the Code of Criminal Procedure is three years, and therefore this period would expire in respect of ... the accused Milan Trifković ... on 22 November 2009. However, under section 28 § 2 of the [AOSCOC] the maximum time-limit of detention during an investigation, if the investigation has been extended, can be twelve months, while paragraph 3 of the same section provides that the maximum period of detention under Article 109 of the Code of Criminal Procedure shall be extended for a further six months if the detention during the investigation has been extended under paragraph 2 of [Section 28 of the AOSCOC]. Since in this particular case the investigation was extended so that it lasted more than the maximum six months, the conditions for extending the maximum period of the pre-trial detention for a further six months under section 28 paragraph 3 of the [AOSCOC] have been met. Therefore, since all the circumstances on which the detention was extended under Article 102 paragraph 1 (1), (3) and (4) of the CCP have not changed, the detention in respect of the accused ... Milan Trifković and ... had to be extended for a further six months ...“ 73. The applicant lodged an appeal with the Supreme Court against the above decision on 24 November 2009.", "He argued that the evidence adduced during the trial did not support the suspicion that he was an important member of the criminal group and that no drugs, objects usually used to sell drugs, or any proceeds of crime had ever been found on or seized from him. The applicant further argued that the Split County Court had been using the same stereotyped formula when extending his detention for three years, and that there were no grounds for extending his detention. He also argued that the proceedings had been unreasonably long and that during that period he had been detained in inhuman and degrading conditions. Finally, he pointed out, relying on the Court’s case-law, that the possibility of replacing his detention with another preventive measure had never been examined. On 27 November 2009 he also submitted to the Supreme Court a statement from company K.-V. confirming that he was permanently employed by that company; he asked again to be released.", "74. The Supreme Court dismissed the applicant’s appeal on 11 December 2009. It limited its assessment only to the question of whether further extension would exceed the maximum statutory limit. As to the other arguments put forward by the applicant, the Supreme Court noted: “As to the arguments put forward by all three accused in which they complain about the conditions of their detention and challenge the grounds and purpose of their detention on account of its length, it is to be noted that it does not put in any doubt the impugned decision. Namely, the [Split County Court’s] decision did not address the grounds for their detention, since it only concerned examination of statutory conditions for extending the maximum detention under Article 109 of the Code of Criminal Procedure, in respect of which the arguments in the appeal are irrelevant.” 75.", "On an unspecified date in 2010 the applicant lodged a constitutional complaint against the above decision of the Supreme Court, reiterating the same arguments from his appeal. 76. A three-judge panel of the Split County Court on 12 February 2010 extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, reiterating arguments from its previous decisions as to the risk of reoffending and the gravity of the charges. 77. The applicant lodged an appeal against the above decision on 18 February 2010, reiterating his previous arguments and asking that the detention be replaced by another preventive measure, if one was necessary.", "78. On 25 February 2010 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of the Supreme Court of 11 December 2009. The relevant part of the Constitutional Court’s decision reads: “It appears from the constitutional complaint, which is identical to the appeal lodged with the Supreme Court, that [the applicant] is complaining about the grounds for his detention, which was not the subject of the impugned decisions. The statutory grounds for his detention are under Article 107 paragraph 2 of the CCP, within the competence of the panel from Article 18 paragraph 3 and Article 20 paragraph 2 of [the CCP], which is obliged to examine the grounds for detention every two months ... However, in the case at issue, the impugned decisions do not examine the grounds for [the applicant’s] detention, but only whether the conditions for extending the detention under Article 109 of the Code of Criminal Procedure have been met.", "... “ 79. On 17 March 2010 the Supreme Court dismissed the applicant’s appeal against the Split County Court’s decision of 12 February 2010 on the ground that the same reasons warranting the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure still existed. It also found that the principle of proportionality had not been infringed and that there were no grounds to replace the detention with another preventive measure. 80. On an unspecified date in 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the above decision of the Supreme Court, again complaining about the extension of his detention and about the conditions in detention.", "81. The applicant’s detention was again extended by a three-judge panel of the Split County Court on 17 May 2010 on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, reiterating its previous arguments. 82. On 22 May 2010 the maximum statutory time-limit of the applicant’s extended detention expired and the applicant was released. II.", "RELEVANT DOMESTIC LAW 83. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005) provides: Abuse of Narcotic Drugs Article 173 “ ...(2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation proclaimed to be narcotic drugs, shall be punished by imprisonment for one to twelve years. (3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or if he has set up a network for selling drugs, he shall be punished by imprisonment for not less than three years or by long-term imprisonment.” 84. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos.", "110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows: Preventive Measures Article 90 “(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ... (2) Preventive measures are: 1) prohibition on leaving one’s place of residence; 2) prohibition on being in a certain place or area; 3) obligation on the defendant to report periodically to a certain person or a State body; 4) prohibition on contact with a certain person or on establishing or maintaining contact with a certain person; 5) prohibition on undertaking a certain business activity; 6) temporary seizure of a passport or other document necessary for crossing the State border; 7) temporary seizure of a driving licence...” 8. General Provisions on Detention Section 101 “(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist. (3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the gravity of the offence, the sentence which... may be expected to be imposed, and the need to order and determine the duration of detention. (4) Judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.” 9.", "Grounds for Ordering Detention Section 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1. where there are circumstances which show that there is a risk that [the defendant] will abscond [is in hiding or his or her identity cannot be established, and so on); 2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; 3. special circumstances justify the suspicion that the person concerned might reoffend; 4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.” Article 109 “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: 1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment; 2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment; 3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; 4. two years for offences carrying a sentence of more than eight years’ imprisonment; 5. three years for offences carrying a sentence of long-term imprisonment...” Appeal against a decision ordering, lifting or extending a custodial measure Article 110 “(1) A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof..”. Article 204 “(1) If the investigation cannot be completed within six months, the investigating judge shall inform the president of the court why the investigation is not finished. (2) The president of the court shall, if necessary, take appropriate measures to enable the investigation to be completed.” 85. The relevant provision of the Act on the Office for the Suppression of Corruption and Organised Crime (hereinafter the “AOSCOC” - Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta (ZUSKOK), Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007) provides as follows: Section 28 “(1) Custody under section 98 of the Criminal Procedure Act shall be extended to 48 hours.", "(2) The total duration of the pre-trial detention in the above proceedings, if the investigation is lengthy (Article 204, paragraph 1 of the Code of Criminal Procedure) may be twelve months. (3) If the pre-trial detention during the investigation has been extended under paragraph 2 above, the total duration of the pre-trial detention under Article 109 of the Code of Criminal Procedure shall be extended for six months.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 86. The applicant complained that his pre-trial detention after 20 November 2009, when the maximum statutory period for his detention expired, had been unlawful. He relied on Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:.. (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...” A. The parties’ arguments 87. The applicant submitted that his detention after 20 November 2009, when the maximum statutory limit for his detention provided in the Code of Criminal Procedure expired, had not been lawful within the meaning of Article 5 § 1 of the Convention. He argued that he had been legally represented and aware of the relevant domestic law which provided for the possibility that the maximum period of the detention be extended but that the domestic courts had never provided sufficient arguments why this law should be applied.", "88. The Government argued that the applicant’s detention after 20 November 2009 had been in compliance with the relevant domestic law, namely section 28 of the AOSCOC. When the applicant’s detention had been extended the domestic courts provided relevant and sufficient reasons why this provision should be applied and also examined the grounds on which the applicant had been detained. Moreover, the applicant had had an opportunity to appeal before the Supreme Court which had duly examined the lawfulness of his continued detention and explained all the grounds on which his detention had been based. B.", "The Court’s assessment 89. 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, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33).", "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-X, and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008). 90. Everyone is entitled to the protection of that right, that is to say the right not to be deprived or to continue to be deprived of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no.", "114), 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, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000-IV; and Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004-II). 91.", "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 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 domestic law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III, and Assanidze, cited above, § 171). 92. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002‑IV, and Kafkaris v. Cyprus [GC], no.", "21906/04, § 116, ECHR 2008). “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur, § 50, cited above; Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII, and Baranowski v. Poland, no.", "28358/95, § 52, ECHR 2000-III). 93. 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, among many other authorities, Winterwerp, cited above, § 37; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1.", "The notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). 94. The Court notes that Article 109 of the Code of Criminal Procedure prescribes the maximum duration of detention allowed before a conviction becomes final and enforceable. Paragraph 1 in particular prescribes the period of maximum detention before the adoption of a first-instance judgment, which in the case at issue is three years.", "95. Under Article 204 paragraph 1 of the Code of Criminal Procedure the investigation has to be completed within six months. However, it is possible to extend that period in respect of crimes covered by the AOSCOC for a further six months. 96. In such cases, where the investigation is extended, section 28 of the AOSCOC allows the otherwise maximum statutory limit on pre-trial detention, under Article 109 of the Code of Criminal Procedure, to be extended for a further six months.", "In the case at issue this means that the maximum period of detention allowed before a conviction becomes final and enforceable was three years and six months. 97. The Court considers that the wording of section 28 of the AOSCOC was sufficiently clear and precise to allow the applicant to foresee situations in which his pre-trial detention could have been extended beyond the general statutory maximum limit for detention under Article 109, paragraph 1, of the Code of Criminal Procedure. 98. The Court notes that the applicant was arrested on 22 November 2006 and that the general maximum period of his detention, under Article 109 paragraph 1 of the Code of Criminal Procedure, would accordingly have expired on 22 November 2009.", "99. However, in the applicant’s case, which concerned crimes covered by the AOSCOC, the investigation was opened on 24 November 2006 and was therefore supposed to be completed by 24 May 2007. On 15 May 2007, and then on 15 June, 8 August and 5 October 2007 the investigating judge established that all the necessary evidence had not been obtained and asked the president of the Split County Court to extend the investigation which was granted and the investigation was extended on four occasions. The indictment was sent to the trial court on 15 November 2007. The Court notes that with the extension of the investigation the applicant’s pre-trial detention was also extended and the applicant remained in detention throughout the investigation.", "100. Therefore, when the investigation was extended under the AOSCOC, the general maximum period of the applicant’s detention, under Article 109 paragraph 1 of the Code of Criminal Procedure, was also extended for further six months under section 28 of the AOSCOC on 20 November 2009. 101. The Court considers that when extending the applicant’s detention over the general maximum period, the Split County Court sufficiently explained the grounds for application of section 28 of the AOSCOC (see paragraph 72) and that such extension of the maximum period of the applicant’s pre-trial detention for a further six months was in any respect in conformity with the relevant domestic law. 102.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 103. The applicant complained of the length of his pre-trial detention and in particular that the reasons put forward by the national courts when extending his pre-trial detention were not relevant and sufficient. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” A. Admissibility 1. The parties’ arguments 104. The Government submitted that the applicant had failed to lodge appeals against the decisions extending his detention on 20 February 2007 and 17 May 2010. As to the other domestic courts’ decisions extending his detention, the Government argued that the applicant had failed to address the same issues raised before the Court in his constitutional complaints. Instead he had lodged his constitutional complaints as extraordinary remedies against the decisions of the Supreme Court, although the Constitutional Court had made it clear in its case-law that it was not a court of third instance.", "105. The applicant contested that view, arguing that he had properly exhausted all available domestic remedies. 2. The Court’s assessment 106. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted.", "The purpose of the exhaustion rule 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-IV). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. 107. As to the alleged violations of Article 5 § 3 of the Convention, the Court has already held that if a person alleging a violation of this provision on account of the length of his detention in circumstances such as those prevailing in the present case, he complains of a continuing situation, which should be considered as a whole and not divided into separate periods (see Popov and Vorobyev v. Russia, no.", "1606/02, § 71, 23 April 2009). In this respect the Court considers that if the applicant made the domestic courts sufficiently aware of his situation and gave them an opportunity to assess whether his detention was compatible with his Convention right to a trial within a reasonable time or release pending trial, it cannot be held that the applicant failed to comply with his obligation to exhaust domestic remedies (see Popov and Vorobyev, cited above, § 71, and Šuput v. Croatia, no. 49905/07, § 86, 31 May 2011). 108. The Court notes that in the present case the applicant’s pre-trial detention was ordered under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and on the same grounds it was extended eleven times during the investigation and twelve times during the trial stage of the proceedings.", "109. The Court further notes that during the period of his detention the applicant lodged twenty-three appeals before the domestic courts and in addition he lodged four constitutional complaints before the Constitutional Court complaining, inter alia, that his detention was unlawful, and pointing out in particular that there were no relevant and sufficient grounds for his continued detention and that it had lasted an excessively long time. 110. Against the above background, the Court considers that the applicant gave the domestic authorities an adequate opportunity to assess whether his detention had been lawful, based on relevant and sufficient grounds, and whether its length had been excessive. The Court therefore concludes that the applicant has complied with his obligation to exhaust domestic remedies and that the Government’s objection must be rejected.", "111. 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’ arguments 112. The applicant submitted that his detention had been extended throughout the proceedings without relevant and sufficient grounds. He argued that his detention on the ground of gravity of charges had been based only on an abstract examination of the charges against him. As to the risk of reoffending, he pointed out that the domestic courts had failed to give any consideration to the fact that he was in permanent employment and that he had not been a drug addict but had only used drugs in a shorter period of time.", "In his view, they had overestimated the fact that he had been previously convicted since his conviction had concerned only possession of drugs for personal use which had not been comparable with the charges in the present case. Finally, he argued that the domestic authorities had never examined the possibility to replace his detention with the preventive measures, but had only noted that there had been no ground for that. 113. The Government, reiterating the reasons put forward by the national courts, argued that the grounds for the applicant’s detention had been relevant and sufficient throughout his detention. In the Government’s view the charges against the applicant represented particularly grave circumstances which had justified the applicant’s detention throughout the proceedings.", "They also pointed out that there was a reasonable risk of reoffending, since the applicant was unemployed and had previously been sentenced for an offence of drug abuse. Finally, the Government argued that the grounds for the applicant’s detention had never been taken in abstracto but always with the clear, precise, adequate and valid reasoning of the domestic courts. 2. The Court’s assessment (a) General principles 114. The Court reiterates that under its constant 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. 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 (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A, and Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI). 115.", "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 Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references). 116.", "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 evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV). 117.", "The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov, cited above, § 84 in fine, 26 July 2001). 118. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices.", "In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; and B. v. Austria, 28 March 1990, § 42, Series A no. 175).", "(b) Application of these principles to the present case 119. As to the period be taken into account in the present case, the Court reiterates that according to its well-established case-law, in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when he is released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008). 120. It follows that the period of the applicant’s detention to be taken into consideration began on 22 November 2006, the date of the arrest, and ended on 22 May 2010, when the applicant was released, which in total amounts to three years and six months.", "121. The Court notes at the outset that the inordinate length of the applicant’s pre-trial detention – more than three years – is a matter of great concern. The national authorities must put forward very weighty reasons for keeping the applicant in detention for such a long time (see Tsarenko v. Russia, no. 5235/09, § 68, 3 March 2011). 122.", "The Court notes that in the present case the applicant had been detained on two different grounds: (1) risk of reoffending and (2) gravity of charges. 123. As to the risk of reoffending, the domestic authorities relied on the fact that the applicant had previously been convicted of drug abuse, that he was a drug user and that he was charged with having participated in a criminal group organised to supply heroin. In addition, during the investigation the domestic courts relied on the fact that the applicant did not have a permanent source of income. 124.", "As regards the latter point, the Court notes, however, that as soon as he had been arrested and detained the applicant submitted to the domestic authorities a contract of permanent employment, and throughout the investigation argued that he was employed and had a permanent source of income. Moreover, at the trial stage of the proceedings the applicant submitted a statement from his employer confirming that he still had permanent employment. 125. Therefore, the Court must conclude that the domestic authorities failed, throughout almost one year of the applicant’s detention during the investigating stage of the proceedings, to assess the relevant evidence concerning the applicant’s employment. As a result they continued to extend his detention, arbitrarily relying on the assertion that he had no permanent source of income, using the same stereotyped phrases and in some cases even identical wording.", "In this respect the Court reiterates that it has found a violation of Article 5 § 3 of the Convention in many other cases in which the domestic authorities were using stereotyped formulae without addressing specific facts of the case (see Tsarenko, cited above, § 70, and cases cited therein). 126. As to the applicant’s previous conviction for drug abuse as a reason for justifying the detention on the ground of the fear of reoffending, the Court considers that the domestic authorities were obliged to assess whether the previous facts and charges were comparable, either in nature or in the degree of seriousness, to the charges in the pending proceedings (see Popkov v. Russia, no. 32327/06, § 60, 15 May 2008, and Romanova v. Russia, no. 23215/02, § 130, 11 October 2011).", "127. In this respect the Court notes that the domestic authorities found that the applicant had been convicted of drug abuse, but never went beyond these findings. They never assessed the facts of the previous charges and never compared the nature and the degree of seriousness of the previous conviction with the charges in the present case. Nor did they respond to the applicant’s arguments that the previous conviction had concerned only possession of small quantities of drugs for personal use which was not comparable either in nature or in degree of seriousness with the charges of participation in organised supply of heroin (see, mutatis mutandis, Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, § 55, 29 September 2009).", "128. The domestic courts also relied on the fact that the applicant was a drug user when justifying the detention on the ground of the risk of reoffending. The Court, however, notes that the psychiatric report commissioned during the investigation indicated that the applicant had used drugs for only a short period of time and that he had not developed an addiction. In such circumstances the Court does not consider the previous period of the applicant’s use of drugs sufficient to justify the risk that the applicant would reoffend, particularly having in mind that he had been detained for a longer period of time (see Shenoyev v. Russia, no. 2563/06, § 51, 10 June 2010).", "129. As regards the domestic courts’ reliance on the gravity of the charges when extending the applicant’s detention, the Court reiterates that it has repeatedly held that this reason cannot by itself serve to justify long periods of detention (see, among many other authorities, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001; Michta v. Poland, no. 13425/02, § 49, 4 May 2006; and Gultyayeva v. Russia, no. 67413/01, § 186, 1 April 2010).", "The Court also notes that the total period of the applicant’s pre-trial detention of three years and six months corresponds to the prison term imposed on him by the first-instance judgment, which suggests that the domestic authorities failed to assess the proportionality of the gravity of the specific charges against the applicant and the period of his pre-trial detention. 130. Against the above background the Court concludes, even taking into account the particular difficulty in dealing with a case concerning an organised criminal group, that the grounds given by the domestic authorities were not “sufficient” or “relevant” to justify the applicant’s being kept in detention for three and a half years (see Celejewski v. Poland, no. 17584/04, § 40, 4 May 2006). 131.", "There has accordingly been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 132. The applicant complained that the procedure by which he sought to challenge the lawfulness of his detention was not in conformity with Article 5 of the Convention. The Court considers that these complaints shall 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. Admissibility 133.", "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’ arguments 134. The applicant complained that the Constitutional Court had refused to examine the merits of his complaints concerning the grounds and length of his pre-trial detention on the ground that a new decision extending his detention had been issued in the meantime. He also complained that the Supreme Court and the Constitutional Court had refused to examine his complaints concerning the existence of the concrete grounds for extending his pre-trial detention after 20 November 2009, when the maximum statutory time-limit for his detention had expired. In his view this practice of the domestic courts deprived him of an effective remedy in respect of his complaints about the lawfulness and grounds for his continued detention. 135.", "The Government argued that the domestic legal system had provided an effective procedure for the applicant to contest the grounds and duration of his detention. They pointed out that the applicant had been able to lodge his appeals against the decisions extending his detention and that all his arguments had been duly taken into consideration by the appeal court. In the Government’s view, the State had complied with its obligation under Article 5 § 4 of the Convention by setting up the appellate procedure in which the competent courts had provided detailed reasons upon every appeal of the applicant. They also argued that, although the applicant had lodged the constitutional complaints in respect of the decisions extending his detention, there had been no right under the Convention to lodge further remedies against the decisions ordering and extending the detention by the competent courts. This had been moreover so concerning the constitutional complaints, since the procedure before the Constitutional Court had represented a specific procedure, namely the procedure for the protection of human rights in the domestic legal system and not an extraordinary legal remedies procedure, as conceived by the applicant.", "2. The Court’s assessment (a) General principles 136. The Court reiterates that the purpose of Article 5 § 4 is to assure 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, cited above, § 76, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading where appropriate to his or her release.", "The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004‑VIII). 137. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no.", "51564/99, §§ 46 and 55, ECHR 2002‑I). (b) Application of these principles to the present case 138. The Court notes that the applicant’s constitutional complaint against the decisions extending his detention was declared inadmissible by the Constitutional Court, on the ground that a fresh decision extending his detention had been adopted in the meantime. 139. The Court has already examined in other Croatian cases the practice of the Constitutional Court of declaring inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime.", "In this respect the Court has found a violation of Article 5 § 4 of the Convention in that the Constitutional Court’s failure to decide on the applicant’s constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for the review of his detention, as provided for by the national law. By declaring the applicant’s constitutional complaints inadmissible simply because a fresh decision extending his detention had been adopted in the meantime, the Constitutional Court did not satisfy the requirement “that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy” (see Peša v. Croatia, no. 40523/08, § 126, 8 April 2010; Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; and Šebalj v. Croatia, no.", "4429/09, § 223, 28 June 2011). 140. Since the circumstances of the present case do not differ in any respect, the Court sees no reason to depart from its previous findings. 141. There has accordingly been a violation of Article 5 § 4 of the Convention as regards the failure of the Constitutional Court to decide the applicant’s complaints on the merits.", "142. In view of these conclusions and finding of a violation of Article 5 § 3 of the Convention (see paragraph 131), the Court considers that there is no need to examine separately under Article 5 § 4 of the Convention the applicant’s complaint concerning the alleged lack of response of the domestic authorities to his complaints against the decisions extending the maximum statutory time-limit for his detention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 143. The applicant complained under Article 3 of the Convention about the conditions of his detention.", "He also complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been violated in the decisions ordering and extending his detention. He further complained under Article 13 of the Convention that he had no effective remedy in respect of his Convention complaints. Finally he complained under Article 14 of the Convention that he had been discriminated against in comparison with other defendants. 144. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention.", "It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 145. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 146. The Court notes that the applicant failed to submit any claim for just satisfaction and for cost and expenses as provided under Rule 60 of the Rules of Court and as requested by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 5 § 3 of the Convention concerning the length of and reasons for the applicant’s pre-trial detention and complaints under Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on the merits and the alleged lack of answer to the applicant’s complaints concerning the grounds for extending his detention over the maximum statutory time-limit admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention concerning the lack of relevant and sufficient reasons and length of the applicant’s pre-trial detention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on the merits; 4. Holds that there is no separate issue to be examined under Article 5 § 4 of the Convention concerning the complaint about the alleged lack of answer to the applicant’s complaints about the grounds for extending the maximum statutory time-limit for his detention; 5.", "Holds that there is no call to award the applicant just satisfaction. Done in English, and notified in writing on 6 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAnatoly KovlerRegistrarPresident" ]

[ "SECOND SECTION CASE OF ROMANKEVIČ v. LITHUANIA (Application no. 25747/07) JUDGMENT STRASBOURG 2 December 2014 FINAL 02/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Romankevič v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "25747/07) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Juljan Romankevič (“the applicant”), on 15 June 2007. 2. The applicant, born in 1934, passed away on 27 January 2008. His daughter and heir, Helena Česlauskienė, who lives in the Vilnius Region, stated that she wished to maintain the application. For practical reasons, Mr Romankevič will continue to be called “the applicant” in this judgment.", "The applicant’s heir was represented before the Court by Mr R. Mištautas, a lawyer practising in Kaunas. 3. The Lithuanian Government (“the Government”) were initially represented by their former Agent, Ms E. Baltutytė, and subsequently by their Acting Agent, Ms K. Bubnytė. 4. The applicant alleged that he had been deprived of his property by a decision of a domestic court and had not received adequate compensation, in breach of Article 1 of Protocol No.", "1 to the Convention. 5. On 29 June 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "In 1998 the applicant’s property rights to a previously nationalised part of his late father’s land near Vilnius were restored. On 5 June 2002 the Vilnius Region Administration restored his rights – restitution in natura – to the remainder of the land measuring 0.53 hectares, situated in the village of Gineitiškės. This plot of land was then entered in the land registry in the applicant’s name. 7. In January 2005, having discovered that the decision of 5 June 2002 was based on erroneous data prepared by a State-hired land surveyor and had possibly breached the rights of other former landowners, the General Prosecutor’s Office instituted administrative proceedings to have the applicant’s title to the plot annulled.", "The applicant was a third party to those proceedings and argued that the restoration process had been lawful, without, however, raising the question of an adequate compensation in the event that his title to the plot was extinguished. Shortly before the initiation of the case, the Vilnius Region Administration had admitted that its decision had been unlawful and had informed the applicant that it needed to rectify the error; however, it appears that the latter had disagreed. 8. On 8 September 2005 the Vilnius Regional Administrative Court dismissed the prosecutor’s complaint. However, on 12 December 2005 the Supreme Administrative Court remitted the case for re-examination.", "9. On 20 April 2006 the Vilnius Regional Administrative Court granted the claim and annulled the decision of 5 June 2002. Finally, on 15 January 2007 the Supreme Administrative Court upheld the decision of the lower court. The courts established that the original plot of land to which the applicant had ownership rights was actually situated in another, albeit nearby, area of Gilužiai village. Thus, the return of the plot in 2002 was declared unlawful as it breached the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property.", "10. Following the courts’ decisions, the plot of land was taken away from the applicant and returned to the State. No compensation was awarded to the applicant. However, he reserved the right to have his ownership rights restored. 11.", "By a decision of 2 February 2009 the Vilnius Region Administration restored the applicant’s ownership rights in natura by granting a new plot of land measuring 0.53 hectares in Gilužiai village. II. RELEVANT DOMESTIC LAW AND PRACTICE 12. For the relevant domestic law and practice see Pyrantienė v. Lithuania (no. 45092/07, §§ 16-22, 12 November 2013), and Albergas and Arlauskas v. Lithuania (no.", "17978/05, §§ 21-33, 27 May 2014). 13. Under the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas) (hereinafter “the Law on Restitution”) as in force at the material time, land had to be returned to citizens in natura in its former location, with the exception of land which could not be returned in natura and had to be bought out by the State while the former owners had to be compensated by other means provided for by the Law on Restitution, and land that citizens were not willing to get back in its former location (Article 4 § 2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 14. The applicant complained that he had been deprived of his property in violation of Article 1 of Protocol No. 1 to the Convention. He also argued that he had not been sufficiently compensated. 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.” 15. First of all, the Court takes note of the death of Mr Juljan Romankevič on 27 January 2008 and of the wish expressed by his daughter and official heir to continue the application before the Court in her father’s name. In January 2013 she submitted to the Court her request to that end and an official certificate of inheritance.", "16. The Court notes that in several cases in which the applicant died after having lodged the application, it has taken into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, and Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008). 17.", "In accordance with its case-law, the Court finds that Mrs Česlauskienė has standing to continue the proceedings in the applicant’s stead. A. Admissibility 18. The Government submitted that the applicant had failed to exhaust all effective domestic remedies by not instituting new separate judicial proceedings against the State under Article 6.271 of the Civil Code for damages in view of the alleged violations of his property rights. 19. The applicant submitted that the remedy suggested by the Government had not been effective at the time when his application had been submitted to the Court.", "20. The Court refers to its findings in the cases of Pyrantienė (cited above, § 27) and Albergas and Arlauskas (cited above, §§ 43-44) in which it considered that it had not been demonstrated that at the time when the present application was submitted to the Court, a claim under Article 6.271 of the Civil Code would have been an effective remedy and would have had any prospect of success (see, mutatis mutandis, Beshiri and Others v. Albania, no. 7352/03, § 55, 22 August 2006). 21. As a result, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies.", "22. The Government further contended that the applicant should not be considered to be a victim of the alleged violation because the interference had already been fully and justly redressed by the State in 2009 when, on receiving a new plot of land, his ownership rights had been restored. 23. The applicant submitted that the new plot assigned to him was less valuable than the plot of land to which his ownership rights had first been restored in 2002. 24.", "The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). 25. After the authorities’ first unsuccessful attempt to restore the applicant’s property rights in 2002, they were finally restored in 2009. However, the authorities’ decision did not involve any acknowledgment of the alleged violation, although they had admitted the error committed (see paragraph 7 above).", "26. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 1 of Protocol No. 1 to the Convention (see Burdov v. Russia, no. 59498/00, § 31, ECHR 2002‑III). 27.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 28.", "Relying on the Law on Restitution, the legal acts of the Vilnius Region Administration and the data prepared by the State-hired land surveyor, the applicant maintained that he had obtained the disputed plot lawfully. He also argued that the prosecutor had not been defending the public interest when he had applied to the courts with a civil claim protecting the rights of third persons. Lastly, the applicant claimed that he had not been afforded just satisfaction for the deprivation of his property. 29. The Government submitted that the interference had been lawful and justified: it was in the public interest to protect the rights of other citizens to the disputed land, which had previously been assigned to the applicant by mistake.", "They also observed that the applicant had made no major investments in or improvements to the plot before it was taken away by the State. As a result, the interference was proportionate. 30. The applicant emphasised that even though his property rights had been restored in 2009 through the granting of a new plot of land of the same size, its value, as assessed by an independent expert, was more than ten times less than that of the original plot (580,000 Lithuanian litai (LTL) (approximately 170,000 euros (EUR)) because of its different location. 31.", "The Government argued that the applicant had not suffered any pecuniary damage because from the outset he had not been entitled to any other plot but the original one situated in the village of Gilužiai, which he subsequently obtained ex gratia from the State in 2009. The above-mentioned errors by the domestic authorities had occurred in the context of land reform, which was linked to the process of restoring former owners’ rights to property that had previously been nationalised by the Soviet regime. In their view, in the context of central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case had to be taken into account. They emphasised that public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. 1.", "The Court’s assessment (a) General principles 32. The relevant general principles are set out in paragraphs 37-40 of Pyrantienė, cited above. (b) Application of the above principles in the present case 33. In the present case, it is not in dispute that there has been an interference with the applicant’s property rights when his title was annulled and the plot of land was returned to the State. The decision of the domestic courts to annul the applicant’s title had clearly the effect of depriving the applicant of his property within the meaning of the second sentence of Article 1 of Protocol No.", "1 (see, mutatis mutandis, Doğrusöz and Aslan v. Turkey, no. 1262/02, § 29, 30 May 2006). The Court must therefore ascertain whether the impugned deprivation was justified. (i) Lawfulness of the interference 34. The decision of the courts to annul the restoration of the applicant’s ownership rights of 5 June 2002 was prescribed by law, as it was based on the provisions of the Law on Restitution after the domestic courts had established that the administrative authority had attributed a plot of land to the applicant in the wrong location.", "The Court therefore finds that the deprivation was in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention. (ii) “In the public interest” 35. As in the Pyrantienė and Albergas and Arlauskas cases, the measures complained of were designed to correct the authorities’ mistakes and to defend the interests of the former owners by restoring their ownership rights to the plot of land in question. The Court thus considers that the interference was in the public interest (see Pyrantienė, cited above, §§ 44-48, and also Bečvář and Bečvářová v. the Czech Republic, no.", "58358/00, § 67, 14 December 2004). (iii) Proportionality 36. The Court reiterates that any interference with property rights, in addition to being lawful and pursuing a legitimate aim, must also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no.", "52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). 37. In the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake (see, for example, Moskal v. Poland, no. 10373/05, § 69, 15 September 2009), but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property (see Bogdel v. Lithuania, no.", "41248/06, § 66, 26 November 2013, and Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 64, 16 May 2013). 38. The Court recalls that the good governance principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. Holding otherwise may lead to a situation which runs contrary to the public interest (see Moskal, cited above, § 73, and Rysovskyy v. Ukraine, no.", "29979/04, § 71, 20 October 2011). 39. The Court reiterates that the risk of any mistake made by a State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned (see, among other authorities, Albergas and Arlauskas, cited above, § 59, Rysovskyy, cited above, § 71, and Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007). 40.", "In the circumstances of the present case the Court observes that some two and a half years after the allocation of the plot of the land to the applicant in 2002, the authorities discovered that a mistake had been made, as the plot of land allocated to the applicant had not belonged to the applicant’s father and therefore the applicant was not entitled to that land. Once the error in the decision of 5 June 2002 was discovered, the Vilnius Region Administration admitted the mistake and court proceedings for annulment of the applicant’s title were instituted without undue delay by the public prosecutor (see, for comparison, Yavashev and Others v. Bulgaria, no. 41661/05, § 65, 6 November 2012). 41. In the present case the applicant’s title was invalidated by a final court decision on 15 January 2007 after it was established that the authorities had allocated the wrong plot to him in 2002.", "The procedures for restoration of ownership rights were conducted by official bodies exercising the authority of the State (see paragraph 6 above). It was therefore the responsibility of the authorities to verify the applicant’s eligibility to be allocated the land and the conformity of their decision with the procedures and laws in force. 42. The Court is of the opinion that the applicant could not reasonably have anticipated the annulment of the decision of the Vilnius Region Administration of 2002. Nor was it proven that he had acted in bad faith, as it was not until 20 April 2006 when the Vilnius Regional Administrative Court judgment was adopted that the unlawfulness of the authorities’ decision was determined for the first time.", "Following that decision and the final one of 15 January 2007, the applicant remained in an unfavourable situation for more than two years until a new plot of land of the same size was attributed to him by the authorities in February 2009. 43. While it is true that it took two years (and, in total, a bit more than four years after the mistake had been detected) for the authorities to grant a new plot of land to the applicant in place of the one that had been taken away by a final decision of the Supreme Administrative Court on 15 January 2007, the State authorities cannot be blamed for not putting more effort into finding a solution to the situation which had occurred as a result of inconsistencies of a technical nature in 2002. 44. Having regard to the foregoing and the circumstances of the present case, the Court finds that the term of two years for correcting the authorities’ mistake cannot be regarded as unacceptable for the purposes of Article 1 to the Protocol No.", "1 of the Convention. 45. As concerns the applicant’s argument about the lower market value of the new plot of land (see paragraph 30 above), the Court observes that under the domestic law he had no right to claim that a new plot should be of the same market value as the one that had been allocated to him by mistake in 2002. The original plot of land that had belonged to his father was situated elsewhere. As a result, the applicant neither had a legitimate expectation nor could he claim to continue to enjoy property rights to any land but his father’s (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no.", "39794/98, § 74, ECHR 2002‑VII). 46. On the question of the burden borne by the applicant in the case, the Court considers that the efforts by the authorities seemed to have brought the desired results without undue delay and the award of a new plot of the same size compensated the applicant for the loss that he had incurred two years earlier, in particular, given that he had not tried to raise the question of the pecuniary compensation before the domestic authorities. Moreover, no negative consequences which could be related to the late reattribution of the plot or to the uncertainty during the period when the applicant’s title was challenged have been proven (see, by converse implication, Pyrantienė, cited above, §§ 62-72). 47.", "Having regard to all the circumstances of the case, the Court therefore finds that the domestic authorities struck a fair balance between the protection of the applicant’s possessions and the requirements of the public interest and that the applicant thus did not have to bear an individual and excessive burden. 48. The Court holds, accordingly, that there has been no violation of Article 1 of Protocol No. 1 to the Convention. II.", "OTHER ALLEGED VIOLATIONS 49. The applicant complained under Article 6 § 1 of the Convention that the civil proceedings had lasted too long. 50. It should be noted that the proceedings in question lasted from January 2005 until 15 January 2007 when the final decision was adopted by the Supreme Administrative Court. Therefore, the proceedings lasted two years at two levels of jurisdiction.", "The Court considers that such a duration does not raise any issue and is compatible with Article 6 § 1 of the Convention. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 51. The applicant further complained that the domestic courts had erred in evaluating the evidence and applying the law when declaring unlawful the authorities’ decision of 5 June 2002. 52.", "The Court reiterates that it is not a court of appeal for the decisions of domestic courts and that, as a general rule, it is for those courts to interpret domestic law and assess the evidence before them (see Kern v. Austria, no. 4206/02, § 61, 4 February 2005, and Wittek v. Germany, no. 37290/97, § 49, ECHR 2000-XI). On the basis of the material in its possession, the Court observes that the complaint at hand is essentially of a “fourth instance” nature. As a result, this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention; 3.", "Rejects the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment. G.R.A.S.H.N. CONCURRING OPINION OF JUDGE KJØLBRO 1.", "I would like to clarify the reasons why I voted for finding no violation of Article 1 of Protocol No. 1 to the Convention. 2. Some two and a half years after the allocation of the plot of the land, the authorities discovered that a mistake had been made. Once the error was discovered, the authorities took the initiative to rectify the mistake.", "However, as the applicant objected to the rectification, the initiation of court proceedings was rendered necessary. 3. The court proceedings at two levels of jurisdiction were concluded within two years. Thus, the court proceedings to correct the mistake were initiated promptly and completed without undue delay. 4.", "Furthermore, some two years after the final decision in the court proceedings, the applicant was allocated a new plot of land. Thus, the mistake made by the authorities was redressed and the applicant received the plot of land he was entitled to, that is, the land that had belonged to his father. 5. The authorities cannot be blamed for not having corrected the mistake earlier, as they could not take the initiative to allocate another plot of land to the applicant as long as he objected to the rectification of the original allocation of land and the court proceedings were still pending. 6.", "The applicant cannot argue that he suffered a pecuniary loss on account of the lower market value of the plot of land that had belonged to his father compared with the market value of the plot of land which had been allocated to him by mistake. 7. Furthermore, as regards the applicant’s claim that he was not afforded just satisfaction at domestic level, it should be noted that he did not seek any compensation for pecuniary or non-pecuniary damage as a result of the mistake made by the authorities, either in the annulment proceedings or in separate court proceedings. 8. Therefore, having regard in particular to the factors mentioned, I agree that there has been no violation of Article 1 of Protocol No.", "1 to the Convention." ]

[ "FOURTH SECTION CASE OF KARBOWNICZEK v. POLAND (Application no. 22339/08) JUDGMENT STRASBOURG 27 September 2011 FINAL 27/12/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karbowniczek v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 22339/08) 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 Jarosław Karbowniczek (“the applicant”), on 28 April 2008. 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, a violation of Article 3 of the Convention on account of ill-treatment by the police. 4. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1979 and lives in Wałbrzych. A. The applicant’s detention and criminal proceedings against him 6. On 27 July 2005 the applicant was arrested by the police on suspicion of having committed battery, uttered threats and intimidated a witness. 7.", "On 28 July 2005 the Wałbrzych District Court (Sąd Rejonowy) decided to remand the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses, particularly in the light of the fact that he had previous convictions. 8. On 27 October 2005 the applicant’s detention was extended.", "The court relied on the grounds given previously. The applicant’s appeal against this decision was dismissed on 3 November 2005. 9. On 23 December 2005 the District Court further extended the pre-trial detention in respect of the applicant and his two co-accused, considering it necessary in order to ensure the proper course of the proceedings. An appeal by the applicant was dismissed on 5 January 2006.", "10. On 9 March 2006 the applicant and the two co-accused were indicted before the Wałbrzych District Court. 11. On 21 March 19 June, 12 September and 7 December 2006 the trial court further extended the applicant’s detention, finding that the original grounds for it remained valid. The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings.", "12. At a hearing held on 2 March 2007 the Wałbrzych District Court extended the applicant’s detention, reiterating the grounds invoked previously. 13. The applicant appealed against this decision. 14.", "On 21 March 2007 the Świdnica Regional Court (Sąd Okręgowy) dismissed the appeal. The court noted that the applicant had already “tried to influence the course of the proceedings”, had tried to abscond while being transported to the court and that he had already been convicted of offences similar to those with which he was charged in the present set of proceedings. The court also considered that the applicant might try to influence the testimony of his sister, who was accused in the same proceedings but who was not detained. The court concluded that detention on remand was the only preventive measure capable of ensuring the proper course of the proceedings. 15.", "Subsequently, on 30 May 2007, the applicant’s detention was extended on the grounds given previously. 16. Between 22 June 2006 and 3 July 2007 the applicant was serving a prison sentence imposed on him in a different set of proceedings. 17. On 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment.", "Together with two accomplices, the applicant was found guilty of, inter alia, forgery, battery, robbery and uttering threats. However he was not charged or convicted of membership of an organised criminal group. 18. The applicant lodged an appeal against the judgment. 19.", "On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. On the same day the court extended the applicant’s detention, finding that the grounds previously given remained valid. 20. On 25 June 2008 the applicant’s detention was further extended. An appeal by the applicant against that decision was dismissed on 10 July 2008.", "21. On 25 July 2008 the Wałbrzych District Court extended the applicant’s pre-trial detention; however, the court decided that the applicant could be released, under police supervision, on bail in the amount of 10,000 Polish zlotys (PLN) (approximately EUR 3,000 at that time). The court observed that the majority of the witnesses had been heard, so the risk that the applicant would try to bring pressure to bear on them was no longer justified. 22. The applicant submitted that he had no means to pay the bail.", "23. On 14 August 2008 the applicant was released from detention although he had failed to pay the full sum specified in the bail decision. 24. On 18 October 2010 the Wałbrzych District Court convicted the applicant and sentenced him to six years’ imprisonment. 25.", "On 22 March 2011 the Świdnica Regional Court partly amended and partly quashed the judgment and remitted the case. The applicant was sentenced to seven years’ imprisonment. 26. On 19 April 2011 the applicant’s legal-aid counsel refused to lodge a cassation appeal against the judgment. B.", "The events of 21 November 2006 as presented by the applicant 27. On 21 November 2006 the applicant was transferred from the Detention Centre to the Walbrzych District Court to attend a hearing. He was escorted by police officers, who left the door of the police van open thereby enabling him to escape. After several minutes he was stopped and brutally beaten up by the police officers. The applicant was brought back to the court building where he was handcuffed to a radiator, stripped naked, and again hit, kicked, strangled and hit with a gun by the police officers.", "28. The applicant was then brought back to the courtroom, where he complained to the presiding judge about what had happened to him. An ambulance was called and the applicant was taken to a hospital where he was examined by a doctor. A medical certificate (which is hardly legible) issued by a doctor from the emergency room of the Wałbrzych Hospital, confirm abrasions to the applicant’s head. 29.", "Upon his return to the court building the applicant was again beaten up by police officers. Afterwards, he was transferred back to the Detention Centre, where he requested an examination by a doctor. The following is an extract from a note in the “Health book of a detainee” (Książka Zdrowia Osadzonego”): “21.11. 2006 [The applicant] submits that he was arrested by force by police officers. On his body can be seen: skin abrasion on the left side of his forehead measuring 5 cm by 3 cm, an abrasion on the lower part of his chin 3 cm long, two scratches on the right shoulder blade 10 cm long, a scratch on the right arm 6 cm long, an abrasion on the left side of his chest 15 cm long, abrasions on the knee, above the ankle, a blue mark under the right eye, a red mark on the neck and right knee.” 30.", "A note in the book dated 22 November 2006 confirmed that a forensic medical examination had been carried out confirming the injuries as previously described. C. The investigation concerning the applicant’s alleged ill-treatment and facts as established by the domestic authorities 31. On 12 February 2007 the Wałbrzych District Prosecutor opened an investigation into the applicant’s allegations. 32. On 12 June 2007 an expert medical opinion was prepared.", "33. On 15 June 2007 the Wałbrzych District Prosecutor decided to discontinue the investigation, finding that there was insufficient evidence that an offence had been committed. In the course of the investigation an expert was appointed. The testimony of T.G., who had been transported with the applicant to the court and was later present in the court building, was also heard. T.G.", "testified that he could not see what happened when the applicant had run out of the van, but he saw him later in the court, when waiting for his hearing. T.G. testified that he heard the applicant screaming in pain, as if he had been beaten. The prosecutor gave the following reasons for her decision: “In the course of the investigation the following course of events was established. On 21 November 2006 [the police officers P.G., D.P.", "and R.G.] escorted [the applicant] from the Wałbrzych Police Station to the Wałbrzych District Court... Next to the building of the Wałbrzych District Court [the applicant], having removed his hand from the handcuffs, pushed open the van door and ran off in the direction of [other] buildings. The action undertaken [by the police officers] led to the arrest of the applicant, who took fright at a warning shot fired by P.G. and lay down on the ground. He was handcuffed and led to the van and brought to the detainees’ room of the Walbrzych District Court.", "P.G. and R.G. took part in the pursuit of [the applicant]. [The third police officer] stayed in the van to watch over the other detainee. For their own safety, the police officers searched the applicant and confiscated money and other small items from him.", "The applicant was alone in the detainees’ room. After having been searched, the applicant was handcuffed. At that moment he started hitting his head against the floor and walls and shouting that the police officers had beaten him up and that it was their fault. Since P.G. had left for Wałbrzych Police Station, in order to transmit the information about [the applicant’s] attempt to flee, the remaining [police officers], seeing [the applicant’s] behaviour, laid him on the floor and held his hands and legs to prevent him from injuring himself further.", "During that time the applicant tried to free himself, rubbed his head against the floor and shouted at the police officers that he would inform the prosecuting authorities of the fact that they had beaten him up. He also threatened to kill them. After about 30 minutes an ambulance came to give him something to calm him down, but the doctor decided to take [the applicant] to the hospital. [Three police officers] went with [the applicant] to the hospital. In the hospital the applicant underwent the necessary examinations; then, since he was allowed to participate in the trial, the police officers took him to the Wałbrzych District Court.", "The applicant was then transported to the prison because the hearing had been adjourned. The injuries sustained by [the applicant] on 21 November 2006 qualified as injuries that could happen in the circumstances described by both the victim and the police officers. However, the court expert established categorically that they could not have happened as a consequence of repeated kicking or beating with substantial force, as described by the victim. On the basis of all the material collected in the case it can be unambiguously established that there is not enough evidence substantiating the allegations that the police officers escorting [the applicant] on 21 November 2006 committed an offence. It should be said that the possibility that the applicant was beaten up by the police officers cannot be totally ruled out.", "However, the evidence collected lends credence to the version of events given by the police, which differs completely from the one given by [the applicant] because there were no other witnesses to the event who could confirm [the applicant’s] version, and it is impossible to identify any such witnesses. T.G., who was transported with the applicant, does not have any information concerning the incident, as from the moment the applicant escaped, he lost all contact with him. As a side note it is to be pointed out that, judging from life experience, it is rather unlikely that the police officers, after having informed their superiors about the applicant’s running off, beat him up and subsequently, having brought the applicant from the hospital back to the court building and knowing that D.G., their supervisor, was already present in the court building, ill-treated the applicant yet again. Since the version of the events given by the applicant was not confirmed by the evidence collected, his statements in this respect should be considered as untrue. It is therefore justified to discontinue the proceedings under Article 17 § 1 of the Code of Criminal Procedure on the grounds that there is no evidence sufficiently justifying the suspicion that an offence was committed.” 34.", "The applicant lodged an appeal against that decision. 35. On 15 June 2007 the prosecutor requested an expert to enlarge on [his] opinion by answering the question whether the injuries described below could have occurred in the circumstances as described by the police officers. The prosecutor stated as follows: “On 12 June 2007 an expert opinion in forensic medicine was prepared which established that some of the injuries [sustained by the applicant], in particular an abrasion on the forehead, a bruise on the mandible, bruises on the shoulder blade, on the chest, and on the right thigh could be the result of hitting or kicking with minor force. When preparing the opinion, the expert was unaware of the testimonies given by the witnesses D.P.", "and R.G., the police officers...” 36. On 31 January 2008 the Wałbrzych District Court dismissed the appeal. The court entirely agreed with the prosecutor’s findings after having allowed the new evidence requested by the applicant in his appeal, namely the testimony of K.K., a witness who was present at the Wałbrzych District Court on 21 November 2006 and who allegedly saw the applicant being beaten by the police officers, and the additional testimony of T.G., who was transported with the applicant to a court hearing and was likewise present in the court building at the time the applicant was ill-treated. K.K. submitted that he saw the applicant when he had been waiting for a hearing in the holding room at the court building.", "The holding room led to two cells. K.K. further submitted that there had been another woman in the room, who had also been transported to the court building for a hearing. According to K.K., the applicant had been placed in one of the cells; the door to the cell was left open. He could see the applicant, partly undressed (without a shirt and trousers) and handcuffed to a radiator.", "He saw the police officers entering the cell and insulting the applicant. He further submitted that, when leaning out, he had seen one of the police officers kicking the applicant. Subsequently, K.K. stated that he had seen some two to four police officers kicking the applicant. In his additional testimony, T.G.", "submitted that at the court building, through a peep-hole in the door of his cell, he could see the applicant being pulled about by the police officers. He could not see whether the applicant had been beaten, but he heard him calling out in pain, which he associated with the applicant having been hit. 37. The court did not explain why K.K.’s testimony and the additional testimony of T.G. had been disregarded.", "The court did not refer either to the alleged stripping of the applicant. However, the court mentioned that the evidence obtained by the prosecutor was sufficient to establish the circumstances of the case. The court also took into account the supplementary expert opinion and concluded: “[From the supplementary expert opinion upholding the conclusions of the original opinion, and after having examined other evidence requested by the applicant] it is clear that although the applicant sustained injuries, they do not indicate that he was repeatedly hit and kicked, and could have occurred when the applicant forcibly pushed the police van door open, fell, or lay down after fleeing, or when he struggled with the police officers while in a lying position and was held down by force; the abrasion on the forehead could have happened when he was rubbing his head against the ground, and [all these injuries] were slight and minor in nature. In the light of the above and after all possible investigative actions have been carried out, it is impossible in the circumstances to establish the existence of evidence to prove that the offence was committed. Having analysed the material collected in the case, the court agreed with the prosecutor’s findings in full and decided as in the operative part.” II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Use of force by the police 38. The regulations on the permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of the particular situation and in so far as they are necessary to obtain compliance with that order. 39. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order.", "When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person’s life, health or property. B. As regards detention on remand 40. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no.", "17584/04, §§ 22-23, 4 August 2006. 41. For the latest amendments of the provisions concerning detention on remand, see the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, § 25-33, 3 February 2009. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. The applicant complained under Article 3 of the Convention that he had been kicked and beaten up by police officers while being transported to the Wałbrzych District Court to attend a hearing and, afterwards, in the court building itself. 43. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged ill-treatment by the police (a) The applicant’s submissions 45.", "The applicant submitted in general terms that Article 3 had been violated by the police officers who had treated him brutally on the day when he was transported to attend the hearing in the District Court. (b) The Government’s submissions 46. The Government submitted that it was undisputed that, on 21 November 2006, the applicant had attempted to escape from a police vehicle. They considered that the use of force had been made necessary by the applicant’s own conduct; the applicant must have been aware that his attempt to escape would have led the police to react. According to the Government, the injuries sustained by the applicant might have occurred when the applicant forcibly opened the door of the police van and when the applicant fell to the ground after one of the police officers had fired a warning shot.", "They considered that the measures undertaken by the police officers following the applicant’s attempt to escape had been lawful, proportionate and had not exceeded the minimum level of severity required to fall within the ambit of Article 3 of the Convention. 47. As regards the course of events in the detainees’ room in the building of the Wałbrzych District Court, the Government submitted that the applicant’s injuries had been largely self-inflicted. The applicant had behaved aggressively and the police officers had had to react by using physical force to stop him from hurting himself. The Government described as completely unreliable the applicant’s submissions that he had been beaten up by the police officers in the detainees’ room.", "According to the Government, this was impossible especially since the police officers’ supervisor, D.G., had been present. 48. The Government produced a copy of the minutes of the hearing of 21 November 2006 from which it emerges that the applicant, having been brought back from hospital to the court building, declared that he felt well enough to participate in the hearing. However, the court decided to adjourn the hearing “due to the applicant’s emotional state”. 49.", "Finally, the Government submitted that the medical experts who had examined the applicant’s injuries ruled out the possibility that the injuries had been caused by kicking and beating. 50. The Government concluded that the facts of the case did not disclose a violation of Article 3 of the Convention. (c) The Court’s assessment 51. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], cited above, § 87).", "The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant’s arrest (see Klaas v. Germany, 22 September 1993, §§ 23-24, Series A no. 269, and Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII). 52. According to 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, cited above; Altay v. Turkey, no. 22279/93, § 54, 22 May 2001; and Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007). In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).", "53. The Court further recalls that Article 3 of the Convention prohibits, in absolute terms, torture and inhuman or degrading treatment. However, 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 ill‑treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.", "In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a legitimate form of given treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, 6.4.2000, §§ 119-120, ECHR 2000-IV). 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 (loc.", "cit., § 121). 54. The Court observes that the parties have not disputed that, on 21 November 2006, the applicant absconded from the police van while being transported to the Wałbrzych District Court. Two of the three police officers who escorted the applicant started chasing him. One of them fired a warning shot in the air and the applicant fell to the ground.", "He was then apprehended by the police officers and handcuffed. The applicant submitted that he had been beaten up and kicked by the police officers immediately afterwards. The Government submitted in turn that the applicant had been transferred to the detainees’ room of the Wałbrzych District Court. The parties likewise disagree as regards the course of events in the detention room. The applicant submitted that he had again been beaten up and kicked.", "According to the Government, the applicant had behaved aggressively and tried to injure himself and the intervention of the police officers had been indispensable. The Government’s version was confirmed by the domestic authorities in their investigation and by the subsequent judicial proceedings. 55. While the Court is not bound by the findings of the domestic authorities as to facts alleged to be in breach of the Convention, on the basis of the parties’ observations and the material in its possession, it finds it impossible to establish whether any ill-treatment occurred in the street immediately after the applicant’s apprehension and, subsequently, in the court building. 56.", "The Court observes that the applicant was apprehended in the course of an operation giving rise to unexpected developments to which the police were called upon to react. The Court considers that the applicant’s apprehension must have resulted in the applicant having sustained some minor injuries. The Court further considers that the applicant must have been aware that the police would chase him and try to apprehend him and that physical force might have to be used against him if he resisted arrest. 57. The Court notes in addition that the applicant’s injuries were not very serious.", "It further observes that although the first expert’s report suggested that they could not have been caused by repeated kicking and beating with substantial force the second report stated that they could have resulted from kicking and beating with minor force (see paragraphs 33 and 35 above). Furthermore, the applicant’s wounds were dressed in the hospital and he was transported back to the court. As reported by the prosecutor in her decision of 15 June 2007 (see paragraph 33 above) and confirmed in the minutes of the hearing of 21 November 2006 (see paragraph 48 above) after the events on that day the applicant was able to participate in the hearing, which was adjourned because the court considered that the applicant should not be heard in a state of emotional distress. 58. Taking into consideration the findings made in the course of the domestic proceedings, the Court for its part finds it impossible to establish on the basis of the evidence before it whether or not the applicant’s injuries were caused as alleged.", "However, it would observe at the same time that the difficulty in determining whether there was a plausible explanation for the applicant’s injuries or whether there was any substance to his allegations of ill-treatment must be assessed against the background of the adequacy of the investigation carried out in respect of the applicant’s allegations (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000). The Court will now examine this matter further. 2. Adequacy of the investigation (a) The applicant’s submissions 59.", "The applicant did not refer to this matter. (b) The Government’s submissions 60. The Government contended that the investigation and judicial proceedings in the present case had complied with Article 3 requirements. They argued that the proceedings had been prompt and thorough. There was no other evidence that the prosecuting authorities should have taken into account in order to establish the facts of the alleged ill-treatment.", "The circumstances of the case had been examined by the Wałbrzych District Prosecutor and, subsequently, in the course of independent judicial proceedings conducted by the Wałbrzych District Court. All the relevant witnesses had been heard and a forensic report and a supplementary report had been commissioned. (c) The Court’s assessment 61. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see, among other authorities, Labita v. Italy, cited above, § 131).", "The investigation into arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq). 62. In the Labita case cited above, the Court found a violation of Article 3 on the ground that the authorities had not investigated the alleged numerous acts of violence, humiliation, and other forms of torture inflicted on an applicant. It must be noted however that in that case the Court’s conclusion was reached on account of the manifest inactivity of the authorities regarding the investigation of that applicant’s complaints (loc.", "cit., §§ 117-136). 63. In the present case, a number of persons were questioned, including T.G., who, on 21 November 2006, was transported together with the applicant to the Wałbrzych District Court and was present in the court building at the time the applicant was allegedly beaten-up, the police officers involved and D.G. - the police officers’ supervisor, who was likewise present in the court building at the time of the alleged ill-treatment. Furthermore, expert opinions as well as a supplementary expert opinion were produced in the context of the investigation into the applicant’s allegations of ill-treatment on 21 November 2006 (see paragraph 35 above).", "Also, at the request of the applicant submitted in his appeal against the decision of 15 June 2008, K.K., a witness who allegedly saw the applicant being ill-treated in the court building, was heard. It was apparent thought that this evidence did not reveal any new relevant circumstances, because the District Court considered on the basis of the investigation carried out by the prosecutor, that the facts and circumstances of the case had been properly established and examined (see paragraph 37 above). 64. The prosecution decided not to charge the policemen and to discontinue the investigation because of the lack of unequivocal evidence of the officers’ guilt. It is true that the investigation of the district prosecutor did not exceed a reasonable time: it was completed on 15 June 2007 - i.e.", "some seven months after the impugned events and four months after the opening of the criminal proceedings (see paragraphs 34-37 above; see also, by contrast, the above-mentioned Labita case, loc. cit., § 133 where only photographs of the alleged perpetrators had been taken during a period of fourteen months). The Court is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the requirements of Article 3. 65. The Court finds it particularly unsatisfactory that the domestic court failed to give reasons as to why it had not found the testimonies given by K.K.", "and T.G. to be credible. Furthermore, it failed to explain convincingly the reasons for accepting the version of the events submitted by the police officers involved. In particular, the Court does not find convincing the argument that the police officers would not have beaten the applicant up in the court building, knowing that their superiors had been informed about the applicant’s escape and that their supervisor D. G. - was present in the building. The prosecution authorities and the court embraced the statements of the police officers without taking any note of the fact that they had obviously had an interest in the outcome of the case and in diminishing their responsibility.", "In that respect the Court would underline the importance of critical assessment of police officers’ testimonies (see Dzwonkowski v. Poland, no. 46702/99, § 65, 12 April 2007). 66. The Court further notes that in the light of the expert opinions, in particular according to the first expert opinion, the injuries sustained by the applicant qualified as injuries that could have occurred in the circumstances described by both the victim and the police officers. The court expert had categorically ruled out any possibility that the injuries happened as a consequence of repeated kicking or beating with substantial force – that is in the manner the applicant had alleged to have been ill-treated by the police officers.", "However, the authorities did not to give any plausible explanation as to how the applicant could have sustained his injuries in the circumstances described by him, if they were not caused by some form of ill-treatment by the authorities. 67. The Court also notes that according to K.K., another woman, a potential witness, was present in the court building at the time of the alleged ill‑treatment of the applicant. It appears that no effort was ever made to confirm K.K.’s submission, or to identify the woman. 68.", "Regard being had to the above findings, the Court concludes that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 69. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 70. The Government contested that argument. A. Period to be taken into consideration 71. The applicant’s detention started on 27 July 2005, when he was arrested on suspicion of having committed battery, uttered threats and intimidated a witness.", "Between 22 June 2006 and 3 July 2007 the applicant was serving a prison sentence imposed on him in another set of proceedings (see paragraph 16 above). Subsequently, on 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment. On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. Thus, between 22 June 2006 and 21 December 2007 the applicant was “convicted by a competent court” within the meaning of Article 5 § 1 (a) of the Convention. The applicant was released from detention on 14 August 2008.", "72. The term between 22 June 2006 and 21 December 2007, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s detention pending trial for the purposes of Article 5 § 3. 73. Accordingly, the period to be taken into consideration amounts to one year, six months and nineteen days. B.", "The parties’ submissions 1. The applicant 74. The applicant submitted that the length of his detention had clearly been unreasonable and that it could not be justified on the grounds relied on by the authorities. 2. The Government 75.", "The Government submitted that the length of the applicant’s detention had been justified throughout its entire period. They relied on the gravity of the charges against the applicant, on the fact that the applicant already had a criminal record and on the risk that he might abscond. C. The Court’s assessment 76. 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, were have been stated in a number of its previous judgements (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI).", "77. In their decisions regarding the applicant’s detention, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable; (3) the need to secure the proper conduct of the proceedings; (4) the risk that the applicant, having previous convictions, might tamper with the evidence and the risk that he might abscond. 78. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. 79.", "Furthermore, according to the authorities, the serious nature of the offences in question and the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland, no. 13425/02, §§ 49, 4 May 2006). 80. The Court would reiterate that, with the passage of time, those grounds became less and less relevant.", "The Court must then establish whether the other ground adduced by the courts – namely, the risk of the applicant’s going into hiding – was “relevant” and “sufficient” (see, Kudła cited above, § 111). In this connection the Court notes that on 21 November 2006 the applicant made an attempt to abscond while being transported to the court hearing. The Court considers that, from that date on, this fact, taken together with the other grounds for the applicant’s detention relied on by the domestic authorities, especially the risk of tampering with evidence resulting from the applicant’s previous criminal convictions, constituted grounds for a reasonable fear that the applicant might try to abscond again. 81. The Court also notes that, on 25 July 2008, the domestic court, having examined the reasons for the applicant’s continued detention, found some of them no longer valid and considered that the applicant could be released on bail (see paragraph 21 above).", "The applicant was released three weeks later although he had not paid the amount ordered by the court by way of bail. 82. The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. 83. The Court has considered whether the authorities, when examining the case, showed the diligence required in cases in which the accused is detained.", "It is to be noted that the applicant was indicted on 9 March 2006 which is some seven months after his arrest. The first-instance judgment was given on 3 July 2007− that is sixteen months after the indictment. The appellate proceedings lasted about five months (see paragraph 19 above). The Court notes that the proceedings involved three co-accused and a number of witnesses had to be heard. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to provide both the defence and the prosecution with all necessary facilities for putting forward their evidence and stating their case and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed.", "84. The Court concludes that the Polish authorities showed the diligence required in cases concerning a detained person. 85. It follows that this part of the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 86. The applicant further complained under Article 6 § 1 of a violation of his right to have his case heard within a reasonable time and under Article 6 § 2 of a breach of the principle of presumption of innocence. Lastly, the applicant invoked Article 13 of the Convention, maintaining that his right to an effective remedy had been violated. 87. As regards the complaints concerning the excessive length of the criminal proceedings the Court notes that, by virtue of 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), it is open to persons such as the applicant in the present case to lodge a complaint about the unreasonable length of the proceedings with the relevant domestic court.", "The applicant failed to make use of that domestic remedy. 88. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 89. The Court has examined the remaining complaints.", "However, having regard to all the material in its possession, it finds that the applicant has failed to substantiate them. It follows that this part of the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 90. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 91. The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 92. The Government considered this sum unreasonable. 93.", "The Court 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 5,000 under this head. B. Costs and expenses 94. The applicant did not specify his claim for costs and expenses.", "C. Default interest 95. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3.", "Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF WALDEMAR NOWAKOWSKI v. POLAND (Application no. 55167/11) JUDGMENT (merits) STRASBOURG 24 July 2012 FINAL 17/12/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Waldemar Nowakowski 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,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 July 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 55167/11) 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 Waldemar Nowakowski (“the applicant”), on 22 August 2011. 2. The applicant, who had been granted legal aid, was represented by Mr M. Heleniak, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. The applicant complained about an alleged breach of his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 to the Convention. 4. On 17 November 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 1933 and lives in Warsaw. 6.", "The applicant is a veteran of the Polish Resistance during the Second World War and a former professional officer of the Polish Army. His veteran status on the grounds of his involvement in the underground Scouts movement during that war was recognised by an administrative decision given on an unspecified date by the Director of the Veterans’ Office. 7. For the last fifty years the applicant collected antique arms and weapons from the period of the Second World War and earlier. 8.", "On 7 and 8 July 2008 the police searched the applicant’s home and summer cottage. They confiscated the applicant’s collection which at that time numbered 199 pieces. 9. On 16 July 2008 the Director of the Warsaw Uprising Museum (“the Museum”) in Warsaw issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure. He stated that the applicant had been co‑operating with the Museum as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the Museum.", "He stated that the applicant’s expertise was highly valued by the Museum. 10. On 8 July and 29 August 2008 the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms. 11. On 18 October 2010 the Director of the Veterans’ Office sent a letter to the Warszawa Wola District Court.", "He stated that the applicant’s integrity and the fact that he was a law-abiding citizen were well‑known. He had been decorated on a number of occasions for his involvement in the Polish Resistance during the Second World War. By accumulating a unique collection of historical weapons, uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of Poland. He had financed this collection himself, at considerable personal sacrifice. The fact that criminal proceedings had been instituted against him had met with general disbelief.", "It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order. On the contrary, it had played a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence. The applicant’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him. 12. On 16 July 2010 the prosecution ordered that 24 pieces of the collection should be returned to the applicant, relying on an expert opinion prepared for the purposes of the investigation.", "The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary. On 20 July 2010 a bill of indictment against the applicant on charges of illegal possession of arms was filed with the Warszawa Wola District Court. 13. On 18 November 2010 the Warszawa Wola District Court discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms, contrary to Article 263 § 2 of the Criminal Code. 14.", "The court first listed 171 pieces of the applicant’s collection, the oldest of them produced in 1889. 15. The court noted that the applicant had explained that he had been collecting old arms, mostly memorabilia of the Second World War as well as other older pieces, for almost fifty years. He had previously on numerous occasions made parts of his collection available on loan to various museums. He had been collaborating as an expert in old weaponry with the Warsaw Uprising Museum.", "The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with three locks and equipped with an alarm. He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms. He declared his willingness to take such measures also in respect of the remaining pieces. 16. The court acknowledged that no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant.", "However, he must have known that the possession of arms without a permit was unlawful. He had not availed himself of the possibility of legalising his collection by having recourse to the 2005 Arms Legalisation Act, devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of Poland to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance. 17. The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent. It emphasised that the applicant was, at that time, 77 years old, a war veteran who had fought in the Warsaw Uprising and who was a retired professional officer of the Polish Army with no criminal record.", "He was a law‑abiding citizen. 18. The court observed that the applicant’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts. The experts had found that it was impossible to use most of the pieces as weapons, but that some of them could be made to work again (“ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu, niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału, jak również możliwym było przywrócenie cech użytkowych broni”). 19.", "The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant, referring to Article 17 paragraph 1 (3) of the Criminal Code. At the same time, the court decided to apply Article 100 of the Criminal Code in conjunction with its Article 39 and to confiscate 171 pieces of the collection. 20. The court, explaining why it decided to avail itself of its discretionary power to confiscate the entire collection, stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value. It noted that the collection should, because of its historical interest, be handed over to an institution capable of securing appropriate storage and display conditions for it.", "21. The applicant and the prosecution appealed. The applicant essentially challenged the confiscation measure. 22. By a decision of 22 February 2011 the Warsaw Regional Court upheld the first-instance decision.", "It fully endorsed the reasoning of the lower court. It further noted that the confiscation of the collection should not lead to its destruction. The State authorities should be well aware of the historical value of the collection (“organy państwa winny zdawać sobie sprawę z ... wartości historycznej zabezpieczonych przedmiotów”). 23. On 16 March 2011 the Warszawa Wola District Court invited the Warsaw Uprising Museum to indicate whether they would be interested in the applicant’s collection.", "On 28 June 2011 the Director of the Museum replied, indicating that the Museum wished to take certain pieces selected by P.B., the Museum’s expert. On 16 September 2011 the court authorised the transfer of these pieces to the Museum and on 17 October 2011 they were transferred. 24. On 16 September 2011 the same court requested the Office for the Protection of Monuments in Warsaw, the Regional Curator for Monuments (Urząd Ochrony Zabytków w Warszawie, Mazowiecki Wojewódzki Konserwator Zabytków), to indicate the name of a cultural institution which would accept the remainder of the collection. A number of cultural institutions expressed their interest, including the Warsaw Uprising Museum.", "The Warsaw Uprising Museum also expressed interest in the remainder of the collection covered by the forfeiture decision. The Regional Curator for Monuments gave a positive opinion in this regard. This part of the collection is currently being transferred to the Museum. II. RELEVANT DOMESTIC LAW 25.", "Article 21 of the Constitution provides: “1. The Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and against payment of just compensation.” 26. Article 31of the Constitution reads: “Freedom of the person shall be legally protected.", "Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 27. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 28.", "Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 29. Article 17 paragraph 1(3) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible. 30.", "Article 100 of the Criminal Code provides that where the seriousness of a criminal offence is negligible, the court may order confiscation, within the meaning of Article 39 of that Code, of objects connected with the offence. 31. Article 263 paragraph 2 of the Criminal Code penalises possession of weapons or ammunition without a licence. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 32. The applicant complained that the confiscation of his collection had breached his right to the peaceful enjoyment of his possessions within the meaning of 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 33.", "The Government submitted that the applicant had failed to exhaust relevant domestic remedies in respect of his complaint. He should have lodged a constitutional complaint with the Constitutional Court under Article 79 of the Constitution of Poland. 34. The applicant disagreed and argued that he had exhausted all relevant remedies. He submitted that he had no objections as regards the compatibility of Articles 39 and 100 of the Criminal Code as such with the Constitution, but solely the manner in which they had been interpreted and applied by the criminal courts to the circumstances of his case.", "35. The Court considers that in the circumstances of the present case the alleged breach of the applicant’s right cannot be said to have originated from the direct application of Articles 39 or 100 of the Criminal Code. Rather, the alleged violation resulted from the manner in which these provisions were interpreted and applied by the courts in the applicant’s case. However, the established jurisprudence of the Constitutional Court indicated that constitutional complaints based solely on the allegedly wrongful interpretation of a legal provision were excluded from its jurisdiction. The Court has already examined on many occasions the Government’s objections based on the alleged failure to exhaust domestic remedies by way of constitutional complaints and rejected them (see, among many other authorities, Długołęcki v. Poland, no.", "23806/03, § 25, 24 February 2009; and R.R. v. Poland, no. 27617/04, § 116, 26 May 2011). It sees no grounds on which to depart from this approach in the present case. 36.", "It follows that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 37. 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 38. The applicant submitted that the domestic courts had found that he had not committed a crime and had therefore discontinued the criminal proceedings. Nonetheless, they had decided to confiscate his collection in its entirety.", "This decision was not in compliance with the proportionality principle. The courts had failed to examine properly whether the confiscation was indeed necessary in the public interest. In any event, the vast majority of pieces constituting the collection could no longer be used as weapons and the courts were well aware of this. 39. The applicant further argued that it had not been open to him to have recourse to the provisions of the June 2005 Act referred to by the domestic court with a view to obtaining a licence for his collection.", "This Act had merely made it possible to obtain an amnesty in respect of arms personally acquired during the Second World War or afterwards by the resistance fighters in connection with or for the purposes of fighting for Poland’s independence. The procedure foreseen under the provisions of that Act could not reasonably be used in respect of an arms collection consisting of 199 pieces. 40. The applicant further submitted that the collection represented a substantial pecuniary value. Furthermore, it had considerable sentimental value for him.", "41. The applicant concluded that the forfeiture order made in respect of an entire collection of historical arms which could no longer be used as weapons constituted an excessive individual burden and was in breach of Article 1 of Protocol No. 1 to the Convention. 42. The Government argued that under the Constitution of the Republic of Poland and Article 1 of Protocol No.", "1 to the Convention ownership was not ius infinitum. A State had the right to enact such laws as it deemed necessary to control the use of property in accordance with the general interest. The forfeiture of the arms held without a licence had amounted to an interference with the applicant’s right to the peaceful enjoyment of his possessions. It had served the public interest as it had been ordered in order to safeguard public safety and to control the possession of arms by individuals. All States were entitled to control access to weapons as a fundamental power vested in them on the strength of their sovereignty.", "They were also under a positive obligation to ensure safety by way of licensing the possession of weapons. The States enjoyed a margin of appreciation in this regard. Under the Court’s case-law the scope of this margin varied depending on the issue concerned in a case. The State’s margin of appreciation in issues concerning arms control was particularly wide. A requirement to obtain a licence to possess weapons fell within the State’s margin of appreciation and could not be regarded as imposing an excessive individual burden on the applicant.", "The licensing system would be illusory if it was not attended by criminal sanctions or by the possibility to order forfeiture of illegally possessed arms. 43. The Government stressed that in the present case the courts had decided not to find the applicant guilty of a criminal offence of illegal possession of arms. They had decided to discontinue the proceedings against him, finding that the offence was minor in nature. However, the mere fact that the applicant had possessed weapons without a licence amounted to a criminal offence.", "The courts had had no choice but to order forfeiture, it being the only possible way to eliminate the unlawfulness created by the applicant’s possession of weapons without a licence. Although most of the weapons constituting the collection could no longer be fired, the experts commissioned by the prosecuting authorities had found that it was technically possible to reverse that. 2. The Court’s assessment 44. Article 1 of Protocol No.", "1 to the Convention comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no.", "22774/93, § 44, ECHR 1999‑V; Barbara Wiśniewska v. Poland, no. 9072/02, § 93, 29 November 2011). 45. It is not in dispute between the parties that the confiscation order amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions. It remains to be determined whether the measure was covered by the first or second paragraph of that Convention provision.", "46. The Court has usually held in its case-law that a confiscation measure given in the context of criminal proceedings, although it involves deprivation of possessions, nevertheless constitutes a control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001; Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001; C.M.", "v. France (dec.), no. 28078/95, 26 June 2001; and Sun v. Russia, no. 31004/02, § 25, 5 February 2009). However, in the present case the court discontinued the criminal proceedings, finding that the seriousness of the alleged offence was negligible. The court had regard to the applicant’s character and to the lack of criminal intent on his part (see paragraph 17 above).", "The circumstances of the case were therefore fundamentally different from cases where confiscation orders were made in the context of criminal proceedings concerning charges of serious or organised crime and where there was a strong suspicion or certainty confirmed by a judicial decision that the confiscated assets were the proceeds of an offence (see Phillips v. the United Kingdom, no. 41087/98, §§ 9-18, ECHR 2001-VII), which were deemed to have been unlawfully acquired (see Riela and Arcuri, both cited above, and Raimondo v. Italy, 22 February 1994, § 29, Series A no. 281-A) or were intended for use in illegal activities (see Butler v. the United Kingdom (dec.), no. 41661/98, 27 June 2002). Furthermore, the confiscation order concerned the entire collection, with no distinction being made between objects which could still be qualified as weapons within the meaning of the arms control legislation and those which, as the court acknowledged, had been disabled (see paragraph 18 above).", "The Court is of the view that in these circumstances the confiscation order covering the entire collection should be regarded as a deprivation of property. 47. As the Court has held on many occasions, interference with property rights must be prescribed by law and pursue one or more legitimate aims. In addition, there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised. In other words, the Court must determine whether a fair balance was struck between the demands of the general interest and the interest of the individuals concerned.", "The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98; Schirmer v. Poland, no. 68880/01, § 35, 21 September 2004; Wieczorek v. Poland, no. 18176/05, § 59-60, 8 December 2009; compare and contrast Ian Edgar (Liverpool) Limited v. the United Kingdom (dec.), no. 37683/97, 25 January 2000).", "48. In that connection, the Court notes that the confiscation of the applicant’s property was ordered pursuant to Article 100 of the Criminal Code in conjunction with its Article 39. It therefore accepts that that interference was prescribed by law. 49. Furthermore, assuming that the interference complained of pursued a legitimate aim in the general interest, within the meaning of Article 1 of Protocol No.", "1 to the Convention, the Court has to examine whether a proper balance had been struck between that aim and the applicant’s rights. 50. In this connection, the Court reiterates that, where possessions are confiscated, the fair balance depends on many factors, including the owner’s behaviour. It must therefore determine whether the Polish courts had regard to the applicant’s degree of fault or care (see AGOSI, cited above, § 54; Silickienė v. Lithuania, no. 20496/02, § 66, 10 April 2012).", "51. Turning to the circumstances of the present case, the Court notes the Government’s argument that the authorities decided to discontinue the criminal proceedings against the applicant, having regard to the minor nature of the offence. However, it is not the decision to discontinue the proceedings, but the decision to order forfeiture of the applicant’s collection which is the subject of the Court’s scrutiny in the present case. The Court notes that Article 100 of the Criminal Code did not oblige the courts to order the forfeiture of the collection. It only conferred on them a discretionary power to do so when discontinuing criminal proceedings.", "The courts decided to avail themselves of that power. In the absence of a legal obligation to order the forfeiture, it is relevant to consider, in the context of the examination of whether the fair balance has been struck in the present case, how the authorities exercised their discretion. In this connection, the Court will have regard to the grounds on which the domestic authorities relied when ordering the forfeiture. 52. The first-instance court noted that the applicant was a 77‑year‑old war veteran, had fought in the Warsaw Uprising, was a retired professional officer of the Polish Army and was a law-abiding citizen with no criminal record.", "Furthermore, it has not been shown or even argued before the Court that his possession of the collection of arms was regarded by the domestic authorities as posing any risk of inappropriate use on his part. Nor was it argued, let alone shown, that he had gathered the arms in any other capacity than an amateur collector (compare and contrast with Silickienė v. Lithuania, referred to above, where the applicant had directly participated in payments for smuggled goods and must have known that the confiscated property could only have been purchased with the proceeds of crime). 53. The Court further stresses that the domestic courts were aware of these circumstances (see paragraphs 15-16 above). However, they still decided to confiscate the collection.", "The applicant’s personal circumstances did not therefore have any practical impact on the confiscation order. The Court is therefore of the view that the domestic courts failed to take into account the applicant’s personal situation and characteristics (see, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 61, ECHR 2002‑VIII, mutatis mutandis). 54. Furthermore, the Court cannot but note that the applicant started his collection approximately fifty years ago.", "The domestic court acknowledged this fact in its decision. The authorities had never taken any interest in the collection before July 2008 when they searched the applicant’s home and summer cottage. Moreover, it was not in dispute, either before the domestic courts or before the Court, that there had ever been any incident involving improper use of the collection by third parties which could indicate that the applicant had failed to take appropriate measures in order to prevent unauthorised persons from having access to the collection. 55. The Court further observes that the domestic court was aware that not all the pieces of the collection could still be used as weapons as the applicant had taken measures to disable them.", "The Court notes that the court failed to identify the pieces still in working order and those which had been disabled. Nonetheless, the court decided to order confiscation of the collection in its entirety. When doing so, the court had regard to the historical value that the collection represented. It was further of the view that the division of the collection by returning certain pieces to the applicant would seriously diminish its historical value. It therefore chose to confiscate the entire collection essentially in order to maintain its value.", "56. In the Court’s view, it can be reasonably accepted that the collection of old weapons, accumulated by an acknowledged specialist, has a significant pecuniary value. However, no thought had been given by the courts to whether the confiscation of the collection in its entirety imposed an excessive burden on the applicant, either as regards the pecuniary or sentimental value the collection had for him. Likewise, the court failed to consider any alternative measures which could have been taken in order to alleviate the burden imposed on the applicant, including by way of seeking registration of the collection. 57.", "The Court notes that subsequently the domestic court contacted a number of public institutions asking them whether they would be interested in acquiring the collection. As a result, part of the applicant’s collection was transferred to the Warsaw Uprising Museum in October 2011. Furthermore, that museum expressed interest in obtaining the remainder of the collection. The Court notes that the judicial authorities took measures in order to make the applicant’s collection available to the public. However, it cannot overlook the fact that the applicant was deprived of his property and lost a collection of considerable historical and presumably also financial value, while ultimately a public museum acquired it for free.", "58. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention. II. 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 wished to have his collection returned to him. In the alternative, he claimed 300,000 Polish zlotys (PLN) for pecuniary damage. He submitted that he was unable to submit an estimate of the value of the confiscated collection as it was no longer in his possession.", "He further claimed PLN 50,000 in respect of non‑pecuniary damage suffered as a result of the circumstances of the case. 61. The Government contested this claim. 62. The Court notes that the applicant first and foremost wishes to have the collection returned to him and that its value is disputed by the parties.", "In these circumstances the Court considers that the question of pecuniary damage is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court). In this connection, the Court is of the view that in the circumstances of the case the most appropriate form of redress of the violation found would be the restitution to the applicant of those elements of the collection which could be lawfully restored to him. 63. Moreover, the Court accepts that the applicant undoubtedly suffered distress and anxiety (see Luczak v. Poland, no.", "77782/01, § 64, 27 November 2007). It therefore awards him EUR 4,000 in respect of non‑pecuniary damage. B. Costs and expenses 64. The applicant did not submit a claim in respect of costs and expenses.", "C. Default interest 65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 3. Holds that, as regards pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly (a) reserves this question; (b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix it if need be; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant, 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 24 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıDavid Thór Björgvinsson Deputy 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 De Gaetano is annexed to this judgment. D.T.B.F.A. CONCURRING OPINION OF JUDGE DE GAETANO 1. Although I agree that in this case there has been a violation of Article 1 of Protocol No. 1, I cannot fully subscribe to some of the reasoning and arguments leading up to this conclusion.", "2. The violation in this case depends to an appreciable extent on the peculiar nature of three provisions of Polish law – Articles 17 paragraph 1(3), 39 and 100 of the Criminal Code (§§ 29 and 30, above) – which, when applied in combination to the facts of the case, create a manifest imbalance between the public interest and the rights of the applicant. To be sure, in principle there appears to be nothing objectionable if a provision of law provides for the confiscation, or indeed, for the removal or the destruction, of an object the existence or possession of which is in breach of some provision of law even if the person concerned is acquitted of the criminal charge of illegal possession of that object. This was the general approach taken by the Court in Saliba v. Malta (no. 4251/02, 8 November 2005).", "This point is only very vaguely reflected in the last sentence of § 62 of the present judgment. In the instant case, however, we have neither an acquittal nor a conviction, but a discontinuation of the proceedings coupled with a judicial acknowledgment that the offence was of a “negligible” nature in terms of seriousness – de minimis non curat praetor. In the present case this suffices for a finding of disproportionality, and this is where the Court’s reasoning should, in my view, have stopped. In many jurisdictions trifling offences are dealt with, upon conviction, by a simple reprimand or admonition; on the contrary in this case the applicant had the benefit of not being found guilty annihilated for all practical purposes by the confiscation of a priceless collection. The domestic court’s views on the character of the applicant and on “the lack of criminal intent on his part” (§§ 46 and 17) are irrelevant (apart from the fact that it is not clear whether by criminal intent that court was referring to a specific intent or to motive; as the respondent Government rightly observed, the applicant, as a retired army commissioned officer and an expert on weapons, could not but have known that at least some of the weapons required licensing).", "The reasons contained in §§ 52 to 57 are irrelevant to a finding of a breach of the Convention on the facts of the instant case. 3. On the positive side, however, the decision in the instant case clearly departs from the case-law of the Court which, as a rule, has considered – wrongly in my view – confiscation pursuant to proceedings of a criminal nature as a measure of control of use of property rather than of deprivation (§ 46, and the cases there referred to; see, more recently, Milosavljev v. Serbia, no. 15112/07, 12 June 2012, § 53). I have always been perplexed by the elliptical reasoning in the last two sentences of § 51 of AGOSI v. the United Kingdom (no.", "9118/80, 24 October 1986) and by the lack of proper distinction between the attachment stage and the disposal stage (as provided for in the relevant domestic law) in Riela et autres c. l’Italie (dec.) no. 52439/99, 4 September 2001." ]

[ "SECOND SECTION CASE OF CHERNYAYEV v. UKRAINE (Application no. 15366/03) JUDGMENT STRASBOURG 26 July 2005 FINAL 30/11/2005 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 Chernyayev 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 28 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 15366/03) 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 Vladimir Ilyich Chernyayev (“the applicant”), on 16 April 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. 3.", "On 19 January 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 1938 and lives in the town of Nova Kakhovka, Kherson region, Ukraine.", "5. On 4 August 2000 the Nova Kakhovka Town Court awarded the applicant UAH 3,150.00[1] in salary arrears against his former employer – the Southern Machinery Construction factory (the majority share of which – 70% – was owned by the State). The judgment was not appealed and became final. 6. On 3 July 2001 the Nova Kakhovka Town Court awarded the applicant UAH 1,180.00[2] in compensation for moral damage against the same factory.", "7. By letter of 14 February 2003, the Head of the Kherson Regional Department of Justice of Ukraine informed the applicant that the enforcement proceedings against the factory had been stayed due to the opening of bankruptcy proceedings against the debtor. 8. On 17 May 2004 the Nova Kakhovka Town Court awarded the applicant UAH 13,460.72[3] in compensation for the delay in payment of the salary arrears against the same debtor. The enforcement proceedings in respect of this judgment were initiated on 24 June 2004.", "9. The judgments remain unenforced. II. RELEVANT DOMESTIC LAW 10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no.", "67534/01, §§ 16-18, 27 July 2004). THE LAW 11. The applicant complained of an alleged failure by the State authorities to execute the court decisions of 4 August 2000 and 3 July 2001 given in his favour. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” I. ADMISSIBILITY A. The Government’s preliminary objections 12.", "The Government contended that the applicant had not exhausted domestic remedies regarding the Bailiffs’ Service and the expedition of proceedings. 13. The applicant did not make any comments. 14. The Court notes that similar points have already been dismissed in a number of Court judgments (see the aforementioned Romashov judgment, § 41).", "In such cases the Court has found that applicants were absolved from pursuing the remedies invoked by the Government. It finds no reason to reach different conclusions in the present case and, therefore, rejects the Government’s objections. B. Conclusion 15. In the light of the parties’ submissions, the Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "It finds no ground for declaring this part of the application inadmissible. For the same reasons, the applicant’s complaints under Article 1 of Protocol No. 1 cannot be declared inadmissible. II. MERITS A.", "The applicant’s complaints under Article 6 § 1 of the Convention 16. The Government maintained that the Bailiffs performed all necessary actions to enforce the judgment and could not be liable for the delays in the enforcement proceedings. They further suggested that there was no infringement of Article 6 § 1 of the Convention. 17. The applicant did not elaborate his original complaint.", "18. The Court notes that the decisions of 4 August 2000 and 3 July 2001 remain unenforced for well over four and three years respectively. 19. The Court considers that by delaying for so long the enforcement of the judgments in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. The Court finds that the Government have not advanced any justification for this delay (see Shmalko v. Ukraine, no.", "60750/00, judgment of 20 July 2004, § 45). 20. There has, accordingly, been a violation of Article 6 § 1 of the Convention. B. The applicant’s complaints under Article 1 of Protocol No.", "1. 21. The Government in their submissions confirmed that the amounts awarded to the applicant by the domestic court constituted a possession within the meaning of Article 1 of Protocol No. 1. Nevertheless, the Government maintained that the provision had not been violated since the applicant’s entitlement to the award was not disputed and he was not deprived of his property.", "The Government further noted that the delay in payment was due to the difficult economic situation of the debtor and the bankruptcy proceedings against it. 22. The applicant did not make any further comments in addition to his original complaint. 23. The Court recalls its case-law that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No.", "1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003). 24. In the instant case the Court is of the opinion that the impossibility for the applicant to obtain execution of his judgments of 4 August 2000 and 3 July 2001 for so long constitutes an interference with his right to the peaceful enjoyment of his possessions, within the meaning of the first paragraph of Article 1 of Protocol No.", "1. 25. By failing to comply with the judgments of the Nova Kakhovka Town Court, the national authorities have prevented, and still prevent, the applicant, for a considerable period of time, from receiving in full the money to which he was entitled. The Government have not advanced any justification for this interference, and the Court considers that economic difficulties cannot justify such an omission. Furthermore, having regard to the compensation proceedings instituted by the applicant against the debtor, and even assuming that the compensation for the delay in payment awarded by the decision of 17 May 2004 could be considered in the circumstances of the instant case as having de facto some remedial effect, at least with respect to the delays in the recovery of judgment debt under the decision of 4 August 2000, the Court notes that it also remains unenforced, and the prospects of its execution are as remote as those of the original judgments.", "26. Accordingly there has also been a violation of Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 28. The Court notes that the applicant failed to submit a detailed claim for just satisfaction when invited to do so by the registry. However, in previous correspondence the applicant had claimed non-pecuniary damages in the amount of 50,000 Ukrainian hryvnas and in his reply to the registry’s request he stated that he wished to maintain his application. The Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good merely by the Court’s finding of a violation. The particular amount claimed is, however, excessive.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of 1,000 euros. 29. Moreover, it is undisputed that the State still has an outstanding obligation to enforce the judgments at issue. Accordingly, the applicant remains entitled to recover the principal amount of the debts, as well as the compensation awarded to him in the course of the domestic proceedings. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) for non-pecuniary damage plus any tax that may be chargeable; (b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 26 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. Costa Deputy RegistrarPresident [1]. Around EUR 485 [2]. Around EUR 180 [3].", "Around EUR 2,070" ]

[ "SECOND SECTION CASE OF SİNAN IŞIK v. TURKEY (Application no. 21924/05) JUDGMENT STRASBOURG 2 February 2010 FINAL 02/05/2010 This judgment has become final under Article 44 § 2 of the Convention. In the case of Sinan Işık 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,András Sajó,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21924/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sinan Işık (“the applicant”), on 3 June 2005.", "2. The applicant was represented by Mr K. Genç, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant alleged, in particular, that the denial of his request to have the word “Islam” on his identity card replaced by the name of his faith “Alevi” violated Article 9 of the Convention.", "He also alleged a violation of Articles 6 and 14 of the Convention. 4. On 15 January 2008 the President of the Second Section decided to give notice of the application to the Government. It was decided that the Chamber would rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. Mr Işık was born in 1962 and lives in İzmir. He is a member of the Alevi religious community, which is deeply rooted in Turkish society and history. Their faith, which is influenced, in particular, by Sufism and certain pre-Islamic beliefs, is regarded by some Alevi scholars as a separate religion and by others as the “essence” or “original form” of Islam. Its religious practices differ from those of the Sunni[1] schools of law in certain aspects such as prayer, fasting and pilgrimage (see Hasan and Eylem Zengin v. Turkey, no.", "1448/04, § 8, 9 October 2007). 6. The applicant stated that his identity card, issued by the registrar of births, marriages and deaths, contained a “religion” box which indicated “Islam”, even though he was not a follower of that religion. 7. On 7 May 2004 he applied to the İzmir District Court seeking to have his identity card feature the word “Alevi” rather than the word “Islam”.", "The relevant parts of his application read as follows: “... the word ‘Islam’ featuring on my identity card does not reflect the true situation. As an Alevi citizen of the Republic of Turkey, I thought, on the basis of my knowledge and beliefs, that a person could not be at once ‘Alevi’ and ‘Islam’ (sic!). As a citizen of the secular Republic of Turkey, which, under its Constitution, protects freedom of religion and conscience, I refuse to continue to bear the weight of this injustice and this contradiction stemming from the desire to offset a fear, which is wholly unfounded and deeply offensive.” 8. On 9 July 2004, following a request by that court, the legal adviser to the Directorate of Religious Affairs issued his opinion on the applicant’s request. He considered in particular that to indicate religious interpretations or subcultures in the religion box on identity cards was incompatible with national unity, republican principles and the principle of secularism.", "He argued in particular that the word “Alevi”, designating a sub-group within Islam, could not be considered to be a separate religion or a branch (mezhep) of Islam. It was an interpretation of Islam influenced by Sufism and having specific cultural features. 9. On 7 September 2004 the court dismissed the applicant’s request on the basis of the following considerations: “1. ... the religion box on identity cards contains general information about citizens’ religion.", "It is accordingly appropriate to examine whether the Alevi faith (Alevilik) constitutes a separate religion or an interpretation of Islam. It is clear from the opinion issued by the Presidency of the Directorate of Religious Affairs that the Alevi faith is an interpretation of Islam which is influenced by Sufism and which has specific cultural features ... Accordingly, that faith constitutes an interpretation of Islam and not a religion as such, in accordance with the general principles laid down in this regard. Furthermore, only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion. No error has therefore been made in indicating ‘Islam’ on the identity card of the applicant, who claims to be ‘Alevi’.", "2. Books and articles submitted by the applicant reveal that Ali[1] is described as the ‘lion of Allah’ or similar. The fact that certain poems contain different expressions does not mean that the Alevi faith is not part of Islam. Since Ali is one of the four caliphs of Islam and the son-in-law of Muhammad, he must be considered to be one of Islam’s eminent personalities ... 3. For example, in Christianity too, there are sub-groups such as Catholics and Protestants, which nonetheless have their basis in Christianity.", "That is to say that when someone adheres to a particular interpretation of Islam, it does not mean that that interpretation is not part of Islam ...” 10. On an unspecified date the applicant appealed to the Court of Cassation. He complained that he had been obliged to disclose his beliefs because it was mandatory to indicate his religion on his identity card, without his consent and in breach of the right to freedom of religion and conscience within the meaning of Article 9 § 1 of the Convention. He further alleged that the indication at issue, deriving from section 43 of the Civil Registration Act (Law no. 1587), could not be considered to be compatible with Article 24 § 3 of the Constitution, which provided that “no one shall be compelled ... to reveal his or her religious beliefs and convictions”.", "He also stated that he had lodged two applications, the first to have the word “Islam” describing his religion on his identity card deleted, and the second, to have the word “Alevi” inserted into the relevant box. He stated that the court of first instance had been able to examine the two requests separately, allowing the first and rejecting the second, finding that the indication at issue was not compatible with Article 24 § 3 of the Constitution. Lastly, he challenged the proceedings rejecting his application, in which the Directorate of Religious Affairs had described his faith as an interpretation of Islam. 11. On 21 December 2004 the Court of Cassation upheld the judgment of the court below without giving any other reasoning.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Turkish Constitution 12. The relevant parts of Article 10 of the Turkish Constitution provide as follows: “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.", "... State bodies and administrative authorities shall act in compliance with the principle of equality before the law in all circumstances.” 13. The relevant parts of Article 24 read as follows: “Everyone shall have the right to freedom of conscience, belief and religious conviction. ... No one shall be compelled to participate in prayers, worship or religious services or to reveal his or her religious beliefs and convictions; no one shall be censured or prosecuted for his or her religious beliefs or convictions. ...” 14. Article 136 provides: “The Directorate of Religious Affairs, which is part of the general administration, shall perform the duties entrusted to it by virtue of the specific law which governs it, in accordance with the principle of secularism, and shall be removed from all political views or ideas, with a view to national solidarity and integrity.” 2.", "Civil Registration Act (Law no. 1587) 15. The relevant passages of section 43 of the Civil Registration Act (Nüfus Kanunu), as in force at the material time, read as follows: “The civil registers shall contain the following information concerning individuals and families ... (a) Information concerning civil status: (1) Forename and surname, gender, forenames and surnames of parents, maiden name; (2) Place and date of birth and date of registration (year, month and day); (3) Corrections ... (b) Other information: ... (2) Religion; ...” 3. Case-law of the Constitutional Court 16. By a judgment of 21 June 1995, published in the Official Gazette on 14 October 1995, the Constitutional Court declared section 43 of the Civil Registration Act to be in conformity with Article 2 (secularism) and Article 24 (freedom of religion) of the Constitution.", "The judges of the Constitutional Court held, in particular: “The State must be aware of the characteristics of its citizens. That information is required for the purposes of public policy, the general interest, and economic, political and social imperatives ... The secular State must remain neutral in terms of religion. Accordingly, the indication of religion on identity cards must not engender inequality among citizens ... In a secular State, all religions rank equally.", "No one may interfere in the beliefs or lack of beliefs of another. Furthermore, the rule at issue applies to all beliefs and cannot therefore give rise to discrimination ... The rule that ‘[n]o one shall be compelled ... to reveal his or her religious beliefs and convictions’ cannot be interpreted as a prohibition on indicating that person’s religion in official registers. The Constitution forbids compulsion. Compulsion concerns the disclosure of religious beliefs and convictions.", "The notion of ‘religious beliefs and convictions’ is not limited by the provision of information concerning each individual’s religion in the State’s civil registers for demographic purposes. That notion is wide-ranging and covers many factors relating to religion and belief. The rule that ‘[n]o one shall be compelled ... to reveal his or her religious beliefs and convictions’ must be read in conjunction with the rule that ‘no one shall be censured or prosecuted for his or her religious beliefs or convictions’. In no circumstances does this amount to compulsion, censure or prosecution. Furthermore, under Article 266 of the Civil Code, ‘a person of legal age shall be free to choose his or her religion’.", "Consequently, anyone wishing to change his or her religion as indicated in the civil register may submit a request to that effect to the registration authorities. The amendment will be made on the instruction of the decentralised authority. Likewise, anyone wishing to have that information deleted or to record another belief which cannot be accepted as a religion may apply to the civil courts ... To conclude, Article 43 of the Civil Code cannot be considered to entail compulsion. It relates to information concerning a person’s religion which is provided to the civil registry for the purposes of public policy, general interest and social need ...” Five of the eleven Constitutional Court judges did not share the majority opinion, finding that the indication of religion in the State’s civil registers and on identity cards was incompatible with Article 24 of the Constitution. One of the judges in the minority considered in particular that: “Under the Civil Registration Act, the parents or legal representatives of children are obliged to declare the religion of their children, failing which no entry will be made.", "The inclusion of religion in the family record and on identity cards, before the child reaches the age of majority and without his or her consent, constitutes de facto mandatory disclosure of religion in daily life ... That disclosure obligation, stemming from the indication of religion on a document confirming civil status, and the presentation of that document when registering at a school or when carrying out military service formalities, does indeed amount, in my view, to ‘compulsion’.” 4. Civil Registry Services Act (Law no. 5490) and the implementing provisions thereof 17. The relevant passages of sections 7 and 35 of the Civil Registry Services Act (Nüfus Hizmetleri Kanunu), which came into force on 29 April 2006 (repealing the above-mentioned Civil Registration Act), read as follows: Section 7Personal information required in civil registers “(1) A civil register is established for each district or village. The civil registers shall contain the following information: ... (e) Religion.", "...” Section 35Correction of data “(1) No entry in the civil registers may be corrected without a final judicial decision ... (2) Information relating to a person’s religion shall be entered or amended in accordance with the written statements of the person concerned; the box for this purpose may be left blank or the information may be deleted.” 18. The relevant parts of section 82 of the implementing provisions of the Civil Registry Services Act, adopted on 29 September 2006, read as follows: Section 82Requests concerning information on religion “Any information concerning an individual’s religion shall be entered, amended, deleted or omitted in accordance with that individual’s written statements. Requests for amendment or deletion of data relating to religion shall be subject to no restrictions whatsoever.” 5. The Directorate of Religious Affairs 19. The Directorate of Religious Affairs was created by Law no.", "633 of 22 June 1965 on the Creation and Functions of the Presidency of Religious Affairs, published in the Official Gazette of 2 July 1965. Section 1 thereof provides that the Presidency of Religious Affairs, reporting to the Prime Minister, is responsible for dealing with matters of belief, worship and moral principles of Islam and administering places of worship. Within the Directorate, the Supreme Council of Religious Affairs constitutes the supreme decision-making and consultative authority. It is made up of sixteen members appointed by the Directorate president. It is competent to answer questions concerning religion (section 5 of Law no.", "633). B. Guidelines for the review of legislation pertaining to religion or belief, adopted by the Venice Commission 20. The relevant parts of the document entitled “Guidelines for the review of legislation pertaining to religion or belief” adopted by the Venice Commission at its 59th plenary session (Venice, 18 and 19 June 2004), read as follows: “II. Substantive issues that typically arise in legislation ... 2.", "The definition of ‘religion’. Legislation often includes the understandable attempt to define religion or related terms (‘sects’, ‘cults’, ‘traditional religions’ etc.). There is no generally accepted definition for such terms in international law, and many States have had difficulty in defining these terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the concept of religion. A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion.", "The most obvious counter-examples are classical Buddhism, which is not theistic, and Hinduism, which is polytheistic. ... 3. Religion or belief. International standards do not speak of religion in an isolated sense, but of ‘religion’ or ‘belief’. The ‘belief’ aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world.", "Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs. It is very common for legislation not to protect adequately (or to not refer at all to) rights of non-believers. ... B. Basic values underlying international standards for freedom of religion or belief Broad consensus has emerged within the OSCE [Organization for Security and Co-operation in Europe] region on the contours of the right of freedom of religion or belief as formulated in the applicable international human rights instruments. Fundamental points that should be borne in mind in addressing legislation in this area include the following major issues.", "1. Internal freedom (forum internum). The key international instruments confirm that ‘[e]veryone has the right to freedom of thought, conscience and religion’. In contrast to manifestations of religion, the right to freedom of thought, conscience and religion within the forum internum is absolute and may not be subjected to limitations of any kind. Thus, for example, legal requirements mandating involuntary disclosure of religious beliefs are impermissible.", "...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 21. The applicant alleged a violation of Article 9 of the Convention, which reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.", "Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 22. The applicant complained that he had been obliged, without his consent and in breach of the right to freedom of religion and conscience, to disclose his belief because it was mandatory to indicate his religion on his identity card. He submitted that the indication at issue could not be considered to be compatible with Article 24 § 3 of the Constitution, which provided that “no one shall be compelled ... to reveal his or her religious beliefs and convictions”. He pointed out that that public document had to be shown at the request of any public authority, private enterprise or in the context of any formality whatsoever. He also stated that he had asked to have the word “Islam” replaced on his identity card by the indication of his faith as “Alevi”, arguing that the existing indication was incorrect.", "He challenged the proceedings rejecting his application, in which the Directorate of Religious Affairs had described his faith as an interpretation of Islam. A. Admissibility 1. Failure to exhaust domestic remedies 23. The Government stated that the applicant, who had merely asked the judicial authorities to replace the word “Islam” on his identity card with the indication of his belief as “Alevi”, had not duly exhausted domestic remedies in relation to his complaint concerning freedom of religion and conscience. In the Government’s view, the applicant had never argued that the indication of his religion on his identity card was incompatible with his freedom of religion and conscience.", "24. The applicant did not submit observations in response on that point within the time allowed. 25. The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention requires applicants – using the legal remedies available in domestic law in so far as they are effective and adequate – to afford the respondent State the possibility of putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).", "26. In the instant case, the Court observes that in his application to the domestic courts, stressing his profound disagreement with the obligation imposed on him to have an identity card indicating his religion as “Islam”, the applicant clearly challenged the indication at issue, relying on the constitutional protection of freedom of religion and conscience and his citizenship of a secular State (see paragraph 7 above). 27. The Court notes that at the material time it was mandatory in Turkey to indicate one’s religion on identity cards and that this had been held by the Constitutional Court in its judgment of 21 June 1995 to be in conformity with Article 24 § 3 of the Constitution, notwithstanding the indication in that same constitutional provision that “no one shall be compelled ... to reveal his or her religious beliefs and convictions”. 28.", "Accordingly, having regard to the legal context at the material time as described above, the Court has no doubt that, in requesting that the indication “Islam” be replaced on his identity card by an indication of his “Alevi” faith, the applicant was seeking to benefit from the constitutional protection of freedom of religion and conscience guaranteed by Article 24 § 3 of the Turkish Constitution, particularly since before the Court of Cassation, he had clearly challenged the mandatory indication of religion, by requesting, in the alternative, that it be deleted from his identity card (see paragraph 10 above). 29. Consequently, the Court considers that, in his submissions to the Turkish courts, the applicant clearly referred to his complaints under Article 9 of the Convention. The Government’s preliminary objection of failure to exhaust domestic remedies must therefore be rejected. 2.", "Victim status 30. The Government submitted that the applicant could not claim to be the victim of a violation of his right to freedom to manifest his religion. They argued that the denial of the applicant’s request did not impair the essence of his right to manifest his religion, because the indication of religion on the identity card could not be interpreted as a measure compelling all Turkish citizens to disclose their religious beliefs and convictions and as a restriction on the freedom to manifest their religion in worship, teaching, practice and observance. Furthermore, referring to the case-law of the Turkish courts (see paragraph 16 above), the Government argued that anyone wishing to delete the relevant information in its entirety could apply to the civil courts. 31.", "The Court considers that the Government’s argument based on the applicant’s lack of victim status raises issues closely connected with the substance of the complaint under Article 9 of the Convention. The Court therefore joins it to the merits (see, mutatis mutandis, Airey v. Ireland, 9 October 1979, § 19, Series A no. 32). 3. Other grounds for inadmissibility 32.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Compliance with Article 9 of the Convention 1. The parties’ arguments 33.", "The Government submitted that there had been no interference in the exercise by the applicant of his right to freedom of religion, because no direct connection could be made between the indication of religion on identity cards and freedom of religion and conscience. It could not be construed as a requirement to disclose one’s religious beliefs or as a restriction on the freedom to manifest one’s religion in worship, teaching, practice and observance. 34. Referring to the Turkish Constitutional Court’s judgment of 21 June 1995 (see paragraph 16 above), the Government further submitted that the indication of religion on identity cards did not affect the substance of the right to freedom of religion and belief; it was required for the purposes of public policy, the general interest and social imperatives. It in no way constituted a measure aimed at compelling any individual to disclose his or her beliefs or at censuring or prosecuting anyone for his or her religious beliefs.", "The Republic of Turkey was a secular State in which freedom of religion was specifically enshrined in the Constitution. The measure complained of could not therefore be deemed to be a restriction on the applicant’s freedom of religion. 35. Furthermore, in the Government’s view, the content of the identity card could not be determined on the basis of the wishes of each individual. Having regard to the multitude of faiths within Islam (for example, Hanafi or Shafi) or mystical orders (such as Mevlevi, Qadiri or Naqshbandi), the various denominations or branches of the same religion had not to be indicated so as to preserve public order and the neutrality of the State.", "As regards the role of the Directorate of Religious Affairs, the Government submitted that, in accordance with the relevant legislation, that Directorate was responsible for giving advice on matters relating to the Muslim religion. It operated in conformity with the principle of secularism and was responsible for taking into consideration the fundamental bases of the Muslim religion which were valid for all Muslims. Furthermore, referring to Article 10 of the Constitution (see paragraph 12 above), they pointed out that the State was bound to ensure that the various sects and interpretations within the same religion were treated equally. 36. The applicant, who did not file his observations within the time allowed, submitted in his application form that the denial of his request to have the indication “Islam” on his identity card replaced by the indication of his faith as “Alevi”, amounted to an interference with his right to freedom to practise his religion.", "He also complained that he was obliged to disclose his belief because that indication was mandatory on identity cards. 2. The Court’s assessment 37. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.", "The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). 38.", "While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Furthermore, the Court has had occasion to point out that Article 9 enshrines negative rights, for example freedom not to hold religious beliefs and not to practise a religion (see, to this effect, Kokkinakis, and Buscarini and Others, cited above). 39. The Court notes that the applicant, who stated that he was a member of the Alevi religious community, had to carry an identity card on which his religion was indicated as “Islam”. On 7 May 2004 the applicant applied to the İzmir District Court to have his faith entered into the religion box (see paragraph 7 above).", "Furthermore, he challenged the mandatory indication of religion in the Court of Cassation, by asking in the alternative that it be deleted from his identity card, relying on his right not to be compelled to disclose his beliefs (see paragraph 10 above). However, on the basis of an opinion issued by the Directorate of Religious Affairs, the District Court rejected his requests on the ground that “only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion”. As far as the national court was concerned, “the Alevi faith is an interpretation of Islam which is influenced by Sufism and which has specific cultural features” (see paragraph 9 above). 40. The Court observes that, in accordance with the domestic legislation applicable at the material time, the applicant, like all Turkish citizens, was obliged to carry an identity card indicating his religion.", "That public document had to be shown at the request of any public authority or private enterprise or in the context of any formality whatsoever requiring identification of the holder. 41. In this connection, the Court considers it necessary to reiterate that in Sofianopoulos and Others v. Greece ((dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002-X), it found that an identity card could not be regarded as a means intended to ensure that the adherents of any religion or faith whatsoever should have the right to exercise or manifest their religion. However, it considers that the right to manifest one’s religion or beliefs also has a negative aspect, namely an individual’s right not to be obliged to disclose his or her religion or beliefs and not to be obliged to act in such a way that it is possible to conclude that he or she holds – or does not hold – such beliefs.", "Consequently, State authorities are not entitled to intervene in the sphere of an individual’s freedom of conscience and to seek to discover his or her religious beliefs or oblige him or her to disclose such beliefs (see Alexandridis v. Greece, no. 19516/06, § 38, 21 February 2008). The Court will examine this case from the angle of the negative aspect of freedom of religion and conscience, namely the right of an individual not to be obliged to manifest his or her beliefs. 42. The Court does not find persuasive the Government’s argument that the indication at issue could not be interpreted as a measure compelling all Turkish citizens to disclose their religious convictions and beliefs.", "What is at stake is the right not to disclose one’s religion or beliefs, which falls within the forum internum of each individual. This right is inherent in the notion of freedom of religion and conscience. To construe Article 9 as permitting every kind of compulsion with a view to the disclosure of religion or belief would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 52, Series A no. 44; see also the dissenting opinion of one of the Constitutional Court judges, paragraph 16 above). 43.", "Furthermore, given the frequent use of the identity card (school registration, identity checks, military service and so on), the indication of religious beliefs in official documents such as identity cards exposes the bearers to the risk of discriminatory situations in their relations with the administrative authorities (see Sofianopoulos and Others, cited above). 44. Moreover, the Court cannot see why it would be necessary to indicate religion in civil registers or on identity cards for demographic purposes, which would necessarily involve legislation making it mandatory to declare one’s religious beliefs. 45. The Court also notes that the applicant challenged the procedure rejecting his application, in the course of which the Directorate of Religious Affairs had described his faith as an interpretation of Islam (see paragraph 22 above).", "In that regard, the Court notes that it has always stressed that, in a democratic society where the State is the ultimate guarantor of pluralism, including religious pluralism, the role of the authorities is not to adopt measures favouring one interpretation of religion over another aimed at forcing a divided community, or part of it, to come together under a single leadership against its own wishes (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX). The State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group (see, mutatis mutandis, Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports of Judgments and Decisions 1996-IV, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII). 46.", "The Court therefore considers that the assessment of the applicant’s religion by the domestic authorities, on the basis of an opinion issued by an authority responsible for Islamic religious affairs, is in breach of the State’s duty of neutrality and impartiality. 47. The Government drew the Court’s attention to the fact that since the legislative amendment resulting from the Civil Registry Services Act, the applicant had been entitled to request that the religion box be left blank (see paragraphs 17-18 above). 48. The Court observes that under the Civil Registry Services Act of 29 April 2006, civil registers continue to hold information on the religion of individuals (section 7 of that Act).", "However, under section 35(2), “[i]nformation relating to a person’s religion shall be entered or amended in accordance with the written statements of the person concerned; the box for this purpose may be left blank or the information may be deleted”. 49. In the Court’s view, that amendment does not affect the considerations expressed above because identity cards still contain a religion box – whether or not it is left blank. Furthermore, anyone wishing to amend the information concerning his or her religion as indicated on the identity card or refusing to indicate his or her religion on the card has to submit a written statement. Although the relevant legislation and regulations are silent as to the content of that statement, the Court observes that the mere fact of having to apply for religion to be deleted from civil registers could constitute disclosure of information concerning an aspect of the individual’s attitude to religion (see, among other authorities, Folgerø and Others v. Norway [GC], no.", "15472//02, § 98, ECHR 2007-III, and Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 73, 9 October 2007). 50. That also holds true for the applicant. He must inform the authorities of his faith in order to have that information recorded on his identity card.", "Since the card is obtained in this way and is frequently used in everyday life, it constitutes de facto a document requiring the applicant to disclose his religious beliefs against his will every time he uses it. 51. In any event, when identity cards have a religion box, leaving that box blank inevitably has a specific connotation. Bearers of identity cards which do not contain information concerning religion would stand out, against their will and as a result of interference by the authorities, from those who have an identity card indicating their religious beliefs. Furthermore, the fact of asking for no information to be shown on identity cards is closely linked to the individual’s most deeply held beliefs.", "Accordingly, the Court considers that the issue of disclosure of one of an individual’s most intimate aspects still arises. 52. That situation is undoubtedly at odds with the principle of freedom not to manifest one’s religion or belief. That having been said, the Court observes that the breach in question arises not from the refusal to indicate the applicant’s faith (Alevi) on his identity card but from the problem of the indication – whether obligatory or optional – of religion on the identity card. It concludes therefore that the applicant may still claim to be the victim of a violation, notwithstanding the legislative amendment passed on 29 April 2006, and dismisses the Government’s objection (see paragraph 31 above).", "53. There has therefore been a violation of Article 9 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 6 AND 14 OF THE CONVENTION 54. The applicant also complained of a violation of Article 6 of the Convention on the ground that the İzmir District Court had sought only the opinion of the Directorate of Religious Affairs, a public institution.", "In his view, that institution was not qualified to provide an opinion on Alevis since it was not specialised in the Alevi faith and had no interest in it. He added that had the court sought the opinion of the Federation of Alevi-Bektashi Associations (a private federation of Alevi associations), its interpretation would have been different from that of the Directorate of Religious Affairs. The court should have sought the opinion of that federation or of religious-affairs specialists. The applicant argued that the domestic courts had therefore conducted an inadequate investigation, rendering the proceedings unfair. 55.", "Lastly, the applicant stated that his request had been denied by the domestic courts because he was a member of the Alevi religious community. The District Court had merely sought the opinion of a public institution which denied the very existence of Alevis and had not sought the opinion of the above-mentioned federation. In the applicant’s view, that amounted to discrimination and, hence, a violation of Article 14 of the Convention. 56. The Government disputed that argument.", "57. The Court notes that these complaints are related to those that it has examined above and must therefore also be declared admissible. However, having regard to its finding under Article 9 of the Convention (see paragraph 53 above), the Court considers that there is no need to examine separately whether there has in the instant case been a violation of the other provisions relied upon by the applicant. III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 58.", "Articles 41 and 46 of the Convention provide: Article 41 “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Article 46 “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.” 59. The applicant did not submit a claim for just satisfaction within the time-limit set.", "The Court therefore considers that there is no need to award him any amount under that head. 60. The Court also observes that in the instant case, it has ruled that indicating a citizen’s religion in civil registers or on identity cards is incompatible with the freedom not to disclose one’s religion (see paragraph 53 above). These conclusions in themselves imply that the violation of the applicant’s right, as secured by Article 9 of the Convention, has arisen out of a problem relating to the indication – whether obligatory or optional – of religion on identity cards. In this regard, it considers that the removal of the religion box could constitute an appropriate form of redress to put an end to the breach it has found.", "FOR THESE REASONS, THE COURT 1. Declares by a majority the application admissible; 2. Joins to the merits by six votes to one the Government’s objection concerning the applicant’s lack of victim status and dismisses it by six votes to one; 3. Holds by six votes to one that there has been a violation of Article 9 of the Convention; 4. Holds by six votes to one that there is no need to examine separately whether there has been a violation of Articles 6 and 14 of the Convention in the instant case.", "Done in French, and notified in writing on 2 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally Dollé Françoise Tulkens Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Cabral Barreto is annexed to this judgment. F.T.S.D. DISSENTING OPINION OF JUDGE CABRAL BARRETO (Translation) To my great regret, I am unable to agree with the majority finding of a violation of Article 9 of the Convention for reasons of both form and substance. 1.", "The Court, in its judgment, examined the application from three angles: – the applicant’s request to have “Islam” replaced by “Alevi” to indicate his religion; – or, in the alternative, the request to have the indication of religion, in this case “Islam”, deleted from his identity card; – removal of the religion box from the identity card. 2. It would appear to me that as regards the first two points, the applicant no longer has victim status. In fact, as a result of the reform of 29 September 2006, it is now possible to delete information concerning religion. The religion box on identity cards may be left blank or the information may be deleted.", "Moreover, such action will be taken on a simple written request. I am therefore of the view that the complaints concerning the first two points have been remedied domestically and that, consequently, this part of the application should be struck out of the list. 3. The third aspect – removal of the religion box from the identity card – raises issues of both form and substance. 3.1.", "An issue of form – failure to exhaust domestic remedies. This issue was not raised before the national authorities by the applicant or by any other person. Before the national courts and even before the Court, the applicant restricted himself to the first two points. The Court is unaware of any domestic practice that would allow it to ignore this admissibility criterion. It is true that the Government did not address this point, and according to existing case-law, if the Government do not raise this ground of inadmissibility, the Court cannot then apply it of its own motion once notice of the application has been given.", "However, in the present case, the Government were not faced with such a problem and cannot therefore be criticised for an omission for which they were not responsible. Had the Court wanted to examine the application from that perspective, either because it had considered from the outset that the application raised that issue or because in its view the complaint was bound up with the other specific complaints lodged by the applicant, it should have invited the Government to respond on that point. However, the Court could not examine that complaint at the judgment stage, given that it had not been raised by the applicant before the national courts or communicated to the Government. 3.2. If, as the majority have done, one were to consider that there was no formal obstacle to examination of the merits of the complaint, I have to say that I cannot subscribe to the approach that “the fact of asking for no information to be shown on identity cards is closely linked to the individual’s most deeply held beliefs” and that “the issue of disclosure of one of an individual’s most intimate aspects still arises”, a situation which “is undoubtedly at odds with the principle of freedom not to manifest one’s religion or belief” (see paragraphs 51 and 52 of the judgment).", "I must point out firstly that I fully agree with the Court’s case-law as reflected in Folgerø and Others v. Norway ([GC], no. 15472//02, ECHR 2007-III), and Hasan and Eylem Zengin v. Turkey (no. 1448/04, 9 October 2007), both cited at paragraph 49 of the judgment. At paragraph 98 of Folgerø and Others, the Court refers to “an obligation on parents to disclose detailed information to the school authorities about their religions and philosophical convictions” and to the fact that “inherent in the condition to give reasonable grounds was a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions” [my emphasis]. In Hasan and Eylem Zengin, cited above, the Court considered that “the fact that parents must make a prior declaration to schools stating that they belong to the Christian or Jewish religion in order for their children to be exempted from the classes in question may also raise a problem under Article 9 of the Convention”.", "In short, religious beliefs fall within the forum internum of each individual and an issue may be raised under Article 9 of the Convention if a person is compelled to disclose them to the authorities. However, requests to have the indication of religion deleted from identity cards are not subject to any limitation but merely to a written declaration. In that declaration, the individual is not obliged to disclose his or her religion or to give any information at all about his or her beliefs, but merely to ask that no indication be given in the relevant box. It would appear to me that the majority are going too far when they say that “the mere fact of having to apply for religion to be deleted from civil registers could constitute disclosure of information concerning an aspect of the individual’s attitude to religion”. The majority go beyond the case-law on which they rely, which requires that in order for a violation of Article 9 of the Convention to be found, a person should at least be compelled to disclose his or her religion.", "In the instant case, persons requesting deletion of the indication, whether Alevi, Christian, Jewish or atheist, are entitled to hold an identity card that contains no information about their religion or beliefs without the authorities knowing what they believe. In my view, the majority’s interpretation goes beyond the bounds of our case-law and constitutes an excessive approach, scarcely in keeping with the margin of appreciation that should be afforded to the States in this area. 4. That having been said, I must admit, and I would even go so far as to say that I find it regrettable, that I cannot understand why the identity card should indicate a person’s religion (even on a voluntary basis) because I cannot see the significance or use of any such information. [1].", "The majority of Turkey’s population follows the Hanafite theological school’s moderate interpretation of Islam. [1]. Ali was the fourth caliph of Islam. He is considered by Alevis to be the first Imam and plays a central role in that faith." ]

[ "FOURTH SECTION CASE OF KARWOWSKI v. POLAND (Application no. 29869/13) JUDGMENT STRASBOURG 19 April 2016 FINAL 21/07/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karwowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Boštjan M. Zupančič,Nona Tsotsoria,Krzysztof Wojtyczek,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 29 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 29869/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Dariusz Karwowski (“the applicant”), on 19 March 2013. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that the imposition of the “dangerous detainee” regime on him and its lengthy application amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. 4. On 7 July 2014 the complaint under Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1971 and is currently in detention in Warsaw. A. Criminal proceedings against the applicant 6. On 17 January 2006 the applicant was arrested and detained on remand. He was suspected of the murder of two people and of inciting the murder of another person who had intended to testify against him in a separate set of proceedings.", "7. He was subsequently convicted several times for various offences. In particular, on 27 February 2013 the Warsaw Regional Court convicted him of murder. B. Imposition of the “dangerous detainee” regime 8.", "On 19 January 2006 the Warsaw Remand Centre Penitentiary Commission (“the commission”) classified the applicant as a dangerous detainee. The decision stated as follows: “The commission hereby decides that [the applicant] is to be placed in a designated wing or cell in a remand centre in conditions which provide increased protection for society and for the security of the remand centre. The commission approves the proposals of the directors of the protection and prison wings. The detainee has been informed of his right to appeal against the commission’s decision within seven days to the Warsaw Regional Court, XI Penitentiary Division.” The last sentence of the decision contained information about who was to be informed about the applicant’s placement in a cell for dangerous detainees. 9.", "The applicant did not appeal against that decision. 10. The commission reviewed and upheld its decision to classify the applicant as a dangerous detainee on several occasions. In total, there were over thirty decisions to extend the period of imposition of the regime in respect of the applicant. All the decisions were based on the same pattern of wording, which read as follows: “The commission has decided to extend [the applicant’s categorisation as a dangerous detainee] as the reasons for his placement in a cell in conditions which provide increased protection for society and for the security of the remand centre have not ceased to exist.” 11.", "In particular, a decision of 3 January 2013 to extend the imposition of the dangerous detainee regime on the applicant referred to the seriousness of the charges against him and his highly deficient moral character. 12. An appeal by the applicant against the latter decision was the only one he made against the series of decisions to impose and extend the dangerous detainee regime on him. 13. On 30 January 2013 the Warsaw Regional Court dismissed the appeal.", "The court held that the decision had been lawful. 14. On 21 November 2013 the commission lifted the dangerous detainee regime applied to the applicant. C. Specific aspects of the regime 15. The applicant was kept in a cell which was constantly monitored via closed‑circuit television.", "He was subjected to a body search every time he left or entered the cell, which meant in practice that he had to strip naked in front of prison officers. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant domestic law and practice concerning the imposition of the “dangerous detainee” regime are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 110-17, 17 April 2012), and Horych v. Poland (no.", "13621/08, §§ 49-56, 17 April 2012). 17. The provisions of the Code of Execution of Criminal Sentences concerning the imposition of the regime on convicted persons read as follows: Article 88 § 3 “A convicted person posing a serious danger to society or to the security of a prison shall be placed in a prison with a closed regime in conditions ensuring increased protection of society and the security of the prison.” Article 88a “1. The convicted person referred to in Article 88 § 3 shall be placed in a designated wing or in a cell of a prison with a closed regime. A penitentiary judge shall be informed about this placement.", "2. The provisions of paragraph 1 above shall be applied to a convicted person whose characteristics, personal circumstances, motivations, behaviour when committing the offence, type of offence and its consequences, behaviour in prison, or degree of depravity pose a serious danger to society or to the security of a prison, and who: (2a) during the prior or current term of imprisonment posed a danger to the security of a prison or a remand centre in that he was a leader or an active participant in a collective remonstrance in a prison or a remand centre ...” 18. Article 88b of the Code of Execution of Criminal Sentences lays down specific arrangements applicable to convicted persons to whom the “dangerous detainee” regime is applied. They are identical to those specified in Article 212b of the Code applicable to persons remanded in custody (see Piechowicz, cited above, § 106). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant complained that he had been unlawfully classified as a dangerous detainee and subjected to degrading treatment prohibited by Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 20. The Government contested that allegation. A. Admissibility 1. The parties’ submissions 21.", "The Government argued that the applicant had failed to make use of the available remedies, as he had only appealed against one of the Penitentiary Commission’s decisions. He had not appealed against the commission’s first decision of 19 January 2006 imposing the regime on him or against most of the subsequent decisions. He had appealed only once, against the decision of 3 January 2013. The Government argued that the applicant had been informed on each occasion about the time-limit for lodging an appeal, but that he had remained totally passive. They concluded by submitting that the application should be rejected for non-exhaustion of domestic remedies.", "22. The applicant did not comment on the Government’s objection. 2. The Court’s assessment 23. The Court reiterates that although Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Cyprus no.", "30873/96, § 64, ECHR 2000‑XII). 24. In the present case the Court observes that the applicant appealed against one of the decisions extending his classification as a dangerous detainee, namely the decision of 3 January 2013 (see paragraph 12 above). 25. The Court 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 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. In the present case the Court is not persuaded by the evidence provided by the Government in support of their objection. 26. In any event, in the present case the alleged non-exhaustion of domestic remedies is inseparably linked with the Court’s assessment of the reasonableness of the measures complained of, and in particular with the question whether the lengthy imposition of the dangerous detainee regime on the applicant was properly justified by the authorities. In the Court’s view, it would therefore be more appropriate to deal with the Government’s argument at the merits stage.", "27. The Court accordingly joins the Government’s plea of inadmissibility on the grounds of non-exhaustion to the merits of the case. 28. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The applicant 29. The applicant submitted that the prolonged imposition of the dangerous detainee regime on him had been in breach of Article 3 of the Convention. In his opinion, there had been no reasonable grounds for applying the regime to him.", "He submitted, in particular, that he had never had a disciplinary punishment in prison and that for many years he had felt “depressed owing to isolation, loneliness and the many body searches”. 30. He also submitted that keeping him in solitary confinement amounted to inhuman treatment, which had “permanently affected his mental state”. 2. The Government 31.", "In their observations the Government submitted that they wished to refrain from expressing an opinion on the merits of the present case. 3. The Court’s assessment (a) General principles deriving from the Court’s case-law 32. The relevant general principles deriving from the Court’s case-law were recently summarised in its judgments in Piechowicz (cited above, §§ 158-165) and Horych (cited above, §§ 85-92). (b) Application of the above principles in the present case 33.", "The Court notes that there is no dispute over the fact that from 19 January 2006 to 21 November 2013 – that is, for almost eight years – the applicant was classified as a dangerous detainee and, in consequence, subjected to high‑security measures and various restrictions (see paragraph 15 above). The main aspects of the regime raised by the applicant and specified below have not been contested by the Government (see paragraph 31 above). 34. The measures applied in the applicant’s case comprised confinement in a special high-security prison wing and increased supervision of his movements within and outside the prison. The measures involved his segregation from the prison community and restrictions on contact with his family.", "Every time he left or entered his cell he was routinely subjected to a full strip search – a thorough inspection of his body and clothes, which required him to strip naked and bend over in order to enable the examination of his anus (see Piechowicz, cited above, § 166). In addition, his cell, including the sanitary facilities, was constantly monitored via closed‑circuit television. 35. The Government did not contest those allegations. As noted above, they decided to refrain from making any comment on the merits of the present case (see paragraph 31 above).", "36. The Court notes that the decision of 19 January 2006 imposing the dangerous detainee regime on the applicant was a legitimate measure, warranted by the fact that he had been charged with many violent offences (see paragraph 6 above). It was therefore not unreasonable on the part of the authorities to consider that, for the sake of ensuring prison security, he should be subjected to tighter security controls, involving increased and constant supervision of his movements within and outside his cell, restrictions on his contact and communication with the outside world, and some form of segregation from the rest of the prison community. 37. However, for the reasons stated below, the Court cannot accept that the continued, routine and indiscriminate application of the full range of measures that were available to the authorities under the dangerous detainee regime for almost eight years was necessary in order to maintain prison security or compatible with Article 3 of the Convention.", "38. It does not appear that the authorities made any effort to counteract the effects of the applicant’s isolation by providing him with the necessary mental or physical stimulation. 39. The Court has even more misgivings with regard to the full body search to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. The Court has already held in Piechowicz (cited above, § 176) that while strip searches might be necessary to ensure prison security or to prevent disorder or crime, it was not persuaded by the Government’s argument that such systematic, intrusive and exceptionally embarrassing checks performed daily, or even several times a day, were necessary to ensure prison security.", "Strip searches were carried out as a matter of routine and were not linked to any specific security needs, or to any specific suspicion concerning the applicant’s conduct. 40. Having regard to the fact that the applicant was already being subjected to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court considers that the practice of daily strip searches, applied to him for almost eight years, must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the imposition of pre‑trial detention (see Horych, cited above, § 101, and Piechowicz, cited above, § 176). 41. Lastly, the Court would add, as it has already held (see Piechowicz, cited above, § 177), that owing to the strict and rigid rules for the imposition of the special regime and the vaguely defined “particular circumstances” for discontinuing it, as laid down in Article 212a § 3 of the Code of Execution of Criminal Sentences, the authorities, in extending the regime, were not in fact obliged to consider any changes in the applicant’s personal situation and, in particular, the combined effects of the continued application of the impugned measures.", "42. In the present case, it emerges from the relevant decisions that the authorities failed to give any specific reasons for classifying the applicant as a dangerous detainee (see paragraph 8 above). Further decisions extending the application of the regime to the applicant referred only to the fact that the reasons relied on previously had not ceased to exist (see paragraph 10 above). It follows that the procedure for review of the applicant’s dangerous detainee status became a pure formality, being limited to the repetition of the same grounds in successive decisions (see Piechowicz, cited above, § 177). 43.", "In conclusion, assessing the facts of the case as a whole and considering the cumulative effects of the dangerous detainee regime on the applicant, the Court finds that the authorities did not provide sufficient and relevant reasons which could justify, in the circumstances of the case, the severity of the measures taken. In particular, the authorities failed to show that the impugned measures were necessary in their entirety to attain the legitimate aim of ensuring prison security. There has accordingly been a violation of Article 3 of the Convention. In consequence, and particularly in the light of the findings in paragraph 42 above, the Government’s preliminary objection based on non-exhaustion of domestic remedies (see paragraph 21 above) must be rejected. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 46.", "The Government considered this amount excessive. 47. The Court awards the applicant EUR 11,000 in respect of non‑pecuniary damage. B. Costs and expenses 48.", "The applicant did not make any claim for costs and expenses. C. Default interest 49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the Government’s objection of non-exhaustion to the merits of the case and rejects it; 2.", "Declares the application admissible; 3. Holds that there has been a violation of Article 3 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 11,000 (eleven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, 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 19 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliAndrás SajóRegistrarPresident" ]

[ "SECOND SECTION CASE OF PYRANTIENĖ v. LITHUANIA (Application no. 45092/07) JUDGMENT (merits) STRASBOURG 12 November 2013 FINAL 12/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pyrantienė v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,Dragoljub Popović,Işıl Karakaş,Nebojša Vučinić,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "45092/07) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Kotrina Pyrantienė (“the applicant”), on 11 October 2007. 2. The applicant was represented by Mr A. Novikovas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "The applicant alleged that she did not receive adequate compensation after decisions of the domestic courts had deprived her of the property she had owned for nine years, in breach of Article 1 of Protocol No. 1 to the Convention. 4. On 29 June 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1942 and lives in Akademija, Kaunas Region. 6. In 1994 a local authority assigned a plot of land of 0.5 hectares to the applicant.", "On 6 August 1996 the Kaunas Region Administration confirmed the sale of the land to the applicant. 7. By an agreement of 24 September 1996 she acquired the plot of land from the State for 61 “single-use investment vouchers” (investiciniai čekiai) and registered it with the Land Registry in her name. 8. The applicant then grew vegetables on the plot and sold them at the market.", "9. Following a civil claim brought in December 2001 by third parties seeking restoration of ownership rights to that plot, on 2 October 2003 the Kaunas Regional Court, acting as a court of appeal, quashed the authorities’ decision of 6 August 1996 as unlawful, and cancelled the sale of the disputed plot of land, which then had to be returned to the State. It was concluded that the authorities did not have the right to sell that plot of land as the former owners had already in 1991 lodged a request for restoration of their property rights to the nationalised property. It was also decided to remit the case to the first-instance court for the determination of questions of restitution and compensation, as the land-sale agreement had now been declared null and void. On 6 February 2004 the Supreme Court refused the applicant leave to appeal on points of law as out of time.", "10. After the plot of land was taken from the applicant by the State, it was transferred to the former owners following a decision of 16 September 2005 by the Kaunas Region Administration to restore ownership rights to T.M.K. and J.R. 11. After the case had been remitted to the first-instance court an independent expert was appointed in the proceedings. 12.", "A valuation of the plot was carried out by an independent and certified valuer, which included a comprehensive assessment of the characteristics of that plot of land and estimated its value by comparing market prices. 13. It was established that the plot’s market value in September 2005 was 112,500 Lithuanian litai (LTL, approximately 32,580 euros (EUR)) while in August 1996 it had amounted to LTL 18,000. Nonetheless, the Kaunas Regional Court, acting as a court of first instance, on 5 October 2006 decided to award the applicant LTL 1,466 (approximately EUR 430), noting that that price corresponded to the sum the applicant had paid in single-use investment vouchers in 1996. 14.", "On 26 February 2007 the Court of Appeal upheld the decision of the lower court and rejected the applicant’s arguments that Article 6.147 § 2 of the Civil Code had to be applied by awarding the applicant the highest value of the property, as she had been deprived of it because of error by the State authorities. 15. On 8 May 2007 the Supreme Court refused to accept the applicant’s cassation appeal for examination, on the ground that her appeal raised no important legal issues. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Statutory provisions 16.", "The Constitution of the Republic of Lithuania provides: Article 23 “Property shall be inviolable. Rights of ownership shall be protected by law.Property may be expropriated only for the needs of society and in accordance with the procedure established by law, and shall be justly compensated.” 17. The Law on the procedure and conditions for restoration of ownership rights to existing real property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų), enacted on 18 June 1991 and amended on numerous occasions (hereinafter “the Restitution Law”), provided that, in restoring property rights, priority was to be given to restitution in natura. The State retained the right to buy out a property from the previous owners if the current social conditions and relations so required. In particular, Article 12 paragraph 1 (3) of the Law provided that the State could buy out land in a rural area which had been allocated to a farmer and was occupied by a personal plot, house or other structures of which the farmer had the right of ownership.", "18. The relevant part of the Civil Code, in force since 1 July 2001, provides as follows: Article 1.80 Nullity of a transaction that does not comply with the mandatory statutory provisions “1. Any transaction that fails to comply with the mandatory statutory provisions shall be null and void. 2. When a transaction is declared null and void, each party shall be required to restore to the other party everything he or she has received by means of that transaction (restitution).", "Where it is impossible to restore in kind the items received, the parties shall be required to compensate each other in money, unless the law provides for other consequences as a result of the transaction’s being declared void ...” Article 6.147 Estimation of monetary equivalent “1. Monetary equivalent shall be estimated according to prices that were valid at the time when the debtor received what he is liable to restore. 2. In the event of destruction or transfer of property subject to restitution, the person shall be bound to compensate for the value of the property as it was at the time when the property was received, destroyed or transferred, or at the time of its restitution, whichever value is the lowest. In the event of the person liable to make restitution being in bad faith, or where the restitution is due to his fault, he shall be bound to return the highest value of the property.” 19.", "Article 6.271 of the Civil Code provides that damage caused by unlawful acts by institutions of public authority must be compensated for by the State, irrespective of the fault of a particular public servant or other employee of the public authority institution. 20. The Government’s decree no. 816 on allocation of plots of land for personal and service use, in force since 4 November 1993, provided that new plots of land for individual farming must be measured only in areas which had previously been used as individual farm plots or had been allocated as individual farm plots in accordance with the plans established for that territory during the land reform. B. Lithuanian courts’ practice 21.", "In its ruling of 27 May 1994 the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated that, if possible, the property rights should be restored in natura. It further ruled that buying out land in rural areas for the purpose of building private housing served no public interest, since after such land had been bought out it could be privatised, thereby breaching the previous owners’ right to restitution. 22. On the issue of the lawfulness of the sale of previously nationalised property, in its decisions nos.", "3K-3-384/1999 of 6 September 1999 and 3K-3-698/2003 of 16 June 2003 the Supreme Court held that as long the question of the restoration of the former owner’s property rights was pending and had not been definitively resolved, that property had to be considered as disputed. Accordingly, such properties could not be transferred to third parties, because this could result in successive violations of the former owner’s ownership rights. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 23.", "The applicant complained that she had not been adequately compensated for the deprivation of her land by the authorities. The domestic courts failed to take into account the plot’s market value in 2005 and applied instead its nominal value in 1996, which was many times lower. As a result, the applicant was unable to acquire a new similar plot of land with the compensation she had been awarded. She relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...” A. Admissibility 24. The Government submitted that the applicant had failed to exhaust all the effective domestic remedies by not initiating new separate judicial proceedings under Article 6.271 of the Civil Code against the State for redress for the allegedly inadequate compensation. 25. The applicant did not comment on that argument. 26.", "The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for breaches alleged to have taken place. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness; 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; Aksoy v. Turkey, no. 21987/93, §§ 51-52, Reports of Judgments and Decisions 1996-VI; and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, Reports 1996-IV).", "27. The Court finds that the remedy referred to by the Government was inadequate to secure redress for the alleged breach, as the Government did not provide evidence of its effectiveness at the time when the present application was introduced. 28. What is more, the Court does not see how those new proceedings could effectively have offered a more favourable outcome to the applicant than those which she had already undergone after the case’s remittal for re-examination to have the amount of compensation for returned property established (see paragraph 11 above). As a result, it has not been demonstrated that a claim under Article 6.271 of the Civil Code would have been an effective remedy in the applicant’s case (see, mutatis mutandis, Beshiri and Others v. Albania, no.", "7352/03, § 55, 22 August 2006, and Zwierzynski v. Poland (dec.), no. 34049/96, 15 June 2000). 29. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies. 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 alleged that the compensation awarded to her was unfair and inadequate, as it was many times lower than the market value of the land when she lost her title to it. Therefore, she could not afford to acquire a new comparable plot of land, especially taking into account her advanced age and the fact that she had had a disability since 1994. The applicant also did not agree with the Government’s allegation that such interference was necessary to protect the public interest. 32.", "The applicant further argued that in 1996 she purchased the property in good faith and in accordance with the laws in force and the authorities’ decisions. Therefore she should not be made to bear the burden of responsibility, which rightly belonged to the State. 33. The applicant lastly contended that being an honest acquirer of the disputed land and relying on the decisions of the State authorities she had legitimate expectations that she would remain the owner and could engage in agricultural activities, which she actually did for nine years. 34.", "The Government contested those arguments and submitted that the interference complained of was carried out in accordance with the provisions of the Civil Code concerning the return of property after a contract of sale is declared null and void by the courts. The size of the compensation was predetermined also by the fact that the applicant had paid an advantageous price in 1996 and had not made any major improvements to the plot. Moreover, having regard to the fact that the applicant lived elsewhere, the property did not constitute her only home, so the present case had to be distinguished from other similar cases examined by the Court. According to the Government, reimbursement of the full market price would have resulted in unjust enrichment of the applicant. 35.", "They also maintained that the interference with the applicant’s property rights was justified by the public interest, namely by the defence of the rights of the former owners, who lost their title to the land during the communist regime. As such, the decision of the courts to declare the relevant administrative acts of 1994-96 unlawful were taken in accordance with the Restitution Law and well-established practice of the Supreme Court and of the Constitutional Court of Lithuania. In the process of restoration of property rights priority is given to the return of previously nationalised property to its former owners in natura; therefore, nationalised property cannot be transferred to other individuals if the question of the restoration of ownership rights of the former owners is still pending. 36. In addition, the domestic courts established that the allocation of the land to the applicant in 1996 was in breach of Government Resolution 816 of 29 October 1993, because that land had not been farmed before it was allocated to the applicant as an individual farm plot.", "2. The Court’s assessment (a) General principles 37. 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; Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004; and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V). 38.", "The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in the public interest, and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Doğrusöz and Aslan v. Turkey, no. 1262/02, § 27, 30 May 2006, and Moskal v. Poland, no. 10373/05, §§ 49-50, 15 September 2009). 39. An interference with the peaceful enjoyment of possessions must therefore strike a “fair balance” between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights.", "40. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1 of Protocol No. 1. This provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate “public interest” objectives may call for reimbursement of less than the full market value (see, among other authorities, Papachelas v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II).", "(b) Application of the above principles in the present case (i) Whether there has been an interference with the applicant’s possessions 41. The Court reiterates that the plot of land was allocated to the applicant in 1994 and she purchased it from the Kaunas Region Administration in 1996. It was registered in her name, without interruption, until 2005. 42. The Court thus finds that the decision of the domestic courts to annul the applicant’s title had clearly the effect of depriving the applicant of her property within the meaning of the second sentence of Article 1 of Protocol No.", "1 (see, mutatis mutandis, Doğrusöz and Aslan, cited above, § 29). (ii) Lawfulness of the interference 43. The decision of the courts to annul the land purchase agreement was prescribed by law, as it was based on provisions of the Restitution Law, Articles 1.80, 6.146 and 6.147 of the Civil Code, as well as in line with the jurisprudence of the Supreme Court and the Constitutional Court. The Court therefore finds that there is no reason to doubt that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1.", "(iii) Legitimate aim 44. The Court must now determine whether this deprivation of property pursued a legitimate aim, that is, whether it was “in the public interest”. To this end it notes that in Padalevičius v. Lithuania (no. 12278/03, § 61, 7 July 2009) the domestic courts invalidated the applicant’s title to the property acquired in 1995 in order to satisfy the restitution claims of persons from whom that property had been expropriated in the 1940s. The Court considers that in the present case the aim of the interference was similar.", "45. The Court has also held that because of their direct knowledge of society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make an initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see Moskal, cited above, § 61; Pincová and Pinc v. the Czech Republic, no. 36548/97, § 47, ECHR 2002‑VIII; and 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, § 168, 15 March 2007). 46. Furthermore, the notion of “public interest” is necessarily extensive. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and Broniowski, cited above, § 149).", "47. As stated above, the measure complained of was designed to correct the mistake of the authorities and to defend the interests of the former owners by restoring their ownership rights to the plot of land in natura. 48. The Court accepts that the general objective of restitution laws, namely to mitigate the consequences of certain infringements of property rights committed by the communist regime, is a legitimate aim and a means of safeguarding the lawfulness of legal transactions, protecting the country’s socio-economic development (see Pincová and Pinc, cited above, § 58), or, as in the present case, securing the rights of former owners. In these circumstances, and having regard to the State’s margin of appreciation, the Court accepts that the deprivation of property experienced by the applicant served not only the interests of the original owners of the land in question, but also the general interests of society as a whole (see Bečvář and Bečvářová v. the Czech Republic, no.", "58358/00, § 67, 14 December 2004, and Padalevičius, cited above, § 65). (iv) Proportionality 49. The Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no.", "52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). 50. On several occasions in similar cases which, as in the present case, concerned the correction of mistakes made by the State authorities in the process of restitution, the Court has emphasised the necessity of ensuring that the remedying of old injuries does not create disproportionate new wrongs (see Velikovi and Others, cited above, § 178). To that end, the legislation should make it possible to take into account the particular circumstances of each case, so that individuals who have acquired their possessions in good faith are not made to bear the burden of responsibility, which is rightfully that of the State which has confiscated those possessions.", "51. In order to assess the burden borne by the applicant, the Court must assess the particular circumstances of each case, namely the conditions under which the disputed property was acquired and the compensation that was received by the applicant in exchange for the property, as well as the applicant’s personal and social situation (see, mutatis mutandis, Mohylová v. the Czech Republic (dec.), no. 75115/01, 6 September 2005). 52. It should first be noted, however, that in the present case, unlike in the cases mentioned above, acquisition of the disputed property by the applicant took place in 1994-96, that is after the re-establishment of the independence of the country, and not during the Soviet regime.", "Thus, the unlawful act of selling the property to the applicant is attributable to the authorities of the present State, and not that of the Soviet regime (see, mutatis mutandis, Gashi v. Croatia, no. 32457/05, §§ 27-34, 13 December 2007, and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 124, 25 October 2012). 53. Quite differently from the cases where the former owners argued their entitlement to a restoration of ownership rights to property that was nationalised during the communist regime, the present case does not concern an applicant’s claim to have his property returned or for compensation for nationalised possessions (see Broniowski, cited above, § 121; Jasiūnienė v. Lithuania, no.", "41510/98, § 40, 6 March 2003; and Jurevičius v. Lithuania, no. 30165/02, § 23, 14 November 2006). 54. The applicant’s title was invalidated after the former owners lodged a civil claim, which was then allowed by the domestic courts. It was established that the local authorities were not entitled to transfer the disputed property to the applicant before the question of restoration of rights of the former owners had been resolved.", "The procedures for the sale of the land were conducted by official bodies exercising the authority of the State (see paragraphs 6-7 above) and the land purchase agreement was signed between the applicant and the Kaunas Region Administration under the standard conditions. The Court considers that the applicant had very limited opportunities, if any, to influence the terms of the contract or the purchase price, as this was within the State’s exclusive competence (see, mutatis mutandis, Gladysheva v. Russia, no. 7097/10, § 79, 6 December 2011). Therefore, it was the obligation of the authorities to verify the applicant’s eligibility for allocation of the land and the conformity of the land sale with procedures and laws in force. 55.", "In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; Megadat.com SRL v. Moldova, no. 21151/04, § 72, ECHR 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011).", "56. The grounds on which the applicant’s title was declared null and void included violations of substantive provisions of the relevant legislation on restitution of ownership rights. The local authorities’ decision to sell the applicant the land appears to have been taken without an appropriate examination of all the conditions first being carried out. 57. As regards the applicant’s legitimate expectations, the Court notes that her good faith as to the acquisition of the property in question has never been disputed at the national level (see, mutatis mutandis, Vistiņš and Perepjolkins cited above, § 120).", "As noted above, it was not for the applicant to shoulder the risk of ownership being revoked on account of procedural defects which should have been eliminated, and for which specially designed procedures existed. The applicant was unaware that the land had been sold to her in breach of the law and did not know that this was the result of omissions on the part of the administration; the unlawfulness of the land purchase was established by the appellate court for the first time only on 2 October 2003. 58. Moreover, in contrast with the facts in Padalevičius (cited above, § 68), in the present case there are no signs that the applicant could have been aware of certain problems concerning the plot which she later acquired from the State, or any assumptions that she could have used her privileged position. 59.", "The applicant in the current situation was rather an ordinary citizen, enjoying no special privileges, and the purchase was based on laws which were applicable to everyone. Thus, the Court is of the opinion that her situation must be distinguished from the cases of individuals who have taken advantage of their privileged position or have otherwise acted unlawfully to acquire property in a totalitarian regime, as well as their heirs, and who cannot expect to keep their gain in a society governed democratically through the rule of law. The underlying public interest in such cases is to restore justice and respect for the rule of law (see Mohylová, cited above, and Velikovi and Others, cited above, § 201). 60. In this connection the Court is satisfied that the applicant acquired the possession in good faith, without knowing that it had previously been confiscated and without being able to influence the terms of the contract.", "It holds that she was a bona fide owner and her proprietary interest in the enjoyment of the land had been sufficiently established (see, for comparison, Hamer v. Belgium, no. 21861/03, § 76, ECHR 2007‑V (extracts)). For the Court, the fact that the applicant paid for the disputed plot of land with investment vouchers is immaterial in terms of her rights of ownership (see, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 121). 61. Moreover, the Court considers that the applicant was also entitled to rely on the fact that the legal act on the basis of which she had acquired the property would not be retrospectively invalidated to her detriment.", "In these circumstances, the “legitimate expectation” is also based on a reasonably justified reliance on a legal act which has a sound legal basis and which bears on property rights (see Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004‑IX, and Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222). As a result, the applicant had a “legitimate expectation” of being able to continue to enjoy that possession. 62.", "As regards the applicant’s personal and social situation, she lost her title to the land at the age of sixty-three and has been disabled since 1994. From the very beginning of the proceedings the applicant has been claiming that the land was used for agriculture and was one of the main sources of her income. The Government did not contest that assertion. 63. The applicant was awarded LTL 1,466 (the nominal price of the land in 1996) for the land whose market value in September 2005 was estimated by court-appointed authorised experts to be LTL 112,500, or almost eighty times that amount.", "It should also be noted that the nominal 1996 price, which was awarded to the applicant, had obviously suffered considerable devaluation and could not reasonably be related to its value nine years later. 64. In view of the above, and given the significant increase in the prices of real property since 1996, the amount was clearly insufficient for the purchase of a new comparable plot of land at market prices (see Velikovi and Others, cited above, § 207). 65. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant.", "In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A; Former King of Greece and Others v. Greece [GC], no. 25701/94, § 89, ECHR 2000‑XII; and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 70, ECHR 2002‑IX). 66.", "Having regard to the circumstances of the present case and the Court’s case-law in similar cases concerning the expropriation of property, the balance mentioned above is generally achieved where the compensation paid to the person whose property has been taken is reasonably related to its “market” value, as determined at the time of the expropriation (see Pincová and Pinc cited above, § 53, Gashi, cited above, § 41; and, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 111; Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 103, 22 December 2009). 67. It follows that the amount of compensation for the annulment of the applicant’s title to the land must be calculated on the basis of the value of the property on the date on which ownership thereof was lost. 68.", "In the view of the above, the fact that compensation of LTL 1,466 was awarded by the national courts does not sufficiently mitigate the negative circumstances for the applicant, in particular given the disproportion between the amount of the compensation and the actual value of the land at the time she was deprived of it. 69. It appears that in the present case the domestic courts paid significantly greater attention to the annulment of the land-sale transaction and to the defence of the rights of the former owners, while failing at the same time to take into consideration the property rights and legitimate expectations of the bona fide owner, the applicant. 70. The Court reiterates that mistakes or errors by State authorities should serve to the benefit of those affected, especially where no other conflicting private interest is at stake.", "In other words, the risk of any mistake made by the State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Gashi, cited above, § 40, and Gladysheva, cited above, § 80). 71. Turning to the case at hand, the Court holds that the compensation awarded to the applicant did not take account of her personal and social situation, nor did it reflect the real value of the property or the fact that it had been acquired by the applicant in good faith. The disproportion between the land’s market value and the compensation awarded is too significant for the Court to find that a “fair balance” was struck between the interests of the community and the applicants’ fundamental rights (see, mutatis mutandis, Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 126, 27 November 2007, and Vistiņš and Perepjolkins, cited above, § 130).", "72. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities have failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. 73. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.", "II. OTHER ALLEGED VIOLATIONS 74. Citing Article 13 of the Convention the applicant complained of a violation of her right to an effective remedy, because the Supreme Court had refused her cassation appeal for the examination. The Court considers it appropriate to examine this complaint under Article 6 of the Convention. 75.", "The Court reiterates that it is for the national courts to resolve questions of domestic law. The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and Mortier v. France, no. 42195/98, § 33, 31 July 2001). What is more, the conditions of admissibility of an appeal on points of law may be more rigorous than those for an ordinary appeal (see Běleš and Others v. the Czech Republic, no.", "47273/99, § 62, ECHR 2002‑IX). 76. Given that the assessment of the grounds for cassation is a matter over which the Lithuanian Supreme Court has sole jurisdiction, it is not for the Court to speculate whether the applicant should have been given leave to appeal by the Supreme Court (see Impar Ltd v. Lithuania, no. 13102/04, § 32, 5 January 2010). In the view of the above and in the absence of any unreasonable restriction on the applicant’s access to the Supreme Court, the Court considers that this complaint must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "77. The applicant further complained that the domestic courts erred in the application of the relevant provisions of substantive law. 78. The Court reiterates that it is the role of the domestic courts to interpret and apply the relevant rules of procedural and substantive law (see, among many other authorities, Baumann v. Austria, no. 76809/01, § 49, 7 October 2004).", "In the present case, the interpretation of the relevant provision of domestic law by the national courts does not appear to be in breach of Article 6 § 1 of the Convention. The Court thus considers that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 80.", "The applicant claimed 112,500 Lithuanian litai (LTL, 32,580 euros (EUR)) in compensation for pecuniary damage and LTL 50,000 (EUR 14,480) for non-pecuniary damage. Relying on the expert’s report of September 2005, she submitted that the amount for pecuniary damage corresponded to the market value of the plot of land at the time of deprivation. The applicant further claimed EUR 524 for costs and expenses incurred before the Court. 81. The Government considered the amount for pecuniary damage to be excessive and rejected the findings of the expert’s report as lacking objectivity and depending exclusively on the calculation methodology.", "The Government also argued that the Court could not award pecuniary damage unless that matter had been examined by the domestic courts. However, in support of their arguments the Government did not submit any alternative assessment of the market value of the disputed plot, for example, a record from the real-estate register with relevant information on the value of the property. 82. In the circumstances of the case the Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).", "83. Accordingly, the Court reserves this question and invites the Government and the applicant company to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that, the question of the application of Article 41 is not ready for decision and accordingly, (a) reserves the said question; (b) invites the Government and the applicant to notify the Court, within six months from the date of which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 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 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "THIRD SECTION CASE OF KUNITSYNA v. RUSSIA (Application no. 9406/05) JUDGMENT STRASBOURG 13 December 2016 FINAL 24/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kunitsyna v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,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.", "9406/05) 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 Zinaida Dmitriyevna Kunitsyna (“the applicant”), on 31 January 2005. 2. The applicant was granted leave to represent herself. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.", "The applicant complained under Article 10 of the Convention of a violation of her journalistic freedom of expression. 4. On 1 April 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1950 and lives in Tomsk. 6. At the material time the applicant, a freelance journalist, was working for a newspaper, Tomskaya Nedelya («Томская неделя»), with a circulation of 66,585. The newspaper is published and distributed in the Tomsk Region. A.", "The applicant’s article 7. On 9 December 1999, in its “Social Aspect” section, the newspaper published an article by the applicant headlined “[S.’s] mother was dying here” («Здесь умирала мать [С.]»). The article described everyday life in a State-owned care home for the elderly, Lesnaya Dacha, giving examples of various residents who were or had been living there. It exposed practical difficulties encountered by the personnel in taking care of the residents in the absence of necessary equipment, and also mentioned that quite a few residents had been abandoned in the care home by their relatives. 8.", "The article then mentioned the mother of Mr S. (his full surname was given in the headline and in the article), a former deputy of the national parliament (the State Duma), who at that time was standing in elections to the State Duma. The article stated: “... Quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles.” That sentence was followed by text in bold letters: “There is, for example, a room in which the mother of Deputy [S.] died. It is now named after him. It is a single room, however small and narrow. The ill and massively corpulent woman lay here for four months.", "Nurses remember that it was very hard to lift and turn her ...” 9. The article also referred to the care home’s chief medical officer, Mr M., as having stated that empathy – mercy – towards the patients was a necessary quality for the personnel in order to work in that institution, and that it was a particularly rare quality at that time which should be revived. The article then quoted Mr M. as follows (the paragraph below was also printed in bold letters): “... It is for lack of mercy for their next of kin that their relatives bring them here, in order to avoid troubles, as if they themselves are not within God’s power. Sometimes ordinary nurses happen to be more merciful than people in authority ...” 10.", "The above-mentioned two paragraphs were the only ones printed in bold in the whole article. B. First round of proceedings against the applicant 11. On 31 January 2000 Mr S.S., Mr A.S. and Ms O.K.-S., who were respectively Mr S.’s father, brother and sister, brought defamation proceedings against the applicant. They claimed that the above-mentioned extracts contained statements aiming to create negative feeling on the part of readers towards the S. family and influence them as voters during the elections.", "They argued in particular that those statements made readers think that the S. family had had no mercy for their closest relative – their wife and mother – that they had taken her to Lesnaya Dacha to get rid of her, and that they had not paid her any visits and had not taken care of her. The claimants insisted that those statements were untrue and damaging to their honour and dignity, and sought compensation in respect of non-pecuniary damage. They also referred to Article 24 of the Russian Constitution, which prohibited the dissemination of information about an individual without his or her consent. 12. On 17 April 2000 the Leninskiy District Court of Tomsk delivered its judgment.", "It rejected as unfounded the claimants’ argument concerning a breach of their right to respect for their private life, noting that, by placing their relative, Mrs S., in a State-owned medical institution for the elderly, the claimants had stepped out of the private sphere and into the public domain, and therefore the constitutional principle of the inviolability of private life was inapplicable in the circumstances. The court, having examined certain witnesses, also considered that Mrs S. had indeed caused the claimants inconvenience and complicated their life, and that they had therefore decided to place her in a medical institution. The court thus concluded that the sentence stating “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...” could not be said to be untrue, whether it was the applicant’s generalisation or a sentence relating to the claimants, as alleged by them. The court further found, with reference to relevant evidence adduced by the applicant, that the information concerning Mrs S.’s living conditions in Lesnaya Dacha was also accurate. It also rejected as unfounded the claimants’ argument that the disputed publication had been propagandistic and had aimed to influence voters’ opinions; in this respect, it noted that the text of the article was socially oriented and contained general argument concerning the problems affecting ill and elderly people, with the specific example of the Lesnaya Dacha care home.", "The court also noted that the general statements of the care home’s chief medical officer concerning a lack of mercy for next of kin had had no link to the claimants or other members of the S. family. 13. On 30 June 2000 the Tomsk Regional Court upheld the above judgment on appeal. 14. On 30 May 2001 the Presidium of the Tomsk Regional Court, in supervisory review proceedings, dismissed an extraordinary appeal against the judgment of 17 April 2000 and the appeal decision of 30 June 2000, thus upholding those decisions.", "C. Second round of proceedings against the applicant 15. On 28 June 2002, in supervisory review proceedings, the Supreme Court of Russia quashed the judgment of 17 April 2000 and the decisions of 30 June 2000 and 30 May 2001, and sent the case back to the first-instance court for fresh examination. 16. In a judgment of 20 May 2003 the Leninskiy District Court of Tomsk again dismissed the claims against the applicant, employing reasoning similar to that of the judgment of 17 April 2000. 17.", "On 17 October 2003 the Tomsk Regional Court examined the case, on appeal by the claimants. They maintained their claim, stating that the relevant part of the impugned publication had interfered with their private life, and had contained statements damaging to their honour and dignity. 18. The appellate court set aside the judgment of 20 May 2003 on the grounds of incorrect application by the first-instance court of the substantive law, and delivered a new decision. It noted that, according to Resolution no.", "11 of the Supreme Court of Russia (see paragraph 27 below), a claimant was under an obligation to prove the fact of the dissemination of information, whereas a defendant was under an obligation to prove that such information corresponded to reality. The appellate court found that the claimants in the present case had discharged that obligation. 19. In relation to the sentence stating “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...”, the Tomsk Regional Court disagreed with the first-instance court’s view that the sentence was true and was not damaging to the claimants’ honour and dignity. In particular, the regional court noted that the headline of the article and the sequence of its sentences made it clear that the statement, along with the reference to the lack of mercy for next of kin, although generalised, related to the claimants.", "In support of this conclusion, the appellate court referred to the statements of two witnesses who had confirmed that they had perceived the extracts to relate to the claimants. 20. The appellate court went on to examine evidence confirming the poor physical and mental condition of Mrs S., and noted the claimants’ argument that they had placed her in Lesnaya Dacha because of the need to ensure proper medical assistance and care, rather than for lack of mercy. It stated that the applicant had not submitted any evidence capable of refuting that argument, whereas by virtue of Article 152 of the Russian Civil Code, she, as a defendant, was under an obligation to prove the accuracy of her statements. The appellate court also referred to the statement of a witness who had “explained that information disseminated in respect of the claimants, to the effect that Mrs S.’s relatives had not taken care of her, had not corresponded to reality”.", "The court thus concluded that the disputed information was untrue. 21. It further found that the disputed information, namely that the claimants had placed their seriously ill close relative in the care home for the elderly because of a lack of mercy, and in order to avoid unnecessary troubles, was a statement that the claimants had breached their moral principles, and was therefore damaging to their honour and dignity, according to the resolution of the Supreme Court. The Tomsk Regional Court thus concluded that the information in the publication that “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles because of lack of mercy for their next of kin...” was untrue and damaging to the claimants’ honour and dignity, and ordered the applicant to pay 10,000 Russian roubles (RUB – approximately 285 euros (EUR)) to each of the three claimants as compensation for non-pecuniary damage. 22.", "The appellate court’s decision remained silent as regards the claimants’ argument that the impugned article had interfered with their private life. 23. By a decision of 4 March 2004 a judge of the Tomsk Regional Court declined the applicant’s application to institute supervisory review proceedings in respect of the appellate court’s decision. 24. On 13 October 2004 the Presidium of the Tomsk Regional Court, in supervisory review proceedings, upheld the decision of 17 October 2003, endorsing its reasoning, but reducing the amount of the award in respect of non-pecuniary damage.", "The applicant was ordered to pay RUB 4,000 (approximately EUR 110) to each of the three claimants. II. RELEVANT DOMESTIC LAW AND PRACTICE 25. Article 24 of the Russian Constitution establishes that the collection, retention, use and dissemination of information about the private life of an individual shall not be allowed without his or her consent. 26.", "Article 152 of the Russian Civil Code provides that an individual may apply to a court with a request for the rectification of information (сведения) damaging to his or her honour, dignity or professional reputation, unless the person who disseminated such information proves its truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. 27. Resolution no. 11 of the Plenary Supreme Court of Russia of 18 August 1992, as amended on 21 December 1993, “On certain issues that have arisen in the course of the judicial examination of claims for the protection of the honour and dignity of individuals, and the professional reputation of individuals and legal entities” established that the notion of “the dissemination of information” employed in Article 152 of the Russian Civil Code was understood to be the publication or broadcast of such information.", "The resolution also provided that untrue statements alleging a breach by an individual or a legal entity of the legislation in force or of moral principles (dishonest acts, incorrect behaviour at work or in everyday life, or other statements damaging to business or public activities, professional reputation, and so on) could constitute damage to one’s honour, dignity and professional reputation, among other things. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 28. The applicant complained that her right to freedom of expression had been violated. She insisted that she was free to express her opinion as a journalist, and that, by ruling against her, the domestic courts had criticised her for her professional activity and had unjustifiably limited her freedom of speech.", "The applicant relied on Article 10 of the Convention, which 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.” A. Arguments by the parties 1. The applicant 29. The applicant argued that the interference with her freedom of expression had fallen short of the “necessity” requirement. 30.", "The applicant pointed out in particular that her article had been socially oriented, and had addressed an important issue of public interest, the lack of specialist care facilities for elderly people in the region. She further argued that the phrase “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...”, found by the domestic court to be untrue and damaging to the claimants’ reputation, had in fact been a quote from Mr M., the chief medical officer of the care home, and should not have been attributed to her. The applicant argued that, in any event, the sentence had been a generalisation rather than a statement directly relevant to the S. family, and that it had been a value judgment not susceptible of proof. She also pointed out that she had not said anything about whether the claimants had come to see Mrs S. in the care home or not, as she had only mentioned Mr S., who, however, had not been a party to the defamation proceedings. 31.", "The applicant also argued that the penalty imposed on her had been disproportionate, as, in view of her income, it had been very burdensome financially. In addition, it had limited the freedom of the press and had had a serious “chilling” effect on the other journalists in the region. 2. The Government 32. The Government acknowledged that there had been an interference with the applicant’s right to freedom of expression, but argued that it had been justified under Article 10 § 2 of the Convention.", "In particular, they pointed out that the interference had been based on Article 152 of the Russian Civil Code, and had pursued the aim of the protection of the reputation and private life of the S. family members. 33. The Government further insisted that the interference complained of had been necessary in a democratic society. They submitted that the impugned paragraphs of the applicant’s article had clearly referred to the S. family; in particular, both paragraphs had been accentuated by bold letters, which had given a clear impression that they had been linked between themselves and to the headline of the article. Moreover, the paragraphs in question had revealed specific details of the S. family’s private life.", "In this respect, the Government pointed out that the impugned information had related not only to Mrs S.’s son, Mr S., who at that time had been standing as a candidate for the State Duma, and had therefore been a public figure, but also to other members of the S. family, including Mrs S.’s husband and daughter (respectively, Mr S.’s father and sister), who were not. 34. The Government went on to argue that the domestic courts had distinguished between statements of fact and value judgments, having found that the impugned extracts, including the phrase “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...” had been statements of fact, and therefore the applicant had been under an obligation to prove the accuracy of those statements. The Government submitted that, after a full examination of the circumstances of the case, the national courts had established the absence of any factual basis for the applicant’s relevant statements. In particular, the appellate court had established that the S. family had placed Mrs S. in the institution for the elderly with a view to ensuring her necessary medical treatment and care, rather than in an attempt to “escape troubles”.", "The court had furthermore established that the institution referred to in the article had had a very good reputation, and that was why the S. family had chosen it for Mrs S.; moreover, they had regularly come to see her, as had been confirmed by witnesses. In her article, the applicant had thus distorted reality, which could have provoked negative feeling toward Mrs S.’s relatives, including Mr S. In the Government’s view, the aim of the impugned publication had not been to attract public attention to the problems of elderly people, but to discredit Mr S. in the eyes of the voters. 35. The Government also argued that the measure complained of had been proportionate to the aim sought to be achieved. In particular, the applicant had been held liable in a civil defamation case, and had been ordered to pay compensation for non-pecuniary damage to the members of the S. family.", "The domestic courts had taken into account a number of relevant factors when deciding on the sanction against the applicant. In particular, the courts had observed that the impugned article had been published in a newspaper with a circulation of 66,585, and that the publication had taken place three years after Mrs S.’s death, during the campaign for election to the national parliament in which her son, Mr S., had been standing as a candidate, which had undoubtedly attracted wide public attention. Moreover, the domestic courts had taken into account the fact that the information in question had concerned Mrs S.’s illness and death, and had been particularly sensitive for her family members. This had caused them, and in particular Mrs S.’s eighty-year-old husband, great emotional distress, as the information had been used to defame them. At the same time, the domestic courts had had due regard to the applicant’s income, and had ordered her to pay quite a modest amount to the claimants.", "36. The Government further argued that the domestic courts had duly balanced the applicant’s right to freedom of expression and the S. family’s right to reputation, and had taken well-reasoned decisions; the applicant’s case had not had any chilling effect on other journalists in the region, contrary to the applicant’s allegation in that respect. B. Admissibility 37. 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. C. Merits 38. The Court notes that it is common ground between the parties that the decision of the Tomsk Regional Court dated 17 October 2003, as reviewed on 13 October 2004 by the Presidium of the Tomsk Regional Court in the supervisory review proceedings (see paragraphs 17-22 and 24 above), constituted an interference with the applicant’s right to freedom of expression secured by Article 10 § 1 of the Convention. The Court is further satisfied that the interference in question was “prescribed by law”, notably by Article 152 of the Civil Code, and “pursued a legitimate aim”, that is “the protection of the reputation or rights of others”, within the meaning of Article 10 § 2. What remains to be established is whether the interference was “necessary in democratic society”.", "39. The test of necessity requires the Court to determine whether the interference corresponded to a “pressing social need”, whether the reasons given by the national authorities to justify it were “relevant and sufficient”, and whether the measure taken was proportionate to the legitimate aim pursued (see, for instance, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑IV). 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. 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, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation.", "In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, as a recent authority, Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). 40. The Court observes that, in the present case, the applicant, a journalist, was held civilly liable, after the first final and binding court decision in her favour had been quashed in supervisory review proceedings, for writing an article and having it published in a regional newspaper. The impugned interference must therefore be seen in the context of the essential role of the press in a democratic society (see Fressoz and Roire v. France [GC], no.", "29183/95, § 45, ECHR 1999‑I). The national authorities’ margin of appreciation was thus circumscribed by the interest of a democratic society in enabling the press to play its vital role of “public watchdog” (see Radio France and Others v. France, no. 53984/00, § 33, ECHR 2004‑II, with further references). 41. The Court further notes that the article in question described the everyday life of residents in a care home for the elderly, including the mother of Mr S., who was identified by his full name in the headline and text of the article.", "Mr S.’s father, brother and sister subsequently sued the applicant for disclosing information about their private life and tarnishing their reputation. However, as can be seen from the relevant court decisions (see paragraph 22 and 24 above), the domestic courts only addressed the part of the claim relating to the claimants’ reputation, whereas the question of the alleged breach of their privacy was left unexamined. The Court will therefore limit the scope of its examination to the assessment of the “necessity” of the measure complained of in so far as it aimed at protecting the claimants’ reputation. 42. In this connection, the Court reiterates that the right to protection of one’s reputation is covered by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no.", "64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and, more recently, Annen v. Germany, no. 3690/10, § 54, 26 November 2015). For Article 8 to come into play, 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 Axel Springer AG v. Germany [GC], no.", "39954/08, § 83, 7 February 2012). The Court further reiterates that, for an interference with the right to freedom of expression to be proportionate to the legitimate aim of the protection of the reputation of others, the existence of an objective link between the impugned statement and the person suing in defamation is a requisite element. Mere personal conjecture or subjective perception of a publication as defamatory does not suffice to establish that the person in question was directly affected by the publication. There must be something in the circumstances of a particular case to make the ordinary reader feel that the statement reflected directly on the individual claimant, or that he was targeted by the criticism (see Reznik v. Russia, no. 4977/05, § 45, 4 April 2013, and the authorities cited therein).", "43. The Court observes that, in the instant case, the impugned extracts either named Mr S., or referred to “the people in authority” (see paragraphs 8-9 above); the Court is thus prepared to accept that there was an objective link between those extracts and Mr S. It notes, however, that he was never a party to the defamation proceedings in question. Therefore, the Court rejects the Government’s argument that Mr S. was “discredited in the eyes of his voters” (see paragraph 34 above), as that question was never assessed by the domestic courts. The Court is furthermore not convinced that the same objective link can be found between the extracts and the claimants in the defamation proceedings, Mr S.’s father, brother and sister. As was stressed by the Government, they were not “people in authority”; moreover, the text in question only mentioned “Deputy S.” and no other member of the S. family.", "The statements can therefore hardly be regarded as directly relevant to the claimants, or detrimental to their reputation. The Court further does not consider that the regional court’s mere reference to the statements of two witnesses, who had perceived the impugned extracts to relate to the claimants (see paragraph 19 above), is sufficient for establishing any such link, as the identity of those two witnesses was not clarified, nor the basis for that perception. 44. Turning to the qualification of the contested extracts by the Tomsk Regional Court, the Court is mindful that 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.", "Admittedly, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments. Nevertheless, even a value judgment may be excessive if it has no factual basis to support it (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 98-99, ECHR 2004‑XI). The Court has on many occasions pinpointed the structural deficiency of the Russian law on defamation, as interpreted and applied at the relevant time, which made no distinction between value judgments and statements of fact, referring uniformly to “information” (“svedeniya”), and proceeded on the assumption that any such “information” was susceptible to proof in civil proceedings (see Grinberg v. Russia, no. 23472/03, § 29, 21 July 2005; Zakharov v. Russia, no.", "14881/03, § 29, 5 October 2006; Karman v. Russia, no. 29372/02, § 38, 14 December 2006; Dyuldin and Kislov v. Russia, no. 25968/02, § 47, 31 July 2007; Fedchenko v. Russia, no. 33333/04, §§ 36‑41, 11 February 2010; Andrushko v. Russia, no. 4260/04, §§ 50-52, 14 October 2010; Novaya Gazeta v Voronezhe v. Russia, no.", "27570/03, § 52, 21 December 2010; and OOO Ivpress and Others v. Russia, nos. 33501/04, 38608/04, 35258/05 and 35618/05, § 72, 22 January 2013). 45. The Court observes that, in the present case, the fact of the placement of the claimants’ relative in the care home was not in dispute between the parties to the defamation proceedings; rather, they disagreed about the motives lying behind that decision. In particular, the disputed extracts described the placement as “an attempt to escape unnecessary trouble” and “a lack of mercy”, whereas the claimants argued that they had been driven by the need to ensure proper medical assistance and care for their relative (see paragraph 20 above).", "It is obvious that the above‑mentioned expressions were value judgments; they represented the applicant’s interpretation of the placement of the claimants’ relative in the care home for the elderly, were quotes of the care home’s chief medical officer, and were concerned with moral criticism of that placement. In relation to such criticism, the Court notes that, although journalists must be afforded some degree of exaggeration or even provocation, they nevertheless have “duties and responsibilities”, and should act in good faith and in accordance with the ethics of journalism (see, among other authorities, Rumyana Ivanova v. Bulgaria, no. 36207/03, § 61, 14 February 2008). Gratuitous accusations of morally reprehensible behaviour may arguably be taken as going beyond the limits of responsible journalism. In particular, in the context of the issue raised by the applicant in her article, that is, in her submission, the lack of specialist care facilities for elderly people in the region (see paragraph 30 above), the Court fails to see why it was relevant to give information – disclosing the full name and containing suggestions of morally reprehensible behaviour – on the last days of a lady who had died three years earlier (see paragraph 35 above), and who had been the mother of a person standing as a candidate for election to the national Parliament at that time.", "46. At the same time, the Court observes that the domestic courts failed to examine the elements necessary for the assessment of the applicant’s compliance with her journalistic “duties and responsibilities”. Contrary to what was alleged by the Government (see paragraph 34 above), they failed to distinguish between value judgments and factual statements, and limited themselves to finding that the contested information had been “disseminated” by the applicant, and that she had not proved its truthfulness (see paragraphs 18 and 20 above). The domestic courts did not have regard to: the presence or absence of good faith on the applicant’s part; the aim pursued by her in publishing the article; the existence of a matter of public interest or general concern in the impugned publication; or the relevance of information regarding the claimants’ next of kin in the context of that topic. 47.", "Furthermore, the Court does not overlook the fact that, in the present case, the court decision holding the applicant liable for defamation was taken by the appellate court in the second round of proceedings, after the final and binding court decision in the applicants’ favour taken in the first round of the proceedings had been quashed by way of supervisory review, and after the first-instance court in the second round of the proceedings had again ruled in her favour. 48. In the light of the foregoing, the Court finds that the standards according to which the national authorities examined the claim against the applicant were not in conformity with the principles embodied in Article 10. It matters little in these circumstances that the proceedings were civil in nature, and that the amount of compensation which the applicant was ordered to pay was moderate, as it is the failure by the domestic courts to base their decisions “on an acceptable assessment of the relevant facts” and to adduce “relevant and sufficient” reasons that brings the Court to the conclusion that the interference complained of was not “necessary in a democratic society” (see, for a similar finding, Godlevskiy v. Russia, no. 14888/03, § 48, 23 October 2008, and OOO Ivpress and Others, cited above, § 79).", "49. There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 51. The applicant claimed EUR 4,000 in respect of pecuniary damage. She argued that, as a result of the interference complained of, she had not been able to work as a freelance journalist, as she had “had to address complaints” regarding the unjustified court decision of 17 October 2003 to a higher court, in an attempt to have it reviewed in supervisory review proceedings. She therefore sought compensation for pecuniary damage in the amount of EUR 3,600, which, in her submission, represented her lost earnings for the period from 17 October 2003 (the date of the appellate court’s decision in her case) until 13 October 2004 (the date when that decision had been upheld in the supervisory review proceedings). Under this head, the applicant also claimed compensation of RUB 12,000 (approximately EUR 330), the amount which she had been ordered to pay to the claimants in damages, and RUB 840 (approximately EUR 25), the amount of the enforcement fee, which had been as a result of her failure to comply voluntarily with the writ of execution.", "According to the documents adduced by the applicant, she had paid both amounts in full. She further claimed EUR 5,000 in respect of non-pecuniary damage. 52. In so far as the applicant’s claim for compensation for pecuniary damage concerned lost earnings, the Government contested that claim as speculative and unsubstantiated. They further argued that the applicant had failed to prove that there was a causal link between the violation alleged and the non-pecuniary damage she had allegedly suffered.", "53. The Court does not discern any causal link between the violation found and the applicant’s claim regarding the lost earnings; it therefore rejects this claim. 54. On the other hand, the Court observes that the amount of RUB 12,000 (approximately EUR 330) which the applicant was ordered to pay in the defamation proceedings, and the fact that that amount was actually recovered from the applicant, are not in dispute between the parties. It further notes that the above-mentioned sum was recovered from the applicant as a result of the court decision against her for her article, which the Court has found to be in breach of Article 10 of the Convention.", "It is thus clear that there is a direct causal link between the violation found and the pecuniary damage alleged (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 75 and 77, ECHR 1999‑III). The Court therefore awards the applicant EUR 330 in respect of pecuniary damage, plus any tax that may be chargeable on that amount. 55. As for the enforcement fee, no evidence has been adduced to the Court to show that it was a direct result of the breach of Article 10 of the Convention (cf.", "Kwiecień v. Poland, no. 51744/99, §§ 64‑66, 9 January 2007, and, more recently, Marinova and Others v. Bulgaria, nos. 33502/07, 30599/10, 8241/11 and 61863/11, § 119, 12 July 2016). Indeed, whilst arguing that the penalty imposed on her was burdensome financially (see paragraph 31 above), the applicant has not informed the Court whether she was able to pay the damages in one amount; or, if not, whether she requested that she be authorised to pay by instalments. The Court therefore rejects this part of the applicant’s claim for compensation for pecuniary damage.", "56. It further considers that, in the circumstances of the case, a finding of a violation of Article 10 will constitute sufficient just satisfaction for the applicant in respect of non-pecuniary damage (see, for a similar finding, OOO Ivpress and Others, cited above, § 88). B. Costs and expenses 57. The applicant also claimed EUR 1,000 for costs and expenses incurred at domestic level.", "She submitted an invoice from a lawyer in the amount of RUB 35,000 (approximately EUR 1,000) for legal advice at the preliminary stage and during the court proceedings, and for preparation of written submissions to the courts. 58. The Government contested that claim as unsubstantiated, stating that the invoice was illegible, and that the applicant had not adduced any agreement on legal assistance. 59. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 1,000 to cover costs and expenses in the domestic proceedings. C. Default interest 60. 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 330 (three hundred and thirty euros), plus any tax that may be chargeable, in respect of 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 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.", "L.L.G.J.S.P. CONCURRING OPINION OF JUDGE DEDOV It is very difficult to examine a defamation case in which a public figure was criticised but other members of the family alleged that this criticism affected them as well. I believe that the national courts did not even have the authority to examine such a case, as the claim was inadmissible ratione personae. In the similar case of Putistin v. Ukraine (no. 16882/03, § 38, 21 November 2013) the Court accepted that “the applicant [member of the family] was affected by the article, but only in an indirect manner, in the sense that a reader who knew that the applicant’s father’s name was on the 1942 poster might draw adverse conclusions about his father.", "The level of impact was thus quite remote”. This is a completely different approach compared with the arguments set out in the present judgment. It is more concrete and closer to the factual circumstances. However, in neither case do I see any substantial analysis being made by this Court, which the domestic courts could follow, as to how to strike an appropriate balance between the right to private life and the right to freedom of expression. The enjoyment of private life by other members of the family was affected, remotely or not.", "However, the claimants, who were not mentioned in the article, should then have borne a heavier burden of proof and they should have produced material evidence of a negative effect or made a public announcement that they should not be associated with the impugned action or with a particular person, for specific reasons. The national courts limited their analysis to the claimants’ private life without striking any balance with the applicant’s right to freedom of expression, and in particular her right to raise issues of public interest. I believe that the moral criticism directed by the applicant as a journalist against the parliamentarian was addressed not only to that public figure but to the rest of society, as she raised the issue of social solidarity." ]

[ "THIRD SECTION CASE OF HUSEJINOVIČ v. SLOVENIA (Application no. 41513/02) JUDGMENT STRASBOURG 29 June 2006 FINAL 29/09/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Husejinovič v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrL. Caflisch,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 8 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 41513/02) 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 Simeuna Husejinovič (“the applicant”), on 7 November 2002. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which 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 15 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 5. The applicant was born in 1959 and lives in Velenje. 6. On 14 December 1998 the Velenje Unit of the Pension and Disability Insurance Fund (“the PDIF”) awarded the applicant an invalidity status of fifth degree for the period after 12 December 1996.", "On 17 August 1999 the PDIF rejected the applicant’s appeal. 7. On 22 September 1999 the applicant instituted proceedings against the PDIF in the Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) contesting, inter alia, the date of the occurrence of the injury. Between 25 October 1999 and 16 September 2002 the applicant lodged three written submissions. Between 17 January 2001 and 8 March 2002 she made three requests that a date be set for a hearing.", "On 1 October 2002 a hearing was held and the court delivered a judgment. The judgment, rejecting the applicant’s claim, was served on the applicant on 29 October 2002. 8. On 4 November 2002 the applicant appealed to the High Labour and Social Court (Višje delovno in socialno sodišče). On 14 May 2004 the court dismissed the applicant’s appeal.", "The judgment was served on the applicant on 3 June 2004. 9. On 23 June 2004 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 1 March 2005 the court dismissed the applicant’s appeal. The decision was served on the applicant on 29 March 2005.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 10. The applicant complained about the excessive length of the proceedings commencing with the lodging of her claim with the Ljubljana Labour and Social Court. 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...” 11. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective.", "Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 12. The Government pleaded non-exhaustion of domestic remedies. 13. The applicant contested that argument, claiming that the remedies available were not effective. 14.", "The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. 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.", "15. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Article 6 § 1 17. The period to be taken into consideration began on 22 September 1999, the day the applicant instituted proceedings with the Ljubljana Labour and Social Court, and ended on 29 March 2005, the day the Supreme Court’s decision was served on the applicant.", "It therefore lasted more than five years and six months for three levels of jurisdiction. 18. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 19.", "Taking into account what was at stake for the applicant, namely a determination of her invalidity status, the Court considers that in the instant case the length of the proceedings, in particular before the first-instance court, was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 20. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 21. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding 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 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed EUR 5,000 euros (EUR) in respect of non-pecuniary damage. 24.", "The Government contested the claim. 25. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,000 under that head. B.", "Costs and expenses 26. The applicant also claimed approximately EUR 1,200 for the costs and expenses incurred before the Court. 27. The Government argued that the claim was too high. 28.", "According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]

[ "THIRD SECTION CASE OF YVON v. FRANCE (Application no. 44962/98) FINAL 24/07/2003 JUDGMENT STRASBOURG 24 April 2003 In the case of Yvon v. France, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI. Cabral Barreto,MrJ.-P. Costa,MrL. Caflisch,MrJ.", "Hedigan,MrsH.S. Greve,MrK. Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 28 November 2002 and 10 April 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 44962/98) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Louis Yvon (“the applicant”), on 7 October 1998.", "2. The applicant was represented before the Court by Mr D. Musso, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Head of Legal Affairs, Ministry of Foreign Affairs. 3. 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). It was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 4.", "The applicant complained that the proceedings before the courts dealing with expropriation cases had not been fair. 5. By a decision of 19 September 2002 the Chamber declared the application admissible. 6. The applicant and the Government each filed observations on the merits of the case (Rule 59 § 1).", "7. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 November 2002 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrA. Buchet, Deputy Head of the Human Rights Section,Legal Affairs Department,Ministry of Foreign Affairs,Agent,MrP. Bourreau, Divisional Director, Revenue Department,Ministry of the Economy, Finance and Industry,MsC.", "d’Urso, Head of the Institutional,Legal and Contentious Issues Office,Department of European and International Affairs, Ministry of Justice,Advisers; (b) for the applicantMrD. Musso,MrJ.-M. Pouille, Lawyers, Counsel. The Court heard addresses by Mr Musso and Mr Buchet and their replies to judges’ questions. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The applicant was born in 1931 and lives in Saintes (Charente-Maritime). He is a winegrower. 9. On 19 May 1993 plans for improving a major road on the edge of the Saintes urban area were declared to be in the public interest. Completion of this operation required the expropriation of various plots of land, including twenty-one hectares belonging to the applicant.", "The expropriation liability order was issued on 5 September 1994. 10. On 12 September 1994 the expropriations judge for the département of Charente-Maritime issued an expropriation order giving rise to a transfer of ownership. On 28 September 1994, in the absence of an agreement between the applicant and the State as the expropriating authority (represented by Mr H., an inspector from the Charente-Maritime Revenue Department) on the amount of compensation to be paid, the latter applied to the expropriations judge. In an order of the same day the expropriations judge for the département of Charente-Maritime set 4 November 1994 as the date for the site inspection and stated that the public hearing would be held immediately afterwards.", "On 3 November 1994 Mr P., Deputy Director of the Charente-Maritime Revenue Department, filed submissions in his capacity as Government Commissioner. The applicant’s lawyer then requested an adjournment because of the lateness of these submissions. The hearing was accordingly fixed for 18 November 1994. In a judgment of 9 December 1994, having heard the applicant, Mr H., the State’s representative in the proceedings, and Mr P., the Government Commissioner, the expropriations judge assessed the compensation payable by the State at 1,441,517 French francs (FRF). 11.", "On 5 January 1995 the applicant appealed against this decison and filed a memorial with the Expropriations Division of the Poitiers Court of Appeal, in which he assessed the amount of compensation due at FRF 3,763,698. On 13 April 1995 the Charente-Maritime Revenue Department filed a memorial in reply, signed by Mr H., in which it asked that the decision be upheld; a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment, was appended. On 24 April 1995 the applicant’s representative wrote to the signee of the memorial, requesting that he send a full copy of the contracts and decisions cited. In a letter of 18 July 1995 the Deputy Director of the Charente-Maritime Revenue Department, Mr P., refused to produce the documents on the ground that tax officials were bound by a duty of professional confidentiality. On 17 August 1995 the applicant’s counsel replied to the Deputy Director of the Revenue Department as follows: “... it is regrettable that almost three months were required to send a brief reply to a standard request for production of documents, dated 24 April 1995, even though the case is due to be heard on 22 September.", "This aside, you are mistaken in failing to distinguish between your roles as Director of the Revenue Department and as representative of the expropriating authority in legal proceedings brought in application of the Decree of 11 December 1973 – Article R. 179 of the Code of State Property. In this latter capacity, you are obliged to respect the fundamental principle of adversarial proceedings and the provisions of the new Code of Civil Procedure which impose a basic obligation on the parties to produce the evidence to which they refer. This principle also applies when you are acting in your capacity as Government Commissioner, which for the moment poses no further difficulties. I might add that had your memorial contained, as a minimum, sufficient indications to enable me to order the contracts from the land registry, I would have refrained from asking you to produce these documents. I am therefore obliged to ask the court ... to order discovery of the documents which you refer to, unless the court prefers purely and simply to discount this evidence, which would mean that it would rule only on the basis of my own terms of comparison ...” On 4 September 1995 Mr P., standing in for the Director of the Vienne Revenue Department in his capacity as Government Commissioner, lodged submissions in support of a cross-appeal with a view to the hearing before the Expropriations Division of the Court of Appeal (initially set for 22 September 1995, the hearing was subsequently postponed at the applicant’s request until 24 May 1996); he assessed the compensation in issue at FRF 1,396,267.", "The applicant filed a memorial in reply, referring in particular to an infringement of his right to a fair trial in the following terms: “... In the present case, the Director of the Revenue Department representing the expropriating authority and the Director of the Revenue Department acting as Government Commissioner are one and the same person, even if, for form’s sake, the Director of the Revenue Department is represented by two separate individuals, which is a fiction, since, as we have seen, the same person replied to the expropriated party’s counsel on behalf of the expropriating authority and also signed the Government’s Commissioner’s submissions. It follows that the Director of the Revenue Department may take part in the present proceedings only in his capacity as the State’s representative or in his capacity as Government Commissioner, and may not combine the two roles. Otherwise, the parties do not enjoy a fair trial within the meaning of Article 6 of the European Convention on Human Rights ...” According to the Government, the registry of the Expropriations Division informed the applicant and the Director of the Revenue Department within the Property Department, in letters dated 9 May 1996, of further grounds of appeal lodged on the same day by the Government Commissioner. 12.", "In a judgment of 21 June 1996 the Expropriations Division of the Poitiers Court of Appeal established the compensation amount at FRF 1,542,867. It held that the applicant’s request that the court dismiss the intervention by the Director of the Revenue Department in his capacity as Government Commissioner was ill-founded. The judgment stated: “... The [applicant’s] criticisms of the Director of the Revenue Department’s activities and of the dual nature of his functions are unfounded because: (i) The Director of the Revenue Department’s twofold status as Government Commissioner and ... representative of the expropriating authority does not amount to a defect; despite the strangeness of this situation, there is nothing to prevent the Director of the Revenue Department representing the expropriating authority and simultaneously assuming the functions of Government Commissioner. (ii) The Director of the Revenue Department’s joint role as Government Commissioner and representative of the expropriating authority does not deny the expropriated party a fair trial provided that the Government Commissioner does not participate in the decision-making process within the expropriations court.", "(iii) In any event, in the specific case of this appeal, two Directors of Revenue Departments intervened, namely the Director of the Charente-Maritime Revenue Department, representing the State, and the Director of the Vienne Revenue Department as the Government Commissioner (see the appointments of substitutes dated 25 August 1995 and 2 May 1996 in the case file). Consequently, the [applicant’s] claims on the basis of Article 6 of the Convention ... must be rejected. ... As regards the [applicant’s] request that the State provide him with a copy of the contracts and judgments referred to as terms of comparison, and in the light of the adversarial principle, it seems initially that this request is admissible since it is not ‘a new ground which was not raised at first instance’ but new claims intended to secure dismissal of the other party’s claims (Article 654 of the New Code of Civil Procedure); However, this request [by the applicant] ... must be rejected since the information provided is sufficient to allow identification of the property sold and the price agreed upon together with free discussion of their value as evidence; ...” 13. The applicant appealed on points of law, alleging in particular that there had been a violation of his right to a fair trial. He submitted that it was not necessary for a party to participate in the decision-making process for its intervention to be considered a violation of Article 6 of the Convention, and complained that the Government Commissioner had been the last to speak, after the expropriated party, and that the latter had had no opportunity to reply.", "The applicant also complained that the Court of Appeal had dismissed his request for production of copies of the terms of comparison cited by the Government Commissioner. On 8 April 1998 the Court of Cassation dismissed this appeal on the following grounds: “... Firstly, the judgment correctly accepts that, since Article 6 of the Convention ... is not applicable, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process, it is not necessary to find his intervention inadmissible. Secondly, there is no text prohibiting the parties from replying to the submissions made by the Government Commissioner at the hearing. ... The Court of Appeal justified its decision in law ... by accepting in the exercise of its unfettered discretion that the information provided had been sufficient to enable identification of the property sold and the price agreed upon together with free discussion of their value as evidence.", "...” II. RELEVANT DOMESTIC LAW AND PRACTICE A. Representation of the State as expropriating authority 14. In a number of départements, including Charente-Maritime, the Revenue Department is the sole authority empowered to carry out purchases of real property, real-property rights or businesses, by agreement or through compulsory purchase orders, on behalf of all the State’s public, civil or military bodies (Article R. 176 of the Code of State Property). In the expropriation proceedings for which it is consequently responsible, it carries out, on behalf of the expropriating authority, “all the acts incumbent on the latter” (Article R. 178 of the same Code).", "Article 179 of the Code of State Property, in the version applicable at the material time, further provides: “In determining compensation for expropriation, the officials of the Revenue Department appointed by order of the General Director of Revenue shall act before the Expropriations Divisions on behalf of the State’s expropriating bodies. ... The appointments provided for in this Article shall not apply to the officials mentioned in [Article 13-7 of the Expropriations Code].” B. Procedure before Expropriations Divisions and the rules governing the Government Commissioner’s participation 1. The Code of Expropriation in the Public Interest (“the Expropriations Code”) 15.", "The relevant provisions of the Expropriations Code are worded as follows: (a) Legislative Section Article L. 13-1 “Failing agreement between the parties, compensation shall be determined by an expropriations judge appointed for each département from among the judges who are members of a tribunal de grande instance.” Article L. 13-21 “No objection may be filed against judgments given at first instance. An appeal lies to the court of appeal within a period of fifteen days from service of judgments given in application of Chapter III.” Article L. 13-25 “An extract of the judgment shall be notified at the request of the most diligent party. It may be referred to the Court of Cassation. Appeals on points of law shall be brought, investigated and tried in accordance with the procedure provided for in Section II of Title II of Law no. 47-1366 of 23 July 1947.” (b) Regulatory Section Article R. 13-7 “The Director of the Revenue Department (Property) of the département in which the Expropriations Division is based shall exercise the function of Government Commissioner before this Division.", "The Director of the Revenue Department (Property) may appoint officials from his Department as his substitute in the role of Government Commissioner before the court mentioned in Article R.13-1. Before the Chamber dealing with the appeal, he may be substituted either by Directors of Revenue Departments (Property) from other départements within the court of appeal’s territorial jurisdiction, or by officials from the Revenue Department (Property) whom he shall appoint specifically for this purpose.” Article R. 13-8 “Cases brought before the courts cited in Articles L. 13-1 and L. 13-22 shall not be transmitted to State Counsel’s Office if the latter’s presence is not required at the hearing.” Article R. 13-9 “Before the Chamber dealing with the appeal, State Counsel may nevertheless ask to see the file in all cases where he believes that his Office should be represented. In such an event, he may attend the hearing in order to lodge those submissions which he considers necessary, without prejudice to those of the Government Commissioner.” Article R. 13-21 “Failing agreement between the parties within one month of receiving notification of the expropriating authority’s offers ... the case may be referred to the expropriations judge by the more diligent party under the conditions set out in Article L. 13-4. ...” Article R. 13-27 “A copy of the order fixing the date and time for inspection of the site shall be sent to the expropriating authority by the registrar of the court, with a view to its communication to the interested parties and to the Government Commissioner. If the case is referred to the judge by the expropriated party, the parties shall be notified directly by the registrar of the date of the site inspection.", "The registrar shall append a copy of the memorials and other documents in his possession to the notification sent to the Government Commissioner. The parties and the Government Commissioner must be informed at least fifteen days in advance of the date of the site inspection. The visit to the site shall be conducted in their presence. A report shall be produced on the inspection.” Article R. 13-28 “The judge may not appoint experts. In order to assess the value of non-transferable real property and immovable property which present particular valuation difficulties, he may exceptionally be assisted during the inspection of the site by a notary or retired notary appointed from a list drawn up for the whole area within the court of appeal’s territorial jurisdiction by its president, on the basis of proposals from the regional Chamber of Notaries.", "Exceptionally, he may also appoint a person whom he considers suitably qualified to provide advice in the event of technical problems concerning the assessment of compensation sums other than those referred to in the preceding paragraph.” Article R. 13-30 “The public hearing shall be held on completion of the inspection of the site. At the latest during this inspection, the judge shall inform the parties or their representative, as well as the Government Commissioner, of the place and time of the hearing, which may take place outside the premises in which the court sits.” Article R. 13-31 “The judge shall hear the representative of the expropriating authority and the expropriated parties ... The parties may discuss only points covered in the memorials which they have submitted. ...” Article R. 13-32 “The Government Commissioner shall present oral observations and file submissions. The Government Commissioner’s submissions shall contain the elements needed for the court to be informed of the situation.", "In particular, they shall include a reasoned valuation of the main compensation and, as appropriate, of the subsidiary compensation due to each owner of rights and, where necessary, information that would allow for automatic application of the provisions of Articles L. 13-14 to L. 13-19.” Article R. 13-33 “Where one of the parties is unable to produce certain documents in support of its memorials, the judge may, where he considers this necessary for the resolution of the case, authorise the party, at its request, to produce these documents at the hearing.” Article R. 13-35 “The judge shall rule within the limits of the parties’ submissions as they appear in their memorials and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating party. In such a case, the Government Commissioner’s written submissions must be appended to the case file. If the respondent has not lodged a memorial in reply to the applicant within the period of one month provided for in Article R. 13-23, he shall be deemed to abide by his offers if the respondent is the expropriating authority, and by his reply to the offers if the respondent is the expropriated party. Where the expropriated party has failed to reply to the authority’s offers and to produce a memorial in reply, the judge shall determine the compensation on the basis of the evidence available to him.” Article R. 13-36 “The judgment shall set out, inter alia, the reasons in point of law or of fact for which all awards of main or subsidiary compensation are granted. Where the judgment rejects the Government Commissioner’s submissions proposing a valuation that is lower than that of the expropriating authority, it must specifically state the reasons for such a rejection.", "The judgment may be delivered by the judge without the Government Commissioner being present. The judgment shall be notified by the most diligent party to the other party and to the Government Commissioner.” Article R. 13-47 “Appeals may be lodged by the parties or by the Government Commissioner within fifteen days from notification of the judgment ... ...” Article R. 13-49 “On pain of having his appeal dismissed, an appellant must lodge with or send to the registry of the Chamber, within two months of the date of the appeal, his memorial and the documents which he intends to produce. The respondent must lodge with or send to the registry of the Chamber, within a month following notification of the appellant’s memorial, his memorial in reply and the documents which he intends to produce. The memorials and documents must be produced in as many copies are there are parties, plus one additional copy. The registrar shall serve each party and the Government Commissioner with a copy of the documents filed with the registry as soon as these are received.", "A cross-appeal may be brought by the parties in their memorial in reply or by a declaration made at the registry of the Chamber. If brought by the Government Commissioner, it must take the second form.” Article R. 13-52 “The Division [of Appeal] shall rule on the basis of memorials. However, the parties may present argument briefly on aspects of the memorials they have submitted. Exceptionally, an expert opinion may be prepared on the basis of a reasoned order from the court. In such a case, if the expropriating authority and the expropriated parties cannot agree on the choice of a single expert, he shall be appointed by the President of the Chamber.” Article R. 13-53 “The provisions of Articles R. 13-33, R. 13-35, R. 13-36 (first paragraph) and R. 13-38 shall be applicable to the appeal procedure.” 2.", "Case-law 16. The Government Commissioner has the “role of party to the proceedings” (Conseil d’Etat, Assembly, 13 December 1968, Association syndicale des propriétaires de Champigny-sur-Marne et Musso). 17. Intervention by the State official responsible for property as representative of the expropriating authority, under the Decree of 12 July 1967, and simultaneously as Government Commissioner, in application of Article R. 13-7, paragraphs 1 and 3, of the Expropriations Code, does not constitute a ground for alleging procedural impropriety (Paris Court of Appeal, Expropriations Chamber, judgment of 30 January 1981). In addition, the Court of Cassation has ruled that the fact that the Government Commissioner’s role was assumed by the inspector of property who drew up the preliminary opinion assessing the compensation offers on behalf of the expropriating authority does not contravene Article 6 of the Convention, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process (Third Civil Division, judgment of 21 October 1992, Sté Rivom c. Département de la Côte-d’Or, Bulletin civil (Bull.", "civ.) III, no. 279). 18. Emphasising that no document may be lawfully submitted to the court without the parties having an opportunity to discuss it in adversarial proceedings and that “this rule applies to all the courts, even in the absence of a specific text to this effect”, the Court of Cassation has ruled that, where the Government Commissioner’s submissions propose a valuation lower than that of the expropriating authority or contains new elements, the expropriations judge is obliged to ensure that these have been brought to the attention of the parties and that the latter have an opportunity to discuss them freely before the end of the hearing (Third Civil Division, two judgments of 10 July 1969: Prudhomme c. ville de Rennes and Consorts Josso c. ville de Saint-Nazaire, Bull.", "civ. III, judgments nos. 1 and 3, no. 566, pp. 423-24).", "3. Report of the Court of Cassation for 2000 19. The report in question contained the following suggestion: “FOURTH SUGGESTION: Proposal to amend Articles R. 13-32, R. 13-35, R. 13-47 et seq. of the Expropriations Code as regards the role of the Government Commissioner before the Expropriations Divisions. Under Article R. 13-7 of the Expropriations Code, the Director of Revenue (Property) of the département in which the Expropriations Division is based exercises the functions of Government Commissioner before this Division during proceedings to establish the compensation due to expropriated parties.", "Although no text sets out the exact nature of his role, it is clear from the provisions of the Expropriations Code that the Government Commissioner’s main task is to provide the court, which cannot, in principle, appoint an expert, with the information it requires and in particular with a reasoned assessment of the main and subsidiary compensation due to each owner whose property is subject to expropriation. For this purpose, the Government Commissioner has access to information on tax statements and assessments held by the tax authorities and, in particular, to the land charges register constituted by all property transfers which must be formally registered. However, doubts have been cast on the compatibility of certain aspects of the Government Commissioner’s role with the principles derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, it has been noted that the Government Commissioner may propose a valuation of the expropriated assets that is lower than the valuation suggested by the expropriating authority (Article R. 13-35 of the Expropriations Code); he may lodge an appeal or cross-appeal against the judgment determining the level of compensation (Article R. 13-47 et seq. of the Code), although he may not appeal on points of law, except as regards costs imposed on him for the proceedings; and, where he is not the appellant, the Government Commissioner’s submissions are not served on the parties but simply included in the case file (Article R. 13-32).", "Expropriated parties have also indicated that they have experienced difficulties in obtaining information contained in the land charges register, to which the Government Commissioner has unimpeded access by virtue of his official functions. Finally, it has been observed that, whilst the Government Commissioner is not the State’s representative before the Expropriations Division, there may be, at least in appearance, a certain ambiguity where the State itself is the expropriating authority, particularly when, under Article R. 176 of the Code of State Property, the State is represented before the Expropriations Divisions in a number of départements by the Revenue Department. As long ago as 1992, the Ombudsman included in his annual report a letter, dated 28 January 1992, in which he drew the Minister of Justice’s attention to the Government Commissioner’s role. Whilst it is unnecessary to state that the Commissioner does not participate in the decision-making process within the Expropriations Division, which is by no means obliged to follow his submissions, and although the Court of Cassation ensures that expropriated parties’ rights are respected and the adversarial principle as defined in the new Code of Civil Procedure is effectively complied with, it would nonetheless appear desirable, in order to put an end to possible doubts regarding the conformity of certain aspects of the Government Commissioner’s current role with the requirements of the European Convention and particularly Article 6 § 1, to redefine his functions, limiting them to those of a specialist entrusted with providing the judge and the parties to the compensation proceedings with the information held by the Revenue Department on the state of the property market, so that this situation is improved.” C. The land charges register 20. Decree no.", "55-22 of 4 January 1955 reforming land registration provides, inter alia: Article 1(version as amended by Decree no. 98-516 of 23 June 1998) “For each municipality, a land charges register shall be maintained by the land registrars, in which, as information is submitted, extracts from published documents shall be registered under the name of each owner and by building, with a reference to their classification in the archives. The land charges register shall present an up-to-date profile of the legal status of buildings as indicated by the published documents.” Article 2 “No changes to the legal status of a building may be the subject of a cadastral transfer if the deed or judicial decision recording this change has not previously been published in the land charges register.” 21. Article 39 of Decree no. 55-1350 of 14 October 1955 is worded as follows (version as amended by Decree no.", "98-553 of 3 July 1998): “Any request for information shall be drawn up in two typed or printed copies on a form supplied by the authorities or on one copied in accordance with the conditions established by an instruction published in the Official Journal of the Revenue Department, the second copy being obtained by duplication. Subject to the application of paragraph 1 of Article 40, such requests must include: (1) All items of information provided for in Article 9 of the Decree of 4 January 1955 which are necessary to identify the natural persons or legal entities on whose behalf the information is requested; The individual designation of the buildings referred to in the request, i.e. indications regarding the municipality in question, the section and identification number on the cadastral map and, for parts of buildings, an indication of the lot number. Surnames and non-personal names indicated in the applications must appear in capital letters. First names shall be written in small letters.", "The applications shall be signed and dated by those submitting them.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 22. The applicant alleged that there had been a violation of his right to a fair trial in the context of the proceedings to determine compensation before the expropriations judge and the Expropriations Division; he complained that the principle of equality of arms had been breached as a result of the priviliged position enjoyed by the Government Commissioner, and that there had been a breach of the adversarial principle. He 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. The parties’ submissions 1.", "The applicant 23. The applicant submitted that the Government Commissoner was a full party to the case before the expropriations judge and Expropriations Division and that he enjoyed excessive rights in comparison with the other parties which placed him, in fact and in law, in a “dominant position”. Thus, the Government Commissioner was the only party not to be obliged to serve notice of its pleadings, the filing of submissions with the court registry being sufficient. Furthermore, although the provision forbidding the expropriated party from speaking after the Commissioner had now been removed, the order for the presentation of argument had not been amended; experience showed that the expropriated party’s hypothetical right of reply was rarely exercised, since the hearing ended after the Commissioner’s oral submissions. In addition, it followed from Article R. 13-52 of the Expropriations Code that the parties could expand on the arguments in their memorials only briefly before the court of appeal.", "24. The applicant added that the role of Government Commissioner was assumed by the Director of Revenue (Property) for the département. But during the non-judicial phase of the procedure this civil servant prepared estimates of the expropriated assets, which then became the expropriating authority’s offer of compensation to the expropriated party (in principle, the expropriating authority could not deviate from this estimate). During the judicial phase of the procedure he enjoyed a considerable advantage over expropriated parties with regard to knowledge of the property market, since he had access to the Land Register, which could not be freely consulted by individuals. As to the Government Commissioner’s “dominant position” before the expropriations judge and Expropriations Division, this arose from the following circumstances: under Article R. 13-36 of the Expropriations Code, the judge was obliged to provide specific explanations for rejecting submissions proposing a lower valuation than that of the expropriating authority; the Government Commissioner was a sort of expert who was not impartial, and against whom, under Article R. 13-28 of the Expropriations Code, no second expert opinion could be submitted; in addition, he was the last to speak at hearings, and expropriated parties had only a limited opportunity to reply.", "25. The applicant claimed that this imbalance was exacerbated in those départements where the expropriating party was represented before the courts by an official from the same government department as that to which the Government Commissioner belonged, since the expropriated party then faced a single party – the State – which was represented twice. In the present case, the situation was alleged to have been almost farcical, since the same official had intervened as representative of the expropriating authority and as the Government Commissioner. The applicant submitted that the State had been represented by an inspector from the Charente-Maritime Revenue Department, and that the role of Government Commissioner had been filled by the Deputy Director of the Revenue Department in the same département, who was the inspector’s hierarchical superior, so that there was in this case an actual overlapping of roles. Thus, when the applicant applied for production of the documents cited in the memorial submitted to the Court of Appeal by the representative of the expropriating authority (in order to justify the price offered, this memorial contained a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment), he received a reply, not from the inspector handling the case, but from the Deputy Director of the Revenue Department, the Government Commissioner, to the effect that professional confidentiality meant that the documents could not be sent to him.", "Subsequently, before the Court of Appeal, the Deputy Director of the Charente-Maritime Revenue Department had used subterfuge to give himself the appearance of neutrality: reassuming his role as Government Commissioner, he had arranged to be replaced by the Director of the Vienne Revenue Department, then had himself appointed by this person. Thus, before the Court of Appeal, the expropriating authority was represented by an inspector from the Charente-Maritime Revenue Department and the role of Government Commissioner was assumed by the Director of the Vienne Revenue Department, although these two officials were in reality members of the same administrative entity at département level, and the second was furthermore the first official’s hierarchical superior. Finally, the refusal of the applicant’s request for production of the documents cited in the expropriating authority’s memorial to the Court of Appeal was in itself a violation of Article 6 § 1 of the Convention. 2. The Government 26.", "The Government emphasised that the Government Commissioner was primarily entrusted with the task of “expert analysis”, consisting in providing information to the judge on the value of the expropriated assets. For this reason, the Commissioner’s functions were assigned to the Director of Revenue of the département in which the court concerned was based: his responsibilities in the administrative, tax and property fields meant that the Director was familiar with property valuation and assessment techniques. From this perspective, the Commissioner was neither a claimant nor a respondent before the court which determined compensation. In addition, the Government Commissioner was responsible for guaranteeing the correct use of public funds and, on that basis, for ensuring in particular that compensation awards did not exceed the real value of expropriated assets. Although he did not have the status of a main party, he was thus a “party” to the proceedings and could, in this capacity, appeal against the expropriations judge’s decision where the sums granted by the latter were not, in his opinion, in the interest of the public purse.", "The Government added that the Government Commissioner did not represent the expropriating authority and had no decision-making power in establishing compensation, this decision being one that came under the courts’ sovereign authority. His intervention was limited to the public hearings before these courts. He was external not only to preparation of the judgment – the fact that he did not participate in the deliberations was evidence of this – but also to the court itself, as his role was not that of State Counsel. 27. In the Government’s view, the fact that, as in the instant case, the Government Commissioner occasionally belonged to the same administrative entity as the representative of the expropriating authority was not a decisive factor.", "In this respect, the Government noted that the expropriating authority was represented by a member of the Revenue Department in only forty-five départements (including Charente-Maritime); however, Article R. 179 of the Code of State Property provided that officials appointed in this capacity could not simultaneously exercise the function of Government Commissioner. Thus, in the instant case, the Commissioner’s functions had been exercised before the Court of Appeal by the Deputy Director of Revenue for Charente-Maritime, who was standing in for the Vienne Director of Revenue; the State had been represented in the contentious proceedings by another official from the Charente-Maritime Revenue Department. Accordingly, the roles of Government Commissioner and representative of the expropriating authority had not been held simultaneously by one and the same person. In itself, the fact that these two officials belonged to the same administrative entity was not evidence of any imbalance, for two reasons: the Commissioner was not representing the expropriating local authority in the proceedings and, consequently, was not defending the same interests as those with which the State’s representative was entrusted; and Article 6 § 1 did not prevent a main party and an associated party from defending a common cause once adversarial proceedings had begun. 28.", "The Government added that the Government Commissioner’s submissions, both written and oral, were subject to adversarial argument. For example, precedent obliged the Commissioner to table his submissions with the Expropriations Division’s registry at a sufficiently early stage to enable the parties to take cognisance of them prior to the hearing, failing which they would be declared inadmissible. Thus, the parties had an opportunity to discover the Government Commissioner’s opinion and, if necessary, to request an adjournment if a new ground was put forward. In addition, Articles R. 13-31 and R. 13-52 of the Expropriations Code provided that the parties and the Commissioner could develop at the hearing only those arguments set out in their memorials; consequently, the substance of the Government Commissioner’s submissions at the hearing could not differ from the written arguments filed with the registry. Furthermore, contrary to the applicant’s submission, the parties always had an opportunity to discuss the Government Commissioner’s oral submissions by addressing the court after he had spoken.", "Article 37 of Decree no. 66-776 of 11 October 1966, adopted in application of Law no. 62-848 of 26 July 1962 (re-establishing the institution of Government Commissioner) which excluded this possibility, had been annulled by the Conseil d’Etat. The parties also had the option of replying to these submissions through a memorandum for the deliberations. In the instant case, the applicant had been informed of the Government Commissioner’s submissions to the Court of Appeal, which were filed with the registry on 4 September 1995 and 9 May 1996; indeed, he had replied to them in his last memorial, dated 22 May 1996; he could not therefore claim that on the day of the hearing he had been unaware of the substance of the Government Commissioner’s oral submissions, and had not disputed the fact that they were identical in substance to the written submissions filed with the registry of the court.", "Equally, the applicant had had an opportunity to reply orally to the Government Commissioner’s submissions at the hearing, and had not made use of it. B. The Court’s assessment 1. Compliance with the principle of equality of arms 29. The applicant complained firstly that the principle of equality of arms between the parties had been breached in the proceedings to establish compensation for expropriation as a result of the privileged position enjoyed by the Government Commissioner.", "30. The Court notes that the Government Commissioner takes part in all proceedings to establish compensation before those courts dealing with expropriation cases. He is not a member of these courts and does not participate in the courts’ deliberations. Furthermore, he is distinct from State Counsel (Articles R. 13-8 and R. 13-9 of the Expropriations Code) and from the expropriating authority (he does not represent the latter and files separate submissions). However, the Government Commissioner does participate fully in proceedings before these courts to determine compensation: like the expropriated party and the expropriating authority, he takes part in the on-site visit (Article R. 13-27 of the Expropriations Code), he “present[s] oral observations and file[s] submissions”, and he expresses a view on the assessment of the compensation for expropriation (Article R. 13-32 of the Expropriations Code); he is notified of the judgment at first instance (Article R. 13-36 of the Expropriations Code) and may appeal against it (Articles R. 13-47 and R. 13-49 of the Expropriations Code).", "The Court concludes from this that the Government Commissioner is a “party” to the proceedings for determining compensation, a status which the Conseil d’Etat acknowledges (see paragraph 16 above) and which, moreover, the Government do not deny. Consequently, the arrangements governing his participation in the proceedings are capable of raising an issue in terms of the principle of equality of arms. 31. The Court points out that this principle is one element of the broader concept of fair trial, within the meaning of Article 6 § 1 of the Convention. It 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, among other authorities, the following judgments: Ankerl v. Switzerland, 23 October 1996, Reports of Judgments and Decisions 1996-V, pp.", "1567-68, § 38; Nideröst-Huber v. Switzerland, 18 February 1997, Reports 1997-I, pp. 107-08, § 23; and Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI). 32. The Court observes that the Government Commissioner’s role is essentially to guarantee the appropriate use of public money and, on that basis, to ensure in particular that the compensation awarded for dispossession does not exceed the real value of the expropriated assets.", "Accordingly, he defends interests similar to those defended by the expropriating authority, tending towards moderation of compensation assessments. In addition, as in the instant case, he sometimes belongs to the same administrative entity, and even the same entity at département level, as the expropriating authority’s representative. The Government Commissioner’s role is entrusted to the Director of Revenue (Property) of the département in which the Expropriations Division is based or delegated to another official from this administrative authority (Article 13-7 of the Expropriations Code). For its part, the State as expropriating authority is represented in certain départements – including Charente-Maritime – by officials from the same territorial Revenue Department (Property) (Articles R. 178 and R. 179 of the Code of State Property). Accordingly, a situation may arise, as it would appear to have done in the instant case, where the Government Commissioner is the hierarchical superior of the representative of the State as expropriating authority and a certain overlapping between these parties emerges.", "Whether regarded as a sharing out of representation of the community’s interests in the compensation proceedings or as a strengthening of one party’s position through the intervention of another, these circumstances undoubtedly weaken the expropriated party’s position. However, they are not in themselves sufficient to constitute a breach of the principle of equality of arms. This type of situation occurs frequently before the courts in the Council of Europe’s member States: either one party faces several main parties which are defending similar or concomitant interests, or the main opposing party and an associated party defend the same argument. In other words, the fact that a similar point of view is defended before a court by several parties does not necessarily place the opposing party in a position of “substantial disadvantage” when presenting his case. 33.", "It remains to be ascertained whether, in the instant case, in view of the arrangements for the Government Commissioner’s participation in the proceedings, the “fair balance” that ought to prevail between the parties was respected. 34. In the course of the proceedings each of the parties presented their valuations of the expropriated asset; this was the core of the trial, and the valuation depended on the state of the property market. For this purpose, they were obliged to submit to the court terms of comparison drawn from genuine property transfers; from the evidence submitted by the parties the court selected those examples which it considered to be most representative of the property market. As noted above, the Government Commissioner’s tasks are entrusted to the Director of Revenue (Property) of the département in which the Expropriations Division is based or delegated to another official from this administrative authority.", "In that basis, he, like the expropriating authority, has access to the land charges register, which lists all property transfers. Expropriated parties have only limited access to this register, which is not open for free consultation by individuals: they may receive information and extracts subject to the condition of strictly limiting the references searched for (Article 39 of Decree no. 55-1350 of 14 October 1955). Thus, even at this stage, the expropriated party is at a disadvantage vis-à-vis his opponents. 35.", "Furthermore, at first instance, no text requires the Government Commissioner, unlike the other parties (Articles R. 13-22 and R. 13-23 of the Expropriations Code), to give notice of his pleadings; it is enough if he files them with the registry, and he is not even obliged to inform the other parties that this has been done. In addition, he is the last to speak, both at first instance and on appeal (Articles R. 13-31 and R. 13-32 of the Expropriations Code). 36. Finally and above all, both at first instance and on appeal (Article R. 15-53 of the Expropriations Code), the Government Commissioner’s submissions assume particular significance where they tend towards a lower valuation than that proposed by the expropriating authority. It follows from Article R. 13-35 of the Expropriations Code that “the judge rules within the limits of the parties’ submissions ... and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating authority”; Article R. 13-36 of the same Code adds that, in such a situation, “where the judgment rejects the Government Commissioner’s submissions ..., it must specifically state the reasons for such a rejection”.", "The Court understands the spirit of this rule and the logic on which it is based: the duties of Government Commissioner are entrusted to the Director of Revenue (Property), who, by virtue of his powers in the administrative, tax and property fields, is well versed in the techniques of property valuation and expert analysis, and has access to the most relevant information in this field; thus, he appears to be the party best placed to advise the court on the value of the expropriated assets, and addresses it in what might be described as a task of “expert analysis”. Nevertheless, this rule has the effect of binding the judge to a considerable extent; the judge does not necessarily have the same experience in property valuation as the Director of the Revenue Department, may not appoint another expert at first instance (Article R. 13-28 of the Expropriations Code) and may ask for another expert opinion on appeal only “[e]xceptionally ... on the basis of a reasoned order” (Article R. 13-52 of the Expropriations Code). Admittedly, the expropriated party has the option of producing his own expert opinion at his own expense, but the court is not obliged to take it into account in the same way as the Government Commissioner’s submissions. It should be added that this rule necessarily works against the expropriated party, since the court is not obliged to provide any particular explanation when rejecting the Government Commissioner’s submissions where these contain a valuation that is higher than that proposed by the expropriating authority. 37.", "In sum, the expropriated party in compensation proceedings is faced not only by the expropriating authority but also by the Government Commissioner; the Government Commissioner and the expropriating authority (which, in certain cases, is represented by an official from the same administrative entity as the Government Commissioner) enjoy significant advantages as regards access to relevant information; in addition, the Government Commissioner, who is simultaneously both an expert and a party to the proceedings, occupies a dominant position in the proceedings and wields considerable influence with regard to the court’s assessment (see, mutatis mutandis, Bönisch v. Austria, judgment of 6 May 1985, Series A no. 92). In the Court’s opinion, all this creates an imbalance detrimental to the expropriated party that is incompatible with the principle of equality of arms. Consequently, it concludes that in this case there has been a breach of this principle and a violation of Article 6 § 1 of the Convention. 2.", "Compliance with the adversarial principle 38. The applicant complained firstly that, in the context of the proceedings before the Court of Appeal, the Revenue Department of Charente-Maritime refused to produce the documents listed in the “study of the local property market” appended to its memorial of 13 April 1995. The Court points out that the concept of fair trial implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see Lobo Machado v. Portugal and Vermeulen v. Belgium, judgments of 20 February 1996, Reports 1996-I, pp. 206-07, § 31, and p. 234, § 33, respectively, and Nideröst-Huber and Kress, both cited above, p. 108, § 24, and § 74 respectively). In its opinion, the adversarial principle, thus defined, does not require that each party in “civil” cases must transmit to its opponent documents which, as in the instant case, have not been presented to the court either.", "39. The applicant further submitted that no text obliged the Government Commissioner, at first instance, to provide copies of his written submissions to the parties or file them with the registry at an early enough date to enable the parties to inspect them and to prepare a reply; there was not even an obligation to inform the parties that submissions had been filed. The Court considers this shortcoming incompatible with the adversarial principle, even if the case-law (see paragraph 18 above) and practice have remedied it somewhat. However, in the present case, it must be recognised that although no legal provision imposed such a procedure the applicant was sent the submissions on the day before the scheduled hearing and subsequently applied successfully for an adjournment, thus enabling him to prepare a reply in satisfactory conditions. Accordingly, he cannot complain of a breach of the adversarial principle in this respect.", "40. Finally, the applicant complains that, at hearings before the Expropriations Divisions, the Government Commissioner is the last to speak. As just noted, the applicant had been sent the Government Commissioner’s written submissions before the hearing, both at first instance and on appeal, in circumstances which enabled him to prepare a written reply. In addition, he was able to submit a memorandum for the deliberations, as indeed he did before the Court of Appeal. The Court concludes from this that the applicant had an opportunity to reply to the Government Commissioner in satisfactory conditions (see, for example, mutatis mutandis, Kress, cited above, § 76), so that the adversarial principle was not breached in this respect either.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The applicant sought 490,395.40 euros (EUR) in respect of pecuniary damage, which corresponded to the difference between the compensation for expropriation that, in his opinion, he should have received (EUR 714,932.52) and the sum which he had been awarded by the Expropriations Divisions (EUR 224,537.12).", "He also requested the payment of EUR 30,489.80 for non-pecuniary damage. 43. According to the Government, in the absence of a causal link between any violation of the Convention which the Court might find and the alleged pecuniary damage, the applicant’s claims should be rejected. As to non-pecuniary damage, they considered that it would be sufficiently compensated by the finding of a violation. 44.", "The Court cannot speculate as to what the outcome of the proceedings complained of would have been had the violation of Article 6 § 1 of the Convention not occurred (see, for example, Mantovanelli v. France, judgment of 18 March 1997, Reports 1997-II, p. 438, § 40); accordingly, the applicant’s claims regarding alleged pecuniary damage must be dismissed. As to the non-pecuniary damage, the Court considers it sufficiently compensated by the finding of a breach. B. Costs and expenses 45. The applicant sought reimbursement of the costs of representation before the Expropriations Division of the Poitiers Court of Appeal, namely 29,650 French francs (EUR 4,520.11), which included value-added tax (VAT); he produced a bill of costs dated 1 March 1995.", "The applicant also sought reimbursement of costs and expenses incurred in the proceedings before the Court, namely EUR 13,973.86, including VAT; he produced two statements of fees and costs, dated 25 November and 5 December 2002. 46. According to the Government, there was no need to reimburse the costs incurred by the applicant before the national courts, as these had not been incurred in seeking to prevent or redress the violation. Only those costs and expenses incurred before the Court would be eligible for reimbursement, provided that the relevant vouchers were produced. 47.", "The Court points out that, where it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention or redress of the violation (see Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). The Court points out, firstly, that the applicant provided relevant documents in support of his claims. It considers, furthermore, particularly in view of the complexity of the issues raised and the diligence of the applicant’s counsel, that the sums sought in respect of the costs and expenses incurred in the proceedings before it are not excessive; it therefore allows this part of the applicant’s claims in full. Finally, it notes that the applicant specifically raised an argument before the Expropriations Division of the Poitiers Court of Appeal based on an infringement of his right to a fair trial stemming from the procedures governing the Government Commissioner’s intervention; it is therefore appropriate to consider that a part of the costs incurred before that court were intended to “prevent or redress” the violation found. The Court considers it reasonable to award the applicant EUR 2,000 in this respect, VAT included.", "In conclusion, the Court awards the applicant EUR 15,973.86, VAT included, for costs and expenses. C. Default interest 48. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 3. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 15,973.86 (fifteen thousand nine hundred and seventy-three euros eighty-six cents) in respect of costs and expenses, inclusive of value-added tax; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 24 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]

[ "SECOND SECTION CASE OF SZERDAHELYI v. HUNGARY (Application no. 30385/07) JUDGMENT STRASBOURG 17 January 2012 FINAL 17/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Szerdahelyi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30385/07) 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, Dr Szabolcs Szerdahelyi (“the applicant”), on 4 June 2007. 2. The applicant was represented by Dr M. Róth, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3.", "The applicant complained about the frustration of his right to peaceful assembly. 4. On 13 July 2009 the applicant died. The Registry was notified of this only on 23 August 2011, when Mr Szabolcs Szerdahelyi, the applicant’s son and only heir, stated his intention to replace his father in the proceedings before the Court. 5.", "Meanwhile, on 9 February 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). 6. On 5 November 2011 the applicant’s lawyer submitted that Mr Szerdahelyi had joined the pending domestic proceedings (see paragraph 12 below). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lived in Budapest. A. Proceedings initiated by the applicant 8. On 24 November 2006 the applicant announced, as required by the Assembly Act 1989, to the Budapest Police Department his intention to organise a demonstration on 9 December 2006 on Kossuth Square in Budapest, in front of Parliament.", "9. On 26 November 2006 the Budapest Police Department refused to deal with the application. It observed that on 23 October 2006 the area in question had been declared, by the Police Department itself and for an indefinite period of time, a “security operational zone” (biztonsági műveleti terület), in view of the tumultuous events in Budapest in September 2006. It was as such outside the Police Department’s jurisdiction as regards the prohibition of, or acquiescence in, a demonstration. On 6 December 2006 the Budapest Regional Court dismissed the applicant’s request for judicial review, observing in essence that no decision on the merits of the case had ever been adopted by the administrative authorities – which excluded such a review.", "10. On 11 December 2006 the Deputy Head of the National Police Department dismissed the applicant’s further complaint. On 19 December 2006 the applicant filed an action with the Budapest Regional Court, challenging the decisions of both 23 October and 11 December 2006. 11. On 11 January 2007 the Head of Budapest Police dismissed the applicant’s renewed complaint.", "On 12 February 2007 the Deputy Head of the National Police Department partly reversed this decision and instructed the Budapest Police Department to substitute the indefinite measure in question with one of definite duration. On 5 March 2007 the Regional Court dismissed the applicant’s ensuing action, essentially endorsing the police authorities’ earlier reasoning. It pointed out that the proceedings only concerned the police’s decision on non-competence and did not constitute review of the police’s original decision declaring Kossuth Square a “security operational zone”. 12. Upon a further complaint, on 18 March 2008 the Regional Court quashed the decisions of 11 January and 12 February 2007 and remitted the case to the National Police Department.", "In reaction to the applicant’s petition for review, on 29 April 2009 the Supreme Court quashed the decision of 18 March 2008 and remitted the case to the Regional Court. The latter’s procedure was then interrupted on 1 October 2009 on account of the applicant’s death. The applicant’s son and heir joined the proceedings as successor on 25 August 2011. 13. The Government submitted that the subject matter of the litigation pending before the Regional Court was the police’s original decision declaring Kossuth Square a “security operational zone”.", "B. Proceedings initiated by Mr K. 14. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint.", "On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court. 15. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007.", "16. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review. 17. On 11 November 2010 the Regional Court quashed, in judgment no.", "27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances. 18. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged.", "THE LAW I. THE VICTIM STATUS OF THE APPLICANT’S SUCCESSOR 19. On 23 August 2011 the applicant’s lawyer submitted that the applicant had died on 13 July 2009 and that his son and heir wished to take his place in the proceedings before the Court. 20. The Government submitted that the application should be struck out of the list of cases pursuant to Article 37 § 1 (c), since the applicant’s son had shown no interest in continuing the domestic proceedings pending before the Regional Court.", "21. The Court notes the submission of 5 November 2011 of the applicant’s lawyer, according to which the applicant’s son had joined the pending domestic proceedings on 25 August 2011. In these circumstances, the Court is satisfied that Mr Szerdahelyi has not lost interest in pursuing the case, either at the domestic level or before it. 22. The Court consequently considers that the applicant’s successor has the requisite locus standi under Article 34 of the Convention in respect of the applicant’s complaint.", "II. THE GOVERNMENT’S PRELIMINARY OBJECTION 23. The Government submitted that the applicant’s motion challenging in court the original police decision declaring Kossuth Square an “operational zone” was still pending which made the application premature (see paragraph 13 above and also paragraph 27 below). The applicant argued that he had exhausted domestic remedies by challenging both the original decision and the police’s non-competence ruling. 24.", "The Court considers that the Government’s objection concerning non-exhaustion of domestic remedies is inextricably linked to examination of the question whether there has been an interference with the applicant’s right to freedom of assembly under Article 11, and therefore to the merits of the case. Accordingly, the Court joins this question to the merits and will examine it under Article 11 of the Convention. 25. The Court 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. III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 26. The applicant complained that the police measure in question had prevented him from exercising his right to peaceful assembly. He relied on Articles 11 and 13 of the Convention.", "The Court considers that the complaint falls to be examined under Article 11 of the Convention alone, which reads as follows: “1. Everyone has the right to freedom of peaceful assembly ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...” 27. The Government contested this view.", "They noted that, in the applicant’s view, it was the police decision on non-competence that violated his right to freedom of assembly. However, the interference in fact resulted from the original police measure declaring the area in question a “security operational zone”. Against such a measure, a distinct complaint might be filed with the police body in charge, and the latter’s decision could be appealed before the superior organ. The resulting administrative ruling was susceptible to judicial review, an effective remedy in the circumstances. However, the applicant’s case pursuing this legal avenue was still pending.", "In respect of the area closure, successful proceedings, including judicial review, had already take place (case no. 27.K.31.354/2010/9. ); and the applicant should have completed his own similar case, failing which he had not exhausted domestic remedies. 28. As to the merits, the Government pointed out that the venue of the intended assembly had not qualified at the material time as public area accessible to everyone and therefore the right to freedom of assembly could not be exercised on it.", "29. The applicant argued that, to exhaust domestic remedies, he could reasonably be expected to challenge the police’s non-competence decision in court, which he had done. The other case, which was still pending, represented no effective remedy to exhaust, since by the time it would be adjudicated, the demonstration becomes obsolete. The non-availability of Kossuth Square for the purposes of the intended demonstration had been an unlawful and disproportionate measure. 30.", "The Court observes that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11. It considers that the non-acquiescence by the police in the demonstration effectively interfered with the exercise of the applicant’s rights under that provision, as the individualised application of the original police decision referred to by the Government (see paragraph 27 above). It is further satisfied that the applicant exhausted the remedy available in this connection. 31. The Government can moreover be understood to base their preliminary objection of non-exhaustion of domestic remedies on the fact that the applicant did not complete the procedure challenging the original police decision, but been contented with challenging the one on non-competence.", "However, the Court is not convinced that the proceedings which were pursued by Mr K. but not accomplished by the applicant can be considered in the circumstances an effective remedy whose omission falls foul of Article 35 § 1 of the Convention. Given the instantaneous nature of a political demonstration – the impact of which may rapidly diminish with the lapse of time from the triggering event – a judicial procedure, which in Mr K.’s instance included several remittals and decisions maintaining the ban and which produced at last a decision to the contrary only after more than four years, can hardly be regarded as effective or adequate and must be attributed a chilling effect on the freedom in question (see, a fortiori, Bączkowski and Others v. Poland, no. 1543/06, §§ 67 to 73, 3 May 2007). For the Court, the applicant’s omission to exhaust this legal avenue in addition to the one fully utilised cannot be held against him, all the more so, since there appears to be no obstacle to the authorities’ assessing proportionality also in those proceedings, of which the applicant has already availed himself. The Government’s preliminary objection must therefore fail.", "32. The Government contended that the interference was justified under the second paragraph of Article 11. It must therefore be determined whether the measure complained of was “prescribed by law”, prompted by one or more of the legitimate aims set out in paragraph 2, and was “necessary in a democratic society” to achieve them. 33. As regards the question whether the non-availability of Kossuth Square for the purposes of the intended demonstration was “prescribed by law”, the Court notes that the police declared it a “security operational zone” in 2006, and it remained so throughout the material period.", "However, on 11 November 2010 the Budapest Regional Court quashed the underlying police decisions, reproaching those authorities for failing to assess the necessity and proportionality of the measure as maintained subsequent to 22 November 2006. Consequently, on 4 April 2011 the Budapest Commander carried out the requisite scrutiny and found that the proportionality of the measure had not been proved (see paragraphs 17-18 above). For the Court, these court rulings have effectively, if retroactively, removed the legal basis of the impugned measure. 34. It is true that the above two decisions were adopted in a procedure initiated by Mr K. rather than the applicant.", "For the Court, however, this is immaterial when it comes to the notion of lawfulness in the context of Article 11 § 2. 35. The foregoing considerations are sufficient to enable the Court to conclude that the ban on Kossuth Square at the material time was devoid of a basis in domestic law and cannot as such be regarded as “prescribed by law”. It is therefore not necessary to embark on an examination of its legitimate aim or necessity in a democratic society. There has accordingly been a violation of Article 11 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage.", "38. The Government contested this claim. 39. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 2,400. B.", "Costs and expenses 40. The applicant also claimed EUR 1,100 for the costs and expenses incurred before the Court. This amount corresponds to 11 hours of legal work billable by his lawyer at an hourly rate of EUR 100. 41. The Government contested this claim.", "42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed. C. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT 1. Decides by a majority that the applicant’s son has locus standi in the proceedings; 2. Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies and dismisses it by a majority; 3. Declares the application admissible by a majority; 4. Holds by 6 votes to 1 that there has been a violation of Article 11 of the Convention; 5.", "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 Hungarian forints 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 1,100 (one thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of the Court, the separate opinion of Judge Jočienė is annexed to this judgment. F.T.", "S.H.N. DISSENTING OPINION OF JUDGE JOČIENĖ I voted in this case against the Chamber’s position that the applicant’s son should be recognised as having locus standi in the proceedings before the European Court of Human Rights, and subsequently, against the finding of a violation of Article 11. According to the jurisprudence of the Court, in cases where the direct victim died before or after the application was submitted to the Court, different criteria apply in order to recognise locus standi, which will then also depend on the nature of the Convention right at issue. The Chamber in the present case relied on the fact that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11 of the Convention (see paragraph 30 of the judgment) and that the applicant’s son had been allowed to join the pending domestic proceedings (see paragraph 21 of the judgment), which have not yet finished. For me, such an argument is not in itself sufficient to allow the next-of-kin or heir of the deceased applicant to continue the proceedings in the European Court of Human Rights, even though I accept that participation in the domestic proceedings is an important factor when resolving the locus standi issue before the Court (see, for example, Nölkenbockhoff v. Germany, 25 August 1987, Series A no.", "123; and Micallef v. Malta [GC], no. 17056/06, 5 October 2009, § 49). Furthermore, according to the Court’s case-law, in a number of cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see Karner v. Austria, no. 40016/98, 24 July 2003, §§ 22-23, and all the case-law cited therein); on the other hand, it has been the Court’s practice to strike applications out of its list where no heir or close relative has expressed the wish to pursue an application (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII).", "In the case before us, the applicant’s son clearly expressed his wish to continue the application, lodged by his father, before the European Court of Human Rights. But such background, whether this element is taken alone or even together with the fact of permission to participate in the domestic proceedings, is not in itself sufficient for locus standi to be granted in every case. Where the applicant has died during the proceedings before the Court (introduced by himself/herself) the next-of-kin or heir may continue with the application if he or she has sufficient interest in that case (as, for instance, the widow and children in Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281‑A; and the nephew and potential heir in Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000‑XII).", "The Court stated in the case of Jėčius v. Lithuania (no. 34578/97, § 41, ECHR 2000‑IX) as follows: “The Court reiterates that, where an applicant dies during the examination of a case concerning the unlawfulness of his detention, his heirs or next of kin may in principle pursue the application on his behalf (see, among other authorities, Krempovskij v. Lithuania (dec.), no. 37193/97, 20 April 1999, unreported). The Court considers, like the Commission, that the applicant’s widow has a legitimate interest in pursuing the application in his stead.” (emphasis added) Therefore, the Court’s practice shows that in cases where the direct victim has died after the application was lodged with the Court, the next-of-kin or heir can pursue the application before the Court when he or she has a legitimate or sufficient interest in continuing the proceedings before it (see also, for example, Léger v. France (striking out) [GC], no. 19324/02, § 50, 30 March 2009, as regards the applicant’s niece).", "In cases where the direct victim died before the application was lodged with the Court, the Court applies stronger criteria for establishing locus standi. For example, in the case of Fairfield v. the United Kingdom ((dec.), no. 24790/04, ECHR 2005‑VI), where a daughter filed a complaint two years after her father’s death, claiming a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention), even though the domestic courts had granted her leave to pursue the appeal after her father’s death, the Court did not accept the daughter’s victim status. In the Hungarian case before us, I cannot see any legitimate or sufficient interest of the applicant’s son in continuing the application before the Court under Article 11 of the Convention. According to the practice of the Court, the Convention does not allow an actio popularis.", "Under Article 34 of the Convention, the applicant as a victim (either direct or indirect) must bring prima facie evidence of being directly affected by the impugned measure (see, mutatis mutandis, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008). In the present case, I cannot see how the deceased applicant’s son could be affected by the alleged violation of Article 11 of the Convention, taking into account the nature of this Article, in so far as the deceased applicant had not received any answer from the police as regards his requested permission to hold a demonstration back in 2006 on Kossuth Square in Budapest, in front of the Parliament. In my opinion, in this particular case there is no legitimate or sufficient interest of the applicant’s son in defending his late father’s rights of association under Article 11 of the Convention. I agree with the jurisprudence of the Court that in cases brought under Article 2 or 3, which protect the fundamental values of every democratic society, the Court can more easily justify the continuation of proceedings before it after the death of the direct victim, taking into account the “particular situation governed by the nature of the violation alleged ...” (see, among other authorities, Varnava and Others v. Turkey [GC], nos.", "16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 200, 18 September 2009; see also Khadzhialiyev and Others v. Russia, no. 3013/04, § 114, 6 November 2008, as regards Article 3 claims). I would also note, however, that the Court’s approach in ordinary Article 5 cases as regards locus standi has been much more restrictive (see, for example, Biç and Others v. Turkey (no. 55955/00, 2 February 2006, § 24), where the wife and children of the deceased victim were not granted the requisite standing, as they were not directly affected by the length of the detention on remand or the alleged unfairness of criminal proceedings brought against the deceased; contrast Jėčius, cited above). The Court reiterated in the Biç and Others case that the rights in Article 5 belonged to the category of non-transferable rights (see Sanles Sanles v. Spain (dec.), no.", "48335/99, ECHR 2000‑XI). Similar decisions had been given in the past by the Convention organs (see, for example, Georgia Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005; and Nölkenbockhoff and Bergmann v. the Federal Republic of Germany, no. 10300/89, Commission decision of 12 December 1984, DR 40, p. 9). By contrast, Article 5 § 5 of the Convention (the right to compensation for unlawful detention) is a pecuniary right and a transferrable one (see Houtman and Meeus v. Belgium, no.", "22945/07, §§ 27-31, 17 March 2009). In Article 6 cases, in addition to participation in the domestic proceedings, the Court has also taken account of other alternative criteria in order to recognise the standing of relatives before it: the transferability of the right, the legitimate interest and the direct effect on patrimonial rights (see, for example, the above-mentioned case of Sanles Sanles, where the Court considered that the rights claimed under Articles 2, 3, 5, 8, 9 and 14 belonged to the category of non-transferable rights, declaring this part of the application incompatible ratione personae). In the Karner case (cited above, §§ 25-26) the Court analysed whether the Convention right at issue (in its nature) could be regarded as “transferable”. The Court stated as follows: “... 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 ..., 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 ...” This means that in cases where the Court is obliged to resolve the locus standi aspect, it must take into account such factors as: the clearly expressed wish by the next-of-kin or heirs to continue the application before the court, their participation in the domestic proceedings, a legitimate and/or sufficient personal interest in pursuing the individual application in the deceased applicant’s stead, the Convention right at issue (its nature) and its transferability; and, lastly, it must answer the question whether there are any common or public interests in terms of human rights protection or some moral dimension requiring it to continue the examination of the case.", "The Court has also applied a more flexible approach when recognising locus standi in cases where the complaint was related to the reputation of the deceased person under Article 8, thus also potentially affecting the reputation of the family (see, for example, Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008). I would emphasise that the Court has always declared inadmissible applications from relatives raising complaints under Articles 9, 10 and 11, in relation to proceedings and facts concerning the deceased victim. In doing so, it has distinguished this type of complaints from those brought under Article 2 concerning the death of a relative (see, for Articles 9 and 10, Fairfield, cited above; as regards Article 11, see Direkçi and Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006, where the Court observed that there was no general interest in the case for the proceedings under Articles 6 and 11 to be continued, as those Articles did not fall within the fundamental provisions of the Convention).", "As regards the exception based on the general interest, the Court noted in Karner (cited above) that, even in the absence of heirs wishing to continue the application, it could continue the examination of a case relying on an important question of public interest. Therefore, taking into account the Court’s case-law on the locus standi issue, I cannot see in this particular case that the applicant’s son has any legitimate or sufficient personal interest in pursuing the application under Article 11 of the Convention. Furthermore, Article 11 rights cannot be regarded as “transferable rights” under the Court’s jurisprudence. Furthermore, no general or moral interests in protecting human rights can be found in this case. Thus, the continued examination of the present application would not contribute to elucidating, safeguarding or developing the standards of protection of Article 11 rights under the Convention (contrast Karner, cited above).", "In my opinion there must be some strong sufficient and/or justified personal interest of the heir in continuing the proceeding before the Court after the applicant’s death and that interest must depend on a reasonable relationship between the original actions undertaken by the applicant and his or her heir’s wish to continue the proceedings. Such a relationship cannot be established with regard to the nature of Article 11 rights, which are not transferable. Logically, the question arises how the son in this particular case could have known what the applicant had wanted to express during the planned demonstration in 2006, permission for which he had never received from the police (in the Court’s case-law, Articles 10 and 11 are very much interrelated, see Women On Waves and Others v. Portugal, no. 31276/05, § 28, 3 February 2009). For me, the requested continuation of the case before the Court was based more on the pecuniary interests of the heir, but not on a legitimate interest in protecting the deceased applicant’s rights of association under Article 11.", "For this reason I also voted against granting any just satisfaction in the case under Article 41 of the Convention. In my opinion, the heir (the applicant’s son) has no locus standi before the Court in the present case; therefore the case should have been struck out of the list of cases under Article 37 § 1 in fine of the Convention." ]

[ "FOURTH SECTION CASE OF SCIACCA v. ITALY (Application no. 50774/99) JUDGMENT STRASBOURG 11 January 2005 In the case of Sciacca v. Italy, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrV. Zagrebelsky,MrL.", "Garlicki,MrJ. Borrego Borrego,MrsL. Mijović, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 7 December 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50774/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Carmela Sciacca (“the applicant”), on 1 June 1999.", "2. The applicant was represented by Mr E.P. Reale, a lawyer practising in Syracuse. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their co-Agent, Mr F. Crisafulli.", "3. The applicant alleged, in particular, that the publication of her photograph had infringed Article 8 of the Convention. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By a decision of 4 September 2003, the Chamber declared the application partly admissible. 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. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1949 and lives in Syracuse. 7. She was a teacher at a private school in Lentini (Syracuse).", "The school was owned by a limited liability company, G., of which the applicant and three other teachers were members and Mr G. the manager. 8. In July 1998 Mrs C. lodged a criminal complaint with the Revenue Police (Guardia di Finanza) about irregularities in the management of the school's affairs. She stated that she was a de facto member of G. 9. The Syracuse public prosecutor's office opened an investigation in respect of the members and manager.", "On 20 July 1998 the Revenue Police searched the company's head office and the members' homes. At that time the applicant received official notification that she was under investigation. On an unspecified date the public prosecutor's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion, fraud and forgery. On 12 August 1998 the Revenue Police questioned the applicant. 10.", "On 17 November 1998 the public prosecutor's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association, tax evasion and forgery of official documents. On 28 November 1998 the investigating judge ordered Mrs Sciacca and the other persons charged to be placed under house arrest. 11. On 4 December 1998 the applicant was served with the judge's decision. Like anyone placed under house arrest, she avoided being remanded in custody.", "However, the Revenue Police compiled a file on her; photographs and fingerprints were included in it. On the same day the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference. 12. Two newspapers published articles about the investigation. 13.", "The first daily, Giornale di Sicilia, published two articles, on 5 and 6 December 1998. In the first one it referred to “alleged formal and substantive illegalities in the management of a private school”. After stating that the applicant and three others, who had been placed under house arrest, had been charged with very serious offences (criminal association, extortion, forgery, fraud and tax evasion), the newspaper indicated that other persons charged “were allegedly also” victims of acts of extortion committed by the four people who had been arrested. After outlining the measures taken by the investigators, the newspaper stated that the four people who had been placed under house arrest “were allegedly” the de facto managers of the school. The newspaper went on to explain what the extortion had consisted of.", "It added that “unofficial accounts had been found at the home of the four people concerned” and that “the investigators had found that the pupils enrolled” in two classes “were in fact the husbands and cousins of the women who had been arrested”. The only passage reporting the investigators' statements concerned someone other than the applicant. 14. The other article – published on the following day together with a photograph of the four arrested women – was similar in content to the first one. 15.", "On 5 December 1998 the second daily, La Sicilia, published on the front page a photograph (identity format) of the four people who had been placed under house arrest and stated that they “had set up a bogus school”. The contents of the article were comparable to those of the articles published in the first daily. 16. The applicant's photograph, together with that of the three other women who had been arrested, was published four times on 5 and 6 December 1998. Each time it was an identity photograph that had been taken by the Revenue Police when the file was compiled, at the time of the applicant's arrest, and released by them to the press.", "17. On 12 December 1998 the applicant challenged the order placing her under house arrest in the tribunale della libertà (a court with jurisdiction to examine preventive measures) of Catania. On 28 December 1998 the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest. 18. On 1 March 1999 the public prosecutor's office requested the applicant to be committed for trial.", "The case was listed for hearing before the investigating judge on 26 May 1999. However, the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure. The case was therefore set down for hearing before the Syracuse Court on 6 June 2000. 19. On 8 March 2002 the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution (Article 444 of the Code of Criminal Procedure – “the CCP” (applicazione della pena su richiesta delle parti)), namely, one year and ten months' imprisonment and a fine of 300 euros.", "II. RELEVANT DOMESTIC LAW 20. The parties did not provide the Court with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press. Presidential Decree no. 431 of 29 April 1976 sets forth the implementing regulations in respect of Law no.", "354 of 26 July 1975 on the administration of prisons. With regard to persons charged who have been arrested and imprisoned, paragraphs 1 and 2 of Regulation 26 of the implementing regulations provide as follows: “A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned. The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her. The ministry shall be informed that the file is being stored. The references of this personal file shall include civil-status particulars, fingerprints, photographs and any other item necessary for the exact identification of the person.” It is clear from paragraph 5 of that regulation that the compilation of a personal file also concerns persons placed in pre-trial detention.", "21. Law no. 121 of 1 April 1981 concerns the new rules relating to public safety. The relevant provisions of this Law read as follows: Section 6 – Coordination and direction of the police forces “With a view to implementing the guidelines issued by the Minister of the Interior on exercising the functions of coordination and unitary direction in respect of order and public safety, the Department of Public Safety shall carry out the following tasks: (a) classification, analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime, and distribution to the operational services of the above-mentioned police forces; ... ” Section 7 – Nature and quantity of the data and information collected “The information and data referred to in section 6, paragraph (a), must relate to information taken either from documents which are stored in one way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with Article 165 ter of the Code of Criminal Procedure or from police inquiries. In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race, religion, political opinions or adherence to the principles of a trade union, cooperative, charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in one of the above-mentioned spheres.", "...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 22. The applicant complained that the release of her photograph at the press conference organised by the public prosecutor's office and the Revenue Police had infringed her right to respect for her private life. She relied on Article 8 of the Convention, which is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 23. The applicant's original complaint also concerned the divulgation of information about her during the press conference (part of the complaint which the Court declared inadmissible on 4 September 2003 – paragraph 5 above). The Government had submitted observations without making a distinction between the information divulged and the release of the photograph. Those observations may be summarised as follows, even if they do not specifically concern the release of the photograph.", "The Government observed that the applicant's right to respect for her private life was limited by the public's right to be informed and by the aim of preventing further criminal offences. They pointed out that Article 10 of the Convention guaranteed the freedom of opinion and of the press. The only limit on those freedoms was where the accused underwent “trial by newspaper” (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, pp.", "38-39, § 63). As regards the second aspect, the Government submitted that in the present case account had to be taken of the nature of the offences of which the applicant had been accused – and subsequently convicted – offences which related, inter alia, to the management of a school, and harmed the interests of the community. Accordingly, the facts which had given rise to the prosecution – and did not strictly concern the applicant's private life – were matters that the community had an interest in knowing. In conclusion, in the Government's submission there had not been a violation of the provision in question. 24.", "The applicant contested the Government's submission. She argued that the interference had been neither in accordance with the law nor necessary for one of the aims referred to in paragraph 2 of Article 8. Indeed, as the public had been unaware of the offence they had not had any interest in learning of it or knowing how the investigation was progressing. In any event, handing the press her photograph, which had been taken from her file, had not in any way been justified in her view. The claim that there had been no formal finding of guilt by a judicial authority had been contradicted by the contents of the articles written after the press conference.", "25. With regard to the elements disclosed at the press conference, the applicant denied that the public had an interest in learning of them, and asserted that they were private. Despite the serious nature of the offences, the information relating to the criminal proceedings – and above all the photograph taken by the investigators at the time of the arrest – should have remained secret. The applicant pointed out to the Court that the Government had not given any explanation regarding the release of the photograph to the press. 26.", "The Court notes that the Government have not denied that the published photograph had been taken when the file was compiled, at the time of the applicant's arrest, and handed to the press by the Revenue Police. 27. The Court has already examined the question of the publication of photographs of public figures (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI) or politicians (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).", "After concluding that the publication of photographs fell within the scope of private life, it examined the question of the respondent State's compliance with the positive obligations incumbent on it when the publication was not the result of action or co-operation on the part of State bodies. 28. The present case differs from previous ones in that the applicant was not someone who featured in a public context (public figure or politician) but the subject of criminal proceedings. Furthermore, the published photograph, which had been taken for the purposes of an official file, had been given to the press by the Revenue Police (see paragraphs 16 and 26 above). That being so, in accordance with its case-law the Court must determine whether the respondent State complied with its obligation not to interfere with the applicant's right to respect for her private life.", "It must verify whether there has been an interference with that right in the present case and, if so, whether that interference satisfied the conditions laid down in the second paragraph of Article 8: was it “in accordance with the law”, did it pursue one or more legitimate aims under paragraph 2 of that Article and was it “necessary in a democratic society” to achieve them? 29. Regarding whether there has been an interference, the Court reiterates that the concept of private life includes elements relating to a person's right to their image and that the publication of a photograph falls within the scope of private life (see Von Hannover, cited above, §§ 50-53). It has also given guidelines regarding the scope of private life and found that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life' ” (ibid.). In the instant case the applicant's status as an “ordinary person” enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection.", "Accordingly, the Court concludes that there has been interference. 30. As regards compliance with the condition that the interference must be “in accordance with the law”, the Court notes that the applicant argued that this condition had not been complied with and that her submission was not disputed by the Government. According to the information available to it, the Court considers that the subject matter was not governed by a “law” that satisfied the criteria laid down by the Court's case-law, but rather by practice. The Court also notes that the exception to the secrecy rule regarding measures taken during preliminary investigations, provided for in Article 329 § 2 of the CCP, concerns only cases where an investigative document is published for the purposes of continuing the investigation.", "That was not the case here, however. The Court therefore concludes that the interference has not been shown to have been in accordance with the law. That finding is sufficient for the Court to conclude that there has been a breach of Article 8. Accordingly, it is not necessary to determine whether the interference in question pursued a “legitimate aim” or was “necessary in a democratic society” to achieve that aim (see M. v. the Netherlands, no. 39339/97, § 46, 8 April 2003).", "31. In conclusion, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 33. The applicant claimed 25,000 euros (EUR) for pecuniary damage. She supported her claim by arguing that the publication of her photograph had prevented her from finding work and that the compensation should offset that loss of opportunity. She also claimed EUR 15,000 for non-pecuniary damage. 34.", "The Government did not comment. 35. The Court notes that the applicant has neither proved the existence of any pecuniary damage nor, a fortiori, any causal connection with the alleged violation. Accordingly, this claim must be rejected. In respect of non-pecuniary damage, the Court considers that, in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction.", "B. Costs and expenses 36. The applicant claimed EUR 14,932.80 for costs and expenses. That amount included value-added tax and the contribution to the lawyers' insurance fund. 37.", "The Government did not comment. 38. 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no.", "288, p. 21, § 66). The Court notes that the violation found concerns only one complaint among others that have been declared inadmissible. 39. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the instant case, having regard to the information before it and to the above-mentioned criteria, the Court considers the amount of EUR 3,500 to be reasonable for the proceedings before the Court and awards it to the applicant.", "C. Default interest 40. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 8 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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 French, and notified in writing on 11 January 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM (Application no. 68909/13) JUDGMENT STRASBOURG 6 October 2016 FINAL 06/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Daniel Faulkner v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Kristina Pardalos,Linos-Alexandre Sicilianos,Paul Mahoney,Aleš Pejchal,Robert Spano,Armen Harutyunyan, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "68909/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Daniel Faulkner (“the applicant”), on 23 October 2013. 2. The applicant, who had been granted legal aid, was represented by Chivers Solicitors, a firm of solicitors based in Bingley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Macmillan, of the Foreign and Commonwealth Office. 3.", "The applicant alleged, in particular, that the delay from March 2008 until January 2009 in holding a Parole Board hearing to review the lawfulness of his detention rendered his detention during that period arbitrary and thus unlawful under Article 5 § 1 (a) of the Convention. 4. On 26 May 2015 the complaint under Article 5 § 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter. A. The background facts 6. On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand.", "The tariff expired on 18 April 2004 and he became eligible for parole. 7. The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State.", "8. A second recommendation to the same effect was made, following the applicant’s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board’s recommendation, the National Offender Management Service (“NOMS”) wrote: “The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.” 9. The accompanying letter stated: “It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008. ... You will be notified by the Parole Board nearer the time about the exact date of that hearing.", "At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel’s decision you may request that the case proceeds to the arranged oral hearing.” 10. The case was referred to the Parole Board on 21 December 2007. On 6 May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules.", "On 16 May 2008 the Parole Board gave case-management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant’s release. He was released from prison four days later.", "B. The domestic proceedings 11. Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention. He was granted permission to bring proceedings on 13 October 2008.", "12. On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009. 13. On 14 December 2010 the Court of Appeal handed down its judgment.", "After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate. 14.", "In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 had been found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty. 15. The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate.", "The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted to both parties, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied on this Court’s findings in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012. 16.", "In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500. 17. As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty.", "Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1. 18. On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4.", "While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded: “87. ... In the light of that analysis, and applying the general approach which I have described ..., it appears to me that an award in the region of £6,500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone.", "That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.” II. RELEVANT DOMESTIC LAW 19. A prisoner sentenced to custody for life is entitled to be released on parole after the expiry of his tariff if the Parole Board, being satisfied that it is no longer necessary for the protection of the public that he should be detained in prison, directs his release. If the Board gives such a direction, then the Secretary of State is required to release him (see section 28 of the Crime (Sentences) Act 1997).", "A prisoner is entitled to request the Secretary of State to refer his case to the Parole Board for a review every two years (section 28(7) of the 1997 Act). 20. On 10 December 2014 the Supreme Court handed down its judgment in Kaiyam and Others v. Secretary of State ([2014] UKSC 66), in which it considered this Court’s judgment in James, Wells and Lee. It accepted that the State was under a duty to provide an opportunity reasonable in all the circumstances for a prisoner serving an indeterminate sentence for the public protection to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. However, it did not consider that this duty could be brought within the express language of either Article 5 § 1 (a) or Article 5 § 4.", "Instead, the court concluded that the duty should be implied as an “ancillary duty”, not affecting the lawfulness of the detention, in the overall scheme of Article 5 (for more details, see Kaiyam and Others v. the United Kingdom (dec.), nos. 28160/15, 28103/15 and 28443/15, 12 January 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 21. In the applicant’s submission, his detention from March 2008, for a period of ten months pending his delayed Parole Board review in January 2009, had not merely resulted in a violation of Article 5 § 4 but was also arbitrary and in breach of Article 5 § 1 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: (a) the lawful detention of a person after conviction by a competent court.” 22. Article 5 § 4 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. Admissibility 23. The Government noted that the applicant had benefited from a declaration that a breach of Article 5 § 4 had occurred and had been awarded damages. Further, his complaint under Article 5 § 1 had been heard and dismissed by the Supreme Court, such that respect for human rights did not require an examination of the application on its merits. They therefore argued that he had suffered no significant disadvantage connected to his Article 5 § 1 rights and invited the Court to declare the complaint inadmissible under Article 35 § 3 (b) of the Convention.", "24. The applicant did not comment on the Government’s admissibility objection. 25. Article 35 § 3 provides, in so far as relevant: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” 26. The admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court.", "The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; and Van Velden v. the Netherlands, no. 30666/08, § 36, 19 July 2011). An alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant’s pecuniary interest (Korolev, cited above; and M.N.", "and Others v. San Marino, no. 28005/12, § 37, 7 July 2015). It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention ... requires an examination of the application on its merits”. 27. In calling on the Court to reject the application as inadmissible under Article 35 § 3 (b), the Government argued that because the national courts had given a ruling finding a violation of Article 5 § 4 on account of the delay in holding a Parole Board hearing and awarding damages, the applicant had suffered “no significant disadvantage” in connection with his Article 5 § 1 right.", "The Court is not, however, satisfied that the conditions for inadmissibility stated in Article 35 § 3 (b) are satisfied. The nature of the guarantees afforded by Articles 5 § 1 and 5 § 4 is significantly different, the latter being concerned exclusively with safeguards subsequent to deprivation of liberty and the former encapsulating the more comprehensive right not to be detained in an arbitrary fashion. The applicant’s submission is that the delay in his case was such as to give rise not merely to a denial of access to a review of the lawfulness of his continuing detention (contrary to Article 5 § 4) but also to a period of unjustified deprivation of liberty (contrary to Article 5 § 1). While the applicant received financial compensation of GBP 6,500 as redress for the “disadvantage” resulting from his delayed release (see paragraphs 17-18 above), the applicant’s complaint as formulated in his application raises a novel issue of principle going to the relationship between paragraphs 1 and 4 of Article 5, an issue which warrants consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is in any event led to dismiss the Government’s objections on the basis of the second element in Article 35 § 3 (b) of the Convention.", "28. The Government further contended that the applicant’s complaint under Article 5 § 1 was manifestly ill-founded. However, as intimated above, the Court is satisfied that the applicant’s Article 5 § 1 complaint raises sufficiently complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicant 29. In the applicant’s submission, his was not a case where detention was always justified by the original judicial decision imposing the sentence. That decision permitted his detention so long as it was justified on the basis of the risk posed.", "After March 2008, his detention was not justified on the basis of risk because he had reduced his risk. There was a stark difference between people deemed no longer to pose a risk to the public (in respect of whom the causal connection between sentence and detention had been broken) and those deemed to pose a continuing risk to the public. A finding that his Article 5 § 1 rights had been violated would not imply that persons who continued to pose a risk to the public should be released. The applicant argued that the facts of his case were so radically distinct from those in James, Wells and Lee that it was unnecessary for the Court to consider whether that case was correctly decided. The Government’s attempts to re‑argue James, Wells and Lee (see paragraph 33 below) were not only misconceived but irrelevant to the facts of his case.", "30. The applicant relied on the cases of Erkalo v. the Netherlands, 2 September 1998, Reports of Judgments and Decisions 1998‑VI, Schönbrod v. Germany, no. 48038/06, 24 November 2011, and H.W. v. Germany, no. 17167/11, 19 September 2013, in support of his case.", "He argued that they demonstrated the importance of administrative review in the Article 5 framework. It was only by reviewing the substantive merits of the continuing detention that the State could demonstrate compliance with Article 5. Where there had been a failure to comply with procedural safeguards under domestic law, there would be a breach of Article 5 § 1 (citing Nakach v. the Netherlands, no. 5379/02, 30 June 2005; and Schenkel v. the Netherlands, no. 62015/00, 27 October 2005).", "The Government’s attempt to distinguish the cases was absurd and would lead to a situation in which a prisoner could be lawfully detained indefinitely without any Parole Board review. This could not possibly be correct. The applicant accepted that the mere fact of a breach of Article 5 § 4 did not necessarily cause detention to be unlawful as there might be an underlying justification for detention: the prisoner might pose a risk. However, where there was no such justification, unlawful delay was no excuse for a failure to release. 31.", "Further, the Government’s argument that the applicant was being progressed through the system (see paragraph 35 below) was untenable. The delay was entirely the fault of the authorities and occurred because they had failed to ensure that systems were in place which would have enabled timely determination of whether there was an ongoing justification for detention. The Government had not explained what concrete steps were taken during the ten-month period and the Court of Appeal had clearly found that there was no material change in the applicant’s risk level during the ten months. 32. In the applicant’s view, the Government’s interpretation of arbitrariness was untenably narrow and inconsistent with the Court’s case‑law.", "A lengthy delay, as in this case, did not reflect the strict standards set out in the case-law. Further, arbitrariness involved consideration of whether, inter alia, the order to detain and execution of detention genuinely conformed to the purpose of the restrictions in Article 5 § 1. In the applicant’s case, there was no basis in law for his detention during the ten‑month period. (b) The Government 33. The Government accepted that there had been a breach of Article 5 § 4 of the Convention in the applicant’s case but did not agree that this had resulted in a violation of Article 5 § 1.", "While the Court in James, Wells and Lee had considered that a failure to provide rehabilitative courses gave rise to an issue under Article 5 § 1, it was significant that the Supreme Court in Kaiyam and Others had preferred to view the duty to provide access to courses as an ancillary duty of a more procedural nature under Article 5 rather than a matter going to lawfulness under Article 5 § 1 (a) (see paragraph 20 above). The concerns expressed by the Supreme Court in Kaiyam concerning the application of Article 5 § 1 in that case applied equally in a case such as this based on delay: absent bad faith, delay on the part of the judicial body responsible for determining whether to release a prisoner did not render detention arbitrary. 34. The Government distinguished the cases on which the applicant relied (see paragraph 30 above) on the ground that they were cases in which the Court was asked post facto to validate a period of detention which had not, at the time of its commencement, been judicially determined or approved. In contrast, in the present case, the applicant’s detention had always been justified by the judicial decision imposing a life sentence.", "His release was contingent on demonstrating to the satisfaction of the Parole Board that he no longer posed a risk to the public. It was incorrect for him to suggest that his conviction and detention only continued to retain the requisite connection if the Parole Board considered that he posed a sufficient risk to the public: it was for him to demonstrate that his risk had reduced, and his detention would continue pending a decision of the Parole Board as to whether in fact there had been a sufficient reduction in risk. 35. The Government emphasised that from March 2008 to January 2009, the applicant’s case was pending before the Parole Board. There was nothing arbitrary about his detention: he was simply awaiting a decision by the relevant judicial body for the purposes of Article 5 § 4.", "During that period, reports were being prepared and were submitted to the Parole Board on 8 October 2008 (see paragraph 10 above). He was therefore being assessed during the period as to the risk he posed and was benefiting from rehabilitative opportunities offered to him by the Government. The applicant placed too much weight on the finding of the Court of Appeal that, on a balance of probabilities, he would have been released had the review taken place in March 2008. It was noteworthy that in May 2008 the Parole Board had decided, on the basis of the papers before it, that it needed further papers in order properly to consider the case (see paragraph 10 above). There was nothing arbitrary about the Parole Board seeking such documentation, notwithstanding that the Court of Appeal, with the benefit of hindsight, had later decided that the documents were unnecessary.", "36. In conclusion, the Government emphasised that the logical conclusion of the applicant’s argument was that every breach of Article 5 § 4 would result in a breach of Article 5 § 1. Such a conclusion would render Article 5 § 4 redundant. There were plainly sufficient safeguards against arbitrary detention in a case such as the applicant’s. The 1997 Act provided for reviews to take place every two years (see paragraph 19 above) and Article 5 § 4 offered a protection which could be enforced in the domestic courts by a mandatory order requiring the Parole Board to convene a hearing.", "The purpose and effect of Article 5 § 4 was precisely to deal with the types of delay that had occurred in this case. Although it was possible to envisage a situation where a flagrant and unjustified failure to give a prisoner an Article 5 § 4 compliant hearing could result in detention becoming arbitrary, such cases were likely to be rare and the applicant’s was plainly not such a case. 2. The Court’s assessment (a) General principles 37. The substantive right to liberty is set out in Article 5 § 1 of the Convention, whose object and purpose is to ensure that no one is dispossessed of his liberty in an arbitrary fashion (see, among many other authorities, M. v. Germany, no.", "19359/04, § 89, ECHR 2009; and James, Wells and Lee, cited above, § 187). It is well established in the Court’s case‑law that any deprivation of liberty must fall within one of the exceptions set out in sub-paragraphs (a)-(f) and must also be “lawful”. 38. For detention to comply with Article 5 § 1 (a), there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Kafkaris v. Cyprus [GC], no.", "21906/04, § 117, 12 February 2008; and M. v. Germany, cited above, §§ 87-88). With the passage of time, the link between the initial conviction and a later deprivation of liberty gradually weakens. The causal link required by sub‑paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the decision by the sentencing court or on an assessment that was unreasonable in terms of those objectives (see Weeks, cited above, § 49; and James, Wells and Lee, cited above, § 189). 39. 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 of national law (see Mooren v. Germany [GC], no.", "11364/03, § 72, 9 July 2009; and James, Wells and Lee, cited above, § 190). 40. However, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Kafkaris, cited above; 116; and James, Wells and Lee, cited above, § 191). In James, Wells and Lee, cited above, §§ 192-196, the Court identified four types of conduct on the part of the authorities which might constitute arbitrariness for the purposes of Article 5 § 1. First, detention will be arbitrary where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities.", "Second, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1. Third, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. Fourth, the requirement that detention not be arbitrary implies the need for a relationship of proportionality between the ground of detention relied upon and the detention in question. However, the scope of the proportionality test to be applied in a given case varies depending on the type of detention involved. 41.", "Article 5 § 4 enshrines the right to have the legality of detention reviewed speedily by a court with the power to order release. This implies not only that the competent courts must reach their decisions speedily but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at “reasonable intervals” (see Oldham v. the United Kingdom, no. 36273/97, § 30, ECHR 2000‑X). These rights are procedural in nature and are intended to help secure the protection of the substantive right to liberty guaranteed by Article 5 § 1. The fact that procedural rights are protected as rights in themselves by Article 5 § 4 serves to underline their important role in ensuring that unlawful and arbitrary detention does not occur.", "However, the finding of a violation of Article 5 § 4 does not, of itself, result in a violation of Article 5 § 1 (see Mooren, cited above, § 88). (b) Application of the general principles to the facts of the case 42. Although he relied on James, Wells and Lee before the Supreme Court (see paragraph 15 above), the applicant argued before this Court that the judgment in that case was not relevant to his complaint (see paragraph 29 above). Instead, he relied on case-law of this Court which he contended showed that procedural delays of the nature and length of that which occurred in his case breached Article 5 § 1 of the Convention (see paragraph 30 above). However, for the Court, the facts of the cases cited differ from the facts of the applicant’s case in an important respect.", "In the cases relied on by the applicant, the period of detention at issue was not based on any judicial decision, the order authorising detention having expired, and there was a lack of adequate safeguards to ensure that the applicants’ release from detention would not be unreasonably delayed (see Erkalo, § 57; Schönbrod, §§ 107-108 and H.W., §§ 83 and 89). By contrast, in the present case the applicant’s detention remained at all times formally authorised by the sentence of custody for life imposed on him by the Crown Court in 2001 (see paragraph 6 above). He could not be released unless and until there was a decision of the Parole Board that he had shown the required reduction in risk and was safe for release. The Court of Appeal’s finding in December 2010, on a balance of probabilities, that had a Parole Board hearing taken place in March 2008 he would have been released cannot be equated to a formal Parole Board finding in March 2008 that he was safe for release. The existence of a valid court order authorising detention constituted an important safeguard against arbitrariness in the applicant’s case.", "43. The applicant further relied on Nakach and Schenkel, both cited above, to argue that where there had been a failure to comply with procedural safeguards under domestic law, there would be a breach of Article 5 § 1 (see paragraph 30 above). However, the Court does not consider that either case assists the applicant. In both cases, the Court found that a breach of Article 5 § 1 had arisen because the detention did not follow a “procedure prescribed by law” (see Nakach, § 43; and Schenkel, § 32). In other words, it was the strict requirement of lawfulness under domestic law (see paragraph 39 above) which had been breached in those cases.", "In the present case, no breach of domestic law has been established. The applicant emphasises the Court of Appeal’s finding that he ought to have been released in March 2008 to support his argument that procedural safeguards prescribed by domestic law were not followed. However, as noted above, that finding, made with the benefit of hindsight, did not remove the legal basis that existed throughout the impugned period of detention. 44. It is true that the aspirational timetable envisaged by the Secretary of State and indicated to the applicant in May 2007 (see paragraph 8-9 above) was not met.", "However, in setting a timetable which ensured a further review well before the two-year period envisaged by the legislation, the Secretary of State acted in conformity with the requirement under Article 5 § 4 for review at “reasonable intervals”, the frequency of which must be determined in the light of the circumstances of each case (see paragraph 41 above and Oldham, cited above, § 31). The failure to ensure a review within “reasonable intervals” can, and in the present case did, result in a finding of a violation of Article 5 § 4 of the Convention and an award of damages. It was by reference to the Secretary of State’s timetable that the Court of Appeal held that there had been delays which led to its finding of a violation of Article 5 § 4. But the applicant has not cited any judgment of this Court where it has found that delay in proceedings to review the legality of detention resulted in a violation not only of Article 5 § 4 but also of Article 5 § 1 of the Convention. It is significant that the applicant in Schenkel contended under Article 5 § 1 that the proceedings concerning the prolongation of his detention order were not conducted with the necessary diligence.", "However, the Court decided that it was more appropriate to examine that question in the context of its examination of Article 5 § 4 of the Convention (cited above, §§ 20, 27 and 31). The Court does not rule out that there may be circumstances in which, exceptionally, a delay in the review of the legality of post-tariff detention is such as to give rise to concerns that the detention itself has become arbitrary and incompatible with Article 5 § 1. However, barring such exceptional circumstances, a complaint of delay falls to be considered under Article 5 § 4 only. 45. The Court is satisfied that no exceptional circumstances arose in the present case.", "While there was a delay in the holding of the applicant’s Parole Board review, the nature of the delay and its overall length were not such as to lead the Court to conclude that his detention from March 2008 until his release in January 2009 had become arbitrary and, thus, unlawful contrary to Article 5 § 1 (a) of the Convention. 46. There has accordingly been no violation of Article 5 § 1 in the present case. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 5 § 1 of the Convention admissible; 2.", "Holds that there has been no violation of Article 5 § 1. Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerMirjana Lazarova TrajkovskaDeputy RegistrarPresident" ]