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) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” 2. Council Regulation (EC) No. 2201/2003 of 27 November 2003 68. The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa Regulation”)[, repealing Regulation (EC) No. 1347/2000,] read as follows: Preamble “(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. ... (21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. ... (23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be ‘automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement’. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law.” Article 1 “1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: (a) divorce, legal separation or marriage annulment; (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1(b) may, in particular, deal with: (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child’s person and property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. ...” Article 10 “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained. (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed

pursuant to Article 11 (7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” Article 11 “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention’), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make it impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submission to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit. 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” 69. Pursuant to Article 40(1)(b) of the Regulation, section 4 of the Regulation applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8).” Article 42, which also forms part of section 4 of the Regulation, provides as follows: Article 42 “1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8) the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence

, the certificate shall contain details of such measures. The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning the return of child(ren)). The certificate shall be completed in the language of the judgment.” Article 47 “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” Article 60 “In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by the Regulation: ... (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 70. The applicant complained that the Austrian courts had violated his right to respect for his family life in that they failed to enforce the Venice Youth Court’s judgments ordering his daughter’s return to Italy. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life,... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 71. The Government contested that argument. A. Admissibility 1. The parties’ submissions 72. The Government raised a number of objections regarding the admissibility of the case. 73. Firstly they asserted that the Venice Youth Court’s judgment of 10 July 2009, which had ordered the child’s return to Italy where she would reside with her mother, if the latter wished to relocate with her or, alternatively, with the applicant, had been replaced by the Venice Youth Court’s judgment of 23 November 2011. In that judgment, the said court had awarded sole custody to the applicant and had ordered that his daughter be returned to reside with him. The Government argued that the first judgment had thus become obsolete and there was no need for the Court to examine the applicant’s complaint in so far as it related to the non-enforcement of the first judgment. Following its approach in the Povse case (cited above, § 69), the Court should limit its examination to the enforcement of the second judgment. 74. In the alternative, the Government submitted that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention in so far as his complaint concerned the non-enforcement of the Venice Youth Court’s judgment of 10 July 2009. As the said court’s judgment of 23 November 2011 had replaced its first judgment, the applicant should have lodged his application concerning the non-enforcement of that judgment within six months after the new judgment had been issued. Consequently, his application lodged on 14 January 2013 had to be regarded as out of time. 75. Furthermore, the Government asserted that the applicant had failed to exhaust domestic remedies, as he had not made use of the possibility to lodge an application under section 91 of the Courts Act (Gerichts-organisationsgesetz) in respect of the enforcement of both judgments of the Venice Youth Court. 76. The applicant contested the Government’s view. He pointed out that both judgments of the Venice Youth Court had been given in the course of the same set of proceedings. The enforcement proceedings in Austria had started on 22 September 2009 when he had sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009 and were still pending. Consequently, his application lodged on 14 January 2013 had been introduced in good time. The applicant did not comment on the Government’s submissions concerning exhaustion of domestic remedies. 77. The Italian Government did not make submissions on these issues. 2. The Court’s assessment (a) Exhaustion of domestic remedies 78. The Court will first examine the Government’s objection that the applicant has failed to exhaust domestic remedies. 79. The Court reiterates that

that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. An applicant must have provided the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States, namely the opportunity of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention, that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which, at the same time, are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002‑VIII). 80. According to the Court’s established case-law, an application under section 91 of the Courts Act is an effective remedy in respect of complaints under Article 6 of the Convention regarding the length of proceedings (see, for instance, Holzinger v. Austria (no. 1), no. 23459/94, § 25, ECHR 2001‑I). However, the Court has not yet pronounced itself on the question whether section 91 of the Courts Act can also be regarded as an effective remedy in respect of complaints under Article 8 alleging a failure to act or to conduct proceedings expeditiously, affecting an applicant’s right to respect for his or her family life. 81. The Court reiterates that there is a difference in the nature of the interests protected by Articles 6 § 1 and 8. Thus, Article 6 § 1 affords a procedural safeguard including the right to have a determination of one’s “civil rights and obligations” within a “reasonable time”, while Article 8, including the procedural requirements inherent in it, aims at the wider purpose of ensuring proper respect for family life (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 91, Series A no. 307‑B). Given the different nature and aims of the two provisions, the finding that a remedy is effective for a complaint about the length of proceedings under Article 6 § 1 is not decisive for the question whether this is also the case for a complaint under Article 8. 82. The Court notes that the issue was also raised by the Government in a case which concerned both a complaint under Article 6 § 1 about the length of the custody proceedings in the case and a complaint under Article 8 that the domestic court’s inactivity had enabled the applicant’s husband to take their son to Turkey before a substantive decision on custody was given (Kaplan v. Austria (dec.), no. 45983/99, 14 February 2006). The Court, while finding that failure to make use of the application under section 91 of the Courts Act led to non-exhaustion in respect of the length complaint under Article 6 § 1, did not decide on the question whether section 91 of the said Act might also provide an effective remedy in respect of the complaint under Article 8. Instead, it noted that the applicant had reiterated her request to be granted custody several times and had, moreover, twice sought an interim order in order to prevent her husband from taking their son to Turkey. As such requests called by their very nature for a speedy decision, the Court was satisfied that the applicant had made sufficient use of remedies for her complaint under Article 8 of the Convention. 83. In the present case, the applicant complained that the Austrian authorities had failed to enforce an order for his daughter’s return to Italy. He had requested her return under the relevant provisions of the Brussels IIa Regulation which, in so far as the return of a wrongfully removed child is concerned, builds on the Hague Convention. The applicant requested that the Austrian courts enforce the order for his daughter’s return, submitting the Venice Youth Court’s judgments of 10 July 2009 and of 23 November 2011 respectively, each accompanied by a certificate of enforceability under Article 42 of the Brussels IIa Regulation. In both sets of proceedings he appealed against the Leoben District Court’s decision refusing the child’s return. In the Court’s view, the applicant made use of the appropriate mechanism, the very aim of which is to bring about the speedy return of a wrongfully removed child, and thus, at least in substance, claimed his right to respect for his family life before the Austrian courts (see, mutatis mutandis, Raw and Others v. France, no. 10131/11, § 62, 7 March 2013). 84. In both sets of proceedings, the appellate court and the Supreme Court ruled that

the Venice Youth Court’s return order was to be enforced. In addition, the CJEU’s ruling of 1 July 2010 made it clear that the Austrian courts were under an obligation to enforce the return order within the framework of the Brussels IIa Regulation (paragraph 33 above). The courts were therefore called upon to proceed with the enforcement of the Venice Youth Court’s judgments. It was for the authorities to act, not for the applicant (Raw and Others, cited above, § 62, with further references). Moreover, the Court notes that the Government have not submitted any particular example showing the application of section 91 of the Courts Act in the specific context of proceedings concerning the enforcement of a return order. The Court concludes that in the present case the applicant was not required to make use of this remedy. 85. The Court therefore dismisses the Government’s objection of non-exhaustion. (b) The further objections raised by the Government 86. The Court now turns to the other two points raised by the Government, namely that it should limit its examination to the enforcement of the Venice Youth Court’s second judgment, i.e. the one given on 23 November 2011, which made the latter court’s first judgment obsolete or, alternatively, find that the applicant has failed to comply with the six-month rule in so far as his complaint related to the Venice Youth Court’s first judgment, namely the one given on 10 July 2009. 87. The Court observes that the applicant does not complain in the first place that the Austrian courts failed to enforce one or the other of the Venice Youth Court’s judgments but alleges that they displayed a lack of respect for his family life throughout the proceedings which, in his assertion, have to be considered as a whole. 88. Furthermore, the Court observes that in the Povse case (cited above, § 69) case, to which the Government referred, it had noted that it would concentrate its examination on the enforcement of the Venice Youth Court’s second judgment. However, it did not declare the complaint inadmissible in so far as it related to the enforcement of the Venice Youth Court’s first judgment. The main issue raised by that case, brought by the mother of the applicant’s daughter on her own behalf and on behalf of the child, was whether the Austrian courts’ obligation under the Brussels IIa Regulation to proceed to the enforcement of the Venice Youth Court’s judgments without any further examination of the merits violated their right to respect for their family life. Consequently, the same issue arose in respect of the enforcement of both judgments of the Venice Youth Court and the Court could concentrate its examination on the enforcement of the second judgment which was still pending. 89. The applicant’s complaint in the present case is of a different nature. He complains in essence that the manner in which the Austrian courts conducted the proceedings in their entirety violated his rights under Article 8. The Court notes the fact that until the present day the applicant has not been able to obtain his daughter’s return to Italy. In the Court’s view it would be artificial to consider the proceedings for the enforcement of the Venice Youth Court’s judgments of 10 July 2009 and 23 November 2011 as separate and unconnected, when examining whether or not the Austrian authorities have failed to show respect for the applicant’s family life. 90. Consequently, the Court dismisses the Government’s objections set out above. (c) Conclusion 91. 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 92. The applicant asserted that throughout the proceedings the Austrian courts had failed to act expeditiously and to take sufficient steps to ensure the enforcement of his daughter’s return to Italy. 93. In respect of the enforcement of the Venice Youth Court’s judgment of 10 July 2009, the applicant asserted in particular that following the Supreme Court’s judgment of 13 July 2010 the competent District Court limited itself to requesting proof that appropriate accommodation would be available for D.P. and his daughter without giving any indication as to how he could comply with that requirement. 94. In respect of the enforcement of the Venice Youth Court’s judgment of 23 November 2011, the applicant asserted that proceedings had been examined at three levels of jurisdiction in Austria before the judge at the Wiener Neustadt District Court had taken the first steps towards enforcement of the judgment. They had been interrupted by the interim measure applied by the Court in the Povse case (cited above) and had only been resumed on his request in April 2013. The attempt of 24 July 2013 to

have the child handed over to him by coercive measures had been flawed: he alleged that the absence of his daughter from her place of residence must have been due to information being leaked, and claimed that he had not received the necessary assistance from the judge. In addition, he asserted that the subsequent decision of 14 August 2013 to refrain from taking further enforcement measures while the proceedings brought by D.P. before the Venice Youth Court were pending had had no legal basis and had thus been arbitrary. 95. In sum, he alleged that the Austrian courts, instead of taking effective measures to enforce the return of his daughter, had remained passive or had acted arbitrarily, thus violating his right to respect for his family life. 96. For their part the Government, referring to the Court’s case-law in child abduction cases, observed that States were under a positive obligation to take all measures that could reasonably be expected of them to enforce a decision ordering a child’s return. The obligation was, however, not absolute but required the State to take the interests of all those concerned, and in particular the well-being and rights of the child, into account. They observed that the Court had frequently pointed out that the best interests of the child were of paramount importance. 97. Furthermore, the Government pointed out that in relations between EU member States the Brussels IIa Regulation took precedence over the Hague Convention. Pursuant to Article 47 of the Brussels IIa Regulation the law of the member State of enforcement was relevant for the enforcement proceedings, as had also been confirmed by the CJEU’s ruling in the present case. Enforcement law had to be in compliance with Article 8 of the Convention. In that connection, the Government pointed out that according to the Court’s case-law, domestic authorities had to do their utmost to facilitate cooperation among the parties concerned, which remained an important ingredient, as any obligation to apply coercion against a child had to be limited. 98. The Government conceded that although the applicant had not made use of his right to visit his daughter since mid-2009, the non-enforcement of the return orders had affected his right to respect for his family life. 99. The Government then gave a detailed overview of the steps taken by the Austrian authorities in the proceedings. Regarding the enforcement of the Venice Youth Court’s judgment of 10 July 2009, which the applicant had applied for on 22 September 2009, they pointed out that the case raised controversial questions of EU law and had to be submitted to the CJEU for a preliminary ruling. Having obtained that ruling the Supreme Court ordered the child’s return in its decision of 13 July 2010. The District Court then took the necessary steps, calling repeatedly on the applicant directly and via the Austrian and Italian Central Authorities to furnish proof of the fulfilment of the condition imposed by the Venice Youth Court, namely that accommodation be made available for the applicant’s daughter and her mother by the Vittorio Veneto social services department. No such proof was forthcoming between February and November 2011. The fact that a prerequisite for the child’s return required by the Venice Youth Court had not been met could not be blamed on the Austrian courts. 100. Regarding the enforcement of the Venice Youth Court’s judgment of 23 November 2011, which the applicant had applied for on 19 March 2012, they pointed out in particular that once the Supreme Court had confirmed on 13 September 2012 that the judgment had to be enforced, the competent District Court had attempted to bring about co-operation between the applicant and the mother of the child in order to facilitate the handover and to limit the impact on the child. Subsequently, the District Court had been prevented from taking any steps from 4 December 2012 to 18 February 2013, during the period in which an interim measure had been applied by the Court in the related Povse case (cited above). Once the District Court had been informed of the lifting of the interim measure, it had continued the proceedings in April 2013 and on 20 May 2013 had ordered that the child be handed over by 7 July. An attempt made on 24 July 2013 to remove the child from her place of residence through the use of coercive measures had been unsuccessful due to her absence. The Government pointed out that careful preparation was needed for the use of coercive measures as they could only be carried out by specially trained bailiffs. The Government contested the applicant’s allegation that there must have been a leak as regards the date of the enforcement, noting that this allegation was unsubstantiated and unsupported by any evidence. Finally, the District Court could not be blamed for having refrained from taking further enforcement measures once D.P. had lodged applications with the competent Italian court seeking a stay of the enforcement of the judgment of 23 November 2011 and a new ruling on custody. 101. In sum, the Government asserted that the Austrian courts had taken all reasonable measures with a view to enforcing the return order. In the choice of steps taken, the competent District Court had struck a

fair balance between implementing the applicant’s rights and having regard to the best interests of a young child, which had to be given priority in its deliberations. 102. The Italian Government observed that the case involved a delicate balance of interests between the fundamental rights involved and expressed the view that the national authorities were best placed to find a solution that duly took into account the best interests of the child. 2. The Court’s assessment (a) Principles established by the Court’s case-law 103. The Court notes, firstly, that the relationship between the applicant and his daughter amounts to family life within the meaning of Article 8 of the Convention. The child was born in December 2006 from the relationship between the applicant and D.P. and lived in the applicant’s household until the age of one year and two months. After her mother moved to Austria with her in February 2008, the applicant visited her regularly from October 2008 until mid-2009. Since then they had no further contact until February 2014 (see paragraph 62 above). While the parties disagree as to the reason for the lack of contact between the applicant and his daughter, the existence of family life between them is not in dispute. 104. That being so, it must be determined whether there has been a failure to respect the applicant’s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Raw and Others, cited above, § 78; Maire v. Portugal, no. 48206/99, § 69, ECHR 2003‑VII; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 55, 24 April 2003; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I). 105. In relation to the State’s positive obligations the Court has repeatedly held that Article 8 includes a parent’s right to have measures taken with a view to being reunited with his or her child and an obligation on the national authorities to take such measures (Raw and Others, cited above, § 79; Maire, cited above, § 70; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94). 106. However, the national authorities’ obligation to take such measures is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all are always important ingredients. While national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In a situation where contact between parent and child might jeopardise such interests or infringe such rights, the national authorities are under a duty to ensure that a fair balance is struck between them (see, Raw and Others, § 80; Maire, cited above, § 71; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94). 107. Moreover, the Court has repeatedly held that coercive measures against children are not desirable in this sensitive area (Maire, cited above, § 76, and Ignaccolo-Zenide, cited above, § 106) or might even be ruled out by the best interests of the child (Raw and Others, cited above, § 80). 108. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The Court considers that, in the area of international child abduction, the positive obligations that Article 8 of the Convention lays on the Contracting must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see, among others, Ignaccolo-Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989 (see, for example Maire, cited above, § 72

), which attach paramount importance to the best interests of the child (see Raw and Others, cited above § 82, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49-56 and 137, ECHR 2010 and X. v. Latvia, [GC], no. 27853/09, §§ 93 and 96, ECHR 2013). 109. Finally, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to an award of parental responsibility, including the enforcement of the final decision, require urgent handling, as the passage of time can have irremediable consequences for relations between the child and the non-resident parent. The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any failure to act for more than six weeks may give rise to a request for a statement of reasons for the delay (Raw and Others, cited above, § 83; Maire, cited above, § 74; and Ignaccolo-Zenide, cited above, § 102). (b) Application of these principles to the present case 110. The present case concerns the applicant’s complaint about a lack of respect for his family life in that the Austrian courts failed to enforce the Venice Youth Court’s judgments ordering his daughter’s return to Italy. 111. The main point to be assessed is whether the Austrian authorities have taken all the measures that they could reasonably be expected to take in order to ensure the return of the applicant’s daughter (see, among other authorites, Raw and Others, cited above, § 84; Maire, cited above, 73; and Ignaccolo-Zenide, cited above, §§ 96 and 101). 112. In addition, the Court notes that the present case concerns the return of a child from one EU member State to another. In relations between EU member States the rules on child abduction contained in the Brussels IIa Regulation supplement those already laid down in the Hague Convention. Both instruments are based on the philosophy that in all decisions concerning children, their best interests must be paramount (see X. v. Latvia, cited above, §§ 96-97). 113. The Hague Convention and the Brussels IIa Regulation, which in the field of child abduction builds on it, associate this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s best interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph (b) of the Hague Convention – see X. v. Latvia, cited above, § 97). 114. Under the Brussels IIa Regulation, which builds on the Hague Convention and is based on the principle of mutual trust between EU member States, the competency to assess whether non-return would be in the child’s best interest is distributed as follows: the State to which the child has been wrongfully removed can oppose return in justified cases. However, under Article 11 (8) of the Brussels IIa Regulation the State in which the child had its habitual residence prior to the wrongful removal can override a decision refusing return pursuant to Article 13 of the Hague Convention. If such a decision is accompanied by a certificate of enforceability pursuant to Article 42 of the Regulation, the requested State has to enforce it. According to Article 47 of the Regulation the law of the State of enforcement applies to any enforcement proceedings. 115. The Court’s task in the present case is to assess whether the Austrian courts took swift and adequate measures to secure the return of the applicant’s daughter. The decisive issue is whether the domestic courts, in their choice and implementation of enforcement measures struck a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – taking into account, however, that the best interest of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see, mutatis mutandis, X. v. Latvia, cited above, § 95). 116. The Court considers it useful in the present case to give an overview of the conduct of the proceedings before entering into the detailed assessment of the Austrian authorities’ handling of the case. (i)

The conduct of the proceedings 117. It is uncontested that D.P. had wrongfully removed the child to Austria in February 2008. However, the Venice Youth Court had initially, by judgment of 23 May 2008 (see paragraph 11 above), authorised her and the child to stay in Austria and had granted access rights to the applicant. Visits took place between October 2008 and mid-2009. Subsequently, the applicant had no further contact with his daughter until February 2014. While the parties disagree whether this was due to the applicant’s failure to make use of his right to visit his daughter or to obstruction by the child’s mother, the fact that there was no contact between the applicant and his daughter from mid-2009 until February 2014 is not in dispute. 118. Regarding the first set of proceedings, the Court notes the following: On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009 given pursuant to Article 11(8) of the Brussels IIa Regulation. He also submitted a certificate of enforceability under Article 42 of the Regulation. That judgment had ordered the return of the applicant’s daughter to Italy leaving two options to the child’s mother: if she wished to return with the child, the judgment required the Vittorio Veneto social services department to provide them with accommodation. In case she did not wish to return, the child was to reside with the applicant. 119. By a decision of 12 November 2009 the Leoben District Court refused enforcement. Its decision was set aside by the Leoben Regional Court on 20 January 2010 on the ground that it was contrary to the provisions of the Brussels IIa Regulation. D.P.’s appeal on points of law of 16 February 2010 raised a number of rather complex questions concerning the application and interpretation of the Brussels IIa Regulation, which led the Supreme Court to request the CJEU for a preliminary ruling on 20 April 2010. The CJEU gave judgment on 1 July 2010. On 13 July 2010 the Supreme Court dismissed D.P.’s appeal on points of law confirming that the Austrian courts had to enforce the Venice Youth Court’s judgment without reviewing the merits of the case, while it was for D.P. to raise any argument relating to a change of relevant circumstances before the competent Italian court. D.P. made use of this opportunity but the Venice Youth Court dismissed her application for a stay of the enforcement of its judgment on 31 August 2010. 120. According to the file, no action was taken until 17 February 2011 when the Leoben District Court requested the applicant to provide evidence that appropriate accommodation would be made available (see paragraph 38 above). More than a month later, on 22 March 2011, the Austrian Central Authority informed its Italian counterpart that the condition of providing accommodation had not been complied with. Further letters with similar contents were sent to the Italian Central Authority between May and November 2011. It appears that no reply was received from the Italian authorities. 121. Regarding the second set of proceedings, the Court notes the following: While the proceedings concerning the enforcement of the Venice Youth Court’s judgment of 10 July 2009 had come to a standstill, the applicant had obtained a new judgment by the Venice Youth Court on 23 November 2011. It transferred sole custody of his daughter to him and ordered that she return to Italy to reside with him. 122. On 19 March 2012 the applicant sought the enforcement of that judgment again submitting a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The Leoben District Court, by decision of 3 May 2012, once more refused the request for the return of the applicant’s daughter. On 15 June 2012, the Leoben Regional Court granted the applicant’s appeal on the ground that the condition that accommodation be made available was no longer applicable and ordered D.P. to hand over the child within fourteen days, with enforcement measures to be taken in case of failure to comply. D.P. did not comply with the order but made use of the possibility of lodging an appeal on points of law with the Supreme Court, which was rejected by that court on 13 September 2012 as the legal issues has already been clarified in the first set of proceedings. 123. Subsequently, on 1 October 2012, the competence to deal with the present case was transferred from the Leoben District Court to the Wiener Neustadt District Court, as D.P. and the applicant’s daughter had changed their place of residence. The Wiener Neustadt District Court attempted to obtain the co-operation of both parents, while threatening to make use of coercive measures should no negotiated solution be found. The first attempt was made on 4 October 2012, when the Wiener Neustadt District Court ordered both parents to indicate within two weeks whether they were prepared to take part in a hearing with the aim of finding an agreed solution for the child’s return

. The applicant indicated that he was not prepared to take part in the hearing. It appears that no steps were taken in November 2012. The proceedings were interrupted between the beginning of December 2012 and mid-February 2013 (see paragraph 54 above). Subsequently, two months elapsed until April 2013, when the District Court resumed the proceedings and made a second attempt to bring about both parents’ co-operation. 124. Following the second unsuccessful attempt to bring about both parents’ co-operation, the District Court issued an order on 20 May 2013, setting 7 July 2013 as the deadline for the child’s handover to the applicant as the next step, again threatening the use of coercive measures in the event of non-compliance. As D.P. did not comply with the order, the court made an attempt to enforce the order through the use of coercive measures on 24 July 2013. That attempt remained unsuccessful. 125. On 9 August 2013 D.P. sought a stay on the enforcement of the child’s return from the Venice Youth Court and asked it to take a new decision on custody, seeking an award of sole custody of the child. She advanced a number of arguments alleging that the circumstances had changed and that the child’s return to Italy would endanger her well-being (see paragraph 59 above). Thereupon, on 14 August 2013 the Wiener Neustadt District Court decided to refrain from further enforcement measures, pending the decision of the Venice Youth Court. According to the information available to the Court, the proceedings before the Venice Youth Court are still pending. (ii) Whether the Austrian authorities took swift and adequate measures 126. The Court will now examine whether the Austrian courts took swift and adequate measures to protect the applicant’s right to respect for his family life. 127. The Court notes firstly, that the decisions in the first set of proceedings followed at reasonable intervals. The case, raising a new issue regarding the application of the Brussels IIa Regulation came before three levels of jurisdiction. In addition it was submitted to the CJEU for a preliminary ruling. The Court reiterates that bringing the case before the CJEU was a necessary step in order to bring the control mechanism provided for in European Union law into play (see, Povse, cited above, §§ 81-83). Up to 31 August 2010 when the Venice Youth Court dismissed D.P.’s request for a stay of the enforcement of its return order, the Court does not see any failure of the Austrian courts to handle the case expeditiously. 128. The subsequent phase, however, was marked by a period of inactivity. Although almost a year had gone by since the applicant’s request for his daughter’s return, the Leoben District Court remained inactive for five and a half months until mid-February 2011, when it contacted the applicant and then the Italian central authority in order to establish whether accommodation for the applicant’s daughter and her mother would be made available. Given that the Venice Youth Court’s judgment had provided alternatives for the child’s return either with or without her mother, the Court can accept that the Austrian courts gave preference to the first alternative which involved a less drastic interference with the family life between the applicant’s daughter and her mother. However, no explanation has been provided for the District Court’s failure to take action for a protracted period. The Court notes that in return proceedings far shorter delays give rise to concern. In the context of the Hague Convention any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see, for instance, Ignaccolo-Zenide, cited above, §102). The delay here at issue weighs all the more heavily, given that contacts between the applicant and his daughter had already broken off in mid-2009, The District Court must have been aware that any further delay might have irremediable consequences for the relationship between them. 129. Subsequently, the Austrian authorities were faced with the lack of any reply from the Italian authorities between March and November 2011. As the proceedings had reached a deadlock, it is understandable that the applicant sought a new judgment from the Venice Youth Court, which he obtained on 23 November 2011. However, he only requested its enforcement on 19 March 2012. The request was refused by the Leoben District Court. While it is a normal occurrence for a court decision to be set aside on appeal, the Court notes that the District Court’s decision triggered a new round of appeal proceedings before the Leoben Regional Court, which decided in the applicant’s favour and finally opened up the possibility for D.P. to lodge a further appeal on points of law with the Supreme Court, although the relevant legal issues had already been resolved in the first set of proceedings. 130. At the time the Wiener Neustadt District Court became competent to deal with the case in October 2012

, a period of three years had gone by since the applicant had requested the enforcement of the Venice Youth Court’s first judgment ordering his daughter’s return. As follows from the considerations set out above, this situation was in part attributable to the lack of expedition in the Austrian courts’ own handling of the case. Moreover, there had not been any contacts between the applicant and his daughter during this period. In that connection, the Court notes that it does not appear that the applicable law provided the courts with adequate means to re-establish such contact while the proceedings were pending. 131. Given the difficult situation, the Court considers that the District Court took appropriate steps, trying to secure the parties’ co-operation in order to avoid coercive measures in the interest of the child. Although the Court discerns some delays in November 2012 and between February and April 2013, it does not consider them decisive in themselves. Ultimately, faced with the unbending position of both parents, the District Court proceeded to the implementation of coercive measures. While the attempt at enforcement of 24 July 2013 was unsuccessful, the Court sees no indication in the file that the failure of the attempt could be attributed to the conduct of the Austrian authorities, as alleged by the applicant. (iii) Overall assessment 132. Although the Court attaches considerable weight to the delay caused by the Leoben District Court in the first set of proceedings, it does not overlook a number of factors which contributed to the difficulty in dealing with the case. To begin with, there was the lack of any reply by the Italian authorities in the first set of proceedings. The applicant’s choice, though understandable, to make a request for enforcement of the Venice Youth Court’s second judgment, meant that the whole range of remedies was again available to the parties. Finally, the fact that contact between the applicant and his daughter had been interrupted since mid-2009 made the authorities’ task all the more difficult. The unbending position of both parents added further to the difficulty of the case. This became particularly apparent in the second set of proceedings, which were marked by the District Court’s attempts to bring about co-operation between the parties, with the aim of avoiding coercive measures against the applicant’s daughter. However, the Court reiterates that that the lack of co-operation between separated parents is not a circumstance which by itself may exempt the authorities form their positive obligations under Article 8 (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011). 133. The Court would add the following considerations. It cannot but note that despite the fact that the applicant submitted a final and enforceable return order to the Austrian courts in September 2009, the Austrian authorities have not been able to bring about an enforcement of this or the subsequent return order until today. In that context, it is of particular importance to note that so far no final decision has been taken which would conclude that return would be against the child’s best interests. The issue whether circumstances have changed to such an extent that an enforcement of the Venice Youth Court’s judgment is no longer justified is currently pending before the Venice Youth Court. 134. According to the Court’s established case-law, effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time (see, among others, H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120; Raw and Others, cited above, § 83). In that connection, the Court has also repeatedly noted that the passage of time can have irremediable consequences for relations between the child and the parent who does not live with it (see, for instance Keegan v. Ireland, 26 May 1994, § 55, Series A no. 290; Ignaccolo-Zenide, cited above, § 102; Maire, cited above, § 74). This raises the question whether the procedural framework in place allowed the applicant to pursue his rights effectively. 135. In the specific the context of return proceedings, the Court has held that it is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention (see, for instance Ignaccolo-Zenide, cited above, § 108; Sylvester, cited above, § 68). Moreover, in a recent case relating to proceedings under the Hague Convention, the Court examined whether the procedural framework provided by the State was adequate to give effect to the object and purpose of that Convention (see, López Guió v. Slovakia, no. 10280/12, §§ 106-111, 3 June 2014). In the Court’s view, similar considerations apply in the present case. 136. Specific streamlined proceedings may be required for the enforcement of return orders – be it under the Hague Convention or under the Brussels IIa Regulation

– for a number of reasons. Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court notes that it is in the nature of such proceedings that the lapse of time risks to compromise the position of the non-resident parent irretrievably (see, Lópes Guió, cited above, § 109). Moreover, as long as the return decision remains in force the presumption stands that return is also in the interests of the child (see, X. v. Latvia, cited above, §§ 96-97). The proceedings available to the applicant in the present case followed the normal pattern of enforcement proceedings. They did not contain any specific rules or mechanisms to ensure particular speediness. It does not appear either that the authorities had appropriate means at their disposal to ensure that contact between the applicant and his daughter, which had broken off in mid-2009, was re-established and maintained while the proceedings were pending. 137. In conclusion, the Court considers that the Austrian authorities failed to act swiftly in particular in the first set of proceedings. Moreover, the available procedural framework did not facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life. 138. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 139. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 140. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage, arguing that the Austrian courts’ failure to enforce his daughter’s return to Italy has deprived him of contact with his daughter over a lengthy period. 141. The Government contested the applicant’s claim. They asserted that the applicant himself did not make any attempt to get in contact with his daughter and that, in any case, the amount claimed appeared excessive in the light of awards made by the Court in comparable cases. 142. The Court accepts that the applicant must have suffered distress as a result of the Austrian Court’s failure to enforce the return of his daughter to Italy, which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases and making an assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage. B. Costs and expenses 143. The applicant also claimed EUR 39,283.85 under the head of costs and costs and expenses. This sum is composed of EUR 24,393.65 incurred in the proceedings before the Venice Youth Court and EUR 14,890.20 incurred in the proceedings before the Court. These amounts included value-added tax. 144. The Government submitted that the applicant had failed to give any indication as to the existence of a causal link between the costs claimed for the proceedings before the Venice Youth Court and the alleged violation. Regarding the costs claimed in respect of the proceedings before the Court, the Government argued that they appeared excessive. 145. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the proceedings before the Venice Youth Court and considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to him on that amount. C. Default interest 146. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT,UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 20,000 plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000, 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 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident

SECOND SECTION CASE OF GÜLCÜ v. TURKEY (Application no. 17526/10) JUDGMENT STRASBOURG 19 January 2016 FINAL 06/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gülcü v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Julia Laffranque, President,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Georges Ravarani, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 17526/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ferit Gülcü (“the applicant”), on 16 March 2010. 2. The applicant was represented by Ms S. Şahin and Mr M. Şahin, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3. On 31 August 2012 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1992 and lives in Diyarbakır. A. Events of 14 July 2008 5. On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation. 6. According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published. 7. The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK. 8. According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai[1]” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head

” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan[2], to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı [3]” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”), “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school. 9. At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school. 10. The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking. B. Criminal proceedings against the applicant 11. The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report. 12. On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows: “...I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“Biji Serok Apo”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish

flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.” 13. On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts. 14. The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence. 15. On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code. 16. On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag. 17. The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time. 18. On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008[4] and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports. 19. In its judgment, the Assize Court held as follows: “... THE INCIDENT, EVIDENCE AND ASSESSMENT In a declaration made on 11 July 2008 on the website of the Fırat News Agency, which is controlled by the terrorist organisation, the PKK, the Democratic People’s Initiative of Turkey and Kurdistan gave the following instructions: ‘This year’s July 14 celebrations should be made on the basis of the approach of “live and make the leadership live”... in each town and city, a march should be held on 14th of July with a view to showing respect for our leader. This march should have the nature of Serhildan (rebellion); should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people’s leader... in the form of vicious notification to the enemy that the approach to the people’s leader is the approach to

the Kurdish people, and at the same time, a reason for war for the Kurdish people... every city and district should determine the itinerary depending on the conditions and get prepared... today, as well, there are attacks against our leadership and our people... this march should be the victory of human dignity.’ Similarly, on the website entitled www.rojaciwan.com, which is also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement was published: “...while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.” Against this background, on 14 July 2008 at around 4.30 p.m. people began to gather in front of the local branch of the DTP. Among the crowd, there were Members of Parliament and mayors who were members of the DTP. At around 5.50 p.m. there were 3,000 persons gathered. At 5.50 p.m. the crowd started the march and arrived in Koşuyolu Park at around 6.30 p.m. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, the leader of the terrorist organisation, such as “Every Kurd is Öcalan’s fedai” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan, to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”), “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan, the leader of the terrorist organisation and flags of the so-called “Confederation”. At around 6 p.m. speeches began. At 7 p.m., while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones... at the police officers and the cars parked in the neighbourhood. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the vicinity with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to interfere with the group who were holding an illegal demonstration. Some within the crowd took down the Turkish flag in the schoolyard of the Diyarbakır nursery school... In this connection, in the light of the indictment, the applicant’s indirect confessions, the incident report, the document containing the description of the events of 14 July 2008 prepared by the police, the arrest report, photographs showing the accused and the whole content of the case file, it has been established that the accused Ferit Gülcü actively took part in the illegal demonstrations held on 14 July 2008 in Diyarbakır in accordance with the instructions of the terrorist organisation PKK; that he chanted the slogan “Long live President Öcalan” (“Biji Serok Apo”) together with the crowd; that he attacked the police with stones; that he acted together with the group who took down the Turkish flag in the schoolyard

of the Diyarbakır nursery school; and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. In his defence submissions, the accused accepted that he had taken part in the illegal demonstration; that he had made propaganda in support of the terrorist organisation; and that he had resisted the police by way of throwing stones. He denied, however, the veracity of the allegation that he had participated in the taking down of the Turkish flag in the schoolyard of the Diyarbakır nursery school. Having regard to the documents and photographs in the case file, it has been understood that the accused acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. An accused should be convicted under Article 314 § 2 on the basis of Articles 314 § 3 and 220 § 6 of the Criminal Code if it is established that the offences in question were committed within the scope of an [illegal] organisation’s activities or if those offences serve as the evidence or basis of offences committed on behalf of an [illegal] organisation. In the present case, it has been understood that on 14 July 2008 the accused took part in the meetings and demonstrations, which subsequently became illegal, held as a result of the general call made by the organisation and the calls disseminated by the media controlled by the organisation and in accordance with the organisation’s purposes and that, with that aim, he committed the following offences: dissemination of terrorist propaganda, breach of Law no. 2911, denigration of symbols of the sovereignty of the State. It has thus been concluded that these acts, which were committed within the knowledge and in line with the will of the organisation, were perpetrated on behalf of the organisation. Therefore, the accused should also be convicted under Article 314 § 2 with reference to Articles 314 § 3 and 220 § 6 of Law no. 5237 along with the convictions for his other acts...” 20. Diyarbakır Assize Court then acquitted the applicant on the charge of denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code, noting that it was not established that the crime had been committed by the applicant. 21. However, the Assize Court convicted the applicant under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 and sentenced him to a total of seven years and six months of imprisonment. 22. The Assize Court first convicted him of membership of an illegal organisation pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code as it found it established that the applicant had taken part in the events of 14 July 2008 which had become propaganda in support of the illegal organisation, upon the call made by the PKK. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; increased it by one and a half times by virtue of section 5 of Law no. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account that the accused had been aged between 15 and 18 at the material time (five years); and, finally, reduced it by one sixth under Article 62 § 1 of the Criminal Code taking into account the accused’s “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of four years and two months of imprisonment). 23. Diyarbakır Assize Court also convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law no. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); further reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account his “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days). The court decided not to commute the sentence to a fine under section 7(2) of Counter-Terrorism Law no. 3713, or to defer it pursuant to section 13 of Law No. 3713. It finally found Article 231 of the Code of Criminal Procedure governing the suspension of the pronouncement of a judgment inapplicable in the circumstances of the applicant’s case. 24. The first

-instance court finally convicted the applicant of resistance to security forces pursuant to sections 23(b) and 33(c) of Law no. 2911. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (three years and four months); reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account the accused’s “sincere confessions” as well as his attitude and behaviour during the proceedings (thus reaching a total of two years, nine months and ten days’ imprisonment). It decided not to commute the sentence to a fine, and not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would refrain from committing a crime. 25. On 6 October 2009 the Court of Cassation upheld the judgment of 11 November 2008. 26. On 16 December 2009 the final decision was deposited with the registry of the first-instance court. C. Subsequent developments 27. On 25 July 2010 Law no. 6008 entered into force. 28. On 26 July 2010 the applicant’s representative lodged a petition with the Fifth Division of Diyarbakır Assize Court. Noting that Law no. 6008 had amended certain provisions of Laws nos. 2911 and 3713, the applicant’s representative requested that the court examine whether the amended versions of those provisions could be considered to be in favour of the applicant and, if so, whether the execution of the applicant’s sentence could be suspended. 29. On the same day the Fifth Division of Diyarbakır Assize Court decided to suspend the execution of the applicant’s sentence in view of the fact that certain provisions of Laws no. 2911 and 3713 amended by Law no. 6008 were in favour of juvenile offenders. Subsequently, the applicant was released from prison and a new procedure was initiated in accordance with Article 7 § 2 of the Criminal Code, according to which in the case of a difference between the legal provisions in force on the date of commission of a crime and those in force after that date, the provision which is more favourable will be applied to the offender. 30. On 3 December 2010 the Fifth Division of Diyarbakır Assize Court held that it no longer had jurisdiction over the applicant’s case in the light of a new paragraph added to Article 250 of the Code of Criminal Procedure by Law no. 6008. According to this new paragraph, minors could not be tried by assize courts which had special jurisdiction. 31. On 20 January 2011 and 22 February 2011 Diyarbakır Juvenile Assize Court and Diyarbakır Juvenile Court decided, respectively, that they were not competent to examine the case. 32. Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction. On 3 October 2012 the Court of Cassation decided that Diyarbakır Juvenile Court had jurisdiction over the case. 33. Subsequently, Diyarbakır Juvenile Court started the re‑assessment of the applicant’s case with a view to determining the applicable legal provisions and the sentences in accordance with Article 7 § 2 of the Criminal Code (see paragraph 29 above) and in the light of the amendments made to Laws nos. 2911 and 3713 by Law no. 6008 (uyarlama yargılaması). 34. On an unspecified date the applicant made statements before Diyarbakır Juvenile Court. He contended that he had already served his prison sentence and that he contested the new procedure. 35. On 20 December 2012 Diyarbakır Juvenile Court rendered its judgment regarding the applicant. Having regard to the amendments made to Laws nos. 2911 and 3713 by Law no. 6008, the Juvenile Court revoked the applicant’s convictions contained in the judgment of 11 November 2008, holding that the amendments applied by Law no. 6008 were in favour of the applicant. 36. The first-instance court then acquitted the applicant of the charge of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, having regard to section 34/A of Law no. 2911, which had entered into force on 25 July 2010 with Law no. 6008 (see paragraph 50 below). 37. Diyarbakır Juvenile Court further convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law No. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment under this head; reduced it

by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395). 38. The Juvenile Court further convicted the applicant of participation in a demonstration while in possession of prohibited materials pursuant to section 33(1) of Law no. 2911. Applying the minimum penalty, it sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Considering that the applicant would not commit any further crime and having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court decided to suspend the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 39. Diyarbakır Juvenile Court also convicted the applicant of resistance to the security forces which had used force to disperse the demonstrators pursuant to section 32(1) of Law no. 2911. Applying the minimum penalty, the first-instance court sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395). 40. Diyarbakır Juvenile Court finally convicted the applicant of obstructing the security forces in the execution of their duties by way of resistance together with other persons and using the influence of an organisation pursuant to section 32(2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. Applying the minimum penalty, the court sentenced the applicant to six months’ imprisonment under this head. It then increased the sentence by one third as the crime had been committed collectively (eight months); further increased it by one half pursuant to Article 265 § 4 of the Criminal Code as the crime had been committed using the influence of an organisation (twelve months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for a minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 41. On 31 December 2012 the judgment of 20 December 2012 became final in the absence of any objection. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code (Law no. 5237) 42. Under Article 7 § 2 of the Criminal Code, in case of a difference between the legal provisions in force at the date of commission of an offence and those in force after that date, the

provision which is more favourable is applied to the offender. 43. At the material time, Article 220 of the Criminal Code read as follows: Establishing organisations for the purpose of criminal activity “Article 220 - (1) Anyone who establishes or directs organisations for the purpose of criminal activity shall be liable to imprisonment of between two and six years provided that the structure of the organisation, the number of members, and the quantity of equipment and supplies are sufficient to commit the intended crimes. (2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to imprisonment of between one and three years. (3) If the organisation is armed, the sentences stated above shall be increased by a proportion of between one quarter and one half. (4) Any crime committed within the framework of the organisation’s activities shall be punished separately. (5) The heads of the organisations shall also be sentenced as the perpetrators of all crimes committed within the framework of the organisation’s activities. (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. (8) Anyone who makes propaganda for the organisation or its objectives shall be punished by imprisonment of between one and three years. If the said crime is committed through the media and press the sentence shall be increased by one half.” Paragraphs 6 and 7 of Article 220 were amended by Law no. 6352, which entered into force on 2 July 2012, as follows: “(6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds depending on the nature of the assistance.” Article 220 § 6 was further amended by Law no. 6459, which entered into force on 11 April 2013. It currently reads as follows: (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. This paragraph shall be applicable only for armed organisations. 44. Article 314 of the Criminal Code reads as follows: Armed organisations “Article 314 - (1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years. (2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years. (3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime.” 45. Article 300 § 1 of the Criminal Code reads as follows: Denigration of symbols of the sovereignty of the State “Article 300 - (1) Anyone who publicly tears, burns or otherwise denigrates the Turkish flag shall be sentenced to a term of imprisonment of between one and three years. This provision shall apply to all signs bearing the white crescent and star on a red ground described in the Constitution as a symbol of the sovereignty of the State of the Republic of Turkey...” 46. Article 265 § 1 of the Criminal Code reads as follows: Resistance with a view obstructing the execution of duties “Article 265 - (1) Anyone who uses methods of violence or threats against a public officer with a view to obstructing him or her in the execution of his or her duties shall be liable to imprisonment of between six months and three years.” B. The Meetings and Demonstration Marches Act (Law no. 2911) 47. According to section 23(b) of the Meetings and Demonstration Marches Act (Law no. 2911), in force at the material time, meetings or demonstration marches during which the demonstrators or the participants bear, inter alia, firearms, explosives, cutting and perforating tools, stones, bats, iron or

rubber bars, wires, chains, poisons, gas or fog materials, were considered to be “unlawful meetings and demonstration marches”. 48. Section 33(c) of Law no. 2911 provided as follows, before it was amended by Law no. 6008 on 25 July 2010: “Section 33... (c) Persons who show resistance with weapons or materials listed in section 23(b) while being dispersed [during meetings and demonstration marches] shall be liable to a term of imprisonment of between five and eight years...” Following the amendments introduced by Law no. 6008, section 33 of Law no. 2911 read, in so far as relevant, as follows: “Persons who take part in meetings and demonstration marches while carrying weapons or materials listed in section 23(b) shall be liable to a term of imprisonment of between six months and three years...” 49. Following the amendments introduced by Law no. 6008, section 32(1) and (2) of Law no. 2911 currently reads as follows: “Persons taking part in unlawful meetings or demonstration marches who continue not to disperse despite warnings or use of force shall be liable to a term of imprisonment of between six months and three years. If the offender is one of the organisers of the meeting or the demonstration march, the sentence shall be increased by half. Persons who resist the security forces by methods of violence or threats despite warnings or use of force shall also be punished for committing the crime proscribed by Article 265 of the Criminal Code (Law no. 5237) of 26 September 2004.” 50. By Law no. 6008 a new provision, section 34/A, was added in Law no. 2911. Section 34/A reads as follows: “Section 2(2) of the Prevention of Terrorism Act (Law no. 3713) shall not be applicable to children who commit the crime of resistance during unlawful meetings and demonstration marches or who commit the crime of propaganda during meetings and demonstration marches in which they take part.” C. The Prevention of Terrorism Act (Law no. 3713) 51. At the material time, section 7(2) of the Prevention of Terrorism Act read as follows: “Any person who disseminates propaganda in support of a terrorist organisation shall be liable to a term of imprisonment of between one and five years...” 52. Section 2(2) of Law no. 3713 which is referred to in section 34/A of Law no. 2911 (see paragraph 50 above) reads as follows: “Persons who commit crimes on behalf of a (terrorist) organisation shall be considered as terror offenders even if they are not a member of that terrorist organisation.” D. Code of Criminal Procedure (Law no. 5271) 53. Suspension of the pronouncement of a judgment is governed by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5) If the accused has been convicted on the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that: (a) the offender has never been found guilty of a wilful offence; (b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and] (c) the damage caused to the victim or to society is redressed by way of restitution or compensation. ... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that... up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures. (12) An objection to the decision to suspend the pronouncement of the judgment may be filed.” 54. At the material time, according to Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act assize

courts with special jurisdiction were competent to try a number of crimes, including the crimes proscribed by Article 314 of the Criminal Code and section 7(2) of the Prevention of Terrorism Act. By Law no. 6008 a new paragraph (paragraph 4) was inserted in Article 250 of the Code of Criminal Procedure, according to which children could not be tried by assize courts which had special jurisdiction. On 5 July 2012 both Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act were repealed and assize courts with special jurisdiction were abolished. E. Code of Child Protection (Law no. 5395) 55. Article 23 of the Code of Child Protection reads as follows: “At the end of the criminal proceedings brought against a child, the court may decide to suspend the pronouncement of the judgment if the conditions are fulfilled. With regard to these persons, the period of supervision is three years.” F. The decision of the Court of Cassation of 4 March 2008 (Case no. 2007/9-282, Decision no. 2008/44) 56. In criminal proceedings brought against a certain F.Ö., on 29 September 2006 Diyarbakır Assize Court convicted him under section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations. 57. On 21 February 2007 the Ninth Criminal Division of the Court of Cassation quashed the judgment of the first-instance court, holding that F.Ö.’s acts constituted not only the offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911, but also membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, as he had committed those offences on behalf of the organisation. The Ninth Chamber therefore considered that F.Ö. should be punished for having committed the offence of membership of an illegal organisation and the other offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911. 58. On 31 May 2007 Diyarbakır Assize Court reiterated its previous judgment that F.Ö.’s acts did not constitute the offence proscribed in Article 314 § 2 of the Criminal Code. The Assize Court noted the following: “... In cases where people participate in the funerals of members of a terrorist organisation or in Newroz celebrations, subsequent to abstract and generalised calls of that organisation, and in cases where chanting slogans constitutes propaganda for that organisation, it is not possible to state that those crimes were committed on behalf of the organisation. In order for a court to conclude that a crime was committed on behalf of an organisation, the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act. ...” 59. As a result of the disagreement between Diyarbakır Assize Court and the Ninth Criminal Division of the Court of Cassation, the case was transferred to the Plenary Court of Cassation (Criminal Divisions). On 4 March 2008 the Plenary Court of Cassation decided to quash the judgment of the Assize Court. Its decision, in so far as relevant, reads as follows: “... In the criminal proceedings brought against F.Ö. under Articles 314 § 2, 53, 63, 58 § 9 of the Criminal Code (Law no. 5237) and section 5 of the Prevention of Terrorism Act (Law no. 3713) with reference to Articles 220 §§ 6 and 7 and 314 § 3 of the same Code, the first-instance court held that the accused should be convicted under section 7(2) of Law no. 3713, section 32(1) and (3) of Law no. 2911 and not under Article 314 § 2 of the Criminal Code. The Plenary Court of Cassation (Criminal Divisions) must resolve the following issues: 1. Whether the acts of the accused which were considered to have constituted three separate crimes could also be considered to be crimes committed on behalf of an [illegal] organisation in view of the provision which reads as follows: ‘Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.’ ... In the light of the information specific to the present case file and also the general information obtained from other case files concerning the [illegal] organisation, it is considered as follows: The PKK, whose aim is to form a Marxist–Lenin

ist state by separation of a part of the territory under the sovereignty of the Republic of Turkey by means of an armed struggle, started developing new policies involving its members and supporters abroad following the arrest of its leader Abdullah Öcalan. To that end, the so-called Presidential Council of the organisation held a congress (the 7th Congress) between 2 and 23 January 2000. At this congress a new action plan, namely the ‘Democratisation and Peace Project’, was adopted. Furthermore, the Central Committee was replaced by the Party Assembly while the ARGK and the ERNK were replaced by the HPG (Kurdistan People’s Defence Force) and the YDK (Kurdistan Democratic People’s Union) respectively. A new party regulation was prepared and the emblem of the organisation was also changed. In order to ensure the implementation of the decisions taken at the 7th Congress, a conference that was named as ‘the 6th National Conference’ by the PKK was held between 5 and 22 August 2000. In accordance with the new strategy for achieving the organisation’s main goals, an action plan of ‘Civil Disobedience’ was adopted. This non-violent action plan aimed at damaging the international reputation of the State of the Republic of Turkey and its security forces and was contrary to the legislation of the Republic of Turkey. In this regard, the following actions had been planned and implemented: (1) Submitting written petitions to university administrations by university students, who are the supporters or members of the organisation, requesting the inclusion of Kurdish in the curriculum as an elective course; (2) Creating pressure by submitting petitions to Directorates of National Education by the parents of primary and secondary school students for the use of the Kurdish language as the language of education; (3) Dressing up in traditional female Kurdish costumes (action to be organised by sympathiser groups); (4) Applying to courts or population registration offices and requesting to have ‘Kurdish’ written on identity cards; (5) Filing applications containing the phrase ‘I also am a member of the PKK and I support its new strategy’; (6) Extending the campaign for ‘education in Kurdish’, which had been pursued at the universities, to primary schools and high schools, by the PKK’s so-called Presidency Council. At the 8th Congress held between 4 and 10 April 2002, the name PKK was changed to KADEK (Kongra Azadi U Demokrasi A Kürdistane – Kurdistan Freedom and Democracy Congress) and this congress was declared as the ‘1st Foundation Congress’. Following this congress, a number of NGOs started to voice requests for ‘education in mother tongue, prohibition of death penalty, general amnesty and permission to publish in the Kurdish language’ in every arena. At the 9th Congress held between 26 October and 15 November 2003, the name KADEK was changed to KONGRA-GEL (Kurdish People’s Congress) and this congress was declared as the 1st Foundation Congress. Following this congress, throughout 2003 the organisation continued the aforementioned campaigns in accordance with the civil obedience movement (Siyasi Serhildan). In this regard: (1) Between 16 and 26 May 2004 the PKK held its 10th Congress, which is named as the 2nd Extraordinary Congress, on Mount Kandil in Northern Iraq, and decided to re-activate the militants of the HPG, the organisation’s armed wing, due to the weakening of Abdullah Öcalan’s influence as a result of the polarisations within the organisation, the inclusion of KONGRA-GEL in the list of terrorist organisations by the European Union, the failure to achieve the expected success within the past five years and in order to unify the organisation’s supporter base by reasserting the requests for a general amnesty, legalisation of the [organisation’s] political activities and constitutional recognition of the Kurdish cultural identity. It was further decided to carry out (armed) actions as a reprisal for the losses suffered during military operations launched against the organisation. It was also decided to bring forward the following issues via the individuals and NGOs sympathising with the organisation in order to shape public opinion and to apply pressure on the State in the international arena: 1. Adoption of a general amnesty; 2. Release of the leader of the terrorist organisation from prison; 3. Recognition of constitutional citizenship rights for Kurdish people; 4. Declaration of a ceasefire by both parties and establishment of peace; 5. Urging the State to take concrete steps concerning the Kurdish issue and the release of Abdullah Öcalan in order to maintain a conflict-free environment. The organisation also reverted back to its original name of ‘PKK’ (Parti

ye Karkerani Kürdistan – Kurdistan Workers’ Party) on 4 April 2005, the birthday of Abdullah Öcalan, who is still serving a prison sentence. (2) On 24 March 2006 fourteen PKK militants were killed in the Şenyayla region in the proximity of Solhan district, called Senyayla, during a military operation carried out by security forces of the 49th Internal Security Infantry Brigade Command and Bingöl Provincial Gendarmerie Command in the region encompassing Bingöl and Muş provinces. Following the autopsy and forensic procedures carried out in Malatya, the remains of four of the militants were released to their families in order to be buried in Diyarbakır. On 28 March 2006 at around 7 a.m., the remains were taken to Şerif Efendi Mosque, located on Bağlar Medine Boulevard, where around 1500-2000 people had gathered. The crowd blocked the traffic; carried the coffins, chanted separatist and violent slogans in support of the organisation and its leader in Turkish and Kurdish and sang the organisation’s so-called youth march, the ‘Hernepeş’ (Forward). Furthermore, some of the demonstrators burned tyres on the road and some masked and unmasked protestors waved posters of Abdullah Öcalan and banners of the organisation. A banner of 2 x 1 metres in size containing the phrases ‘Martyrs are our honour’ and ‘PKK’ in capital letters was also held up. Despite the warnings of the security forces that the demonstrators should not chant illegal slogans, disseminate propaganda in support of the organisation and wave illegal flags, the crowd got agitated and started throwing stones at the police officers on duty, injured a number of police officers and caused extensive material damage to State buildings and vehicles, banks, shops and vehicles belonging to private individuals, by throwing stones and Molotov cocktails. The demonstrations continued on 29, 30 and 31 March, as the protesters burned numerous vehicles, looted local businesses, hurled Molotov cocktails particularly at open shops, blocked the roads and attacked police officers and police vehicles with stones, bats and Molotov cocktails, staged an arson attack on a bank building and took down and burned a Turkish flag. Prior to these demonstrations, some media organs controlled by the PKK had called for mass protests. In this respect, Fırat News Agency published the following statements made on behalf of the PKK People’s Defence Committee by T.K., a high-level executive of the organisation, on its homepage: ‘...Kurdish people have clearly, openly demonstrated their determination and persistence in their requests for freedom and democracy and in supporting the leader A. It is without doubt that Kurdish people will carry on the resistance in various ways throughout the year. It must be understood that the proletarian people, especially the Kurdish youth and women, are determined to turn 2006 into a year of civil disobedience (Serhildan) with the motto “freedom and democratic solutions for the Kurdish issue”. Newroz has been one of its [the civil disobedience] most important, most glorious peaks. At the moment, on account of our day and our week of heroism, our people have been carrying on their democratic actions with a view to remembering, embracing and understanding our martyrs. This will continue throughout the month of April...’ Similarly, on the web page of the HPG, statements summoning the people to partake in actions of civil disobedience called ‘serhildan’ had been published: ‘Amed[5]...! They have launched a full scale war against you. They have resorted to all of the dirty tools of war, ranging from drug addicts to prostitutes, from thinner addicts to bag-snatchers, from batons to torture, from bullets to genocide... You must know these. You must know and rise up: The military, the police, the MIT (the Turkish intelligence agency), the JITEM (Gendarmerie Intelligence and Counter-Terrorism), they are all gangs of executioners...’ The Kurdish organisation Komalen Ciwan close to the PKK issued the following statement on its Internet homepage: ‘... As the Kurdish people celebrate Newroz in a spirit of peace, the belligerent security forces continue their massacres against our people with chemical weapons. Most recently we have been shaken by the massacre of fourteen guerrillas – heroic children of our people in Muş. We are enduring a deep agony. It is the debt of honour of the Kurdish people and the people of A... to protest against this massacre and to look out for the brave insurgents of the Kurdish people. For this reason, on 28th of March, in a way that befits our week of heroism, we are calling our people to down their shutters, not to work and to collectively attend the funeral in an effort to embrace our six martyrs...’ On 27 March 2006 brochures containing the same

statements were handed out to the public in various locations in Diyarbakır. Along with these web sites which are the media organs of the organisation [the PKK], Roj TV, which is the ‘voice’ of the organisation, created tension within society with its frequent broadcasts calling the people to stop going to work, to close down their businesses and not to send their children to school. People who attended the funerals of the deceased PKK members carried out the said actions. Similarly, the protests spread to many other cities and districts, notably Batman, Siirt, Istanbul and Mersin. Throughout the nationwide protests, above two hundred police officers were injured; several cars were burned; the windows of an indeterminate number of shops were smashed and many State buildings were set on fire. 9 people died during the events, whereas 41 persons were injured. Archive records of 400 people who were apprehended in relation to the incidents in Diyarbakir reveal that a number of them had previously been investigated on charges of membership of the PKK, aiding the PKK, and disseminating propaganda in support of that organisation. Some of them had been previously convicted on charges such as usurpation and robbery and they tried to take advantage of the chaotic atmosphere which lasted for 3 to 4 days. Out of 77 people who had participated in the protests and who were taken into custody, 26 were younger than 18 years old. F.Ö., who had participated in the protests which occurred upon the PKK’s appeals and instructions, was apprehended on 5 May 2006. It has been established beyond any doubt, in the light of the incident reports, reports containing a description of the events on the basis of police video recordings, video footage and photographs, that the accused were involved in the following incidents, apart from the events of 28 April 2006: – Participation in the funeral of E.E., a member of the PKK who had been killed on 26 February 2006. The accused carried the deceased terrorist’s coffin, sang the PKK’s so-called anthem ‘Hernepeş’, chanted slogans praising the PKK and its so-called leader, such as ‘Öcalan Öcalan, Öcalan is our political will’, ‘Kurdistan will be the grave for fascism’ and ‘Guerrilla strikes to found Kurdistan’ and directed the group; – Participation in the Newroz celebrations held in Diyarbakır Fairground on 21 March 2006. The accused was among a group of people who attacked the police officers at the control points at the entrances to the fairground, destroyed the barriers and carried the flags symbolising PKK and the posters of its so-called leader. The accused directed the group and 10 police officers were injured. The dispute to be resolved by the Plenary Court of Cassation (Criminal Divisions) is whether the accused’s acts (participation in illegal demonstrations of 26 February, 21 March and 28 March 2006, specially held upon the appeals by the PKK in accordance with the latter’s general invitation for demonstrations and with its new strategy; leading a group of demonstrators carrying symbols of the PKK and posters of Abdullah Öcalan; giving instruction to the demonstrators to attack the police; attack on the police; being in a group of people who received the remains of members of the organisation killed by the security forces during operations in line with the calls of the PKK and making a victory sign; chanting slogans such as ‘Öcalan is our political will’, ‘Our leader is our political will’ and ‘Guerrilla strikes to found Kurdistan; directing a group that lit a fire on a road and blocked the traffic, which constitute independent offences, can also be considered offences committed on behalf of the organisation. Article 314 § 3 of the Criminal Code (Law no. 5237), which entered into force on 1 June 2005, reads as follows: ‘(3) Other provisions relating to the offence of establishing organisations for the purpose of criminal activity are also applicable for this offence.’ Article 220 § 6 of the Criminal Code reads as follows: ‘(6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.’ ... The aforementioned provision reflects an approach that is utterly different from the approach of the former Criminal Code (Law no. 765). According to this provision, the offences committed in line with an [illegal] organisation’s activities impose further criminal responsibility. Acts of aiding are also considered as membership of an organisation. A separate offence of aiding an [illegal] organisation was not envisaged. Aiding an organisation by way of providing weapons was proscribed in a separate provision, i.e. Article 315, having regard to the gravity of that offence. Other acts of aiding were proscribed

in Articles 220 and 314 of the same Code. In the circumstances of the present case, the [illegal] organisation’s public call has been made concrete through broadcasts from media organs of the organisation and there is no need for such calls to target identified individual persons. It is established that the acts carried out on behalf of the organisation were within the knowledge of the organisation and in line with its will. The acts of an accused who participates in these acts carried out on behalf of the organisation constitute a breach of Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the Criminal Code, along with the breaches of criminal law provisions. Thus, the judgment [of the first-instance court] must be quashed. ...” III. RELEVANT INTERNATIONAL MATERIALS A. United Nations Documents 1. The United Nations Convention on the Rights of the Child 60. The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law vis-à-vis the Contracting States, including all of the member States of the Council of Europe. Article 1 of the Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 3 § 1 reads: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 reads, in so far as relevant, as follows: “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age...;” The relevant part of Article 40 provides: “1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. ... 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: ... (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.” 2. General Comment No. 10 (2007) of the United Nations Committee on the Rights of the Child (CRC/C/GC/10) 61. The relevant part of the General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007, reads: “23. Children in conflict with the law, including child recidivists, have the right to be treated in ways that promote their reintegration and the child’s assuming a constructive role in society (art. 40 (1) of CRC). The arrest, detention or imprisonment of a child may be used only as a measure of last resort (art. 37 (b)). It is, therefore, necessary - as part of a comprehensive policy for juvenile justice - to develop and implement a wide range of measures to ensure that children are dealt with in a manner appropriate to their well-being, and proportionate to both their circumstances and the offence committed. These should include care, guidance and supervision, counselling, probation, foster care, educational and training programmes, and other alternatives to institutional care (art. 40 (4)). ... 28. When judicial proceedings are initiated by the competent authority (usually the prosecutor’s office), the principles of a fair and just trial must be applied... At the same time, the juvenile justice system should provide for

ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort. In the disposition phase of the proceedings, deprivation of liberty must be used only as a measure of last resort and for the shortest appropriate period of time (art. 37 (b)). This means that States parties should have in place a well-trained probation service to allow for the maximum and effective use of measures such as guidance and supervision orders, probation, community monitoring or day report centres, and the possibility of early release from detention. ... 71. The Committee wishes to emphasize that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in article 40 (1) of CRC...” 3. Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (CRC/C/TUR/CO/2-3) 62. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (CRC/C/TUR/CO/2‑3), dated 30 July 2012, states as follows: “Freedom of association and peaceful assembly ... 39. The Committee recommends that the State party continue its efforts to ensure full enjoyment of the freedoms of expression, association and peaceful assembly by children by amending its legislation to remove the remaining obstacles to these rights, including the minimum age for forming an organisational committee for outdoor meetings. The Committee further recommends that the State party take all measures to remove other obstacles in the procedures and facilitate the process to ensure that children are able to exercise their rights in accordance with the law. ... Administration of juvenile justice 66. The Committee commends the State party for its extensive reforms in the area of juvenile justice, including new legislative changes resulting in the increase of the age of criminal liability from 11 to 12 years, requiring all persons under the age of 18, including those charged under the Counter-terrorism Law, to be considered in juvenile courts; introducing reduced sentences for children and special measures for children who are pushed into crime; as well as establishing child prisons, child prosecutors and child police. However, the Committee is concerned at the following: (a) Insufficient number of professionals working in the juvenile justice system; (b) Poor quality of legal assistance provided to children under the free legal aid programme, due to the low compensation for lawyers; (c) Long duration of trials involving children, resulting in large numbers of children in pre-trial detention, compared to children serving sentences; (d) Unduly heavy penalties against children and lack of alternative measures; (e) Reports that amendments to the Counter-terrorism Law are not upheld in practice, as children detained during demonstrations are initially held together with adults; (f) Long detention periods and poor conditions in some prisons; ... 67. The Committee recommends that the State party bring the juvenile justice system fully in line with the Convention on the Rights of the Child, in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System and the Committee’s general comment No. 10 (2007) on the rights of the child in juvenile justice. In particular, the Committee urges the State party to: (a) Increase the number of professionals working in the juvenile justice system; (b) Take measures to provide incentives for lawyers to work on cases involving children; (c) Expedite the investigation and trial process in cases involving children, so as to reduce the number of children in pre-trial detention; (d) Take immediate measures to ensure that the detention of children is used as a last resort and that alternative measures are applied for children; (e) Ensure enforcement of the amendments to the Counter-terrorism Law and ensure that children detained and charged under this law are provided with all basic legal guarantees; ...” B. Council of Europe documents 1. Resolution 2010 (2014) of the Parliamentary Assembly of the Council of Europe 63. In its Resolution 2010 (2014), adopted on 27 June 2014 and entitled “Child-friendly juvenile justice: from rhetoric to reality”, the Parliamentary Assembly of the Council of Europe states the following

: “... 6. In particular, the Assembly calls on the member States to: 6.1. establish a specialised juvenile justice system by means of dedicated laws, procedures and institutions for children in conflict with the law, inter alia the institution of a Children’s ombudsperson, following the positive practice of some member States; 6.2. set the minimum age of criminal responsibility at at least14 years of age, while establishing a range of suitable alternatives to formal prosecution for younger offenders; 6.3. prohibit exceptions to the minimum age of criminal responsibility, even for serious offences; 6.4. ensure that detention of juveniles is used as a measure of last resort and for the shortest possible period of time, in particular by: 6.4.1. determining an age limit below which it is not permitted to deprive a child of his or her liberty, preferably higher than the minimum age of criminal responsibility; 6.4.2. developing a broad range of alternative non-custodial measures and sanctions to pre-trial detention and post-trial incarceration, including educational measures, community sanctions and treatment programmes; 6.4.3. abolishing life imprisonment of any kind for children; 6.4.4. establishing a reasonable maximum period to which a child may be sentenced; 6.4.5. providing regular reviews of custodial measures and/or sanctions a child may be subjected to; 6.5. ensure that deprivation of liberty, used only as a measure of last resort, aims at rehabilitating and reintegrating children into society, in particular by providing appropriate training and treatment programmes; 6.6. develop a broad range of diversion programmes, respecting human rights standards and based, inter alia, on principles of restorative justice, with a view to dealing with juvenile offenders without resorting to judicial proceedings; 6.7. decriminalise status offences, which are acts classified as offences only when committed by children; 6.8. ensure that all actors involved in the administration of juvenile justice receive appropriate training, with a view to guaranteeing an effective implementation of children’s rights in this context; 6.9. prevent the detention of young offenders by, inter alia, introducing a system of rapid intervention with the aim of allowing a multi-professional team, including the police, social workers, psychiatric nurses and youth workers, to facilitate the investigation of crimes committed by young offenders and to offer them and their families support and rehabilitation. ...” 2. Recommendation R (87) 20 of the Committee of Ministers of the Council of Europe 64. The recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency (R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to excluding the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals...” 3. Recommendation CM/Rec(2008)11 of the Committee of Ministers of the Council of Europe 65. The Recommendation on the European Rules for juvenile offenders subject to sanctions or measures (CM/Rec(2008)11), adopted by the Committee of Ministers on 5 November 2008, reads, in so far as relevant, as follows: “A. Basic principles ... 5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports. ... 10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention....” 4. Reports of the Commissioner for Human Rights of the Council of Europe 66. In his report published on 1 October 2009, following his visit to Turkey on 28 June to 3 July 2009 (CommDH(2009)30), Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following: “... 35. During his visit to Turkey, the Commissioner was informed that over the previous nine months approximately

250 children of Kurdish origin, more than 190 of them between 13 and 17 years of age, had been arrested and detained, after having taken part in demonstrations organized by Kurdish groups and thrown stones at police forces. In particular he has been informed that four children aged between 16 and 17 have been detained in the Diyarbakır prison since 14 July 2008, charged with membership of a terrorist organization as a result of participating in a protest in the above town. 36. NGOs that met with the Commissioner during his visit indicated that prosecution in such cases is often based on Article 220, paragraph 6, of the Criminal Code which provides that any person who commits an offence on behalf of an illegal organisation, even though they are not a member of the organization, shall be sentenced for the offence as well as for membership of the organization. The extensive use of this provision by courts against participants of Kurdish-related demonstrations follows a ruling of the General Criminal Board of the Court of Cassation in March 2008 which indicated that persons participating in demonstrations following public calls by the illegal organization PKK should be brought into the ambit, inter alia, of the above provision of the Criminal Code... 167. It appears necessary to revisit certain over-restrictive provisions of the legislation concerning elections, political parties and broadcasting, as well as criminal law provisions, such as the Criminal Code Articles 301 and 220 which have been used in a number of occasions in a manner that has unjustifiably suppressed freedom of expression...” 67. In his report published on 12 July 2011, following his visit to Turkey on 27 to 29 April 2011 (CommDH(2011)25), Mr Thomas Hammarberg stated the following: “... 18. Following his 2009 visit the Commissioner expressed his deep concern about the application of Article 220 of the Criminal Code, and in particular its paragraphs 6 and 8, and considers that this concern remains valid in the context of freedom of expression and freedom of the media in Turkey...” 68. In his report published on 10 January 2012, following his visit to Turkey on 10 to 14 October 2011 (CommDH(2012)2), Mr Thomas Hammarberg stated the following: “... 63. In his 2009 report on Turkey, the Commissioner expressed his concerns about the interpretation and application of the Turkish Anti-Terrorism Act (Act No. 3713) and certain provisions of the TCC, notably Article 220 dealing with criminal organisations. The Commissioner was particularly preoccupied by the wide interpretation of the courts concerning the definition of offences and their constitutive acts under the above provisions. 64. Pursuant to Article 220 TCC, a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7). The Commissioner had noted in his 2009 Report that persons participating in demonstrations following public calls by the illegal organization PKK were brought into the ambit of paragraph 6, in accordance with a ruling of the Court of Cassation in March 2008... 67. The Commissioner observes that the application of Article 220 TCC, as well as of Articles 6 and 7 of the Anti-Terrorism Act, continues to raise serious concerns... 68. The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations. 69. In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism ‘must be defined as precisely as possible and be necessary and proportionate to the aim pursued’. 70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.” 69. On 20 February 2012 Mr Thomas Hammarberg published his comments concerning a draft law presented to the Parliament of Turkey by the Government, which envisaged amendments to various legal provisions, including Article 220 of the Criminal Code. The draft law

in question was subsequently adopted on 2 July 2012 (Law no. 6352). In his comments, the former Commissioner for Human Rights considered as follows: “... 16. The proposed amendments to Article 220 TCC (Article 65 of the Bill) could be considered in conjunction with the previous amendment. These amendments concern paragraphs 6 and 7 of Article 220 TCC, which provide that a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7). With these amendments, the penalty is reduced by half for paragraph 6, and may be reduced by up to two thirds for paragraph 7. This would potentially allow persons being tried for these offences, especially where the criminal organisation is considered to fall under the scope of Article 314 TCC on armed criminal organisations, to benefit from alternative measures to remand in custody. 17. While acknowledging that this amendment can have short-term benefits for a number of ongoing trials, the Commissioner considers that it does not offer a lasting solution to serious problems caused by Article 220. As previously highlighted by the Commissioner, his main concern relating to Article 220 is the fact that it allows for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner considers that this issue calls for a more substantial review of the definition of the offences concerned, and encourages the Turkish authorities to tackle this question in the context of their future reform package, along with other legislative problems identified by the Commissioner in his reports on Turkey.” C. Non-governmental Organisations’ Reports 1. Report of Human Rights Watch of 1 November 2010 70. On 1 November 2010 the Human Rights Watch published a report entitled “Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey”. The 75-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713. The report, in so far as relevant, reads as follows: “In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their ‘crime’ was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law. In July 2010, as this report was being finalized, the government passed legal amendments to improve the treatment of child demonstrators... ... There are... fairly frequent localized protests in cities throughout southeast Turkey and in mainly Kurdish-populated districts of cities such as Adana. These typically involve groups of youths and children, who shout pro-Öcalan and PKK slogans, burn tires in the street, and respond to police orders to disperse by throwing stones. In the past, courts in Turkey convicted these protestors under laws governing public order or of ‘making propaganda for a terrorist organization’ (Article 7/2, Anti-Terror Law). Yet in recent years, criminal justice officials have deemed Kurdish protestors demonstrating against Turkey’s policies towards the Kurds to be ‘committing crimes on behalf of the PKK without being a member of that organization’ (Article 220/6, Turkish Penal Code). As a result, they are prosecuted as if they were actually fighting the government as armed ‘members’ of the PKK (Article 314/2, Turkish Penal Code). These serious charges, on top of more usual charges under the Law on Demonstrations and Public Assemblies, could result in sentences of 28 years in prison, or more, if there are repeated offenses. To date, the majority of adults convicted under these laws have received prison terms of between seven and 15 years. Prior to a July 2010 legal amendment, child protestors typically received prison sentences of between four and five years, though in 2010, at least several children were sentenced to seven-and-a-half years in prison. Law enforcement authorities and the courts allege that the PKK and its representatives are organizing the demonstrations as part of a wider policy to promote civil unrest, and even uprising, among Kurds in towns and cities throughout Turkey. By way of evidence the government and courts point to the PKK’s decrees issued at various congresses, and the fact that senior PKK representatives use sympathetic media outlets to issue ‘appeals’ to the Kurdish population to take to the streets in protest. Hence, the template for individual indictments includes an abstract overview of PKK history and policies, followed by a statement of the alleged specific criminal activities of the defendant.

In none of the cases examined by Human Rights Watch had prosecutors submitted evidence to establish that the individual defendant either heard the PKK’s ‘appeal’ or had been directly instructed or motivated by the PKK to participate in the demonstration, much less that the individual had any other specific link with the PKK or committed a crime under its orders. The Turkish courts consider it no obstacle to conviction that the prosecution has failed to provide evidence of the defendant’s specific intent to support or aid the illegal activities of the PKK. The General Penal Board of the Court of Cassation has held that it is sufficient to show that sympathetic media outlets broadcast the PKK’s ‘appeals’ – speeches by the PKK leadership calling on the Kurdish population to protest or raise their voices on various issues. Then the defendant, by joining the demonstration, is assumed to have acted directly under PKK orders. Yet even at extremely local demonstrations not announced in the media beforehand, protestors are routinely charged with acting under the orders of the PKK. In some cases, courts have held that the PKK’s ‘appeal’ to participate in demonstrations is a continuous generic one, and therefore a specific instance of appeal to the population need not be proved. This legal framework makes no distinction between an armed PKK combatant and a civilian demonstrator. ... On July 22, 2010, after civil society groups campaigned extensively against the prosecution of children under terrorism laws, the Turkish parliament adopted several amendments to limit the applicability of such laws to child demonstrators. Law no. 6008, published in the Official Gazette on July 25, 2010, states that all children will henceforth stand trial in juvenile courts, or adult courts acting as juvenile courts; child demonstrators ‘who commit propaganda crimes’ or resist dispersal by the police will not be charged with ‘committing crimes on behalf of a terrorist organization’ and hence ‘membership in a terrorist organization’ and children will not face aggravated penalties, and may benefit from sentence postponements and similar measures for public order offenses. The amendments also reduce penalties for both children and adults for forcibly resisting police dispersal and offering ‘armed resistance,’ including with stones, during demonstrations under the Law on Demonstrations and Public Meetings. Yet the new law omits any provision to prevent children from being charged with ‘making propaganda for a terrorist organization’ (either under Article 7/2 of the Anti-Terror Law or Article 220/8 of the Turkish Penal Code). ...” 2. Reports of Amnesty International 71. The report of Amnesty International published on 17 June 2010, entitled “All Children Have Rights / End Unfair Prosecutions of Children under Anti-terrorism Legislation in Turkey” concerned the rights of the children who are arrested, detained and tried under Laws nos. 5237, 2911 and 3713 on account of their participation in demonstrations. The report reads, in so far as relevant: “...While comprehensive statistics regarding the number of children prosecuted under antiterrorism legislation following demonstrations is not available, official statistics show that prosecutions were initiated against 513 children under Article 314 of the Penal Code which criminalizes leadership or membership of an armed organization in 2006-7 and against 737 children under the Anti-Terrorism Law during the same period. Following a parliamentary question tabled by a Member of Parliament Sevahir Bayındır in May 2009, the Justice Ministry in a written answer in December 2009 stated that from 2006-8 prosecutions were initiated against 1,308 children under the Anti-Terrorism Law and 719 children under Article 314 of the Penal Code. ... Children alleged to have participated in the demonstrations are frequently prosecuted under the Anti-Terrorism Law, specifically Article 7/2 which criminalizes making propaganda for a terrorist organization, and under Article 314 of the Penal Code via Article 220/6 of the Penal Code that criminalizes those who commit crimes in the name of a terrorist organization additionally, as if they were members of the organization. In a lesser number of cases Article 220/7 of the Penal Code is applied which states: ‘persons knowingly and willingly assisting the organization but not within the hierarchical structure of the organization are punished as members of the organization’. This application of the law followed a ruling of the Supreme Court of Appeals (case number 2007/9282). The Court considered that the tactics of the PKK were to make use of civil disobedience. In this context the Court ruled that in demonstrations publicized by media organizations regarded by the Turkish state to be associated with the PKK, such as Roj TV and Fırat News Agency, those that participate in demonstrations could be said to be acting on behalf of a terrorist organization. Children, who have been prosecuted in connection with their participation in the demonstrations, have frequently faced multiple charges for the same act including making propaganda for a terrorist organization, membership of a terrorist organization and, in addition, violation of the Law on Meetings and Demonstrations.

... Under the Convention on the Rights of the Child, which applies to everyone under 18, states are required to establish laws, procedures, authorities and institutions specifically applicable to children accused of infringing the penal law. The UN Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), adopted by the UN General Assembly in November 1985, stipulate in particular that proceedings for children should be conducive to the best interests of the child and shall be conducted in an atmosphere of understanding allowing them to participate and to express themselves freely, and that the well-being of the child should be the guiding factor in the consideration of the case. Amnesty International is concerned that by law, children aged 15-17 are tried in Special Heavy Penal courts under the same procedures as adults for terrorism-related offences. Article 9 of the Anti-Terrorism Law stipulates that children aged 15 and above are tried in Special Heavy Penal Courts for prosecutions brought under anti-terrorism legislation... The courts follow the same procedures as for the prosecution of adults save for the fact that the hearings are closed to the public. ...” 72. On 27 March 2013 Amnesty International published a report entitled “Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression”. The relevant passages of the report read as follows: “Article 220/6: Committing a crime in the name of a terrorist organization Article 220/6 of the Turkish Penal Code allows the state to punish individuals who have not been proven in court to be members of terrorist organization as though they were, if deemed to have performed a criminal act “in the name of an organization”. In full, the Article reads: ‘A person who commits a crime in the name of an organization without being a member of that organization is punished as a member of the organization. The punishment for membership of an organization can be reduced by up to one half.’ Courts have used this Article as the basis for imposing increased sentences for supposedly criminal activity with little evidence, either of the commission of a recognizably criminal offence or any demonstrable link to a ‘terrorist organization’. As with direct membership cases, the evidence presented for having committed a crime ‘in the name of an organization’ frequently amounts to nothing more than participation in demonstrations, or the writing of pro-Kurdish articles. ... Amnesty International considers that 220/6 is neither necessary for the prosecution of individuals for genuinely terrorist-related offences, nor, in practice, applied in such a way as to uphold the right to freedom of expression. Amnesty International therefore recommends that the Article be repealed and that legitimate prosecutions be brought instead under other, existing Penal Code articles requiring proof of membership or intent to assist a terrorist organization.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 73. The applicant complained about his conviction for participating in a demonstration and the allegedly disproportionate sentences imposed on him. He relied on Articles 6, 9 and 10 of the Convention. 74. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Zorica Jovanović v. Serbia, no. 21794/08, § 43, ECHR 2013). 75. The Court notes that, in the circumstances of the present case, Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia, no. 21613/07, § 82, 3 October 2013; and Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015). The Court also observes that the applicant’s submissions under Articles 6 and 9 of the Convention essentially concern the alleged breach of his right to freedom of assembly. Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention. 76. However, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37; Galstyan, cited above,

§ 96; and Kasparov and Others, cited above, § 83). Article 11 of the Convention reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 77. The Government contested the applicant’s allegations. A. Admissibility 78. The Court considers that the issue of the applicant’s “victim status” is closely linked to the merits of the applicant’s complaints under this head. It therefore joins this issue to the merits. The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 79. The applicant submitted that he had been convicted under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code despite the fact that he had not been a member of any illegal organisation and that there had been no evidence in the case file showing that the demonstration of 14 July 2008 had been held upon the instructions of the PKK. The applicant stated that it had not been established that the calls published on different websites emanated from the PKK as alleged. He contended that, in any event, in order to be convicted of membership of an illegal organisation under Article 314 § 2 of the Criminal Code, with reference to Article 220 § 6, a person should receive a personalised call from an illegal organisation to commit a specific offence on its behalf. As the appeal which allegedly emanated from the PKK was an abstract and generalised appeal, containing no call to commit any offence, he should not have been convicted of committing an offence on behalf of the organisation or, accordingly, for membership of an illegal organisation. 80. The applicant further contended that propaganda should be defined as influencing a person or a group of people about a certain opinion or attempting to convince them about the veracity of that opinion. Besides, for an offence of dissemination of propaganda to be made out, the person should have the intention of disseminating propaganda. According to the applicant, in the light of the aforementioned explanation, he could not be considered as having committed the offence of disseminating propaganda in support of a terrorist organisation in breach of section 7(2) of Law no. 3713. He further had not used a weapon when taking part in the demonstration as maintained in the judgment convicting him, pursuant to sections 23(b) and 33(c) of Law no. 2911. He had thrown pebbles at the security forces after the latter had launched an attack on the demonstrators. The applicant finally considered that, even assuming that he had committed the offences in question, only one sentence should have been imposed on him and that he had been disproportionately sentenced. (b) The Government 81. In their submissions dated 13 March 2013, the Government stated at the outset that there had been an interference with the applicant’s right to freedom of assembly as he had been taken into police custody and subsequently convicted for his participation in a demonstration organised in support of the PKK. 82. The Government further submitted that the interference in question had been prescribed by law. They noted in this regard that the applicant’s conviction had been based on section 23(b) of Law no. 2911 and Articles 220 § 6 and 314 § 2 of the Criminal Code. According to the Government, these provisions, and in particular Article 220 § 6 of the Criminal Code, fulfilled the requirement of “foreseeability” for the purposes of Article 11 of the Convention. 83. With regard to the applicant’s conviction under Article 220 § 6 of the Criminal Code, the Government contended that the applicant had deliberately taken part in the demonstration held in Diyarbakır on 14 July 2008 in support of a terrorist and armed criminal organisation, following the publication of a call for participation on the website of the Fırat News Agency, which was considered to be the voice of the PKK. The Government noted that the applicant had not denied the fact that he had participated in the demonstration. He had, however, denied being a member of the PKK.

Thus, the charges brought against him under Article 220 § 6 of the Criminal Code were in conformity with the domestic law, given that he had not been an active and permanent member of the PKK. 84. The Government contended that criminal proceedings were brought against both adults and minors who had committed the offence proscribed by Article 220 § 6 of the Criminal Code. However, being a minor was a mitigating circumstance under Article 31 § 3 of the Criminal Code. 85. The Government also stated that all illegal activities allowing terrorist organisations to achieve their aims would be considered to be acts committed on behalf of those organisations. The Government further noted that the expression “committing a crime” was deemed to refer to an offence proscribed by one of the criminal codes in Turkish law. 86. Referring to the Court’s judgment in the case of Leyla Şahin v. Turkey ([GC], no. 44774/98, § 98, ECHR 2005‑XI), the Government submitted, in particular, that Article 220 § 6 of the Criminal Code, read in the light of the decision of the Plenary Court of Cassation (Criminal Divisions) dated 4 March 2008 (see paragraphs 56-59 above) was sufficiently precise in its terms as to satisfy the requirement of foreseeability. According to the Government, an applicant who threw stones at the security forces during a demonstration organised in support of a terrorist organisation and who accepted that he had committed that act should have been aware of the fact that his acts would be punished. In the Government’s view, the applicant was aware of the consequences of his acts having regard, in particular, to the fact that other demonstrators had knocked over waste containers, thrown stones at the police and destroyed cars and shop windows. The Government therefore concluded that the interference with the applicant’s right to freedom of assembly had a legal basis in domestic law. 87. As to the question of a “legitimate aim”, the Government contended that the interference in question pursued the aims of protecting public order and the rights and freedom of others. They further submitted that the national authorities had a positive obligation to take reasonable and appropriate measures to protect people and public order during public demonstrations. 88. As to the question of the necessity of the interference in a democratic society, the Government submitted at the outset that the demonstration in issue had been illegal as the organisers had failed to notify the national authorities of its existence in accordance with the provisions of Law no. 2911. The Government considered that while individuals who held demonstrations without giving prior notification to the national authorities had the right to hold peaceful gatherings and to express their opinions without intervention by the security forces, they should be prepared to be sanctioned for failing to comply with the requirement of prior notification. In this regard, the Government referred to the national authorities’ duty to take the necessary measures in order to guarantee the smooth conduct of legal demonstrations and the security of all citizens. 89. The Government further contended that the interference in the present case had been necessary given that the applicant had not only been convicted on account of participation in an illegal demonstration but also for throwing stones at the police. They noted that the applicant and the other demonstrators had been asked to disperse, but had refused to do so. 90. The Government finally stated that at the time of the submission of their observations, that is to say on 13 March 2013, the re-assessment of the applicant’s sentence was pending and therefore the proportionality of the penalties imposed on the applicant could not and should not be assessed by the Court. On 20 June 2014 the Government submitted the judgment of Diyarbakır Juvenile Court dated 20 December 2012, upon the request of the Court. However, they did not make any further submissions on the basis of the judgment of 20 December 2012. 2. The Court’s assessment (a) Whether there was an interference 91. The Court reiterates that an interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39). Thus, the Court has considered in a number of cases that penalties imposed for taking part in a rally amounted to an interference with the right to freedom of assembly (see, for example, Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan, cited above, § 101; Ashughyan

v Armenia, no. 33268/03, § 77, 17 July 2008; Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008; Uzunget and Others v. Turkey, no. 21831/03, § 43, 13 October 2009; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 34, 14 October 2014). 92. The Court notes that it is not disputed between the parties that there was an interference with the applicant’s right to freedom of assembly. In particular, in their submissions to the Court, the Government considered that the applicant’s arrest and conviction pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and sections 23 (b) and 33(c) of Law no. 2911 had constituted an interference with the applicant’s right to freedom of assembly. The Court nevertheless must examine two issues under this head. 93. Firstly, the Court observes that the applicant was arrested, detained on remand and subsequently convicted on the ground of having attended a demonstration and thrown stones at the security forces during that demonstration. The Court reiterates in this regard that in a number of cases where demonstrators had engaged in acts of violence, it held that the demonstrations in question had been within the scope of Article 11 of the Convention but that the interferences with the right guaranteed by Article 11 of the Convention were justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others. 94. Thus, for instance in the aforementioned case of Osmani and Others, the applicant, the mayor of a town, stated in a speech made during a public assembly his refusal to remove an Albanian flag, in defiance of a decision of the Constitutional Court. That speech triggered a fight between those citizens who wanted to remove the flag and those who wanted to keep it. After that incident, that applicant organised an armed vigil to protect the Albanian flag. The police later found weapons in the town hall and in the applicant’s flat. On the same day as they found the cache of weapons, the police were attacked by a group of about 200 people, who were armed with metal sticks and threw stones, rocks, Molotov cocktails and teargas projectiles at them. The Court found that in the very sensitive interethnic situation of that time the applicant’s speeches and actions had encouraged interethnic violence and violence against the police. Nonetheless, noting that the applicant was found guilty of stirring up national, racial and religious hatred, disagreement and intolerance, on account of the fact that he had organised a public meeting, the Court rejected the Government argument that Article 11 of the Convention was not applicable in that case. The Court considered that there had been an interference with the exercise of the applicant’s freedom of peaceful assembly. It then examined the necessity and the proportionality of the sanction imposed on the applicant and concluded that the applicant’s complaint under Article 11 was manifestly ill-founded. 95. Similarly, in the case of Protopapa v. Turkey (no. 16084/90, (§§ 104-112, 24 February 2009), where the applicant and other demonstrators had clashed with the security forces while demonstrating and had subsequently been arrested, the Court considered that there had been an interference with the applicant’s right of assembly. The Court however concluded that the interference was necessary in a democratic society as it found that the intervention of the security forces had been provoked by the demonstrators’ acts of violence and that the interference had not been disproportionate for the purposes of Article 11 § 2 (see also Vrahimi v. Turkey, no. 16078/90, §§ 111-122, 22 September 2009; Andreou Papi v. Turkey, no. 16094/90, §§ 105-116, 22 September 2009); and Asproftas v. Turkey, no. 16079/90, §§ 103-114, 27 May 2010). 96. Finally, in the case of Taranenko v. Russia (no. 19554/05, §§ 70-71 and §§ 90-97, 15 May 2014), the applicant was part of a group of about forty people who forced their way through identity and security checks into the reception area of the President’s Administration building which was open to public. When they stormed the building, the protestors pushed one of the guards aside and jumped over furniture before locking themselves in a vacant office where they started to wave placards and to distribute leaflets out of the windows. The applicant was arrested, subsequently charged with participation in mass disorder in connection with her taking part in the protest action and remanded in custody for a year, at the end of which time she was convicted as charged. She was sentenced to

three years’ imprisonment, suspended for three years. In those circumstances, the Court considered that the applicant’s arrest, detention and conviction constituted an interference with the right to freedom of expression. Unlike the aforementioned cases, in the case of Taranenko, the Court ultimately found a violation of Article 10 of the Convention interpreted in the light of Article 11. 97. In the present case, the Court observes that according to the documents in the case file the demonstration of 14 July 2008 was organised by the DTP to protest about the conditions of detention of Abdullah Öcalan. The Court notes that nothing in the case file suggests that this demonstration was not intended to be peaceful or that the organisers had violent intentions. The Court further observes that the applicant claimed that when he first joined the demonstrators, he started walking and chanting slogans with them. Thus, he had the intention of showing support for Mr Öcalan, but not of behaving violently when he started demonstrating, and these submissions were not contested by the Government. Besides, there is nothing in the domestic courts’ decisions showing that the applicant had violent intentions when he joined the demonstration. What is more, the charges against the applicant did not concern infliction of any bodily harm on anyone. The Court therefore accepts that during the events of 14 July 2008 the applicant enjoyed the protection of Article 11 of the Convention (compare Primov and Others v. Russia, no. 17391/06, § 156, 12 June 2014), as also acknowledged by the Government. 98. The Court must secondly address the issue of the applicant’s “victim status” under this head. In this connection, the Court observes that the applicant was convicted under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 by the judgment of Diyarbakır Assize Court and sentenced to a total of seven years and six months’ imprisonment. This judgment was upheld by the Court of Cassation on 6 October 2009 (see paragraphs 18-25 above). Subsequent to the entry into force of Law no. 6008, the applicant was released from prison on 25 July 2010 and a re-assessment of the applicant’s convictions and sentences was carried out by Diyarbakır Juvenile Court. The Juvenile Court rendered its judgment on 20 December 2012, acquitting the applicant of the charges brought against him under Article 314 § 2 of the Criminal Code and convicting him under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code (see paragraphs 35-40 above). The court also decided to suspend the pronouncement of the judgment with regard to the applicant’s convictions under the aforementioned provisions for a period of three years in accordance with Article 231 of Law no. 5271 and section 23 of Law no. 5395. 99. The Court reiterates in this connection that a decision or measure favourable to an applicant is not sufficient in principle 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 Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999‑VI; Erdoğdu v. Turkey, no. 25723/94, § 72, ECHR 2000‑VI; Müslüm Özbey v. Turkey, no. 50087/99, § 26, 21 December 2006; and Ulusoy v. Turkey, no. 52709/99, § 34, 31 July 2007). 100. In the instant case, the Court observes at the outset that the applicant was released from prison on 25 July 2010 and the content of the judgment of 20 December 2012 was more favourable to the applicant compared to that of 11 November 2008 in so far as it concerned the applicant’s conviction under Article 314 § 2 of the Criminal Code. However, the Court does not lose sight of the fact that the applicant was detained on remand for three months and twenty days between 21 July and 11 November 2008 and partly served his prison sentence arising from the judgment of Diyarbakır Assize Court between 11 November 2008 and 25 July 2010. Thus, the applicant was deprived of his liberty for more than two years within the context of the criminal proceedings brought against him. Besides, the judgment of 20 December 2012 neither acknowledged nor afforded redress for the alleged breach of the applicant’s right to freedom of assembly on account of his previous conviction under Article 314 § 2 of the Criminal Code. The Court therefore finds that following the judgment of 20 December 2012, the applicant did not lose

his “victim” status to complain about a breach of Article 11 on account of his conviction under Article 314 § 2 of the Criminal Code by the judgment of 11 November 2008 (see, Birdal v. Turkey, no. 53047/99, § 25, 2 October 2007, and Aktan v. Turkey, no. 20863/02, §§ 27-28, 23 September 2008). 101. The Court further observes that, in its judgment of 20 December 2012, Diyarbakır Juvenile Court did not conduct a new examination of the facts of the case when it once again convicted the applicant of dissemination of propaganda in support of a terrorist organisation and resistance to security forces. Nor did it provide reasoning for the applicant’s re-conviction of these charges. The Court therefore finds that Diyarbakır Juvenile Court adhered to the conclusions of Diyarbakır Assize Court regarding the assessment of the evidence and the establishment of the facts of the applicant’s case. Besides, the judgment of 20 December 2012 did not acknowledge or provide redress for the alleged breach of the applicant’s freedom of assembly on account of the applicant’s original convictions for having disseminated propaganda in support of the PKK and having resisted to the police. Thus, in the Court’s view, the re‑assessment of the applicant’s convictions and sentences as well as the application of Article 231 of Law no. 5271 did not deprive the applicant of victim status. What is more, the juvenile court’s judgment also had a deterrent effect on the applicant’s future exercise of his right guaranteed under Article 11, since the pronouncement of the applicant’s convictions under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code was suspended on condition that he did not commit another wilful offence and any failure on the applicant’s part to comply with that condition would lead to the pronouncement of these convictions and the execution of the sentences (see paragraphs 36-39 and 52 above and compare Erdoğdu, cited above, § 72; Aslı Güneş v. Turkey, no. 53916/00, § 21, 27 September 2005; Ulusoy, cited above, §§ 32-35; İsak Tepe v. Turkey, no. 17129/02, § 14, 21 October 2008; Lütfiye Zengin and Others, cited above, §§ 44 and 58). 102. Having regard to the above, the Court considers that the judgments of 11 November 2008 and 20 December 2012 and the applicant’s detention, both pending trial and for the execution of his sentence, entailed real and effective restraint and had a deterrent effect on the applicant’s exercise of his right to freedom of assembly. As a result, the Court concludes that the applicant’s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police contained in the aforementioned judgments, as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, constituted interference with his right to freedom of assembly as guaranteed by Article 11 of the Convention. (b) Whether the interference was prescribed by law 103. The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct (see, among many others, Leyla Şahin, cited above, § 84; Kruslin v. France, 24 April 1990, § 27, Series A no. 176‑A; and Vyerentsov v. Ukraine, no. 20372/11, § 52, 11 April 2013). Besides, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001‑VIII; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). 104. Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one;

it has included both “written law”, encompassing enactments of lower ranking statutes (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 93, Series A no. 12) and regulatory measures taken by professional regulatory bodies under independent rule‑making powers delegated to them by Parliament (see Barthold v. Germany, judgment of 25 March 1985, § 46, Series A no. 90), and unwritten law. “Law” must be understood to include both statutory law and judge-made “law” (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no. 30; and Kruslin, cited above, § 29). In sum, the “law” is the provision in force as the competent courts have interpreted it (see Leyla Şahin, cited above, § 88). 105. In the present case, the Court observes that it is not in dispute between the parties that the interference in question had a legal basis: By the judgment of 11 November 2008, the applicant was convicted of the crimes proscribed by Article 314 § 2 of Law no. 5237, with reference to Articles 220 § 6 and 314 § 3 of the same Law; sections 23(b) and 33(c) of Law no. 2911; and section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The applicant’s criminal convictions contained in the judgment of 20 December 2012 were based on section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. 106. As regards the applicant’s conviction under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code, the Court observes that the decision of the Plenary Court of Cassation (Criminal Divisions) of 4 March 2008 concerns the conviction of a certain F.Ö. under Article 314 § 2 of Law no. 5237 with reference to Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations (see paragraphs 56-59 above). The line of reasoning in this decision was also used by Diyarbakır Assize Court in its judgment of 11 November 2008 (see paragraph 19 above). The Court therefore considers that the question as to whether the interference based on Article 314 § 2 of the Criminal Code with the applicant’s right to freedom of assembly was prescribed by law must be examined on the basis not only of the wording of Articles 220 § 6, 314 § 2 and 314 § 3 of the Criminal Code, but also on that of the decision of 4 March 2008. There remains the question of the accessibility and foreseeability of the effects of the aforementioned provisions and the decision of 4 March 2008, as well as their compatibility with the rule of law. 107. In this connection, the Court considers that there is no doubt that the aforementioned provisions of Laws nos. 5237, 3713 and 2911 were accessible. As to the decision of 4 March 2008, the Court observes that while this decision was not published in the Official Gazette, it was available on the Internet. Thus, the Court does not find it necessary to pursue further the issue of the accessibility of domestic law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 242, 4 December 2015). 108. Regarding the question whether the domestic courts’ interpretation of the offence of membership of an illegal organisation could reasonably be foreseen by the applicant at the material time, the Court observes that Diyarbakır Assize Court considered that the applicant had taken part in the demonstration of 14 July 2008 and committed the offences proscribed under sections 23(b) and 33(c) of Law no. 2911 and section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on behalf of the PKK, given that the latter had made a general call for participation in this demonstration. The applicant was therefore convicted of membership of the PKK and sentenced to four years and two months’ imprisonment. This interpretation of Articles 220 § 6 and 314 §§ 2 and 3 of the Criminal Code is in accordance with the reasoning contained in the decision of the Plenary Court of Cassation of 4 March 2008. According to this line of interpretation, at the material time, if a demonstrator took part in a demonstration or a march for which the PKK had made a general call to participate, and committed one or more offences proscribed under the criminal codes during that event, he or she would be liable to be punished not only for

the individual offences committed but also for membership of the PKK. In the light of its examination of these matters below, from the point of view of the “necessity” of the interference in a democratic society (see paragraphs 110‑118 below), the Court considers that it is not required to reach a final conclusion on the lawfulness issue in so far as it relates to the applicant’s conviction under Article 314 § 2 of the Criminal Code. For the same reason, the Court does not deem it necessary to examine the lawfulness of the applicant’s convictions under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sections 23(b) and 33(c) of Law no. 2911 by the judgment of 11 November 2008 and those under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code contained in the judgment of 20 December 2012. (c) Whether the interference pursued a legitimate aim 109. The Court is of the opinion that, in the present case, the national authorities may be considered to have pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others. (d) Whether the interference was necessary in a democratic society 110. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society. This right, of which the protection of personal opinion is one of the objectives, is subject to a number of exceptions which must be narrowly interpreted, and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 142, 15 October 2015; Galstyan, cited above, § 114, and the cases cited therein). 111. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Navalnyy and Yashin v. Russia, no. 76204/11, § 53, 4 December 2014). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 11 of the Convention (see, Kudrevičius and Others cited above, § 143; and also mutatis mutandis, Cumhuriyet Vakfı and Others, cited above, § 59). The Court further reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 66, ECHR 1999‑IV; Kar and Others v. Turkey, no. 58756/00, § 48, 3 May 2007; and Murat Vural v. Turkey, no. 9540/07, § 64, 21 October 2014). 112. In the present case, the Court observes at the outset that Diyarbakır Assize Court concluded that the applicant had participated in the march as a result of the calls of the PKK published on two websites when it convicted the applicant of membership of the PKK, without providing any reason for that conclusion. Even assuming that the applicant took part in the demonstration of 14 July 2008 after having received the PKK’s call, the Court observes that there is no justification in the first-instance court’s judgment for the conclusion that the applicant participated in the demonstration and acted pursuant to the PKK’s purposes or on behalf of that organisation upon its specific instructions to him. In this regard, the Court agrees with the Council of Europe’s Commissioner for Human Rights that the conviction of a person for membership of an illegal organisation for an act or statement which may be deemed to coincide with the aims or instructions of an illegal organisation is of concern (see paragraphs 66-69 above). 113. Likewise, the judgment of Di

yarbakır Assize Court does not contain any information as to the reasons for which the applicant was found guilty of disseminating propaganda in support of a terrorist organisation. The Assize Court did not explain which of the acts of the applicant, a fifteen-year-old boy at the material time, constituted the offence proscribed by section 7(2) of Law no. 3713. Besides, the assize court noted in its judgment that in his statements before the national authorities the applicant had accepted that he had made propaganda in support of an illegal organisation (see paragraph 19 above), whereas there is nothing in the case file to substantiate this finding. Both before the Diyarbakır public prosecutor and the Fifth Division of Diyarbakır Assize Court the applicant maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened (see paragraphs 12, 13 and 16 above). On no occasion did he state that he had disseminated propaganda in support of the PKK. Besides, Diyarbakır Juvenile Court also failed to offer an explanation for the applicant’s conviction under section 7(2) of Law no. 3713 (see paragraph 37 above). 114. The Court reiterates in this connection that the obligation to provide reasons for a decision is an essential procedural safeguard under Article 6 § 1 of the Convention, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public. This general rule, moreover, translates into specific obligations under Articles 10 and 11 of the Convention, by requiring domestic courts to provide “relevant” and “sufficient” reasons for an interference. This obligation enables individuals, amongst other things, to learn about and contest the reasons behind a court decision that limits their freedom of expression or freedom of assembly, and thus offers an important procedural safeguard against arbitrary interference with the rights protected under Articles 10 and 11 of the Convention. The Court is of the opinion that the failure of the domestic courts to provide relevant and sufficient reasons to justify the applicant’s conviction under Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 also stripped the applicant of the procedural protection that he was entitled to enjoy by virtue of his right under Article 11 (see, mutatis mutandis, Saygılı and Seyman v. Turkey, no. 51041/99, § 24, 27 June 2006; Menteş v. Turkey (no. 2), no. 33347/04, §§ 51-54, 25 January 2011; and Cumhuriyet Vakfı and Others, cited above, §§ 67-68, and the cases cited therein). 115. In assessing the proportionality of the interference with the applicant’s right to freedom of assembly, the Court has also had regard to the fact that the applicant was a minor at the relevant time. In this context, the Court notes Article 37 of the UN Convention on the Rights of the Child and General Comment No. 10 (2007) of the United Nations Committee on the Rights of the Child, according to which the arrest, detention or imprisonment of a child can be used only as a measure of last resort and for the shortest appropriate period of time (see paragraphs 60 and 61 above). The Committee of Ministers and the Parliamentary Assembly of the Council of Europe also issued resolutions and recommendations in the same vein (see paragraphs 62-64 above). In the present case, there is nothing in the case file to show that the national courts sufficiently took the applicant’s age into consideration in ordering and continuing his detention on remand or in imposing a prison sentence. The Court notes the extreme severity of the penalties imposed on the applicant by Diyarbakır Assize Court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713, that is, a total of four years, eight months and twenty days of imprisonment, a sentence that the applicant partly served for a period of one year and eight months before he was released. What is more, the applicant was detained pending trial for almost four months and the Government did not argue that alternative methods had been considered first or that the applicant’s detention had been used only as a measure of last resort, in compliance with their obligations under both domestic law and a number of international conventions (see, mutatis mutandis, Güveç v. Turkey, no. 70337/01, § 108, ECHR 2009 (extracts)). 116. Finally, as to the applicant’s conviction under sections 23(b) and 33(c) of Law no. 2911 and subsequently under sections 32 (1) and (2), 33(1) of Law no. 2911 and Article

265 § 1 of the Criminal Code for throwing stones at police officers, the Court first observes that both the applicant’s statements before the national authorities and the photographs in the case file reveal that he threw stones at the security forces and was thus involved in an act of violence. The Court considers that when individuals are involved in such acts the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly (see, mutatis mutandis, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV). As a result, the imposition of a sanction for such a reprehensible act would be considered to be compatible with the guarantees of Article 11 of the Convention, as also submitted by the Government (see Osmani and Others, cited above; Galstyan, cited above, § 115; and Yılmaz Yıldız and Others, cited above, § 42). While it is true that with the judgment of 20 December 2012 the juvenile court decided to suspend the pronouncement of the criminal convictions arising from the applicant’s act of violence, the Court cannot overlook the harshness of the sentence imposed on the applicant by Diyarbakır Assize Court pursuant to sections 23(b) and 33(c) of Law no. 2911, that is to say, two years, nine months and ten days’ imprisonment, a sentence that the applicant partly served, or the lengthy period during which he was detained pending trial. In the Court’s view, its considerations regarding the disproportionate nature of the penalties imposed on the applicant by the assize court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 equally apply under this head, in particular, in view of the applicant’s age. In this context, the Court cannot but conclude that the applicant’s punishment for throwing stones at the police officers during the demonstration was not proportionate to the legitimate aims pursued. 117. In the light of the foregoing, the Court finds that the applicant’s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, were not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 5 AND 6 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION 118. The applicant complained of a violation of Article 5 of the Convention and Article 2 of Protocol No. 1 to the Convention. He further complained that he should have been tried by a juvenile court and not an assize court. 119. The Court observes that the applicant submitted these complaints in very general terms and failed to provide detailed explanations or supporting documents. He thereby failed to lay the basis of an arguable claim, which might have allowed its effective examination by the Court. 120. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. 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.” 122. The applicant did not submit a claim for just satisfaction within the specified time-limit. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the issue of the applicant’s “victim status” to the merits of the applicant’s complaints under Article 11 of the Convention, and holds that the applicant has victim status; 2. Declares the complaints under Article 11 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 11 of the Convention. Done in English, and notified in writing on 19 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJulia LaffranqueRegistrarPresident [1]. The word “fedai” (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A

person who protects another person or a place. [2]. Botan is the name of a historical/geographical region situated in south-east Turkey. The PKK carried out its first acts in this region. [3]. İmralı is the island where Mr Abdullah Öcalan is serving a prison sentence. [4]. This document was not submitted to the Court by the parties. [5]. The name of the city of Diyarbakır in Kurdish.

THIRD SECTION CASE OF SOYLU v. TURKEY (Application no. 43854/98) JUDGMENT STRASBOURG 15 February 2007 FINAL 15/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Soylu v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ. Hedigan,MrR. Türmen,MrC. Bîrsan,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43854/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Soylu (“the applicant”), on 22 July 1998. 2. The applicant, who had been granted legal aid, was represented by Mrs G. Altay and Mr S. Okçuoğlu, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant alleged that State security forces had destroyed his home and possessions and had forced him to leave his place of residence with no possibility to return and that he had been denied an effective remedy in domestic law in violation of Articles 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. By a decision of 4 October 2005, the Court declared the application partly admissible. 8. The applicants and the Government each filed further written observations (Rule 59 § 1). The parties replied in writing to each other's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1954 and lives in Istanbul. He was living in Nurettin village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows. A. The applicant's version of the facts 10. Until April 1994 the applicant lived in Nurettin, a village of Malazgirt district in Mardin province, at that time a state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). The inhabitants of the applicant's village were under pressure by State security forces to agree to become village guards. 11. On 27 November 1993 soldiers, accompanied by persons wearing masks, raided Nurettin village. They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the State as village guards. They beat up fifteen young men. The soldiers then chose twenty houses and set them on fire after throwing a white powder on them. The houses of the applicant's brother and cousin completely burned down. 12. Following this event, the villagers lived in fear for their security. Some of them left the village, and the rest, including the applicant, preferred to stay. The security forces visited the village two or three times a week in order to force the inhabitants to agree to become village guards. 13. In April 1994 the heads of approximately thirty families

agreed under pressure to become village guards. However, these newly recruited village guards, protected by the State, also burned down eight or nine houses per day. The applicant's house was also burned down, which forced the applicant and his family to leave the village and settle in Malazgirt district. In the meantime, the village guards cultivated the applicant's lands, used the remainder of the materials left from his house and chopped and sold his poplar trees. Since the applicant could not overcome the economic difficulties to sustain his living he moved to Istanbul to find a job. 14. On 17 April 1998, the applicant lodged a petition with the Malazgirt District Governor's office and asked for permission to return to his village. He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village. The District Governor transmitted the applicant's request to the District gendarmerie Command and also advised him to apply to the Konakkuran Gendarmerie Station. The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander. The latter refused the applicant's request to re-settle in the village and ordered a gendarme to remove the applicant from the premises. B. The Government's version of the facts 15. The applicant left Nurettin village of his own free will and not under any pressure by the State security forces or village guards. 16. On 19 June 1997 the applicant petitioned the Malazgirt Chief Public Prosecutor's office complaining that the village guards from Nurettin village had been using his property without his consent. The applicant alleged that he had moved out of his village on account of terrorism in 1994. Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones. They had also cut down three thousand poplar trees in his field. The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated. 17. On 9 December 1997 the Malazgirt Public Prosecutor took statements from A.K., who transported the applicant's household property in his vehicle. He stated that in 1994 he transported the applicant's belongings from Nurettin village to Malazgirt district and that the applicant's house was intact. 18. On 10 May 1998 the applicant filed another petition with the Malazgirt Chief Public Prosecutor's office complaining that Z.P., who was one of the village guards in Nurettin village, had been illegally cultivating his father's land. 19. On 20 August 1998 the Chief Public Prosecutor issued a decision of non-jurisdiction and referred the case-file to the Malazgirt District Administrative Council in accordance with the Law on Prosecution of Civil Servants. An investigation was carried out by an inspector, appointed by the Administrative Council, into the applicant's allegations. In this regard, six village guards, including Z.P., were questioned by the inspector. 20. On 30 June 1999, the Malazgirt Administrative Council dismissed a request for leave to initiate criminal proceedings against the six village guards from Nurettin. 21. By a decision of 8 November 1999 the Van Regional Administrative Court set aside the Administrative Council's decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant's property, which offence was prescribed in Article 516 of the Criminal Code. 22. On 1 March 2000 the Malatya Assize Court heard evidence from the accused village guards. The latter denied the charges and claimed that the applicant had slandered them. They alleged that the applicant was a member of the mountain squad of the PKK and that therefore he was hostile to them because they were village guards. They also noted that the applicant did not own three thousand trees and six hundred dönüm[1] land in the village. The trees belonged to the applicant's brother who had cut and sold them and then moved to Istanbul. 23. On 24 March 2000 two gendarme officers took statements from three persons, namely R.G., C.Ç and İ.Ö., from Nurettin village. The villagers stated that they had seen the applicant when he moved from Nurettin to Malazgirt and that the village guards had not forced him to move out of the village. They also submitted that the applicant's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care. They also noted that the applicant possessed four or five hectares of land which could not contain thirty thousand poplar trees. 24. On the same day, the gendarme officers carried out an on-site inspection on the premises of the applicant's house in Nurettin village. They drew up a report

in which they observed that there was no evidence that the house had been burned down. It appeared that the house had been demolished as a result of natural forces and lack of care. It was also noted that the applicant owned land measuring 10,200 square metres which could not contain the number of trees allegedly owned by the applicant. They further observed that the applicant had already cut six of his trees before moving to Malazgirt. The gendarme officers also drew up a sketch-map of the village. 25. On 16 May 2001 the Malazgirt Assize Court decided to defer the criminal proceedings against the village guards for five years in accordance with Article 1 § 4 of Law No. 4616 on Conditional Release, Deferral of Criminal Proceedings and Sentences. In the absence of any appeal, this judgment became final. However, this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within five years' time. 26. On 9 November 2005 gendarme officers took statements from the applicant and three inhabitants of Nurettin village in relation to the allegations made by the applicant in his application lodged with the European Court of Human Rights. 27. The applicant stated that in 1994 he had moved out of Nurettin village due to the intimidation by the village guards and that, fifteen days or a month after his departure, his house had been burned down by some of the villagers whose identity he did not know nor why they did so. In response to a question whether the State authorities forced him to agree to become a village guard, the applicant stated that no one had exerted pressure on him or his family. The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue. When asked about the number of trees he owned, the applicant claimed that he owned - together with his brother and cousin - three thousand poplar trees, and not thirty thousand. The applicant also stated that he possessed land measuring 600 dönüm together with his brother and cousin and that he had not cultivated this land since 1994. In reply to a question whether he and his family had been affected by the terrorism in the region, the applicant stated that his son F.S. had been an active member of the PKK, that he had served a twelve years' prison sentence following his arrest and conviction and that therefore the PKK had not intimidated his family. Given that his wife's father had worked at the same time as a village guard, the State security forces had not intimidated his family either. The applicant finally noted that he had lived in Istanbul between 1994 and 2002 and that, since the latter date, he had been living in Taşlıçeşme hamlet, cultivating his lands. 28. The applicant's fellow villagers, Z.T., N.B. and H.Ç. stated that the authorities had not forced the villagers to agree to become village guards but, on the contrary, the villagers themselves had wished to become village guards since they would receive salaries from the State. However, some of the villagers, including the applicant and his family, had left the village on account of economic difficulties. In their opinion, the applicant had left the village because his son had joined the PKK and his brother had also moved out of the village earlier. The allegation that the applicant's house had been burned down by the village guards was untrue since the applicant's father-in-law was one of the village guards and he would not set his daughter's house on fire. The applicant's house had been demolished as a result of bad weather conditions and lack of care. The applicant could not own thirty thousand poplar trees given that the total number of trees in the village did not equal this number. The applicant possessed 60-70 dönüm of land together with his brothers. In 2002 he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands. Nobody had forced the applicant to leave the village. In the opinion of these witnesses, the applicant and a few other villagers had made such allegations in the hope that they would obtain some money. 29. Finally the Government pointed out that on 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. 30. In that connection, Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. 31. The number of persons applying to these commissions had already reached approximately 204,000. Many villagers had already been awarded compensation for the damage they

had sustained. II. RELEVANT DOMESTIC LAW 32. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003), Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002) and Doğan and Others v. Turkey (nos. 8803‑8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS 33. In their supplementary observations dated 9 January 2006, the Government raised a preliminary objection concerning non-exhaustion of domestic remedies in the light of the 'Law on the Compensation of Losses Resulting from Terrorist Acts and the Measures Taken against Terrorism' adopted on 14 July 2004 (“Compensation Law”). This Law provided for a sufficient remedy capable of redressing the Convention grievances of the applicant who had suffered damages during the authorities' struggle against terrorism. The Government therefore asked the Court to reject this application for non-exhaustion of domestic remedies and to require the applicant to avail himself of the new remedy introduced in domestic law. 34. The applicant disputed the Government's objection and argued that he could not be required to exhaust a new remedy after the admissibility decision of the Court. 35. The Court recalls that in its admissibility decision of 4 October 2005 it had already dismissed the Government's objection on non‑exhaustion of domestic remedies given the lack of an effective remedy in respect of the applicant's Convention grievances. It notes that this objection was raised after the application was declared admissible. While the Court required a substantial number of applicants to avail themselves of the Compensation Law subsequent to its decision in the case of Aydın İçyer v. Turkey (no. 18888/02, 12 January 2006), it points out that none of those cases had been declared admissible following dismissal of the Government's objection on non-exhaustion. It is true that the question of admissibility can be revisited at any stage of the proceedings in accordance with Article 35 §§ 1 and 4 in fine of the Convention (see Azinas v. Cyprus [GC], no. 56679/00, § 42, ECHR 2004‑III). However, given the time elapsed since the introduction of this application, respect for human rights as defined in the Convention and its Protocols requires the Court to give a final ruling in the circumstances of the present case. The Government's objection cannot, therefore, be taken into account at this stage of the proceedings. II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 36. The applicant alleged that his forced eviction from Nurettin village and destruction of his house and possessions by the State security forces as well as his inability to return to his village had given rise to breaches of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which reads in so far as relevant as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life [and] his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 37. The applicant submitted that his forcible eviction from his family home and deliberate destruction of his property by the State security forces constituted a violation of his right to peaceful enjoyment of his possessions and his right to respect for his family life. He contended that the circumstances surrounding the destruction of his property and his eviction from his village also amounted to inhuman and degrading treatment. Furthermore, the applicant disputed the veracity of his statements dated 9 November 2005, the content of which he learned from his lawyers, and claimed

that he had never told the gendarme officers that he had not been intimidated or that the houses had not been burned by the security forces. He also had not told the gendarme officers that he had owned 3,000 trees. He had owned, together with his brother, 30,000 poplar trees, as he had already claimed in his application form. Finally, the applicant pointed out that the statements taken from Z.T., N.B. and H.Ç. should be treated with caution given that these witnesses were village guards and thus could not be impartial and that the first two witnesses had been tried on charges of murder. 38. The Government denied the factual basis of the applicant's complaints and submitted that they were unsubstantiated. Relying on the findings of the investigating authorities and the testimonies given by a number of witnesses, the Government maintained that the applicant had left his village of his own will and that the security forces had not forced him to leave. Nor had the security forces burned the applicant's house or any other houses in Nurettin village. 39. The Court is confronted with a dispute over the exact cause of the events giving rise to the present application. Accordingly, it must primarily have regard to the general situation prevailing in the region at the time of the alleged events. In this connection it observes that at the relevant time violent confrontations had taken place between the security forces and members of the PKK in the state-of-emergency region of Turkey. This two‑fold violence resulting from the acts of the two parties to the conflict forced many people to flee their homes. Moreover, the national authorities had evicted the inhabitants from a number of settlements to ensure the safety of the population in the region (Doğan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 142, ECHR 2004‑...(extracts)). Yet the Court has also found in numerous similar cases that security forces deliberately destroyed the homes and property of certain applicants, depriving them of their livelihood and forcing them to leave their villages in the state-of-emergency region of Turkey (see, among many others, Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV; Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998‑II; Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997‑VIII; Bilgin v. Turkey, no. 23819/94, 16 November 2000, and Dulaş v. Turkey, no. 25801/94, 30 January 2001). 40. This being so, it should be pointed out that both the European Commission of Human Rights and the Court have previously embarked on fact finding missions in similar cases in Turkey where the State security forces were allegedly the perpetrators of the unlawful destruction of property (see, among many others, the above cited judgments of Akdivar and Others and Yöyler; and İpek v. Turkey, no. 25760/94, ECHR 2004‑...). In those cases, the main reason which prompted the Convention institutions to have recourse to such an exercise was their inability to establish the facts in the absence of an effective domestic investigation. 41. It is a matter of regret for the Court that it is unable to attempt to establish the facts of the present case by embarking on a fact finding exercise of its own by summoning witnesses. However, it considers that such an exercise would not yield sufficient evidence capable of establishing the true circumstances of the case, given that the passage of a substantial period of time, almost eleven years in the instant case, makes it more difficult to find witnesses to give testimony and takes a toll on the capacity of a witness to recall events in detail and with accuracy (see İpek, cited above, § 116). Accordingly, the Court must reach its decision on the basis of the available evidence submitted by the parties (see Pardo v. France, judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28, cited in Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004). 42. As noted earlier and having regard to its previous findings in a number of cases concerning the evacuation and destruction of villages in south-east Turkey at the relevant time, the applicant's allegations that he had been forcibly evicted from his village and that his house had been burned by State security forces cannot be discarded as being prima facie untenable (see among other authorities, the judgments of Akdivar and Others, Selçuk and Asker, Menteş and Others, Bilgin, Dulaş, Yöyler and İpek, all cited above). However, for the Court, the required evidentiary standard of proof for

the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161). 43. In view of the above considerations, the Court observes that, subsequent to the receipt of the applicant's criminal complaint, the local authorities carried out an investigation into his allegations. In this context, statements were taken from a number of persons. A.K., who carried out the removal of the applicant's household property from Nurettin to Malazgirt, stated that the applicant's house was intact on the day of the removal (see paragraph 17 above). Furthermore, in their oral evidence to the Malazgirt Assize Court, six village guards, who were allegedly involved in the events in question, denied the applicant's allegations. The applicant's fellow villagers R.G., C.Ç. and İ.Ö. also claimed that the applicant's allegations were untrue and that nobody had forced the applicant to leave the village (see paragraph 28 above). Nor had anybody set the applicant's house on fire (Ibid.) Moreover, the on-site investigation carried out on the ruins of the applicant's house showed that there was no trace indicating that the house had been exposed to fire, but that the house seemed to have been demolished as a result of natural forces and lack of care (see paragraph 24 above). 44. This being so, the Court notes that the applicant waited until 19 June 1997 - more than three years - to file a complaint with the public prosecutor's office about the alleged events. He has offered no explanation for his remaining totally inactive after he had left the village. He has not explained the reasons for his failure to intervene in the proceedings which were commenced by the Malazgirt Chief Public Prosecutor's office or his failure to pursue his case subsequent to lodging a complaint with the prosecuting authorities. 45. Furthermore, the applicant did not submit any eye-witness statement in relation to the burning down of his house and possessions by the village guards. Nor did he give any particulars as to the identity of the persons involved in the alleged events. Moreover, the applicant has also failed to provide any evidence, such as written statements from other villagers, which would rebut the testimonies of the Government's witnesses and the findings of the national authorities. The Court notes in this connection that the witness testimonies provided by the Government were consistent and their accounts are backed up by the on-site investigation report. 46. In view of the unexplained delay on the part of the applicant to lodge his complaint with the authorities and his complete failure to rebut the testimonies of the witnesses, the Court does not find it established to the required standard of proof that the applicant's house was burned down or that he was forcibly evicted from his village by the State security forces. 47. As regards the applicant's alleged prevention from returning to his village, the Court observes that the applicant did not provide any information or evidence to substantiate his allegation concerning the authorities' denial of access to his village. In particular, he did not explain when and by whom he was prevented from having access to Nurettin or the use of his property. The Court considers, therefore, that the applicant has also failed to corroborate his allegation that he was forced to leave and denied access to his village by State security forces. 48. Against this background, the Court concludes that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 49. The applicant complained that he had been denied an effective remedy with which to challenge the destruction of his house and his forced eviction as well as his being prevented from returning to his village by the security forces. 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.” 50. The applicant contended that he had had no effective remedy in respect of his Convention grievances as demonstrated by the failure of the authorities to carry out an adequate investigation into his complaints. 51. The Government contended that there had been no shortcomings in the investigation and that the authorities had conducted an effective inquiry into the applicant's allegations. 52. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance

of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Dulaş and Yöyler, both cited above, §§ 65 and 87 respectively). 53. The Court recalls that on the basis of the evidence collected in the present case, it has not found it proved to the required standard of proof that the applicant was forcibly evicted from his village following the destruction of his house or that he was denied access to his village by the State security forces or village guards as alleged (see paragraphs 46 and 47 above). That said, the Court reiterates that, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision is not a prerequisite for the application of the Article (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). However, having regard to its above findings on the applicant's substantive complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, the Court cannot conclude that the applicant has laid the basis of a prima facie case of misconduct on the part of the security forces. It refers in this connection to the applicant's failure to rebut the testimonies of the villagers or the conclusions reached in the investigation conducted by the domestic authorities into his complaints (see in this respect Matyar and Çaçan, both cited above, §§ 154 and 80 respectively). 54. In the light of the foregoing, the Court considers that the above mentioned situation cannot be regarded as a breach of the applicant's right to an effective remedy. 55. Accordingly, there has been no violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 3, 8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 56. The applicant maintained that, because of his Kurdish origin, he had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1. Article 14 provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 57. The applicant argued that the destruction of his house and possessions was the result of an official policy, which constituted discrimination due to his Kurdish origin. 58. The Government rejected the applicant's allegations. 59. The Court has examined the applicant's allegation in the light of the evidence submitted to it, but considers it unsubstantiated. There has therefore been no violation of Article 14 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection; 2. Holds that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1; 3. Holds that there has been no violation of Article 13 of the Convention; 4. Holds that there has been no violation of Article 14 of the Convention, in conjunction with Articles 3, 8 and 13 of the Convention, and Article 1 of Protocol No. 1. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident [1] One dönüm = about 920 square metres.

FIRST SECTION CASE OF SIBGATULLIN v. RUSSIA (Application no. 32165/02) JUDGMENT STRASBOURG 23 April 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision In the case of Sibgatullin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 2 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32165/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr German Nailyevich Sibgatullin (“the applicant”), on 10 December 2002. 2. The applicant, who had been granted legal aid, was represented by the Centre for the International Protection. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his right to a fair trial had been violated in that the appeal hearing of his criminal case had been held in his absence. 4. On 8 July 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5. On 13 September 2007 the President of the First Section invited the Government to submit further written observations on the admissibility and merits of the application under Rule 54 § 2 (c) of the Rules of the Court. 6. The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1966 and lives in Nizhniy Tagil, Sverdlovsk region. He is currently serving a prison sentence in Nizhnyy Tagil. 8. In September 2001 the applicant and a certain B. were arrested on suspicion of three murders and were placed in detention. The applicant alleged that he was ill-treated while in detention. However, he did not lodge any complaints in that respect with the competent domestic authorities. 9. On 22 February 2002 the Sverdlovsk Regional Court (“the trial court”) heard the case in the presence of the applicant, his counsel Ch. and his co-accused B. The applicant submitted that B. had tried to strangle the first victim with a cord, but had not managed to do so and asked him for help. So, he had tightened the cord. Afterwards he strangled the second victim. He further maintained that the third victim was killed by his co-accused. Co-accused B. submitted that the applicant had killed the third victim with a knife. 10. The trial court considered that B.’s testimony regarding the third murder was coherent and consistent with other evidence submitted at trial and therefore deserved more credit. It found the applicant guilty of three murders and theft and sentenced him to twenty years’ imprisonment. It found B. guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to fifteen years’ imprisonment. The judgment stated that the applicant and his co-accused could appeal to the Supreme Court of the Russian Federation within seven days of the date on which they received a copy of the judgment. 11. In their appeal against the judgment of 22 February 2002 the applicant and his counsel complained, in particular, that the trial court’s conclusions regarding the applicant’s guilt in the first murder were not supported by the evidence submitted at trial. The first victim had been strangled by B. and when the applicant approached her, she was already dead. The applicant’s conviction for the third murder had been based solely on B.’s testimony which was supported by nothing else but the court’s suppositions. The applicant and his counsel requested

that the judgment be quashed and the case be remitted for a fresh trial. When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing. The applicant’s co-accused did not appeal against her conviction. 12. On 15 August 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant’s appeal in the presence of the prosecutor and dismissed it. Neither the applicant nor his counsel were present at that hearing. 13. On 26 October 2005 the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review of the appeal decision of 15 August 2002 with the Presidium of the Supreme Court, on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of 15 August 2002 and therefore, could not attend it. He requested that the above decision be quashed and the case be remitted for a fresh appeal examination. 14. On 5 April 2006 the Presidium of the Supreme Court quashed the decision of 15 August 2002 and remitted the case for a fresh examination of the appeal. It appears that neither the applicant nor his representative were present at that hearing. 15. On 23 May 2006 the head of the detention facility in which the applicant was held received a telegram which read as follows: “Inform Sibgatullin that his case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006”. On the same date the applicant read that telegram. A similar notification was also sent to the applicant’s legal counsel Ch. 16. On 29 June 2006 the Supreme Court held an appeal hearing in the absence of the applicant and his counsel. It heard the prosecutor who requested that the applicant’s conviction on three counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired. 17. Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tightening the cord, the first victim was still alive and that therefore, he had killed her. It further confirmed the trial court’s conclusion that the applicant had also killed the third victim. The Supreme Court concluded that the trial court had correctly characterised the applicant’s actions as murders and had imposed an appropriate sentence. It upheld the applicant’s conviction for the murders, lifted his sentence in respect of theft and sentenced the applicant to nineteen years and six months’ imprisonment. 18. It does not appear from the decision of 29 June 2006 that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it. 19. On 4 July 2006 the applicant, who allegedly was not aware of the appeal hearing of 29 June 2006, but at some point learned that the appeal decision of 15 August 2002 had been quashed on 5 April 2006, sent additional grounds of appeal to the appeal court. On the same date he also lodged a special request for leave to appear at the appeal hearing and requested the appeal court to provide him with legal counsel. II. RELEVANT DOMESTIC LAW AND PRACTICE Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“the CCrP”) 20. Appeal courts shall verify the legality, validity and fairness of the judgment of the trial court (Article 360). 21. If a convicted person wishes to take part in the appeal hearing, he shall indicate this in his statement of appeal (Article 375 § 2). 22. Parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall make a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376 §§ 2-4). 23. At the hearing the appeal court shall hear the statement of the party who lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at a party’s request, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377). 24. The

appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 25. The applicant complained under Article 6 of the Convention that criminal proceedings against him had been unfair because appeal hearings on 15 August 2002 and 29 June 2006 had been held in his absence. The relevant parts of Article 6 of the Convention provide as follows: “1. In the determination... of any criminal charge against him, everyone is entitled to a fair and public hearing... by an independent and impartial tribunal... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing...” A. Submissions by the parties 26. The Government acknowledged that neither the applicant nor his representative had been notified of the appeal hearing of 15 August 2002 in breach of Article 376 of the CCrP. In that connection, supervisory review proceedings were initiated on the application of the Deputy Prosecutor General. On 5 April 2006 the Presidium of the Supreme Court of the Russian Federation quashed the appeal decision of 15 August 2002 and remitted the case for a fresh appeal hearing. A fresh appeal examination took place on 29 June 2006. The applicant and his counsel were duly informed of that hearing by telegrams sent on 4 May 2006. The applicant received that notification on 23 May 2006, however he submitted a request for participation in the appeal hearing only on 4 July 2006. He did not ask to be brought to the appeal hearing in his grounds of appeal. Therefore, taking into account that the applicant and his counsel were duly informed of the hearing, that the applicant failed to make a special request for participation in the hearing in due time, that his counsel failed to appear without any valid reasons and did not ask to postpone the hearing, the appeal court examined the case in their absence. The Government concluded that the applicant had been able to take part in the appeal hearing of 29 June 2006, but had failed to use that opportunity. Consequently, the Russian authorities had complied with the requirements of Article 6 §§ 1 and 3 (c) of the Convention. 27. The applicant submitted that neither he nor his counsel had been informed of the supervisory review proceeding and of their outcome. The telegram of 4 May 2006 which he received on 23 May 2006 stated that a hearing of his case would take place on 29 June 2006, but it did not say what kind of hearing it would be. Furthermore, the Government did not submit any proof that his counsel had received that notice. Therefore, it cannot be said that his counsel was duly informed of the appeal hearing. Furthermore, four years had elapsed since the date of the first appeal hearing and the contract concluded between the applicant and his counsel had expired. The authorities were under an obligation to verify whether the applicant was still represented, and provide him with another representative if necessary. The applicant concluded that the authorities’ failure to inform him about the developments in his case and failure to notify his counsel of the appeal hearing of 29 June 2006 violated his right to a fair trial and had not provided appropriate redress for their failure to notify him and his counsel of the appeal hearing of 15 August 2002. B. The Court’s assessment 1. Admissibility 28. According to the Government, the supervisory review and the new appeal proceedings had remedied the shortcomings of the initial appeal proceedings. Therefore, they may be understood to claim that the applicant had lost his victim status in respect of the appeal hearing of 15 August 2002. 29. In this respect, the Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93, ECHR 2006‑...). 30. As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Presidium’s decision to quash the appeal decision of 15 August 2002 does amount to an acknowledgment that there had been a breach of Article 6 of the Convention. 31. With regard to the second condition, namely, appropriate and sufficient redress, the Court must ascertain whether the measures taken by the authorities, in the particular circumstances of the instant case, afforded the applicant appropriate and sufficient redress in order to determine whether he could still claim to be a victim. As the Government’s objection under this head is closely linked to the merits of the applicant’s complaints, the Court decides to join them. 32.

The Court considers that the applicant’s complaint about holding the appeal hearings of 15 August 2002 and 29 June 2006 in his absence is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 33. The Court reiterates that the object and purpose of Article 6 taken as a whole implies that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). Based on that interpretation of Article 6 the Court has held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005). 34. The personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168). The manner in which Article 6 is applied to proceedings before courts of appeal depends on the special features of the proceedings involved – account must be taken of the entirety of the proceedings in the domestic legal order and of the role of appeal court therein (see Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134). 35. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity to be heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court (see, among other authorities, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115, as regards the issue of leave to appeal, and Sutter v. Switzerland, 22 February 1984, § 30, Series A no. 74, as regards the court of cassation). 36. In appeal proceedings reviewing the case both as to facts and as to law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212-C). In order to decide this question, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant’s interests were actually presented and protected before the appeal court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see, among many other authorities, Kremzow v. Austria, 21 September 1993, § 59, Series A no. 268-B; Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II; and Hermi v. Italy [GC], no. 18114/02, § 62, ECHR 2006‑...). For instance, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004). 37. The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66-67, Series A no. 211). (b) Application of the above principles to the instant case 38. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1

. Therefore, it will examine the applicant’s complaint under these provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I). 39. The Court observes that in Russian criminal procedure, appeal courts have jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing. They are empowered to examine the evidence and additional materials submitted by the parties directly. As a result of the examination, the appeal courts may dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fresh trial, or amend the judgment (see “Relevant domestic law and practice” above, paragraphs 20 and 23-24). 40. In their grounds of appeal the applicant and his counsel contested the applicant’s conviction on factual and legal grounds. They submitted, in particular, that the applicant’s guilt in the first and the third murders had not been supported by evidence submitted at trial and that the trial court attached undue weight to the applicant’s co-accused’s statements. They asked the appeal court to quash the conviction for those two murders and remit the case for a fresh trial. The Prosecutor asked to uphold the applicant’s conviction for the three murders. Consequentely, the issues to be determined by the appeal court in deciding the applicant’s liability were both factual and legal. The appeal court was called on to make a full assessment of the applicant’s guilt or innocence regarding the charges of the first and third murders. 41. The Court further observes that the proceedings in question were of utmost importance for the applicant, who had been sentenced to twenty years’ imprisonment at first instance and who was not represented at the appeal hearing of 29 June 2006. It also does not lose sight of the fact that the prosecutor was present at the appeal hearing and made submissions. 42. Having regard to the criminal proceedings against the applicant in their entirety and to the above elements, the Court considers that the appeal court could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. Neither could it ensure equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the prosecutor at the hearing. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearing. 43. The Government have acknowledged and the Court agrees that the appeal proceedings of 15 August 2002 fell short of the guarantees of fair trial because neither the applicant nor his legal counsel were duly notified of the appeal hearing. However, the Government contended that the appeal decision of 15 August 2002 had been quashed by way of supervisory review and that in new appeal proceedings the applicant had been given an opportunity to apply for participation in the hearing, which he did not use. 44. In order to assess whether the supervisory review indeed remedied the defects of the original proceedings, as alleged by the Government, the Court has to verify whether the guarantees of fair trial were afforded in the ensuing appeal proceedings and whether the applicant lost the opportunity to be present at the hearing by failing to submit a special request. 45. In that respect the Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance...” it does not specify the manner in which this right should be exercised. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their legal systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirement of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). The Court considers that the requirement to lodge a prior request for participation in the appeal hearing would not in itself contradict the requirements of Article 6, if the procedure is clearly set out in the domestic law. 46. The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑...), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A). Furthermore, in view of the prominent place held in a democratic society by the right to

a fair trial Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to know of the date of the hearing and the steps to be taken in order to take part where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 72, ECHR 2004-IV, and Hermi, cited above, § 76). 47. The Court observes that no explicit waiver was made in the present case. The question is whether there was a tacit one. In order to reply to that question, the Court will have to establish in the first place, whether, as the Government submitted, the applicant and his representative were duly informed of the appeal hearing of 29 June 2006. 48. The Court observes that on 23 May 2006 the applicant was informed that “case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006”. However, according to the applicant, by that date he was not aware that his case had been sent to a fresh appeal hearing as a result of the supervisory review and therefore, he could not know what kind of hearing would be held by the Supreme Court. The Court notes that the Government have not provided any information to prove that the applicant and/or his counsel were duly informed of the supervisory review proceedings or of their outcome. The Court further notes that on 4 November 2005 it forwarded to the applicant a copy of the Government’s observations in which they submitted that on 26 October 2005 the Deputy Prosecutor had applied for a supervisory review of the appeal decision of 15 August 2002. On 23 May 2006 the Court forwarded to the applicant the Government’s letter from which it followed that on 5 April 2006 the Presidium of the Supreme Court had quashed the appeal decision of 15 August 2002 and had remitted the case for a fresh appeal examination. It follows that, at least until the date on which the applicant received the Court’s letter of 23 May 2006 he was not aware of the results of the supervisory review proceedings. It means that on 23 May 2006, the date on which the applicant read the telegram informing him that his case would be heard by the Supreme Court, he could not have known what hearing was to be held by the Supreme Court, a supervisory review hearing or a fresh appeal hearing. In those circumstances, the Court considers that the applicant was not duly notified of the appeal hearing of 29 June 2006. The Court also notes that the Government have not submitted any document which demonstrates that the applicant’s counsel received notification. 49. Furthermore, it follows from the appeal decision of 29 June 2006 that the appeal court did not verify whether the applicant and his representative had been duly notified of the hearing. Neither did that decision state that the applicant had failed to submit a request for participation in the hearing and had waived his right, and that his failure to appear would not preclude examination of the case. In such circumstances, the Court considers that it cannot be said that in the present case the applicant had waived his right to take part in the hearing in an unequivocal manner. 50. Having regard to its findings in paragraphs 42, 48 and 49 above, the Court considers that the appeal hearing of 29 June 2006 did not comply with the requirements of fairness. It follows that the measures taken by the authorities, failed to provide appropriate redress to the applicant in respect of the violation of his right to take part in the appeal hearing of 15 August 2002. He may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court therefore, rejects the Government’s objection under this head and finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 51. The applicant complained under Article 3 that he had been ill-treated while in pre-trial detention. The Court notes that the applicant did not lodge any complaints in that respect with the competent state authorities. It follows that this complaint must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 53. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be

submitted in writing within the time-limit fixed for the submission of the applicant’s observations on the merits, “failing which the Chamber may reject the claim in whole or in part”. 54. In the instant case, on 4 November 2005 the applicant was invited to submit his claims for just satisfaction. He failed to submit any such claims within the required time-limit. Therefore, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection concerning the victim status of the applicant and rejects it; 2. Declares the complaint concerning holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence; 4. Decides to make no award under Article 41. Done in English, and notified in writing on 23 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Rozakis, Spielmann and Malinverni is annexed to this judgment. C.L.R.S.N. JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN AND MALINVERNI 1. As in the case of Sakhnovskiy v. Russia, (no. 21272/03, 5 February 2009), we voted in favour of finding a violation of Article 6 §§ 1 and 3 (c) of the Convention. 2. In the present case the majority follows the approach adopted in Sakhnovsksiy, finding that the second appeal hearing did not provide appropriate redress for the shortcomings of the first appeal hearing and holding that there was a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) on account of the fact that both appeal hearings were held in the applicant’s absence. 3. In our view however the applicant was no longer a victim of the shortcomings of the first appeal hearing, because by quashing the appeal decision and sending the case for a fresh appeal examination the authorities had acknowledged and provided appropriate redress for the shortcomings of the first appeal hearing. 4. Our reasoning therefore differs from the majority’s approach and we would like to refer in this respect to our joint concurring opinion in Sakhnovskiy and in particular to paragraph 5 of that opinion.

THIRD SECTION CASE OF GRIGORYEV AND IGAMBERDIYEVA v. RUSSIA (Application no. 10970/12) JUDGMENT STRASBOURG 12 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Grigoryev and Igamberdiyeva v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 22 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10970/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Yakov Aleksandrovich Grigoryev and Ms Kamola Dilmuratovna Igamberdiyeva (“the applicants”), on 18 January 2012. 2. The applicants were represented by Ms K. Mehtiyeva, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 30 June 2017 notice of the complaints under Articles 5 § 1, 10 and 11 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government did not object to the examination of the applications by a Committee. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant (Mr Grigoryev) was born in 1984 and lives in Svetlogorsk. The second applicant (Ms Igamberdiyeva) was born in 1989 and lives in Kaliningrad. 6. On an unknown date the second applicant notified the Kaliningrad authorities of her intention to hold a group public event on 12 December 2010 in Pobeda Square. The authorities replied that preparations for the New Year celebrations were planned on that day; they did not suggest an alternative venue. The second applicant did not challenge the authority’s reply before the domestic courts. Both applicants decided to stage solo demonstrations near the monument to “Mother Russia” instead; this did not require prior notification. 7. According to the applicants, on 12 December 2010 the first applicant staged a solo demonstration holding a banner saying “Freedom for Khodorkovskiy and Lebedev! We plead for a lawful judgment”. After he had completed his demonstration and placed himself at a distance of some twenty metres, the second applicant held her own solo demonstration. She was wearing a T-shirt saying “Freedom for Khodorkovskiy and Lebedev!” She completed her demonstration in five minutes. Then the first applicant returned to the venue with his banner and remained there for about two minutes, until police officers took him to a police van. He was then taken to a police station and held there for over three hours. 8. According to the Government, at 4 p.m. on 12 December 2010 the applicants participated in a group public event in the form of a “picket” (пикетирование) using visual props, namely a banner and a T-shirt. At 4 p.m. the first applicant was taken to the Leninskiy district police station. Between 5.15 p.m. and 6.30 p.m. a duty officer drew up an administrative offence record in respect of the first applicant. He was accused of taking part in a group public event held without authorisation, an offence under Article 20.2 § 1 of the Code of Administrative Offences (hereinafter “the CAO”). On 14 December 2012 the second applicant was called to the Leninskiy district police station, where she was accused of a similar offence, although it was classified under Article 20.2 § 2 of the CAO. 9. The cases against the applicants were submitted to a justice of the peace of court circuit no. 2 of the Leninskiy District of Kaliningrad. The court ordered the police to submit a video recording showing the events of 12

December 2010. By two judgments of 3 March 2011 the justice of the peace found that the applicants had held solo demonstrations and had not breached the Public Events Act (hereinafter “the PEA”), including its prior notification requirement applicable to group events. The court relied, inter alia, on the video recording submitted by the police. The administrative cases against the applicants were discontinued for lack of the elements of the offences under Article 20.2 §§ 1 and 2 of the CAO. 10. The police lodged an appeal. On 16 May 2011 the Leninskiy District Court of Kaliningrad upheld the judgments. The appellate court also considered that it had not been confirmed that the applicants had in fact taken part in a group “picket”. 11. The applicants sought compensation of 100,000 roubles (RUB)[1] each for unlawful deprivation of liberty and violation of their right to freedom of expression by way of solo demonstration. By a judgment of 15 July 2011 the Tsentralniy District Court of Kaliningrad found that taking the first applicant to the police station had been unlawful, and awarded him RUB 10,000 (equivalent to 250 euros (EUR) at the time) in respect of non-pecuniary damage. On 25 July 2011 the same court also granted the claims by the second applicant, having found that preventing her from staging a solo demonstration and consequently prosecuting her had been unlawful. The court also awarded the second applicant RUB 10,000 for non-pecuniary damage. 12. The first applicant appealed against the judgment of 15 July 2011, complaining, inter alia, about the amount of the compensation and the first‑instance court’s failure to make specific findings in relation to the violation of his freedom of expression on account of the police intervention in his solo demonstration. On 7 September 2011 the Kaliningrad Regional Court upheld the judgment. Relying on Article 27.1 § 2 of the CAO and Article 1070 § 2 of the Civil Code, it ruled that it followed from the discontinuation of the CAO case that placing the first applicant under administrative escort and arrest had been unlawful under Russian law as well as “unjustified” (необоснованные). The appellate court also considered that the interference with freedom of expression had been acknowledged by the declaration that taking the first applicant to the police station had been unlawful. 13. The second applicant also appealed. On 21 September 2011 the Kaliningrad Regional Court upheld the judgment of 25 July 2011. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed during such events, and administrative escort and arrest, see Lashmankin and Others, nos. 57818/09 and 14 others, §§ 216-312, 7 February 2017, and Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 47-85, 26 April 2016. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 5 § 1, 10 and 11 OF THE CONVENTION 15. Referring to Articles 5 § 1, 10 and 11 of the Convention, the first applicant complained about being taken to the police station and held there, and the second applicant complained about being prosecuted for an administrative offence. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that this complaint falls to be examined under Article 10 of the Convention, and Article 5 § 1 as regards the first applicant. The relevant parts of Articles 5 and 10 read as follows: Article 5 “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (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;...” Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority... 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...” 16. The Government argued that the domestic

authorities had acknowledged the unlawfulness of the actions concerning prevention of both applicants from holding their solo demonstrations and their administrative prosecution, and the first applicant’s being taken to the police station and held there for some time. Both applicants had been awarded reasonable compensation and thus their rights had been fully restored at the national level. 17. The applicants submitted that they had staged solo demonstrations which did not require prior notification. The police had not explained in what manner the applicants’ actions had constituted a breach of the Russian legislation or public order. Neither had they justified the first applicant’s being taken to the police station and held there for three hours. The applicants further claimed that they had remained victims of a violation of their rights guaranteed by the Convention. A. Admissibility 18. First of all, the Court notes that the first applicant’s complaint under Article 5 § 1 of the Convention was lodged on 18 January 2012, while his deprivation of liberty had ceased on 12 December 2010. However, following the discontinuation of the related administrative-offence proceedings the applicant brought civil proceedings for compensation that ended on 7 September 2011 and were partly successful (see paragraph 11 above). The Court considers that those proceedings should be taken into account for the purposes of the six-month rule under Article 35 § 1 of the Convention. It follows that the first applicant has complied with this rule. This has not been contested, and the Court accepts that the same considerations are valid for the complaint under Article 10 of the Convention. 19. The Court also reiterates 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 right or freedom (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999‑VI). Redress so afforded must be appropriate and sufficient, failing which a person can continue to claim to be a victim of the violation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006‑V). 20. The Court notes that both applicants claimed and received compensation at the domestic level before lodging an application before the Court. It considers that the issue of victim status is closely linked to the substance of the first applicant’s complaints and must be joined to the merits. 21. As regards the second applicant, it is common ground between the parties that she was not hindered and was able to complete her demonstration on 12 December 2010; the demonstration, by her own choice, lasted five minutes. It does not appear therefore that there was an intervention by the police in the exercise of her right to freedom of expression. As regards the subsequent prosecution of the second applicant, she was accused of an offence of an administrative nature (rather than of a criminal offence stricto sensu); that prosecution resulted in the discontinuation of the proceedings. The trial, which lasted from March until May 2011, was thus not overly long. The second applicant was not deprived of her liberty after the demonstration or during the trial; neither did she face other restrictions on her rights (compare Döner and Others v. Turkey, no. 29994/02, § 88, 7 March 2017). The domestic courts acknowledged a violation of the second applicant’s right to freedom of expression on account of her unlawful prosecution for an offence of an administrative nature, and awarded her compensation for non-pecuniary damage of EUR 250. Even assuming that there was an “interference” and that the second applicant can still claim to be the victim of a breach of Article 10 of the Convention on account of the mere fact of being prosecuted, which lasted some time, albeit without incurring any other adverse consequences in connection with the prosecution (compare Dilipak v. Turkey, no. 29680/05, §§ 44-51, 15 September 2015, and Çölgeçen and Others v. Turkey, nos. 50124/07 and 7 others, §§ 39-40, 12 December 2017), the Court considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 22. The Court notes that the first applicant’s complaints under Article 5 § 1 and 10 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 23. The Court has previously found that the arrest and detention of protesters may constitute an interference with the right to freedom of expression (see Dilek Aslan v. Turkey, no. 34364/08, § 67,

20 October 2015, and the cases cited therein). In the present case the first applicant staged a solo demonstration holding a banner demanding a fair trial for two well‑known figures. The first applicant’s demonstration was not interrupted. He thereby exercised, without hindrance, his right to freedom to “impart information and ideas” and “to hold opinions”. However, his later being taken to the police station and prosecuted for an administrative offence were both related to his having expressed opinions and disseminated information, and therefore constituted “interference” with his rights guaranteed under Article 10 of the Convention. The fact that the prosecution for an administrative offence resulted in the discontinuation of the administrative proceedings against the first applicant does not alter that finding. 24. The Court reiterates that the Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see Correia de Matos v. Portugal [GC], no. 56402/12, § 116, 4 April 2018). The Court has no doubt that the domestic courts in the present case attempted, in good faith and to the best of their ability, to assess the level of suffering, distress, anxiety or other harmful effects sustained by the applicant. It reiterates that such an assessment should be carried out in a manner consistent with the domestic legal requirements and take into account the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 80, ECHR 2006‑V, and Vasilevskiy and Bogdanov v. Russia, nos. 52241/14 and 74222/14, § 23, 10 July 2018). 25. However, even assuming that the domestic court’s finding of unlawfulness regarding the first applicant’s being taken to the police station from the site of his solo demonstration constituted, in substance, an acknowledgment of the violation of his freedom of expression, the Court is not satisfied that the amount of EUR 250 constituted adequate and sufficient redress in respect of the interference, which was both unlawful and disproportionate as indicated in paragraphs 26 and 27 below (see Novikova and Others, cited above, § 218). The award was by no means comparable to what could be awarded under Article 41 of the Convention either under Article 5 § 1 or Article 10 of the Convention (see Scordino v. Italy (no. 1), §§ 181 and 202; Novikova and Others, §§ 222-25 and 231, both cited above; Tsvetkova and Others v. Russia, nos. 54381/08 and five others, § 203, 10 April 2018; Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 98, 26 June 2018; see also, mutatis mutandis, Vasilevskiy and Bogdanov, cited above, § 23). The Court further observes that although the domestic courts accepted that there had been no need to take the first applicant to the police station, they did not acknowledge the violation relating to the exercise of his freedom of expression (compare Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 88, ECHR 2012). Thus, the first applicant remained a victim of the alleged violations under Articles 5 § 1 and 10 of the Convention when he lodged the application before the Court. The Government’s objection as to the first applicant’s victim status should be therefore dismissed. 26. For its part, as to the merits of the complaint under Article 10 of the Convention, the Court does not discern any compelling reasons that justified taking the first applicant to the police station. The Court therefore concludes that he was a victim of, at the very least, disproportionate interference with his freedom of expression on account of his being taken to the police station. 27. As to Article 5 § 1 of the Convention, the domestic courts acknowledged that the first applicant’s being taken to the police station had been in breach of Russian law. The Court sees no reason to disagree. 28. There have accordingly been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. Mr Grigoryev claimed 10,000 euros (EUR) in respect of non‑

pecuniary damage. 31. The Government contested the claims for non-pecuniary damage as excessive and unreasonable. 32. Taking into account the nature and scope of the violations of Articles 5 § 1 and 10 of the Convention and the domestic award, the Court awards Mr Grigoryev EUR 1,700 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 33. Mr Grigoryev did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account. C. Default interest 34. 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 issue of the first applicant’s “victim status” to the merits of his complaints under Articles 5 § 1 and 10 of the Convention, and holds that the first applicant has victim status in relation to those complaints; 2. Declares the complaints under Articles 5 § 1 and 10 of the Convention lodged by the first applicant admissible and the remainder of the application inadmissible; 3. Holds that there have been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant; 4. Holds (a) that the respondent State is to pay the first applicant, within three months, EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident [1]. Approximately 2,500 euros at the material time

SECOND SECTION CASE OF ALDEMİR v. TURKEY (Application no. 37215/04) JUDGMENT STRASBOURG 22 September 2009 FINAL 22/12/2009 This judgment may be subject to editorial revision. In the case of Aldemir v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 1 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37215/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Aldemir (“the applicant”), on 17 May 2004. 2. The applicant was represented by Mr A. Ertunç, a lawyer practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 10 September 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 4. The applicant was born in 1978 and lives in İstanbul. 5. On 27 July 2003 the applicant was stabbed by F.Ç. On the same day the police took statements from F.Ç. and the applicant separately. They were both wounded and accused each other of starting the fight. On 29 July 2003 the Bakırköy Forensic Institute delivered its reports on the applicant and F.Ç., which stated that they were unfit for work for ten and seven days respectively. On 31 July 2003 the Bakırköy Public Prosecutor filed an indictment against the applicant and F.Ç. for assault occasioning bodily harm. The indictment was not served on the applicant or F.Ç. On 21 November 2003 the Bakırköy Magistrate’s Court issued a penal order without holding a hearing and found the applicant and F.Ç. guilty as charged. The court fined each of them 462,377,000 Turkish liras[1]. In doing so, it relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences. On 14 January 2004 the applicant challenged this decision before the Bakırköy Criminal Court. On 30 January 2004 the Bakırköy Criminal Court dismissed the objection without holding a hearing. THE LAW 6. The applicant complained that he had been unable to defend himself in person or through legal assistance, as there had been no public hearing in his case. He further stated that the indictment of the public prosecutor had not been served on him. In this respect the applicant relied on Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention. The Government contested these arguments. 7. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 8. The Court considers that, in the instant case, it is more appropriate to deal with the applicant’s complaints under Article 6 § 1 globally due to the overlapping nature of the issues and since the sub-paragraphs of Article 6 § 3 may be regarded as specific aspects of the general fairness guarantee of the first paragraph (see Piroğlu and Karakaya v. Turkey, nos. 36370/02 and 37581/02, § 38, 18 March 2008). 9. The Court reiterates that it is a fundamental principle enshrined in Article 6 § 1 that court hearings should be held in public (see, among other authorities, Stefanelli v. San Marino, no.35396/97, § 19, ECHR 2000-II). The Court recalls that it has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present applications (see,

inter alia, Karahanoğlu v. Turkey, no. 74341/01, §§ 35‑39, 3 October 2006; Evrenos Önen v. Turkey, no. 29782/02, §§ 29-33, 15 February 2007; Nurhan Yılmaz v. Turkey (no. 2), no. 16741/04, §§ 22-24, 8 April 2008; Günseli Kaya v. Turkey (no. 2), no. 40886/02, §§ 29- 32, 23 June 2009). It finds no reason to depart from such a conclusion in the present case. Consequently, there has been a breach of Article 6 § 1 of the Convention due to the lack of a hearing in the applicant’s case, as a result of which he was not able to participate effectively in the criminal proceedings lodged against him. 10. As regards the question of just satisfaction under Article 41 of the Convention, the applicant claimed that he could not work for a period of more than a month because of his wounds and, even then, his salary had been reduced as he could not produce as much work as before. He further asserted that he now had a criminal record which would make it difficult for him to find new jobs in the future. He thus claimed 20,000 euros (EUR) and EUR 35,000 in respect of pecuniary damage and non-pecuniary damage respectively. With regard to the costs and expenses, the applicant claimed a total of EUR 5,000 for his medical expenses, the fine he had paid, lawyer’s fees and translation costs. In this respect he submitted the lawyer’s contract and a number of receipts. 11. The Government contested these claims. 12. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 of the Convention would have been. Accordingly, it makes no award under this head (see Karahanoğlu v. Turkey, cited above). Moreover, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. Finally, deciding on an equitable basis and considering its case-law, the Court awards the applicant EUR 1,000 for costs and expenses. 13. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention; 3. Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant; 4. Holds (a) that the respondent State is to pay the applicant, in respect of costs and expenses, 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), plus any tax that may be chargeable to the applicant, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1]. Approximately 264 euros at the time.

SECOND SECTION CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY (Application no. 48983/99) JUDGMENT STRASBOURG 26 September 2006 FINAL 26/12/2006 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 Mürvet Fidan and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrR. Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström,MrD. Popović, judges, and Mrs S. Naismith, Deputy Section Registrar, Having deliberated in private on 5 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48983/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Turkish nationals, Mürvet Fidan, Murat Fidan, Hikmet Fidan, Zehra Fidan and Elif Özbilge (“the applicants”). 2. The applicants were represented by Mr Refik Timuçin Bektaş, a lawyer practising in Ankara. 3. On 26 October 2004 the Court declared the application partly inadmissible and decided to communicate the following complaints to the respondent Government: - the national authorities' delay in paying additional compensation for expropriation and damage sustained by the applicants as a result of the low interest rate applied to State debts, despite the high inflation in Turkey; - the length of the proceedings and the exceptional situation which was favourable to the State as a result of the difference between the rate of interest payable on unpaid debts owed to the State and the rate of interest on debts owed by the State at the material time; and - the fact that the latter were not subject to enforcement procedures, unlike the former. 4. In a letter of 28 October 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. All of the applicants live in Baskil, Turkey. 6. On 19 July 1993 each of them brought separate actions before the Baskil Civil Court against the National Water Board. They alleged that their plots of land were illegally seized by the administration for a dam construction without any payment, and requested compensation. 7. On 18 November 1993 the court ruled that the cases should be characterised as compensation claims arising from de facto expropriations rather than claims for illegal seizures. The court established that a committee of experts had assessed the value of the expropriated land in advance and that the authorities had paid the resulting amounts to the owners registered in the local land registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, starting from 1986 when the land was submerged in the waters of the dam. 8. On 6 October 1994 the Court of Cassation quashed these judgments, holding that the cases could not be characterised as compensation claims arising from expropriation. Upon the applicants' request, however, the Court of Cassation reversed its decision and held, on 10 March 1995, that the cases could in fact be characterised as compensation claims arising from expropriation. It proceeded to quash the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run. 9. By decisions of 21 December 1995 and 25 January 1986, the Baskil Civil Court ordered the administration to pay the applicants a certain amount of compensation, plus interest running from 1986, despite the earlier rulings of the Court of Cassation regarding the starting date from which interest was to be calculated. 10. On 20 November 1996 the Plenary Court of Cassation quashed the judgments of the Baskil Civil Court. The same court rejected the applicants' rectification request on 2 May 1997. 11. On 9 October 1997 the Baskil Civil Court ordered the administration to pay the applicants 315,650,000, 297,439,800, 265,571

,250, 404,680,000 and 708,190,000 Turkish liras (TRL) respectively, plus interest at the statutory rate running from 19 August 1993, the date on which the land was transferred to the National Water Board. 12. On 17 March 1998 the Court of Cassation upheld these judgments. On 2 April 1998 the Court of Cassation's rulings were served on the applicants. 13. On 9 December 1998 the administration paid TRL 934,027,000 to Ms Mürvet Fidan, 884,579,000 TRL to Mr Murat Fidan, TRL 790,746,000 to Mr Hikmet Fidan, TRL 1,190,092,000 to Ms Zehra Fidan and TRL 2,041,230,000 to Ms Elif Özbilge. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decisions 1997‑IV). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 15. The applicants complained that the additional compensation for expropriation, which they had obtained from the authorities only by December 1998, had fallen in value, since the statutory rate of interest had not kept pace with the high rate of inflation in Turkey. They relied on Article 1 of Protocol No. 1, which reads insofar as relevant as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” A. Admissibility 16. The Government did not submit any preliminary objections concerning this complaint. 17. The Court notes that, in the light of the principles it has established in its case-law (see, among other authorities, Akkuş v. Turkey, cited above) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible. B. Merits 18. The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş, cited above, p. 2682, §§ 50-51). 19. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owners a loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicants have had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and the protection of the right to the peaceful enjoyment of possessions. 20. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicants also complained under Article 6 § 1 of the Convention of the unreasonable length of the court proceedings. A. Admissibility 22. The Government argued that the applicants had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, since they had not, at any stage of the proceedings, claimed that the length of the proceedings had exceeded the “reasonable time” limit. 23. The Court notes that, even if the applicants had complained about the length of proceedings before the domestic courts, they would not have been afforded adequate redress for that grievance. Thus, it dismisses the Government's preliminary objection. 24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. B. Merits 25. In the light of its findings with regard to Article 1 of Protocol No. 1 (paragraph 20 above), the Court does not consider that a separate examination of the merits of the case under Article 6 § 1 is necessary. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 26. Lastly, the applicants complained under Article 14, in conjunction with Article 1 of Protocol No. 1, of the difference between the rate of interest payable on debts owed to the State and the rate of interest payable on debts owed by the State at the material time, and of the fact the latter were not subject to enforcement procedures. Ad

missibility 27. The Court recalls that Article 14 is designed to safeguard individuals, or groups of individuals, placed in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the Convention and the Protocols (see National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, p. 15, § 44). In other words, this Article affords protection against discrimination “among persons in relevantly similar situations” (see Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 15, § 60). 28. The applicants' complaint relates to a difference in treatment of the State and individuals in the context of their respective debts. However, the State and individuals cannot be considered to be “similarly situated persons”. Moreover, the applicants did not claim that the State discriminated against them vis-à-vis other individuals. The complaint therefore falls outside the scope of Article 14 and must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicants sought compensation for pecuniary damage only. However they left the amount of compensation to the Court's discretion. 31. The Government made no observations on this point. 32. Using the same method of calculation as in the Akkuş judgment (cited above, pp. 2683-84, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicants a total of 1,762 euros (EUR) for pecuniary damage, as follows: - EUR 255 to Ms Mürvet Fidan; - EUR 209 to Mr Murat Fidan; - EUR 196 to Mr Hikmet Fidan; - EUR 349 to Ms Zehra Fidan; and - EUR 753 to Ms Elif Özbilge. B. Costs and expenses 33. The applicants also requested the costs and expenses incurred before the Court and left the amount at the Court's discretion. 34. The Government made no observations on this point. 35. Making its own estimate based on the information available, the Court considers it reasonable to award the applicants, jointly, the sum of EUR 500 under this head. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 6 § 1 of the Convention and 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 of the Convention; 3. Holds that it is unnecessary to examine the merits of the complaint under Article 6 § 1 of the Convention separately; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) in respect of pecuniary damage - EUR 255 (two hundred and fifty-five euros) to Ms Mürvet Fidan; - EUR 209 (two hundred and nine euros) to Mr Murat Fidan; - EUR 196 (one hundred and ninety-six euros) to Mr Hikmet Fidan; - EUR 349 (three hundred and forty-nine euros) to Ms Zehra Fidan; - EUR 753 (seven hundred and fifty-three euros) to Ms Elif Özbilge; (ii) EUR 500 (five hundred euros) to the applicants, jointly, in respect of costs and expenses; (iii) plus any taxes that may be chargeable at the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 26 September 2006, pursuant to Rule 77 §§ 2 and

3 of the Rules of Court. S. NaismithJ.-P. Costa Deputy RegistrarPresident

THIRD SECTION CASE OF RYABININA AND OTHERS v. RUSSIA (Applications nos. 50271/06 and 8 others – see appended list) JUDGMENT STRASBOURG 2 July 2019 This judgment is final but it may be subject to editorial revision. In the case of Ryabinina and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Helen Keller,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 11 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in nine applications (nos. 50271/06, 4718/07, 24121/07, 7624/08, 53088/08, 64311/10, 6737/11, 74971/11 and 64746/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Russian nationals, whose names and dates of birth are listed in the Appendix, on various dates listed in the Appendix. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. Some of the applicants were represented by lawyers, whose names are listed in the Appendix. 3. The applicants complained, in particular, of a breach of their rights to freedom of expression and freedom of assembly. Some of the applicants also alleged the lack of an effective remedy in that respect or unlawful arrest. 4. Between 11 March 2010 and 8 July 2014 notice of the above complaints were given to the Government and the remainder of the applications nos. 6737/11, 74971/11 and 64746/13 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The list of applicants and the relevant details of the applications are set out in the appended table. 6. The applicants complained of various restrictions imposed by the authorities on the location, time or manner of conduct of public events. Some applicants also alleged the lack of an effective remedy in that respect or unlawful arrest. THE LAW I. JOINDER OF THE APPLICATIONS 7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. LOCUS STANDI 8. The Court notes that one of the applicants, Ms Yelena Zusyevna Ryabinina (application no. 50271/06), died and that her daughter, Ms Olga Mikhaylovna Ryabinina, expressed a wish to continue with the application. 9. The Government submitted that the applicant’s daughter could not claim to be a victim of a violation of her mother’s rights under Articles 10 and 11 of the Convention, as those rights were non-transferable. 10. The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Jėčius v. Lithuania, no. 34578/97, § 41, ECHR 2000‑IX). In a number of cases in which an applicant died in the course of the proceedings the Court 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, for instance, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999‑VI; Hanbayat v. Turkey, no. 18378/02, §§ 19-21, 17 July 2007; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013). Furthermore, the Court recognised the right of the relatives of the deceased applicant to pursue the application concerning the exercise of the right to freedom of assembly (see Szerdahelyi v. Hungary, no. 30385/07, §§ 19-22, 17 January 2012, and Nos

ov and Others v. Russia, nos. 9117/04 and 10441/04, §§ 28‑30, 20 February 2014). 11. In the present case the successor submitted documents confirming that she was the applicant’s close relative and heir. In these circumstances, the Court considers that the applicant’s daughter has a legitimate interest in pursuing the application in place of her late relative. III. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 12. The applicants complained of the restrictions imposed by the authorities on the location, time or manner of conduct of public events. They relied, expressly or in substance, on Article 11 of the Convention. Some applicants also invoked Article 10, however, this complaint falls to be examined under Article 11 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-365, 7 February 2017). Article 11 reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 13. In their additional observations in application no. 24121/07, the Government argued for the first time that the applicants had not exhausted the domestic remedies as they had not lodged a civil claim for compensation after their judicial review complaint against the refusal to approve the public event had been allowed and the refusal had been declared unlawful. 14. The Court notes that the Government did not raise that objection in their initial observations on the admissibility and merits, and the question of the applicants’ failure to lodge a civil claim for compensation was raised only in their additional observations and submissions on just satisfaction. The Government did not indicate any impediment by which they had been prevented from referring, in their initial observations on the admissibility and merits of the case, to a failure by the applicants to lodge a civil claim. It follows that the Government are estopped from relying on a failure to exhaust domestic remedies (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 51-54, 15 December 2016). 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 16. The applicants maintained their claims. 17. The Government contested their arguments. 18. The Court refers to the principles established in its case‑law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references). 19. In the leading case of Lashmankin and Others (cited above, §§ 402‑78), the Court found a violation in respect of issues similar to those in the present case. 20. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the interference with the applicants’ freedom of assembly was based on legal provisions which did not meet the Convention’s “quality of law” requirements, and was moreover not “necessary in a democratic society”. 21. There has therefore been a violation of Article 11 of the Convention in respect of each applicant. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 22. The applicants in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13 complained under Article 13 of the Convention in conjunction with Article 11 of the Convention that they did not have an effective remedy against the alleged violations of their freedom of assembly. Article 13 of the Convention 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.” 23. The Government contested that argument. A. Admissibility 24. The Court notes that

this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 25. In the recent case of Lashmankin and Others (cited above, §§ 342‑61) the Court found that the applicants had not had at their disposal an effective remedy to challenge refusals to approve the location or time of a public event or the manner in which it was to be conducted. 26. The Court does not see any reason to reach a different conclusion in the present case. It therefore finds that the applicants did not have at their disposal an effective remedy in respect of their complaint under Article 11 of the Convention. 27. There has accordingly been a violation of Article 13 in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 28. The applicants in applications nos. 6737/11 and 74971/11 complained that their arrest had been arbitrary and unlawful. They relied on Article 5 § 1, which reads: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Admissibility 29. The Government submitted that Mr Kostyrin (application no. 74971/11) had lost victim status as the domestic courts had acknowledged a violation of his rights and had awarded him compensation. They argued that the amount of compensation was comparable to the amounts awarded by the Court in cases concerning short lengths of detention (they referred to Sergey Solovyev v. Russia, no. 22152/05, 25 September 2012, and Tarakanov v. Russia, no. 20403/05, 28 November 2013). 30. The Court observes that Mr Kostyrin was detained from 9 p.m. on 18 March 2010 to 5.30 p.m. on 19 March 2010, that is for a little less than nineteen hours. The domestic courts then acknowledged that his detention had been unlawful and awarded him 20,000 Russian roubles (about 500 euros (EUR)). Having regard to the short duration of Mr Kostyrin’s detention, the Court considers that the amount awarded to him was not manifestly unreasonable in comparison to what the Court would have awarded in a similar case (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, 26 June 2018). In the circumstances of the case, the Court considers that such a redress was sufficient and adequate, having the effect of rendering the applicant “no longer a victim” of the alleged violation. 31. It follows that Mr Kostyrin’s complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 32. As regards Mr Khayrullin, the Court notes that his 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 33. The Government submitted that Mr Khayrullin had been escorted to the police station under Article 27.2 of the Code of Administrative Offence because he had not had any identity documents on him and it had been therefore impossible to draw up the administrative offence report at the place where the offence had been discovered. 34. The applicant maintained his claim. 35. It has not been disputed

that Mr Khayrullin was deprived of his liberty within the meaning of Article 5 § 1 of the Convention from 10.30 to 5.30 p.m. on 20 March 2010. The administrative offence report stated that he had been escorted to the police station for the purpose of drawing up an administrative offence report. Article 27.2 of the Code of Administrative Offences provides that a suspected offender could be escorted to a police station for the purpose of drawing up an administrative offence report only if such a report could not be drawn up at the place where the offence had been discovered. The Court is not convinced by the Government’s assertion that in the applicant’s case it was impossible because he did not have identity documents because that assertion is refuted by the documents in the case file. Indeed, none of the official documents mentions the alleged lack of identity documents or explain why it was not possible to draw the administrative report on the spot. The police report states that the applicant was brought to the police station after his identity documents had been checked; the administrative offence report indicates the applicant’s passport details; and the release certificate mentions that the applicant’s driving license was given back to him upon release. No obstacles to drawing up the report on the spot may be therefore discerned from the documents in the case file. 36. It follows that the facts of the present case are similar to those in Navalnyy and Yashin v. Russia (no. 76204/11, §§ 68 and 93, 4 December 2014) and Lashmankin and Others (cited above, §§ 486-92), where a violation of Article 5 § 1 was found. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 37. The Court finds that the escorting of the applicant to the police station did not comply with Russian law and was therefore not “lawful” within the meaning of Article 5 § 1. 38. There has therefore been a violation of Article 5 § 1 of the Convention in application no. 6737/11. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 39. Lastly, the Court has examined the other complaints submitted by the applicants in applications nos. 24121/07 and 53088/08 having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicants claimed various amounts in respect of non-pecuniary damage. Some applicants also claimed pecuniary damage in the amount of the fines they had paid. 42. The Government submitted that the claims for non-pecuniary damage were excessive. As regards the claim for pecuniary damage, they submitted that the fines had been lawfully imposed on the applicants for administrative offences. 43. The Court considers that there is a direct causal link between the violation of Article 11 found and the fines some of the applicants had paid following their conviction for the administrative offence (see, for similar reasoning, Lashmankin and Others, cited above, § 515). Regard being had to the documents in its possession, the Court considers it reasonable to award the sums indicated in the appended table in respect of pecuniary damage, plus any tax that may be chargeable. 44. Further, having regard to the nature of the violations found in respect of each applicant, to the principle ne ultra petitum, and to its case‑law (see Lashmankin and Others, cited above, § 516), the Court awards the amounts indicated in the appended table in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 45. Some applicants also claimed costs and expenses incurred before the domestic courts and/or those incurred before the Court, in particular legal and translation fees and postal expenses. 46. The Government contested the claims. 47. Regard being had to the documents in its possession and to its case‑law, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on

those amounts. The awards in applications nos. 4718/07, 24121/07 and 6737/11 are to be paid into the representatives’ bank accounts, as requested by the applicants. C. Default interest 48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints about the alleged breach of the applicants’ rights to freedom of assembly, the lack of an effective remedy in that respect and the alleged unlawfulness of Mr Khayrullin’s taking to the police station admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 11 of the Convention in all applications; 4. Holds that there has been a violation of Article 13 of the Convention in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13; 5. Holds that has been a violation of Article 5 § 1 of the Convention in application no. 6737/11; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that the award in respect of Ms Yelena Zusyevna Ryabinina should be paid to her heir Ms Olga Mikhaylovna Ryabinina. The awards in respect of costs and expenses in application nos. 4718/07, 24121/07 and 6737/11 are to be paid into the representatives’ bank accounts as indicated by the applicants; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Paulo Pinto de AlbuquerqueDeputy RegistrarPresident No. Application no. Lodged on Applicant Date of birth Place of residence Represented by Location Date of the public event planned Restrictions applied Other measures applied Final domestic decision (type of procedure) Date Name of the court Amount awarded for pecuniary damage per applicant (in euros)[1] Amount awarded for non‑pecuniary damage per applicant (in euros)[2] Amount awarded for costs and expenses per application (in euros)[3] 1. 50271/06 20/11/2006 Yelena Zusyevna RYABININA 14/01/1955 Moscow Lawyers from the Memorial Human Rights Centre In front of the Federal Security Service building in Moscow 01/02/2006 Proposal to change the location Dispersal, arrest and conviction of an administrative offence (sentenced to a fine of RUB 500) Notification procedure: 30/05/2006 Moscow City Court; Administrative Offence Proceedings: 06/06/2006 Meshchanskiy District Court of Moscow EUR 15, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina EUR 5,000, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina EUR 5,800, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina 2. 4718/07 28/11/2006 Lev Aleksandrovich PONOMAREV 02/09/1941 Moscow Mikhail Aleksandrovich KRIGER 23/02/1960 Moscow Mikhail Yakovlevich SHNEYDER 19/09/1948 Moscow Ms O. Mikhaylova, Mr V. Prokhorov, and Mr V. Shukhardin In front of the Federal Security Service building in Moscow 01/02/2006 Proposal to change the location Dispersal and arrest; administrative offence

proceedings were brought but later discontinued Notification procedure: 30/05/2006 Moscow City Court; Administrative Offence Proceedings: 19/05/2006 Meshchanskiy District Court of Moscow EUR 7,500 to each applicant EUR 5,000 to be paid to the representatives jointly 3. 24121/07 27/03/2007 Lev Aleksandrovich PONOMAREV 02/09/1941 Moscow Yuriy Vadimovich SAMODUROV 27/09/1951 Moscow Mikhail Aleksandrovich KRIGER 23/02/1960 Moscow Mikhail Yakovlevich SHNEYDER 19/09/1948 Moscow Ms K. Moskalenko, Ms A. Stavitskaya, Ms S. Davydova and Mr V. Shukhardin Solovetskiy Stone Memorial in central Moscow 03/09/2006 Proposal to change the date Dispersal, arrest and conviction of administrative offences (Mr Ponomarev was sentenced to a fine of RUB 2,000 and three days’ administrative detention; Mr Samodurov and Mr Kriger were sentenced to fines of RUB 500 each; and Mr Schneider was sentenced to a fine of RUB 1,000) Notification procedure: 20/11/2006 Taganskiy District Court of Moscow; Administrative Offence Proceedings: 28/09/2006; 17/10/2006 and 07/11/2006 Tverskoy District Court of Moscow Not claimed EUR 7,500 to each applicant EUR 5,000 to be paid to the representatives jointly 4. 7624/08 19/12/2007 Aleksey Ivanovich KANURIN 03/12/1954 Moscow Centre of Moscow 04/11/2006 Refusal to approve the event Notification procedure: 21/06/2007 Moscow City Court Not claimed Not claimed Not claimed 5. 53088/08 19/09/2008 Mikhail Nikolayevich SHARABANOV 23/03/1988 Nizhniy Novgorod Mr S. Shimovolos Lenin Square in Nizhniy Novgorod 10/11/2007 Proposal to change the date Escorting to the police station, administrative offence proceedings were brought but later discontinued Notification procedure: 25/03/2008 Nizhniy Novgorod regional Court; Administrative Offence Proceedings: 17/01/2008 Kanavinskiy District Court of Nizhniy Novgorod Not claimed Not claimed Not claimed 6. 64311/10 07/10/2010 Natalya Andreyevna PELETSKAYA 12/02/1990 Moscow Mr K. Terekhov Centre of Moscow 20/03/2010 Proposal to change the location Dispersal, arrest and conviction of an administrative offence (sentenced to a fine of RUB 500) Notification procedure: 12/11/2010 The Moscow City Court Administrative Offence Proceedings: 24/05/2010 Tverskoy District Court of Moscow Not claimed EUR 7,500 EUR 2,500 7. 6737/11 03/12/2010 Vadim Vilyevich KHAYRULLIN 27/01/1972 Kaliningrad Mr E. Markov Centre of Kaliningrad 20/03/2010 Proposal to change the location or date Escorting to the police station and conviction of an administrative offence (sentenced to RUB 1,000 Administrative Offence Proceedings: 20/08/2010 Leningradskiy District Court of Kaliningrad Civil claim against the refusal to approve the event and the arrest: 18/05/2011 The Kaliningrad Regional Court EUR 26 EUR 10,000 EUR 3,700 8. 74971/11 01/11/2011 Aleksandr Vladimirovich KOSTYRIN 24/12/1944 Svetlogorsk Centre of Kaliningrad 20/03/2010 Proposal to change the location or date arrest Civil claim against the refusal to approve the event and the arrest: 08/06/2011 The Kaliningrad Regional Court Not claimed Not claimed

Not claimed 9. 64746/13 10/11/2010 Yevgeniy Nikolayevich LABUDIN 09/03/1962 Kalinigrad Centre of Kaliningrad 20/03/2010 Proposal to change the location or date Arrest and conviction of an administrative offence Administrative Offence Proceedings: 19/07/2010 Leningradskiy District Court of Kaliningrad Not claimed Not claimed Not claimed [1]. Plus any tax that may be chargeable. [2]. Plus any tax that may be chargeable to the applicants. [3]. Plus any tax that may be chargeable to the applicants.

FOURTH SECTION CASE OF NATUNEN v. FINLAND (Application no. 21022/04) JUDGMENT STRASBOURG 31 March 2009 FINAL 30/06/2009 This judgment may be subject to editorial revision. In the case of Natunen v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 10 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21022/04) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Jari Natunen (“the applicant”), on 9 June 2004. 2. The applicant was represented by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged that the criminal proceedings against him had not been fair in that the principle of equality of arms and the presumption of innocence had not been respected and he had been deprived of adequate facilities for the preparation of his defence. 4. On 13 March 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Helsinki. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant was suspected of an aggravated drugs offence. On an unspecified date the public prosecutor brought charges against him and two other persons, L.J. and J.J. According to the indictment, the defendants had decided to obtain a large amount of amphetamine from Estonia. Between 28 and 29 September 2001 the applicant and J.J. made a trip to Estonia to arrange the purchase, acting on instructions from L.J. On 15 October 2001 the drugs, hidden in a truck, were brought to Finland by a fourth person. During this period the applicant kept in contact with the Estonian supplier by telephone. On 16 October 2001 the truck driver handed over the drugs to L.J. and J.J., who then hid them. Later in the evening J.J. returned for the drugs, as agreed with L.J. While J.J. was driving back to town, the police stopped and detained him and seized the drugs from his possession. In the meantime, the applicant picked up L.J. from a nearby petrol station. 8. Subsequently, all the defendants contested the above charge. The applicant denied any knowledge of the matter. He maintained that his trip to Estonia had only been for pleasure and that he had not received any instructions from L.J. relating to it. Nor had he kept any contact with the supplier. He further denied any knowledge of what had happened at the petrol station on 16 October 2001. Apparently all the defendants asserted that their collective enterprise had concerned a plan to purchase weapons and not drugs. 9. On 1 February 2002 the applicant’s counsel sent a letter to the police inquiring whether all the telephone calls made between the three defendants by mobile phone had been included in the pre-trial investigation material. He also requested the police to confirm in writing that it was not possible to disclose to the defence the telephone metering information in the possession of the police. 10. In their response of 8 February 2002 the police stated that all the telephone calls pertaining to the investigated offence had been included in the pre-trial investigation material. The police further confirmed that the telephone metering information in their possession could not be disclosed as it was confidential. 11. The evidence obtained through telephone surveillance and produced before the court included 21 recorded telephone conversations and 7 recorded text messages between the defendants between 25 September and 16 October 2001, apparently all pertaining to the different stages of the alleged drugs offence. 12. On 14 February 2002 the Espoo District

Court (käräjäoikeus, tingsrätten) found that the defendants had planned to purchase drugs and had carried out the plan together. It convicted them as charged and sentenced each of them to six and a half years’ imprisonment. As to the conviction of L.J. and J.J. the court relied mainly on the testimony of the truck driver and the fact that the drugs had been found in J.J.’s possession. As to its finding that all three defendants had acted in concert in committing the offence, the court relied on information obtained through telephone surveillance. According to the court, the numerous recordings of telephone conversations between the defendants consistently showed that there had been a common understanding about the plan to obtain the drugs several weeks before they were delivered. Their co-operation had begun on 28 September 2001, at the latest, when the applicant had made a trip to Estonia with J.J. Since that journey they had been showing concern about the delay in the delivery. The court found the defendants’ account of the plan to purchase weapons unsubstantiated. The court also relied on the recordings in concluding that the applicant had participated in the actual receiving of the drugs just as actively as the other defendants, even though he had not been there to receive them in person. 13. The applicant, along with the other parties, appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). In his letter of appeal he claimed that all that had been established beyond dispute was that he had made a trip to Estonia and that he had been in contact with the other defendants by telephone, but that did not connect him to the offence of which he had been convicted. The District Court had failed to specify which telephone conversations proved that he had been an accomplice. 14. In his subsequent additional submission to the court the applicant also requested that the public prosecutor be ordered to produce all the recordings of the telephone conversations between the applicant and other defendants, as they would reveal that the dealings involving the defendants had related to matters other than drugs. The applicant contended that only a fraction of all these telephone conversations had been included in the pre-trial investigation material, thus giving a misleading impression of the nature of their association. If the court were to refuse this request, the defence should at least be granted access to all of the recordings. 15. The court requested the prosecutor to submit a reply regarding, inter alia, the above request. In his reply of 12 June 2002 the prosecutor stated that it was not disputed that the applicant had been in contact with J.L. and J.J. by telephone also concerning matters other than the purchase of drugs. These conversations had not, however, been included in the case material and had been destroyed, as was required under chapter 5a, section 13 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987). Nor did the conversations in question, according to the prosecutor, relate to any other offence which would have allowed the police to keep the recordings without breaching the law. All the conversations that pertained to the matter had been retained, included in the case file and produced to the court. 16. Having regard to the prosecutor’s reply, the Court of Appeal did not render a decision on the applicant’s request. On 13 December 2002, following an oral hearing, the court upheld the applicant’s conviction. It increased his prison sentence to seven years. 17. In its reasons the court stated, inter alia, that, apart from the testimonies given by the defendants, there was no evidence to support the allegations about purchasing weapons. Furthermore, the court found the defendants’ testimonies regarding those allegations not credible. It also found inconsistencies between the applicant’s testimony and some of the telephone conversations, which had been played back to the court. 18. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining that his conviction had been based mainly, and in practice, on the courts’ false interpretation of those telephone conversations which had been included in the case file. The defence had never been given access to a large number of recordings which had not been included therein, although a request to that end had been made during the pre-trial investigation. He submitted as evidence the response given by the police on 8 February 2002. As the recordings were subsequently destroyed, the applicant had been denied the right to assess their relevance for his defence. The applicant renewed his contention that the recordings which had not been included in the case file would have shown that he had been involved with the co-defendants in a transaction not related to the purchase of drugs. 19. On 19 December 2003 the Supreme Court refused leave to appeal. II. RELEVANT DOMESTIC LAW 20. Chapter 5a,

section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences. Weapons offences were not included in the list. 21. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Section 13 allowed, however, the retention of recordings pertaining to such [other] offences where the interception of telecommunications could be permitted. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket. 22. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no. 52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary. 23. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no. 199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties. 24. The same principle applies to the conduct of the police, which has the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) OF THE CONVENTION 25. The applicant complained under Article 6 §§ 1 and 3 (b) of the Convention that the proceedings had been unfair. The destruction of a major part of the recordings by the police had not been in conformity with the principle of equality of arms and had deprived him of the right to have adequate facilities for the preparation of his defence. Article 6 of the Convention reads, in relevant parts, as follows: “1. In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ...” 26. The Government contested those arguments. A. Admissibility 27. The Court notes that those 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. Submissions of the parties 28. The applicant argued that the proceedings had been unfair in that the police alone had had discretion to determine which recordings were to be included in the case file and made available to the prosecutor, the defence and the courts. As a major part of the recordings had been destroyed, the courts had not been able to assess fully his contention in respect of those recordings revealing the true nature of his actions. Thus, the principle of equality of arms had not been respected. The applicant also argued that he had not had adequate facilities for the preparation of his defence as the police had destroyed the evidence before the charges had been brought. 29. To complement the facts of the case, the applicant submitted copies of his inquiry sent to the police (see paragraph 9

above) and the letter of response thereto (see paragraph 10 above). 30. The Government submitted that all the recordings pertaining to the charges had been retained, included in the pre-trial investigation material as transcripts and presented as evidence in court. Any other recordings of telephone conversations had been destroyed, as required by the law in force at the time. The destruction of such recordings which had not pertained to the offence charged and which had not been produced to the court could not constitute a violation of Article 6 §§ 1 and 3 (b) of the Convention. Moreover, the decisions by the authorities in respect of the applicant’s requests to gain access to the totality of the recordings had been taken in conformity with the requirements of Article 6 § 1 of the Convention. 31. The Government reiterated that it was the task of the domestic courts to assess the evidence presented to them and to decide whether it was sufficient for a conviction. In the present case the national courts had assessed the evidence submitted and found the applicant guilty as charged. The Government maintained that the parties had had equal access to the same recordings and other documents that had played a part in the formation of the courts’ opinion. 32. The Government further pointed out that the Court’s case-law obliges the prosecution authorities to disclose to the defence all material evidence in their possession for or against the accused. However, the entitlement to disclosure of relevant evidence was not an absolute right. In this case, the recordings of telephone conversations not pertaining to the offence had been destroyed. The prosecution had thus been unable to disclose to the defence the requested recordings. However, it had been possible to obtain information about all the telephone conversations between the defendants by hearing them in person in court. 33. The Government submitted that the rights of the defence had been further safeguarded by the principle of objectivity governing the duties of public prosecutors, as provided in section 1 of the Act on Public Prosecutors. The prosecutor had co-operated with the police during the pre-trial investigation and had thus been able to participate in the selection of the recordings included in the case file, based on his view of which information did or did not relate to the matter. 34. The Government further contended that the applicant had not insisted that the destroyed recordings had contained material favourable to his defence until after having submitted his letter of appeal to the Court of Appeal. The Government argued that the applicant could have described the contents of the destroyed telephone calls during the pre-trial investigation as well as in the court proceedings. 35. In the light of the above, the Government argued that the principle of equality of arms had been respected by the authorities and the applicant had been afforded adequate facilities to prepare his defence in accordance with Article 6 §§ 1 and 3 (b) of the Convention. It followed that there had been no violation of Article 6 §§ 1 and 3 (b) of the Convention. 36. In their further observations the Government argued that the applicant had in his initial application only complained about the lack of access to the totality of recorded telephone conversations and that the facts concerning telephone metering information, as they transpired from the fresh documents (see paragraph 29 above), constituted a new complaint. In that part the application had been submitted out of the six months’ time-limit. Furthermore, the applicant had not raised the said issue before the national courts and had thus failed to exhaust the domestic remedies in that respect. 2. The Court’s assessment 37. The Court firstly notes that the applicant’s complaints, as submitted in his application, only concerned lack of access to the totality of recordings of telephone conversations between himself and the other defendants, and not the telephone metering information obtained through the secret surveillance. Rather than a fresh complaint, his subsequent submission of letters relating to the facts of the case may be regarded as a response to the Government’s contention that he had not pleaded the relevance of the destroyed recordings to his defence until having submitted the letter of appeal. For this reason the Court does not find it necessary to examine the Government’s argument set out in paragraph 36 above. As to the other submissions of the parties, the Court states the following. 38. The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1. In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b), since they amount to a complaint that he did not receive a fair trial. It will therefore confine its examination to the question of whether the proceedings in their entirety were fair (see Edwards v. the United Kingdom, 16 December 1992, §§ 33-34, Series A no. 247‑B, and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000‑II). 39. It is a fundamental aspect

of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 60, with further references). 40. However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis, Rowe and Davis, cited above, § 61, with further references). 41. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, such as the present one, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 62). 42. More specifically, Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). Furthermore, the facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007). 43. Failure to disclose to the defence material evidence, which contains such particulars which could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3 (b) of the Convention (see C.G.P., cited above). The accused may, however, be expected to give specific reasons for his request (see Bendenoun v. France, 24 February 1994, § 52, Series A no. 284) and the domestic courts are entitled to examine the validity of these reasons (see C.G.P., cited above). 44. Turning to the present case, the Court observes that the number of the destroyed recordings, or the contents thereof, cannot be verified from the material submitted. The Government have not, however, contested the applicant’s submission that the amount of such recordings was of some significance. Nor have they been able to provide any specific information about their contents. 45. As to the Government’s contention that the applicant had only pleaded the relevance of the destroyed recordings after having submitted his letter of appeal to the Court of Appeal, the Court notes that under domestic law the Court of Appeal was empowered to consider questions of both fact and law, and it was still open to the applicant to request new evidence to be produced

at that stage. Moreover, the Government have not argued that the requested recordings would, in fact, have been available in the District Court proceedings, any more than in the proceedings before the Court of Appeal. The Court notes in this connection that, although the actual time of destruction of the recordings in question remains unclear, it had presumably taken place in the course of the pre-trial investigation. In this respect the Court refers to the relevant provision of the Coercive Measures Act in force at the relevant time (see paragraph 21 above). As to the Government’s argument that the applicant could have described the contents of the destroyed recordings, the Court considers that the applicant could not have been expected to announce his alleged involvement in a different offence, punishable by law, prior to any charges having been brought against him. 46. The Court reiterates that the requirements of Article 6 presuppose that having given specific reasons for the request for disclosure of certain evidence which could enable the accused to exonerate himself, he should be entitled to have the validity of those reasons examined by a court. Although the applicant, in this case, must have known the contents of the destroyed recordings, as far as they involved him, and even if he had been able to put questions during the trial concerning all of the conversations with the other defendants, the Court points out that the national courts did not find the defendants’ allegations about the purchase of illegal weapons credible, for lack of other supporting evidence (see paragraphs 12 and 17 above). Furthermore, the Court of Appeal did not refuse to order the disclosure of the requested recordings on the ground that the applicant had not given specific and acceptable reasons for his request. Instead, it declined to render a decision in that respect, as the recordings had been destroyed and could thus not have been disclosed to the defence or produced to the court (see paragraphs 15 and 16 above). 47. Even though the police and the prosecutor were obliged by law to take into consideration both the facts for and against the suspect, a procedure whereby the investigating authority itself, even when co-operating with the prosecution, attempts to assess what may or may not be relevant to the case, cannot comply with the requirements of Article 6 § 1. Moreover, it is not clear to what extent the prosecutor was, in fact, involved in the decision to destroy those recordings which were not included in the case file. In this case, the destruction of certain material obtained through telephone surveillance made it impossible for the defence to verify its assumptions as to its relevance and to prove their correctness before the trial courts. 48. The Court finds that the present case is different from, inter alia, Fitt v. the United Kingdom [GC] (no. 29777/96, ECHR 2000‑II) and Jasper v. the United Kingdom [GC] (no. 27052/95, 16 February 2000) where the Court was satisfied that the defence were kept informed and were permitted to make submissions and participate in the decision-making process as far as possible and noted that the need for disclosure was at all times under the assessment of the trial judge, providing a further, important, safeguard. In those cases the Court found no violation under Article 6 § 1 (see Fitt, §§ 48-49, and Jasper, §§ 55-56). The Court recalls that, in this case, the decision regarding the undisclosed evidence was, presumably, made in the course of the pre-trial investigation without providing the defence with the opportunity to participate in the decision-making process. 49. In the present case the Court further notes that the contested measure stemmed from a defect in the legislation, in that it failed to offer adequate protection to the defence, rather than any misconduct of the authorities, who were obliged by law, in force at the time, to destroy the impugned recordings (see paragraph 21 above). The Court observes that in the Government Bill for the amendment of the Coercive Measures Act it was considered problematic that information supporting the innocence of the suspect could be destroyed before the resolution of the case (see paragraph 22 above). The relevant provision was amended with effect from 1 January 2004 with a view to better safeguarding the rights of the defence. This amendment, however, came too late for the applicant. 50. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 51. The applicant also complained under Article 6 § 2 of the Convention that the presumption of innocence had not been respected as he had been made to bear the burden of proof about not being involved in the purchase of illegal drugs. The said Article reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 52. The Government contested that argument. 53. The Court reiter

ates that, as a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to ascertain that the proceedings considered as a whole were fair, which in the case of criminal proceedings includes the observance of the presumption of innocence. Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see Telfner v. Austria, no. 33501/96, § 15, 20 March 2001, with further references). 54. The Court observes that, in this case, and subject to its above findings on the applicant’s complaint under Article 6 §§ 1 and 3 (b) of the Convention, the District Court convicted the applicant after adversarial proceedings, in which he had the possibility to challenge the evidence produced against him. The applicant’s conviction was upheld by the Court of Appeal after a full review of the case in an oral hearing. Both courts gave reasons for their decisions. Having regard to the facts of the case, and given its subsidiary role regarding the assessment of evidence, the Court cannot conclude that the prosecutor had failed to establish a convincing prima facie case against the applicant. There is no indication that the domestic courts had a preconceived idea of the applicant’s guilt. In these circumstances it cannot be said that the domestic courts had shifted the burden of proof to the defendant (see, a contrario, Telfner v. Austria, cited above, § 18). It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant requested, firstly, that the Court declare that the most appropriate form of redress would be, in principle, to order the re-opening of the case. In the event of a finding that the requirements of Article 6 § 1 had not been complied with, the charge against the applicant should be dismissed. Secondly, in respect of non-pecuniary damage, the applicant claimed 3,000 euros (EUR). 57. The Government considered the claim excessive as to quantum. Any award should not exceed EUR 2,500. 58. The Court accepts that the lack of guarantees of Article 6 has caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 2,500 in respect of non-pecuniary damage. The Court considers that the award of non-pecuniary damage provides a sufficient redress in this case, having regard, in particular, to the destruction of recordings. B. Costs and expenses 59. The applicant claimed EUR 4,278.88 (inclusive of value-added tax) for the costs and expenses incurred before the Court. 60. The Government pointed out that the Court had invited observations only in respect of complaints submitted under Article 6 §§ 1 and 3 (b) of the Convention and that the costs should be reduced accordingly. Were the Court to consider that the general costs, such as postage and copying costs, were not already included in counsel’s fee, the Government considered them reasonable as to quantum. The total award for the costs and expenses should not exceed EUR 3,200. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the application to the Court was examined under the joint procedure provided for under Article 29 § 3 of the Convention and that the application was only partly successful. Taking into account all the circumstances, the Court considers it reasonable to award the sum of EUR 3,800 (inclusive of value-added tax) for the proceedings before the Court. C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the lack of equality of arms

and the right to adequate facilities for the preparation of the applicant’s defence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,800 (three thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident

SECOND SECTION CASE OF CARPOV v. THE REPUBLIC OF MOLDOVA (Application no. 6338/11) JUDGMENT STRASBOURG 12 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Carpov v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Julia Laffranque, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 22 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6338/11) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Sergiu Carpov (“the applicant”), on 13 January 2011. 2. The applicant was represented by Mr V. Duca, a lawyer practising in Orhei. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3. On 20 December 2017 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1963 and lives in Orhei. 5. In September 2009 the applicant initiated civil proceedings against a company which was in process of insolvency. 6. On 18 December 2009 the Drochia District Court found in favour of the applicant and ordered the defendant company to pay him 24,957 Moldovan Lei (MDL) (the equivalent of 1,413 euros (EUR)) for pecuniary damage and MDL 749 (the equivalent of EUR 42) for costs and expenses. The representative of the defendant company was not present at the hearing. 7. On 28 December 2009 the secretariat of the Drochia District Court sent a copy of the reasoned judgment to the defendant company by ordinary mail. 8. On 11 January 2010 an enforcement writ was issued to the applicant by the same court in respect of the judgment of 18 December 2009. 9. On 10 February 2010, in a different set of proceedings concerning the insolvency of the defendant company, the company’s insolvency administrator updated the list of creditors by making express reference to the judgment of 18 December 2009 and to the exact amounts awarded in that judgment. The court which treated the insolvency issued a decision concerning the updated list of creditors on the same date. 10. On 26 April 2010 the insolvency administrator of the defendant company lodged an appeal against the judgment of 18 December 2009. The applicant objected to the appeal by arguing that it had been time-barred. He indicated that the time-limit for lodging the appeal had expired twenty days after the serving of the impugned judgment and that the insolvency administrator of the defendant company had been aware of the judgment of 18 December 2009 since in February 2010 he had informed the court dealing with the insolvency proceedings about the judgment in question. 11. On 28 September 2010 the Bălţi Court of Appeal admitted the appeal lodged by the insolvency administrator of the defendant company and quashed the judgment of 18 December 2009. The Court of Appeal did respond to the objection raised by the applicant and, after re-examining the merits of the case, dismissed the applicant’s action against the defendant company. The applicant lodged an appeal on points of law raising the same arguments as in his appeal. 12. On 26 January 2011 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the judgment of the lower court. The Supreme Court did not make any comment about the applicant’s objection concerning the late appeal. II. RELEVANT DOMESTIC LAW 13. According to Article 362 of the Code of Civil Procedure, as in force at the material time, a judgment issued by a first instance court could be challenged by way of an appeal within twenty days as from the date of service of the reasoned judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant

complained that the Bălţi Court of Appeal’s decision to quash the judgment of 18 December 2009, which was in his favour, following an appeal which had been lodged out of time, had breached his right to a fair trial under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....” A. Admissibility 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 16. The applicant argued that the judgment of 18 December 2009 was sent to the defendant company on 28 December 2009. Since no appeal was lodged by the defendant it became final and an enforcement writ was issued on 11 January 2010. The defendant company received the judgment in question and on 10 February 2010 its insolvency administrator provided the court dealing with the insolvency procedure with details from the judgment. The appeal lodged by the defendant company in April 2010 was lodged out of time. Therefore, the Court of Appeal’s decision to admit the appeal lodged by the defendant company amounted to a breach of Article 6 § 1 of the Convention. 17. The Government submitted that the defendant company’s representative was not present at the hearing of 18 December 2009 when the impugned judgment was delivered. He learned about that judgment only on 23 April 2010 when he requested a copy of the judgment from the secretariat of the Drochia District Court. He lodged the appeal three days later, namely within twenty days from the moment when he received a copy of the impugned judgment. Therefore, the appeal was lodged within the statutory time-limit. The Government did not deny the fact that, on 28 December 2009, the secretariat of the Drochia District Court sent a copy of the judgment of 18 December 2009 to the defendant company. However, they argued that there was no evidence that the defendant company had received it. Therefore, the twenty-day time limit shall not be calculated from that day, but from 23 April 2010. 18. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII). 19. In Roşca v. Moldova, no. 6267/02, 22 March 2005, the Court found that the request for annulment procedure, under which a final judgment could be challenged indefinitely by the Prosecutor General, was in breach of the principle of legal certainty. A violation was found on the same grounds in Popov v. Moldova (no. 2) (no. 19960/04, 6 December 2005), where a final judgment was quashed in a manner incompatible with Article 6. In both cases the Court held that the “losing” by a litigant of a final favourable judgment was incompatible with the Convention. 20. In the present case, the applicant also “lost” a judgment favourable to him. The dispute between the parties is whether the appeal dated 26 April 2010 was lodged within the legal time-limit in the sense of Article 362 of the Code of Civil Procedure. 21. The Court notes that it is undisputed between the parties that on 28 December 2009 the Drochia District Court sent a copy of the judgment dated 18 December 2009 to the defendant company. The Government disputed the fact that that copy had reached the defendant and argued that there was no evidence of receipt. Nevertheless, they did not offer any explanation to the fact that on 10 February 2010 the insolvency administrator of the defendant company was aware of the judgment and that he knew about the exact amounts of compensation awarded by it (see paragraph 9 above). In the absence of any plausible explanation, the Court considers it established that the defendant company received a copy of the judgment at the latest on 10 February 2010. In such circumstances, the appeal dated 26 April 2010 appears to have been lodged clearly outside the twenty-day time‑limit provided for by Article 362 of the Code of Civil Procedure. 22. The Court further notes that, by

allowing the appeal lodged by the defendant company, the Court of Appeal and later the Supreme Court of Justice set at naught an entire judicial process which had ended in a final and enforceable judicial decision and thus res judicata. Thus, they infringed the principle of legal certainty and breached the applicant’s right to a fair hearing under Article 6 § 1 of the Convention (see Brumărescu v. Romania, cited above, §§ 61 and 62). 23. There has thus been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 24. The applicant complained that the quashing of the judgment of 18 December 2009 had had the effect of infringing his right to peaceful enjoyment of his possessions as secured by Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). Even assuming that such an interference may be regarded as serving a public interest, the Court finds that it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (cf. Brumărescu, cited above, § 75-80). 27. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary Damage 29. The applicant claimed EUR 3,200 for pecuniary damage suffered as a result of the quashing of the final judgment favourable to him, of which MDL 24,957 was the amount he was entitled to by virtue of the final judgment of the Drochia District Court of 18 December 2009 and the rest corresponded to the lost interest calculated by him on the basis of the provisions of the Civil Code concerning the calculation of default interest. 30. The Government asked the Court to dismiss the applicant’s claims for pecuniary damage. 31. The Court considers that the applicant must have suffered pecuniary damage as a result of the impossibility to use and enjoy the money awarded to him by the final judgment of 18 December 2009 (see Prodan v. Moldova, no. 49806/99, § 71, ECHR 2004‑III (extracts). Taking into consideration the circumstances of the case under consideration, the Court awards the applicant the sum of EUR 2,500 for pecuniary damages. B. Non-Pecuniary Damage 32. The applicant claimed EUR 2,500 for the non-pecuniary damage suffered as a result of the quashing of the final judgment favourable to him. 33. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 34. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the quashing of the final judgment of 18 December 2009 and of the impossibility to use his money for a period of approximately nine years. It awards him EUR 2,000 for non-pecuniary damage. B. Costs and expenses 35. The applicant also claimed

EUR 1,480 for the costs and expenses incurred before the Court. 36. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 37. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses. C. Default interest 38. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 1,480 (one thousand four hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Julia LaffranqueDeputy RegistrarPresident

THIRD SECTION CASE OF KOROVINA AND OTHERS v. RUSSIA (Applications nos. 36775/05, 35376/06 and 30165/08) JUDGMENT STRASBOURG 12 July 2016 This judgment is final but it may be subject to editorial revision. In the case of Korovina and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 36775/05, 35376/06 and 30165/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals. The applicants’ names and the dates of their applications to the Court appear in the Appendix. 2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation to the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants complained, inter alia, of the quashing of final judgments by way of supervisory review between 2003 and 2008. 4. On 19 January 2007, 27 August 2009 and 19 June 2012 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. All the applicants were parties to civil proceedings in which the first‑instance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix). II. RELEVANT DOMESTIC LAW 6. The relevant domestic law governing the supervisory review procedure in force between 1 February 2003 and 7 January 2008 is summarised in Kot v. Russia (no. 20887/03, § 17, 18 January 2007). THE LAW I. JOINDER OF THE APPLICATIONS 7. Given that these three applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court will consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06, § 15, 14 January 2010). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS’ FAVOUR 8. All the applicants complained of a violation of Article 6 of the Convention on account of the quashing by way of supervisory review of the final judgments in their favour. They further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. The Court will consider all these cases in the light of both provisions, 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 [a]... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 9. The Court notes that those 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 10. The Government argued that the supervisory review proceedings resulting in the qu

ashing of the judgments at issue had been lawful: they had been initiated by the defendant authorities within the time-limits provided by domestic law. The supervisory review courts had quashed lower courts’ judgments that had been based on an incorrect application of the substantive law, thus correcting flagrant injustices and eliminating dangerous precedents. 11. The applicants reiterated their complaints. 12. The Court observes that it has already found numerous violations of the Convention on account of the quashing of final judgments by way of supervisory review procedure, as in force at the material time (see Kot, cited above, § 29). There is no reason to depart from that finding in the present case. 13. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 14. Lastly, the applicants in the Korovina and Solovyeva cases, in addition complained under Articles 6, 13, 14, 17, 18 of the Convention and Article 1 of Protocol No. 1 to the Convention of other violations, such as the length of proceedings, lack of an effective domestic remedy against the quashing by way of supervisory review of final domestic judgments in the applicants’ favour, the impartiality of the courts and the outcome of the proceedings. 15. 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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 17. All the applicants claimed only non-pecuniary damage. Ms Solovyeva and Mr Zaychuk claimed 2,000 euros (EUR) and EUR 3,000, respectively. Ms Korovina left the determination of the amount of compensation to the Court’s discretion. 18. The Government considered their claims as being excessive and unreasonable. 19. The Court finds that all the applicants have suffered non-pecuniary damage which cannot be compensated by the mere finding of a violation. In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each of the applicants the sum of EUR 2,000 in respect of non-pecuniary damagе (see Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 and 68 others, §§ 22‑24, 15 October 2009). B. Costs and expenses 20. The applicants did not submit claims for costs and expenses. Accordingly, the Court does not award them any sum under that head. C. Default interest 21. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares, in respect of all the applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the quashing by way of supervisory review of final domestic judgments in the applicants’ favour admissible and the remainder of the applications inadmissible; 3. Holds, in respect of all the applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the quashing by way of supervisory review proceedings of the judgments in the applicants’ favour; 4. Holds (a) that the respondent State is to pay each to Ms Korovina, Ms Solovyeva and Mr Zaychuk, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, 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 Mr Zaychuk’s claim for just satisfaction. Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident APPENDIX No. Application no. and date of introduction Applicant name Date of birth Place of residence Nationality Final domestic judgment a) date of delivery b) date of becoming final Quashing 36775/05 08/08/2005 Antonina Sergeyevna KOROVINA 26/02/1930 Syzran Russian Syzran Town Court29/12/200301/03/2004 Presidium of the Samara Regional Court21/04/2005 35376/06 31/07/2006 Natalya Nikolayevna SOLOVYEVA 21/04/1979 St Petersburg Russian Sovetskiy District Court of Bryansk23/04/200417/06/2004 Presidium of the Bryansk Regional Court01/03/2006 30165/08 17/05/2008 Aleksandr Anatolyevich ZAYCHUK 31/08/1977 Kavkazskiy Russian Cherkessk Town Court 10/09/200710/09/2007 (on appeal) Presidium of the Supreme Court of the Republic of Karachaevo-Cherkessiya 19/12/2007

THIRD SECTION CASE OF ASATRYAN v. ARMENIA (Application no. 24173/06) JUDGMENT STRASBOURG 9 February 2010 FINAL 09/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Asatryan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Boštjan M. Zupančič,Alvina Gyulumyan,Ineta Ziemele,Luis López Guerra,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 19 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24173/06) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Silva Asatryan (“the applicant”), on 22 May 2006. 2. The applicant was represented by Mr K. Mezhlumyan, a lawyer practising in Yerevan The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3. On 6 December 2007 the President of the Third Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in Yerevan. 5. On 23 September 2005, at 5.50 p.m., the applicant was taken into custody on suspicion of attempted murder. 6. On 26 September 2005 formal charges were brought against the applicant. 7. On the same date the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the investigator’s relevant motion and ordered the applicant’s detention on remand for a period of two months, to be calculated from 23 September 2005. 8. On 14 November 2005 the investigator filed a motion with the District Court, seeking to have the applicant’s detention on remand prolonged for another two months. 9. On 22 November 2005 the District Court examined and dismissed this motion. This decision was subject to appeal. 10. On 23 November 2005 at around 11 a.m. a copy of this decision was presented by the applicant’s lawyer to the Chief of the Yerevan-Kentron Detention Facility («Երևան-Կենտրոն» քրեակատարողական հիմնարկի պետ) where the applicant was held. 11. On the same date the prosecutor lodged an appeal against the above decision. 12. Later that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատար

ան) commenced the examination of the prosecutor’s appeal. The applicant was escorted to the hearing by four national security officers in an official car. 13. At 5.45 p.m. the applicant’s lawyer arrived and requested a ten-minute recess to be able to consult with the applicant. The Government alleged that the lawyer was deliberately late for the hearing, while the applicant claimed that her lawyer was informed by telephone about this hearing only at 5.30 p.m. 14. At 5.50 p.m. the applicant’s detention period authorised by the decision of 26 September 2005 expired. 15. Following the recess, the lawyer challenged the impartiality of the bench. He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms. Furthermore, there were four national security officers in the court building who prevented the applicant, who was formally already at liberty, from going out of the building. Thus, the fact that such things were happening in the building of the Court of Appeal suggested that the outcome of the proceedings was already pre-determined. 16. The court departed to the deliberation room to examine this challenge, after which it returned and announced its decision dismissing it. 17. Thereafter another twenty-minute recess was announced by the court for the defence to be able to familiarise itself with the prosecutor’s appeal and the materials of the case. During the recess an ambulance was called because the applicant felt unwell. Her blood pressure rose to 180/100 but no injections could be administered as she was allergic, so the doctor recommended adjourning the hearing. 18. The hearing resumed at 8.03 p.m. The applicant’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant’s health and in order for him to be able to familiarise himself with the prosecutor’s appeal in adequate conditions. The court granted this request and adjourned the hearing until 1 p.m. on 24 November 2005. 19. The court hearing was over at around 8.30 p.m. 20. The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by four national security officers and was not allowed to move freely, to leave the courtroom during the breaks or to go home. After the court hearing was over, she was forcibly taken by these officers and pushed into the same car and taken back to the Yerevan-Kentron Detention Facility. This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room. 21. On 24 November 2005 at 1 p.m. the Court of Appeal resumed the examination of the prosecutor’s appeal. The applicant was not present at this hearing. 22. The applicant’s lawyers again challenged the impartiality of the bench, alleging that the court had manifested a biased attitude. In particular, the court summoned a hearing on the prosecutor’s appeal immediately before the expiry of the applicant’s detention period. Furthermore, the court did not release the applicant despite the fact that her detention had not been prolonged. Finally, after the hearing was over, the presiding judge departed to the deliberation room where he had a consultation with a national security officer, as a result of which it was decided to keep the applicant in detention. Thereafter she was transported to a national security isolation cell. The lawyers claimed that all the above suggested that the Court of Appeal was not impartial. 23. The court examined and dismissed this challenge. 24. Thereafter, one of the applicant’s lawyers made a declaration stating that, following the court hearing of 23 November 2005, the applicant had been taken away by national security officers in an unknown direction, despite the fact that she was already free by virtue of the law. The lawyers refused to participate in the hearing in such circumstances and left the courtroom. 25. The Court of Appeal examined the prosecutor’s appeal in their absence and decided to quash the decision of the District Court of 22 November 2005 and to prolong the applicant’s detention on remand for another two months. 26. On 28 November 2005 one of the applicant’s lawyers addressed a letter to the Chief of the Yerevan-Kentron Detention Facility, complaining: “... You..., as the chief of administration of the detention facility where [the applicant] is kept, at 5.45 p.m. on 23 November 2005 not only did not release her, but had her escorted to court by four officers in an official car having State licence no. 150 SS 02, during the entire [court hearing] you monitored her actions until 8.30 p.m. on [that date], forbidding her to move freely, and at around 8.30-8.45,

with the assistance of the same officers, you forcibly (holding her arms, pushing her) placed her in the above car and transported her to the Yerevan-Kentron Detention Facility where you received her, according to the information at our disposal, without a relevant court decision. In that period (between 9 p.m. and 11 p.m.) the defence called you on numerous occasions and you stated that you would keep [the applicant] until the court hearing scheduled for 1 p.m. on the next day was over...” 27. On 5 December 2005 the applicant’s lawyers lodged an appeal on points of law against the Court of Appeal’s decision. In their appeal, they again complained about the fact that the applicant had not been released from custody on 23 November 2005. 28. On 8 December 2005 the applicant’s lawyers made a similar declaration addressed to the Prosecutor General. 29. By a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the appeal since it was no longer competent to examine it following the constitutional amendments. II. RELEVANT DOMESTIC LAW A. The Code of Criminal Procedure (CCP) 30. The relevant provisions of the CCP read as follows: Article 11: Security of person “5. The court, the body of inquest, the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty. The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired.” Article 136: Imposition of a preventive measure “2. Detention... shall be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case...” Article 137: Detention “5. The court’s decision to choose detention as a preventive measure can be contested before a higher court.” Article 138: Detention period “1. The accused’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest... ... 3. In the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code... 4. In the pre-trial proceedings of a criminal case the accused’s detention period can be prolonged by a court for up to one year in view of the particular complexity of the case.” Article 139: Prolongation of the detention period “1. If it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, if it agrees on the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. ... 3. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.” Article 141: Obligations of the administration of a detention facility “The administration of a detention facility is obliged:... (10) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired.” Article 142: Releasing the accused from detention “1. The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case, if:... (4) when deciding on the question of detention, the detention period set by the court has expired and has not been prolonged... ... 3. ... In cases envisaged under [sub-paragraph 4] of paragraph 1 of this Article... the chief of administration of the detention facility shall immediately release the detainee.” Article 150: Appeals against preventive measures “2. A court decision imposing a preventive measure can be contested before the court of appeal.” B. The Law on Conditions for Holding Arrested and Detained Persons («Ձերբակալված և կալանավորված անձանց պահելու �

�ասին» ՀՀ օրենք) 31. The relevant provisions of the Law read as follows: Section 13: Rights of arrested and detained persons “An arrested or detained person is entitled to... lodge applications and complaints, both himself and through his lawyer or lawful representative, with... the courts...” Section 18: The procedure for examining proposals, applications and complaints of arrested and detained persons “...[C]omplaints... addressed to... a judge... shall be sent to [him] in a sealed envelope within one day.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 32. The applicant complained that her detention between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention was unlawful. She invoked Article 5 §§ 1 (c) and 4 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; ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Article 5 § 1 (c) of the Convention 1. The parties’ submissions 33. The Government admitted that the applicant had indeed been deprived of her liberty between 5.50 p.m. on 23 November 2005 and the moment when the Criminal and Military Court of Appeal decided on the next day to prolong her detention. They claimed, however, that she had failed to exhaust the domestic remedies. In particular, it was the administration of the Yerevan-Kentron Detention Facility that was responsible for the applicant’s continued unlawful detention, by not taking any steps to release her despite having been presented with a copy of the District Court’s decision of 22 November 2005. The applicant, however, failed to challenge the inaction of the administration before the domestic courts. 34. The Government further claimed that on 23 November 2005 the Court of Appeal did everything possible to examine the prosecutor’s appeal and to resolve the issue. The same cannot be said of the applicant and her lawyers who did everything possible to hamper the examination of the prosecutor’s appeal. In particular, the lawyer arrived late at the hearing and on several occasions requested a recess which was granted by the court. The court was not able to finish the examination of the prosecutor’s appeal and had to adjourn the hearing due to the applicant’s state of health. Thus, the main reasons for the delay in reaching a decision on 23 November 2005 and the eventual adjournment of the hearing were the conduct of the applicant’s lawyers and the deterioration of her health. In such circumstances, the position adopted in the case of Giulia Manzoni v. Italy (1 July 1997, § 25, Reports of Judgments and Decisions 1997‑IV) was also applicable in the present case. 35. The applicant submitted that her detention authorised by a court, which had not been prolonged, was to expire at 5.50 p.m. on 23 November 2005 and the law required that she be released not later than 5.51 p.m. on that day. The court received the prosecutor’s appeal in the afternoon of that day and scheduled a hearing for the same day, informing her lawyers about this by telephone at around 5.30 p.m. However, when her detention period expired, the court did not set her free and she was held in the courtroom with the help of national security officers. She was not even allowed to leave the courtroom during the breaks, despite being already formally at liberty. Afterwards, following a consultation with the presiding judge and upon his instructions, four national security officers forcibly transported her back to the detention facility where she was kept until the Court of Appeal decided the next day to prolong her detention. The applicant claimed that her detention following this decision was also unlawful, arguing that if a detention period was over it could no longer be extended. 36. The applicant further submitted that she had exhausted all available domestic remedies. In particular, given that she was at the Court of Appeal when her detention period expired and the court did not release her from detention in spite of the requirements of Article 11 § 5 of the CCP, she lodged

a challenge against the bench. Furthermore, she lodged an appeal on points of law against the Court of Appeal’s decision of 24 November 2005, in which she also raised this complaint. Moreover, the Government’s argument placing all the blame for the failure to release her on the administration of the detention facility was ill-founded, because she was in court when her detention period expired and it was the court’s duty to release her. Thus, the applicant’s continued unlawful detention was the joint responsibility of the court, the national security officers and the administration of the detention facility. 2. The Court’s assessment (a) Admissibility 37. The Court notes at the outset that the applicant raised her complaint about the alleged unlawfulness of her detention following the Court of Appeal’s decision of 24 November 2005 for the first time in her observations to the Court submitted on 11 November 2008. It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 38. As regards the complaint concerning the alleged unlawfulness of the detention period between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention, the Court considers that the Government’s claim as to non-exhaustion is closely linked to the substance of this complaint and should therefore be joined to the merits. 39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 40. The Court reiterates that any detention must be lawful. The words “in accordance with a procedure prescribed by law” essentially refer to domestic law and lay down an obligation to comply with its substantive and procedural provisions, but also require that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33, and Lukanov v. Bulgaria, 20 March 1997, § 41, Reports of Judgments and Decisions 1997‑II). 41. The Court further reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; Giulia Manzoni, cited above, § 25; K.-F. v. Germany, 27 November 1997, §§ 70, Reports of Judgments and Decisions 1997‑VII; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000‑IV; and Nikolov v. Bulgaria, no. 38884/97, § 80, 30 January 2003). 42. The Court has previously accepted that, in certain circumstances, there may be some limited delay before a detained person is released. However, this has been in cases where the period of detention ended as a result of a court order and not conditions laid down by statute. Practical considerations relating to the running of the courts and the completion of administrative formalities mean that the execution of such a court order may take time which, nevertheless, should be kept to a minimum and, in any event, not exceed several hours (see Quinn, cited above, § 42; Giulia Manzoni, cited above, § 25; Labita, cited above, § 171; and Nikolov, cited above, § 82). However, where the maximum detention period and the release are conditioned by law, as opposed to a court order, the authorities are under a duty to take all necessary precautions to ensure that the permitted duration is not exceeded (see K.-F., cited above, §§ 72, in which even a delay of 45 minutes was found to be in breach of Article 5 § 1 (c), since the maximum period of detention was known in advance and was absolute). 43. Turning to the circumstances of the present case, the Court notes that pursuant to Article 136 § 2 of the CCP detention can be imposed only by a court decision. Pursuant to Article 138 of the CCP a detention period is calculated from the moment that a person is actually taken into custody and cannot exceed two months unless prolonged by a court. The applicant was taken into custody at 5.50 p.m. on 23 September 2005. Thus, her detention period authorised by the decision of the Kentron and Nork-Marash District Court of Yerevan of 26 September 2005 was valid until 5.50 p.m. on 23 November 2005. On 22 November 2005 the District Court refused to prolong the applicant�

�s detention period. However, the applicant was not released from detention at 5.50 p.m. on the next day. Instead, 20 minutes before the expiry of her detention period she was taken to court to take part in the hearing on the appeal lodged by the prosecutor against the decision of 22 November 2005. Moreover, after this hearing was adjourned at around 8.30 p.m., the applicant was taken back to the detention facility despite the fact that Article 141 of the CCP required the administration of the detention facility immediately to release a detainee when his or her detention period authorised by a court had expired. 44. The Court observes that the Government admitted that the applicant had indeed been deprived of her liberty between 5.50 p.m. on 23 November 2005 and the time when the Court of Appeal decided on 24 November 2005 to quash the decision of the District Court and to prolong her detention. They claimed, however, that the approach adopted in the Giulia Manzoni case, cited above, was to be applied. The Court does not agree with the Government’s claim. In particular, that and other similar cases concerned a situation in which the court ordered the applicant’s release but some time was necessary for the authorities to complete all the relevant administrative formalities in order to execute that order. In the present case, however, the District Court, by its decision of 22 November 2005, did not order the applicant’s release but simply refused to prolong her detention. Thus, the applicant’s authorised detention period continued to run and was to expire on the next day, a fact of which the authorities were aware and with which they were obliged to comply unless in the meantime the District Court’s decision was overturned. In that sense the present case is more similar to the case of K.-F., cited above, than the case pointed out by the Government. However, it must be distinguished even from that case for the following reasons. 45. The Government argued that the delayed examination of the applicant’s case in the Court of Appeal was attributable to the applicant’s lawyers, while after being taken to the detention facility she failed to contest the inaction of its administration. The Court, however, is not convinced by these arguments. It reiterates that it is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivation of liberty (see Shukhardin v. Russia, no. 65734/01, § 93, 28 June 2007, and Matyush v. Russia, no. 14850/03, § 73, 9 December 2008). The Court observes that Article 139 of the CCP required that a motion seeking the prolongation of a detention period be submitted to the trial court and examined by it not later than ten and five days respectively before the expiry of the detention period. However, both the investigator and the District Court failed to comply with these time-limits, thereby creating undue delays in the examination of the question of prolongation of the applicant’s detention (see paragraphs 8 and 9 above). Furthermore, the applicant was brought before the Court of Appeal only 20 minutes before the expiry of her detention period. The Government, however, failed to come up with any explanation for these delays. In such circumstances, the applicant cannot reasonably be blamed for the failure of the Court of Appeal to finish the examination of the question of prolongation of her detention period before its expiry, especially in view of the fact that the entire hearing before that court lasted much longer than 20 minutes, namely about three hours, and was, moreover, eventually adjourned. 46. In any event, even assuming that a short delay at the beginning of the appeal hearing could be attributable to the applicant’s lawyer, this does not affect the fact that the applicant’s authorised detention period expired shortly after the start of such a belatedly scheduled hearing and the law required that she be set free. In spite of this, the Court of Appeal continued to treat the applicant as a detainee. Not only did the court not set her free at 5.50 p.m., when her authorised detention period expired, but even after the hearing was adjourned. Furthermore, the applicant alleged, which the Government did not dispute, that her transfer back to the detention facility was effected in full knowledge of the court and even upon its informal instructions. In such circumstances, it appears that the authorities had no intention of setting the applicant free until the appeal against the District Court’s decision of 22 November 2005 received its final determination. No steps were taken to that effect and all the attempts made by the applicant’s lawyers to secure her release were simply ignored. Thus, the present case does not concern a certain delay in complying with the legal rules requiring a detainee’s release, as in the case of K.-F., cited above, but rather the reluctance of the authorities, including the courts, to comply

with such rules. 47. In such circumstances, it is doubtful that a separate complaint lodged with the courts against the failure of the administration of the detention facility to release the applicant after she was taken there following the court hearing could have produced any different results and secured the applicant’s release. Furthermore, the Government failed to specify what judicial procedure the applicant had at her disposal that could have provided her with an effective and immediate remedy capable of leading to her release, given the specificities of her case. In this respect, it should firstly be noted that the applicant was taken back to the detention facility at a relatively late hour and, in any event, outside regular working hours. Furthermore, the period of her unauthorised stay at the detention facility was relatively short, about seventeen hours. However, Section 18 of the Law on Conditions for Holding Arrested and Detained Persons did not require any immediacy in such matters and even allowed up to one day for detainees’ complaints to be sent to a judge. The Court reiterates that the only remedies to be exhausted are those which are effective and accessible, that is available in theory and in practice at the relevant time, and which are capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001, and Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006). In view of the above, the Court considers that the Government’s claim as to non-exhaustion must be dismissed. 48. The Court concludes that between 5.50 p.m. on 23 November 2005 and the time when the Court of Appeal decided on 24 November 2005 to prolong her detention the applicant continued to be deprived of her liberty, despite the fact that there was no court decision authorising her detention for that period as required by law. It follows that the applicant’s deprivation of liberty during that period was unlawful. 49. Accordingly, there has been a violation of Article 5 § 1 (c) of the Convention. B. Article 5 § 4 of the Convention 50. The Court notes that the applicant also invoked Article 5 § 4 of the Convention in connection with the same facts, alleging that her unauthorised detention also gave rise to a violation of that provision. 51. The Court considers, however, that this complaint results from the main issues arising in the case under Article 5 § 1 (c) of the Convention. Having regard to its findings in respect of Article 5 § 1 (c), it does not consider it necessary to examine separately the admissibility and merits of this complaint. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage as she had suffered distress and frustration as a result of the failure of the domestic authorities to release her from detention. 54. The Government claimed that the applicant had failed to adduce any evidence to support her allegation that she had suffered non-pecuniary damage. Even assuming that she had suffered such damage, a finding of a violation would be sufficient just satisfaction. In any event, the amount claimed was excessive. 55. The Court takes the view that the applicant has suffered non-pecuniary damage as a result of her unlawful detention. Ruling on an equitable basis, it awards the applicant EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 56. The applicant also claimed EUR 6,000 for the costs and expenses incurred before the Court. These included EUR 5,000 for legal costs and EUR 1,000 for translation and administrative costs, such as postal, photocopying and other expenses. As regards legal costs, the applicant submitted that under Armenian law, once a lawyer had taken over the case, he could no longer withdraw. She did not pay any money to the lawyer for lodging complaints with the domestic authorities and bringing her case before the Court, but the lawyer performed his work conscientiously. Therefore, no payment proof exists which could be submitted to the Court. 57. The Government submitted that these claims must be rejected since the applicant had not produced any proof that the expenses had been actually incurred. Nor did she substantiate that these alleged costs were necessary and reasonable. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as

it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicant admitted that she had not paid any money to her lawyer who represented her both before the domestic courts and the Court. Nor was she bound by any contract to make such a payment in the future. As to the alleged translation costs, no documentary proof was submitted substantiating these costs either. Therefore, these claims must be dismissed. On the other hand, the Court considers it appropriate to award the applicant EUR 500 for the costs incurred in the proceedings before it. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government’s objection as to non-exhaustion and to dismiss it; 2. Declares the applicant’s complaint concerning the unlawfulness of her detention between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention admissible under Article 5 § 1 (c) of the Convention; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention; 4. Holds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 5 § 4 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Armenian drams at the rate applicable at the date of settlement; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Armenian drams at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

GRAND CHAMBER CASE OF ŞERİFE YİĞİT v. TURKEY (Application no. 3976/05) JUDGMENT STRASBOURG 2 November 2010 This judgment is final but may be subject to editorial revision. In the case of Şerife Yiğit v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Christos Rozakis,Nicolas Bratza,Peer Lorenzen,Josep Casadevall,Corneliu Bîrsan,Nina Vajić,Anatoly Kovler,Dean Spielmann,Renate Jaeger,Sverre Erik Jebens,David Thór Björgvinsson,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Ann Power,Işıl Karakaş, judges,and Vincent Berger, Jurisconsult, Having deliberated in private on 16 December 2009 and on 8 September 2010, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 3976/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Şerife Yiğit (“the applicant”), on 6 December 2004. 2. The applicant, who had been granted legal aid, was represented by Mr M.S. Tanrıkulu and Mr N. Kırık, lawyers practising in Diyarbakır and Hatay respectively. The Turkish Government (“the Government”) were represented by their Agent. 3. Relying on Article 8 of the Convention, the applicant alleged that, having lived in a “religious marriage” (imam nikâhı) with her partner, with whom she had six children, she had been unable to claim retirement benefits (survivor's pension) or health insurance (social security) cover on her partner's death in 2002, unlike the children born of the relationship, which was not recognised by the law or the national courts. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 20 January 2009 a Chamber of that Section, composed of the following judges: Françoise Tulkens, Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, and also of Sally Dollé, Section Registrar, delivered a judgment in which it held by four votes to three that there had been no violation of Article 8 of the Convention. 5. On 14 September 2009, following a request from the applicant dated 7 April 2009, a panel of the Grand Chamber decided to refer the case to the Grand Chamber under Article 43 of the Convention. 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 7. The applicant and the Government each filed written observations on the merits. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 December 2009 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrsŞ. Akİpek, Counsel,MrM. Özmen, Co-Agent, MrsA. Emüler, MrsM. Aksen,MrT. Taşkin,Advisers; (b) for the applicantMr M.S. Tanrikulu,Mr N. Kirik, Counsel,Mr İ. Sevİnç, Adviser. The Court heard addresses by Mr Kırık, Mr Tanrıkulu, Mrs Akipek and Mr Özmen. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1954 and lives in İslahiye. 10. She was the partner of Ömer Koç (Ö.K.), a farmer whom she married in a religious ceremony in 1976 and with whom she had six children. Ö.K. died on 10 September 2002. The applicant stated

that on that date, while she and her partner had been making preparations for an official marriage ceremony, Ö.K. had died following an illness. A. Proceedings before the District Court 11. On 11 September 2003 the applicant brought proceedings before the İslahiye District Court on her own behalf and on behalf of her daughter Emine seeking rectification of the entry concerning her in the civil status register. She requested that her religious marriage to Ö.K. be recognised and that her daughter be entered in the register as the deceased's daughter. 12. In a judgment of 26 September 2003 the District Court refused the applicant's request concerning her religious marriage but granted the request for Emine to be entered in the register as Ö.K.'s daughter. As no appeal was lodged, the judgment became final. B. Proceedings before the Labour Court 13. On an unspecified date the applicant requested the Hatay retirement pension fund (“Bağ‑Kur”) to award her and her daughter Emine a survivor's pension and health insurance cover on the basis of her late partner's entitlement. The fund refused the request. 14. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside. On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court. 15. In a judgment of 21 January 2004 the Hatay Labour Court, in a ruling based on the judgment of the İslahiye District Court, found that the applicant's marriage to Ö.K. had not been validated. Accordingly, since the marriage was not legally recognised, the applicant could not be subrogated to the deceased's rights. However, the court set aside the retirement fund's decision in so far as it related to Emine and granted her the right to claim a pension and health insurance cover on the basis of her deceased father's entitlement. 16. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She argued that the extract from the civil status register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. She explained that in 1976 she had married Ö.K. in accordance with custom and practice. The couple had had six children. The first five children had been entered in the civil status register in 1985 under their father's name, while the last child, Emine, born in 1990, had been entered under her mother's name in 2002. The applicant asserted that, unlike her six children, she had been unable to claim a pension or health insurance cover based on her deceased partner's entitlement. 17. In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legislation 1. Civil Code 18. Article 134 of the Civil Code provides: “A man and a woman who wish to contract a marriage must apply together to the civil status registrar in the place of residence of either one of them. The civil status registrar [who is to perform the ceremony] shall be the mayor in the case of a municipality, or the official whom he or she has designated for the purpose, or the muhtar in the case of a village.” 19. Articles 135 to 144 of the Civil Code lay down the substantive and formal conditions governing the solemnisation of marriage between men and women. 20. Article 143 of the Code reads as follows: “At the close of the [civil] marriage ceremony the official shall issue the couple with a family record book. No religious ceremony may be performed without the family record book being produced. The validity of the [civil] marriage is not linked to the performance of a religious ceremony.” 21. Article 176 § 3 of the Civil Code concerning maintenance payments provides that maintenance in the form of an allowance or periodic payments ceases to be due when the recipient remarries or one of the two parties dies, or if the recipient is living in a de facto marital relationship outside marriage, is no longer in financial need or has an immoral lifestyle. 2. Criminal Code 22. The sixth paragraph of Article 230 of the Criminal Code reads as follows: “Any person who solemnises a religious marriage without having seen the document certifying that a marriage ceremony was performed in accordance with the law shall be liable to a term of imprisonment of between two and six months.” 3. Code of Obligations 23. Article 43 of the Code of Obligations concerns the determination of compensation awards depending on the circumstances and the seriousness of the fault. Article 44 of the Code deals with reductions in compensation awards. Article 45 concerns awards