SUBJECT MATTER OF THE CASE

1.  The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants’ assets with a view to their prospective forfeiture as proceeds of crime.

1.  The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants’ assets with a view to their prospective forfeiture as proceeds of crime.

2.  Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence.

2.  Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence.

3.  In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023.

3.  In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023.

4.  In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants – Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts’ use of such equivalents in similar situation, see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 109, 13 July 2021), while the three applicants’ expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime.

4.  In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants – Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts’ use of such equivalents in similar situation, see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 109, 13 July 2021), while the three applicants’ expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime.

5.  In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds.

5.  In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds.

6.  Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the wellfoundedness of the prospective forfeiture application.

6.  Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the wellfoundedness of the prospective forfeiture application.

7.  The applicants’ assets described above remained frozen at the time of the latest communication from the parties in May 2023.

7.  The applicants’ assets described above remained frozen at the time of the latest communication from the parties in May 2023.

8.  Mr Slavkov complained under Article 5 § 3 of the Convention of the length of his detention on remand, and under Article 5 § 5 of the lack of an enforceable right to compensation in that regard. The three applicants complained under Article 1 of Protocol No. 1 of the freezing of their assets; they considered this measure unjustified and excessively lengthy.

THE COURT’S ASSESSMENT

ALLEGED VIOLATIONs OF ARTICLE 5 §§ 3 and 5 OF THE CONVENTION

ALLEGED VIOLATIONs OF ARTICLE 5 §§ 3 and 5 OF THE CONVENTION

9.  The Government argued that Mr Slavkov could have claimed compensation under section 2(1)(2) of the State and Municipalities Liability for Damage Act, which provides for liability of the authorities for breaches of Article 5 of the Convention. However, the remedy at issue was introduced in December 2012 (see, for more details, Stefanov v. Bulgaria (dec.), no. 51127/18, § 48, 8 September 2020), while the applicant’s detention ended on 11 July 2012 (see paragraph 2 above), and the Court has already found that section 2(1)(2) has not been shown to apply to facts having occurred prior to its entry into force (see, for example, Kiril Andreev v. Bulgaria, no. 79828/12, §§ 31-41, 28 January 2016). In the present case the Government submitted a domestic judgment, given in 2015, where the provision at issue had been applied to facts having occurred in 2010, but one such decision is not sufficient to disprove the Court’s previous findings.

9.  The Government argued that Mr Slavkov could have claimed compensation under section 2(1)(2) of the State and Municipalities Liability for Damage Act, which provides for liability of the authorities for breaches of Article 5 of the Convention. However, the remedy at issue was introduced in December 2012 (see, for more details, Stefanov v. Bulgaria (dec.), no. 51127/18, § 48, 8 September 2020), while the applicant’s detention ended on 11 July 2012 (see paragraph 2 above), and the Court has already found that section 2(1)(2) has not been shown to apply to facts having occurred prior to its entry into force (see, for example, Kiril Andreev v. Bulgaria, no. 79828/12, §§ 31-41, 28 January 2016). In the present case the Government submitted a domestic judgment, given in 2015, where the provision at issue had been applied to facts having occurred in 2010, but one such decision is not sufficient to disprove the Court’s previous findings.

10.  The Government argued in addition that, even if the State and Municipalities Liability for Damage Act had been inapplicable, the applicant could have sought damage under the general law of tort. Similarly, he could have had recourse to a remedy aimed at providing compensation for excessive length of judicial proceedings. Still, the Government have submitted no domestic practice showing that these remedies could have been effective with regard to the complaints under examination.

11.  Lastly, the Government pointed out that Mr Slavkov had not appealed against all refusals of the Varna Regional Court to order his release (see paragraph 2 above). He did however appeal against the majority of these refusals, and on each occasion they were upheld by the Varna Court of Appeal. The Court cannot therefore conclude that the applicant failed to make adequate use of the possibility under domestic law to seek release (see, for similar considerations, Bielski v. Poland and Germany, no. 18120/03, § 33, 3 May 2011).

12.  In view of the above the Court dismisses the Government’s inadmissibility plea based on non-exhaustion of domestic remedies. It notes moreover that the complaints under examination are not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other ground. They must therefore be declared admissible.

13.  On the merits, the Government argued that the length of the first applicant’s detention had been reasonable, in view of the serious offence he had been charged with and “the undeniable factual and legal complexity of the case”. The applicant reiterated his complaints.

14.  The general principles concerning the right to “trial within a reasonable time” or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been summarized in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 87-91, 5 July 2016).

15.  The applicant’s detention on remand started on 20 October 2008 and lasted until 11 July 2012 when he was released on bail (see paragraph 2 above). Its duration was thus three years, eight months and twenty-one days.

16.  The domestic courts justified the applicant’s continued detention on a number of grounds, as discussed in paragraph 2 above. While these grounds were indisputably “relevant”, and the Court sees no reason to doubt that the criminal case against the applicant was complex, it is not satisfied that the grounds relied on were “sufficient” to justify such lengthy detention on remand, in circumstances which, while apparently difficult, were not exceptional.

17.  Having regard to its case-law on the subject, the Court concludes that the length of the first applicant’s detention on remand was excessive. There was therefore a violation of Article 5 § 3 of the Convention.

18.  As to the first applicant’s complaint under Article 5 § 5, the Court refers to its finding that he did not have at his disposal an effective remedy to seek compensation for the violation of his rights under Article 5 § 3 (see Stanev v. Bulgaria [GC], no. 36760/06, § 184, ECHR 2012; and paragraphs 9-10 above). It follows that there has been a violation of Article 5 § 5 of the Convention as well.

ALLEGED VIOLATION of article 1 of protocol no. 1

19.  The three applicants complained of the freezing of their assets upon a request by the Commission (see paragraph 8 above).

20.  Those measures were imposed in 2010 (see paragraph 5 above), that is more than six months before the lodging of the present application on 4 June 2012. Any complaint related to the initial decision of the Varna Court of Appeal is therefore time-barred, under Article 35 § 1 of the Convention.

21.  What the Court is competent to examine is the duration of the impugned measures – up to at least May 2023 – as well as the dismissal of the applicants’ request in 2012 to have these measures lifted (see paragraphs 6-7 above).

22.  In previous cases before the Court where lengthy interlocutory measures gave rise to a violation of Article 1 of Protocol No. 1, the finding of a violation was based on an accumulation of factors. While the length of time during which the restrictions had remained in place was a crucial part of the Court’s assessment (see, for example, Uzan and Others v. Turkey, nos. 19620/05 and 3 others, §§ 207 and 212, 5 March 2019), the scope and nature of the restrictions and the availability or not of procedural guarantees were also relevant (see Shorazova v. Malta, no. 51853/19, § 113, 3 March 2022).

23.  In the case at hand, the applicants’ assets were frozen with a view to their prospective forfeiture as proceeds of crime. The restrictions were ordered after the initiation of criminal proceedings against the first applicant (see paragraph 4 above). He is accused of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking (see paragraph 2 above), that is an offence which clearly has the potential to yield financial gain.

24.  The Commission found in its initial analysis that the expenditure of Mr Slavkov and his wife during the period under examination appeared to have substantially exceeded their income from lawful sources, and that this justified a preliminary conclusion that their assets could be the proceeds of crime (see paragraph 4 above). It was these assets which were subject to the interim measures (see paragraph 5 above); thus the scope of the measures at issue was not disproportionate vis-à-vis the prospective financial loss for the applicants in the event of a successful forfeiture claim (compare the situation in Karahasanoğlu v. Turkey, nos. 21392/08 and 2 others, § 153, 16 March 2021; contrast Džinić v. Croatia, no. 38359/13, §§ 73-80, 17 May 2016).

25.  As stated by the Government and not disputed by the applicants, the first and second applicants could freely use and profit from their flat and car which are subject to injunctions. Accordingly, the interim measures complained of did not put at stake those two applicants’ living conditions (contrast Uzan and Others, cited above, § 212). Nor has it been claimed that the freezing of the third applicant’s cars has in any substantial manner affected its business activities (contrast JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, § 143, 5 November 2013), or that the freezing of the applicants’ shares in other companies affected the exercise of their membership rights or the companies’ functioning.

26.  As to the refusal in 2012 to lift the impugned restrictions (see paragraph 6 above), once these measures were already ordered in 2010 – a decision which, as noted, the Court will not review – the Court does not find the approach of the domestic courts, namely their unwillingness to examine the well-foundedness of the Commission’s prospective forfeiture claim, inadequate or unreasonable. What was relevant at the time was that the pending criminal proceedings against the first applicant continued to justify the measures. After 2012 the applicants have not sought to have the measures lifted or modified, despite the fact that during these years the domestic practice on the forfeiture of proceeds of crime underwent important changes (see Todorov and Others, cited above, §§ 104107).

27.  Consequently, for the considerations above the Court cannot conclude that the continued freezing of the applicants’ assets breached the requirements of Article 1 of Protocol No. 1.

28.  It should also be noted that if the restrictions complained of turn out eventually to have been unjustified, namely if the proceedings against the first applicant do not result in an conviction, or a potential forfeiture claim is eventually rejected, the applicants will be, in principle, entitled to seek compensation at the domestic level (see Nedyalkov and Others v. Bulgaria (dec.), no. 663/11, §§ 91-100, 10 September 2013).

29.  Accordingly, the complaint under examination is manifestly illfounded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The Court found violations of the first applicant’s rights under Article 5 § 3 and Article 5 § 5 of the Convention. It will therefore only examine the claims related to these violations.

31.  The first applicant claimed 448,900 euros (EUR) in non-pecuniary damage. The Government contested the claim. The Court, judging in equity, awards the applicant EUR 2,300 in non-pecuniary damage, plus any tax that may be chargeable to him.

32.  As to costs and expenses, the three applicants claimed EUR 5,089 for their legal representation before the Court and for postage and translation. They submitted contracts and invoices. Having regard to the nature of the case, the documents in its possession, and the fact that it dismissed part of the application as inadmissible, the Court considers it reasonable to award the first applicant EUR 2,000 covering costs under all heads. To this should be added any tax that may be chargeable to the first applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the complaints of the first applicant, Mr I. Slavkov, under Article 5 §§ 3 and 5 of the Convention admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 5 § 3 of the Convention;

Holds that there has also been a violation of Article 5 § 5 of the Convention;

Holds

that the respondent State is to pay Mr I. Slavkov, 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:

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;

Dismisses the remainder of the claims for just satisfaction.

Done in English, and notified in writing on 17 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 52524/99) against the  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 Polish national, Ms Barbara Falęcka (“the applicant”), on 8 July 1997.

2.  The applicant was represented by Mr P. Sołhaj and Mr K. Tor, lawyers practising in . The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, Ms. S. Jaczewska and Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3.  On 4 March 2003 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

4.  The applicant was born in 1937 and lives in .

A.  Facts prior to 1 May 1993

5.  On 5 February 1987 the applicant lodged a claim for division of her matrimonial property with the Cracow District Court (Sąd Rejonowy).

6.  The court held the first hearing on 15 July 1987.

7.  Between 1987 and 1991 the court held 14 hearings (6 in 1987, 1 in 1988, 4 in 1989, 2 in 1990 and 1 in 1991).

B.  Facts after 1 May 1993

8.  On 16 November 1993 and 23 September 1994 the court held hearings.

9.  On 5 June 1995 the court ordered that expert evidence be obtained. The expert opinion was delivered to the court on 11 January 1996.

10.  On 25 August 1995, 17 April, 24 June and 23 September 1997 the court held hearings.

11.  On an unspecified date in May 1998 the court decided to obtain fresh expert evidence. The expert submitted his report to the court on 26 June 1998.

12.  On 31 August 1998 the court held a hearing.

13.  On 29 December 1998 the court gave judgment.

14.  During the proceedings the composition of the court changed 9 times.

15.  The applicant several times complained to the President of the  about the slow conduct of the proceedings. In reply, the President admitted that the proceedings were indeed too long and informed the applicant that he would supervise their further conduct.

16.  On an unspecified date in 1999 the applicant’s husband lodged an appeal against the first-instance judgment with the  (Sąd Okręgowy).

17.  On 15 February 2000 the court dismissed the appeal.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention. This provision which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

19.  The Government contested that argument.

20.  The period to be taken into consideration began only on 1 May 1993, when ’s declaration recognising the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.

The period in question ended on 15 February 2000. It thus lasted approximately 13 years, of which 6 years, 9 months and 14 days fall within the Court’s jurisdiction ratione temporis.

A.  Admissibility

1.  Article 6 § 1

21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Article 1 of Protocol No. 1

22.  The applicant further complained in general terms that the length of the proceedings complained of had infringed her right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1.

23.  However, the Court considers that the material in its possession does not disclose any appearance of a violation of the applicant’s property rights.

Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

B.  Merits

24.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).

25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

28.  The applicant claimed 272,000 Polish zlotys (PLN) in respect of both pecuniary and non-pecuniary damage.

29.  The Government contested these claims.

30.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration resulting from the excessive length of the proceedings. Accordingly, taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant 3,600 euros (EUR) in respect of non-pecuniary damage.

B.  Costs and expenses

31.  The applicant also claimed 71,600 PLN for the costs and expenses incurred before the domestic courts.

32.  The Government contested the claim.

33.  The Court notes firstly that the applicant failed to submit itemised particulars of her claim, together with the relevant supporting documents or vouchers, as required under Rule 60 of the Rules of Court. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings.

C.  Default interest

34.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 11215/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Stanisław Ratajczyk (“the applicant”), on 23 July 2001.

2.  The applicant was represented by Ms Magdalena Filipowicz, a lawyer practising in . The Polish Government (“the Government”) were represented by their Agents, Mr Krzysztof Drzewicki and, subsequently, Mr Jakub Wołąsiewicz

3.  The applicant alleged that the length of civil proceedings in his case had exceeded a reasonable time.

4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

6.  By a decision of 31 May 2005 the Court declared the application partly admissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

7.  The applicant was born in 1936 and lives in Namysłów.

8.  The facts of the case, as submitted by the parties, may be summarised as follows.

9.  On 1 September 1992 the applicant signed a lease contract with a cooperative. On 22 April 1993 the contract was terminated by the lessor and the applicant was barred from entering the leased premises.

10.  On 21 July 1993 the applicant brought a civil action against the cooperative before the . He claimed that the lease contract had been terminated in breach of its provisions. He further alleged that as a result of the early termination he had suffered serious financial losses. He sought pecuniary damages and reimbursement of amounts he had paid in taxes in connection with the contract.

11.  The first hearing in the case took place on 16 February 199. The following two hearings were held on 12 June 1995 and 2 February 1996. An expert was appointed at the latter hearing. The first-instance judgment was given on 30 April 1997.

12.  On 25 July 1997 the applicant lodged an appeal with the appellate court. On 13 November 1997 the Court of Appeal in Łódź quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the first-instance court had erred in the assessment of the evidence and that certain facts relevant for the outcome of the case required further clarification.

13.  The , having re-examined the case, dismissed the applicant’s action on 30 June 1998. The applicant appealed on 29 July 1998. On 13 January 1999 the Court of Appeal again quashed the judgment of the  and remitted the case for re-examination. It stated that the first-instance court had partly failed to assess the evidence which was crucial for the case.

14.  No hearings were held throughout 1999.

15.  On 1, when the case was still pending before the , the applicant extended his claim.

16.  On 16 February 2000 the  informed him that as a result of bankruptcy proceedings concerning the defendant co-operative, a motion had been lodged with the competent bankruptcy court to strike it out of the commercial register. The court stated that the final judgment would be given on 28 February 2000. This information notwithstanding, the case was closed only on 20 December 2000, when the  decided to discontinue the proceedings, considering that the defendant cooperative had been declared bankrupt and had been liquidated.

17.  The applicant appealed against the decision on 18 January 2001. On 3 April 2001 the Łódź Court of Appeal dismissed it.

18.  Parallel to these proceedings, the applicant tried to secure his claim in the bankruptcy proceedings concerning the co-operative. However, his request for the creation of a mortgage on a property of the cooperative was dismissed on the ground that in the first set of the proceedings the applicant had not obtained any judgment enabling him to secure his claim.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19.   The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

20.  The Government contested that argument.

21.  The period to be taken into consideration began on 21 July 1993 and ended on 3 April 2001. It thus lasted over seven years and eight months for two levels of jurisdiction.

22.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

23.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). The Court observes that in the present case the substantive law issues before the domestic courts were not complex as they concerned a simple lease contract of business premises. There were significant delays in the proceedings (§§ 13-16 above) and the applicant did not contribute to the length of the case apart from extending his claim once (see § 16 above). Moreover, the courts hearing the applicant’s case did not decide on its merits. The Court notes that the  informed the applicant on 16 February 2000 that the judgment in his case would be delivered on 28 February 2000. However, eventually the Regional Court waited a further ten months until the defendant had been declared bankrupt and had been liquidated, and then discontinued the proceedings on 20 December 2000 (§ 16). Thus, the applicant eventually was unable to effectively secure his claim in the bankruptcy proceedings concerning the defendant (§ 18).

24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  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

26.  The applicant claimed PLN 262,590 in respect of pecuniary and non-pecuniary damage.

27.   The Government contested this claim.

28.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to its case-law in similar cases, it awards him EUR 4,200 under that head.

B.  Costs and expenses

29.  The applicant did not seek to be reimbursed for any costs and expenses in connection with the proceedings before the Court.

C.  Default interest

30.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.   Holds that there has been a violation of Article 6 § 1 of the Convention;

2.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

3.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 21759/15) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms Tiziana Pennino (“the applicant”), on 27 April 2015.

2.  The applicant was represented by Mrs A. Mascia, a lawyer practising in Verona and Strasbourg. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, and their co-Agent, Mrs P. Accardo.

3.  The applicant alleged that she had been ill-treated by the police and that the authorities had not carried out an effective investigation into her allegations.

4.  On 25 April 2016 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1969 and lives in Benevento.

A.  The events of 2 April 2013

6.  On 2 April 2013, between 1 and 1.15 p.m., the applicant was stopped by two officers of the Benevento municipal police while she was driving her car.

7.  According to the applicant, the police officers checked her driver’s licence and her vehicle documents. An argument broke out between the applicant and the officers. In the applicant’s view, her nervous and hostile attitude led the police officers to suspect that she was intoxicated, which she denied. As the officers did not have the necessary equipment to perform a breathalyser test, they requested the assistance of the road police (Polizia Stradale). The applicant returned to her car. Once she had got back into the vehicle, one of the police officers pulled the car door open and dragged her out by the arm.

8.  As recorded in the municipal police officers’ report of 3 April 2013, the applicant had been stopped because she had been driving in an erratic manner, braking suddenly and changing lanes abruptly. The applicant did not seem to be able to exit the vehicle by herself and had had to be assisted by one of the officers. The officers reported that they had smelt alcohol on her breath and that she had been unsteady on her feet. The applicant had insulted and threatened them.

9.  At 1.30 p.m. traffic police officers arrived on the scene with the breathalyser equipment.

10.  According to the applicant, she was not able to take the test because she was in a state of anxiety that had been exacerbated by one of the officers shouting at her that she was drunk. That had caused her to tremble and had meant she could not keep the breathalyser tube in her mouth. The applicant requested that carabinieri be called to the scene, but the request was denied.

10.  According to the applicant, she was not able to take the test because she was in a state of anxiety that had been exacerbated by one of the officers shouting at her that she was drunk. That had caused her to tremble and had meant she could not keep the breathalyser tube in her mouth. The applicant requested that carabinieri be called to the scene, but the request was denied.

11.  According to the traffic police report (annotazione di servizio della Polizia Stradale), the applicant agreed to be breathalysed, but did not blow into the device in the manner she had been told to do by the officers and refused to cooperate. At one point she had thrown the device’s mouthpiece into the face of one of the officers. The applicant was described as being in a “clearly altered” state, smelling strongly of alcohol and staggering.

12.  The applicant was taken to the municipal police station (Comando di Polizia Municipale), where she arrived at approximately 1.50 p.m.

13.  According to the applicant, once at the station the lieutenant on duty started drafting an offence report (verbale di contestazione) for driving under the influence of alcohol. The two officers who had stopped her in the street and escorted her to the station and another officer were also present. She repeatedly requested that she be allowed to use a telephone to let her family and her lawyer know of her whereabouts but her requests were denied. When she tried to pick up a telephone, one of the officers hit her in order to make her sit down. The same officer twisted her arms behind her back and handcuffed her, hurting her wrists. He then squeezed her buttocks and asked her if the handcuffs were tight enough. The applicant started screaming loudly and the officer removed the handcuffs in a violent manner. In doing so, he fractured the applicant’s right thumb and caused other injuries to her wrists. He then warned her not to cause further trouble and threatened her. The applicant left the station between 2.15 and 2.30 p.m. and proceeded further on foot as her car had been seized.

13.  According to the applicant, once at the station the lieutenant on duty started drafting an offence report (verbale di contestazione) for driving under the influence of alcohol. The two officers who had stopped her in the street and escorted her to the station and another officer were also present. She repeatedly requested that she be allowed to use a telephone to let her family and her lawyer know of her whereabouts but her requests were denied. When she tried to pick up a telephone, one of the officers hit her in order to make her sit down. The same officer twisted her arms behind her back and handcuffed her, hurting her wrists. He then squeezed her buttocks and asked her if the handcuffs were tight enough. The applicant started screaming loudly and the officer removed the handcuffs in a violent manner. In doing so, he fractured the applicant’s right thumb and caused other injuries to her wrists. He then warned her not to cause further trouble and threatened her. The applicant left the station between 2.15 and 2.30 p.m. and proceeded further on foot as her car had been seized.

14.  As recorded in the joint report issued on 3 April 2013 by the two municipal police officers who had stopped her in the street and the lieutenant on duty at the municipal police station, upon her arrival at the station the applicant had started threatening and insulting them. When the lieutenant started drafting the offence report, she grabbed a telephone from a desk and ran into the corridor. When the lieutenant tried to stop her, the applicant pushed him violently, causing him to fall. She then threw the telephone out of the window. The applicant, who was in an extremely agitated state, pushed and kicked the other two officers, and they eventually handcuffed her. When the applicant calmed down, the handcuffs were removed. The applicant ran out of the station, leaving her bag and personal belongings behind. Her vehicle and driver’s licence had been seized under road traffic legislation. The same account of the events is recorded in the offence notification (informativa di reato) filed by the directing commander of the Benevento municipal police with the Benevento public prosecutor on 3 April 2013.

15.  According to the applicant, once she had left the station she got a lift to the emergency department of a local hospital, where she was examined.

15.  According to the applicant, once she had left the station she got a lift to the emergency department of a local hospital, where she was examined.

16.  At approximately 8 p.m. the applicant went to the State Police and attempted, unsuccessfully, to lodge a criminal complaint against the municipal police officers. According to the report of the officer on duty, the applicant complained that she had been assaulted by Benevento municipal police officers and that her finger had been fractured. When the officer informed her that the she could not file a criminal complaint because the station was closed, the applicant started speaking incoherently in a loud voice. Given her nervous and agitated state, the officer called the local questura (police headquarters) for backup. The applicant requested that an ambulance be called. The ambulance arrived at 8.30 p.m. and the applicant was examined by the ambulance medics. She was taken home by ambulance at approximately 9 p.m.

B.  Criminal complaint against the police officers and the ensuing investigation

17.  On 4 April 2013 the applicant lodged a criminal complaint against the two police officers who had stopped her in the street on 2 April 2013 and the other two officers who had been present at the municipal police station, but whose names she did not know, alleging assault and battery, infliction of bodily harm, abuse of office, and threats.

17.  On 4 April 2013 the applicant lodged a criminal complaint against the two police officers who had stopped her in the street on 2 April 2013 and the other two officers who had been present at the municipal police station, but whose names she did not know, alleging assault and battery, infliction of bodily harm, abuse of office, and threats.

18.  An investigation into the applicant’s allegations was initiated. Seven people identified by the applicant as witnesses (persone informate sui fatti) were interviewed. Two were people who stated they had seen one of the officers dragging the applicant out of her vehicle. One was the owner of a bar where the applicant had gone in order to call her former spouse once she had left the hospital on 2 April 2013. Another was the applicant’s former spouse, who stated that her alcohol intake was limited to consumption during meals. He further stated that because of a traumatic event in her life the applicant became agitated, trembled and had trouble expressing herself when subjected to stress. The other three were colleagues, who stated that the applicant had not appeared to be intoxicated when she had left her office on 2 April 2013. The police officers who had allegedly been involved in the ill-treatment were not interviewed, and neither was the applicant.

18.  An investigation into the applicant’s allegations was initiated. Seven people identified by the applicant as witnesses (persone informate sui fatti) were interviewed. Two were people who stated they had seen one of the officers dragging the applicant out of her vehicle. One was the owner of a bar where the applicant had gone in order to call her former spouse once she had left the hospital on 2 April 2013. Another was the applicant’s former spouse, who stated that her alcohol intake was limited to consumption during meals. He further stated that because of a traumatic event in her life the applicant became agitated, trembled and had trouble expressing herself when subjected to stress. The other three were colleagues, who stated that the applicant had not appeared to be intoxicated when she had left her office on 2 April 2013. The police officers who had allegedly been involved in the ill-treatment were not interviewed, and neither was the applicant.

19.  On 17 January 2014 the public prosecutor requested that the proceedings be discontinued. The basis of the request was that “the allegations in the criminal complaint are not confirmed by the statements made by the witnesses identified by the victim”.

19.  On 17 January 2014 the public prosecutor requested that the proceedings be discontinued. The basis of the request was that “the allegations in the criminal complaint are not confirmed by the statements made by the witnesses identified by the victim”.

20.  On 27 February 2014 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. She complained about the lack of reasoning in the prosecutor’s request and alleged that the investigation had not been thorough. In that connection, she complained about the “total absence” of investigative measures with respect to the events that had occurred at the municipal police station and requested that the investigating judge order such measures without delay. Moreover, the applicant complained that she had not been questioned and requested that she be interviewed immediately. She also requested that officials interview the person who had taken her to the hospital when she had left the police station and other individuals. She also challenged the credibility of the official police reports, as they were in stark contrast with her account of the impugned events.

20.  On 27 February 2014 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. She complained about the lack of reasoning in the prosecutor’s request and alleged that the investigation had not been thorough. In that connection, she complained about the “total absence” of investigative measures with respect to the events that had occurred at the municipal police station and requested that the investigating judge order such measures without delay. Moreover, the applicant complained that she had not been questioned and requested that she be interviewed immediately. She also requested that officials interview the person who had taken her to the hospital when she had left the police station and other individuals. She also challenged the credibility of the official police reports, as they were in stark contrast with her account of the impugned events.

21.  At a hearing on 22 September 2014 the applicant’s lawyer repeated the complaints and requests contained in the objection against the prosecutor’s request to discontinue the proceedings and reiterated, in particular, the request to conduct an investigation into the events that had occurred at the municipal police station.

21.  At a hearing on 22 September 2014 the applicant’s lawyer repeated the complaints and requests contained in the objection against the prosecutor’s request to discontinue the proceedings and reiterated, in particular, the request to conduct an investigation into the events that had occurred at the municipal police station.

22.  By an order of 3 October 2014, served on the applicant on 27 October 2014, the Benevento District Court preliminary investigations judge (giudice per le indagini preliminari) decided to discontinue the proceedings. The order stated that the evidence gathered during the preliminary investigation had not been sufficient to warrant indicting the officers. It stated that the victim’s allegations had not been corroborated by evidence and that further investigative measures, as requested by the victim, would have “no influence whatsoever”.

C.  Criminal proceedings against the applicant

23.  On 25 October 2013 the applicant was charged with a number of offences in connection with the events of 2 April 2013, including resisting a police officer, insulting a public official, and driving under the influence of alcohol. The applicant was also charged with causing bodily harm to a police officer.

24.  On an unspecified date, the public prosecutor and the applicant reached a plea agreement with respect to the offence of bodily harm and requested that the judge proceed with the imposition of a sentence (applicazione della pena su richiesta delle parti).

25.  On 21 November 2014 the Benevento preliminary hearings judge took note of the plea agreement and gave the applicant a suspended sentence of twenty-eight days’ imprisonment. On the same day, the preliminary hearings judge suspended the proceedings against the applicant in connection with the charges of resisting a police officer, insulting a public official and driving under the influence of alcohol. The applicant was placed on probation with a requirement that she perform community service.

D.  Medical documentation

1.  Medical reports in connection with the events of 2 April 2013

1.  Medical reports in connection with the events of 2 April 2013

26.  On 2 April 2013, the applicant went to the emergency department of a local hospital. At 6.42 p.m. she was examined by a radiologist, who established that her right thumb was fractured.

27.  On 3 April 2013 the applicant returned to the emergency department. According to the medical report, the applicant arrived at the hospital in an agitated state, complaining about pain in several parts of her body. She was examined by a doctor who noted the presence of a splint on her right hand to treat a fracture. The doctor further noted the presence of bruising resulting from traumatic injury (trauma contusivo con ecchimosi) to the right thigh, right shoulder and left wrist.

27.  On 3 April 2013 the applicant returned to the emergency department. According to the medical report, the applicant arrived at the hospital in an agitated state, complaining about pain in several parts of her body. She was examined by a doctor who noted the presence of a splint on her right hand to treat a fracture. The doctor further noted the presence of bruising resulting from traumatic injury (trauma contusivo con ecchimosi) to the right thigh, right shoulder and left wrist.

28.  On 4 April 2013 the applicant went to a different hospital. She was examined by an orthopaedist, who confirmed the fracture of the thumb and the presence of bruises on her left thigh and on her back. The doctor recommended surgery to treat the fracture.

2.  Expert psychological report submitted by the applicant in the course of the criminal proceedings against her (extracts)

2.  Expert psychological report submitted by the applicant in the course of the criminal proceedings against her (extracts)

29.  Owing to a traumatic event in her life, the applicant suffers from chronic post-traumatic stress disorder, which has evolved into a major depressive disorder. She also suffers from a disorder which is characterised by mood swings which are exacerbated in times of particular stress, by the consumption of alcohol or sleep deprivation. The disorder in question includes peaks of manic behaviour when the applicant loses contact with reality and experiences a sense of impending threat to her own safety and that of those around her. The applicant was prescribed drugs for insomnia in February 2013. Combining the drugs with even moderate amounts of alcohol can have the same consequences as excessive alcohol consumption.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

30.  The applicant complained that she had been illtreated by the police and that the investigation into her allegations had been neither thorough nor effective. She relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

31.  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.  General principles

32.  In cases involving the substantive aspect of Article 3 concerning, in particular, allegations of ill-treatment by State agents, the relevant general principles were articulated by the Grand Chamber in Bouyid v. Belgium ([GC], no. 23380/09, § 81-90, ECHR 2015).

33.  The Court reiterates, in particular, that in respect of a person who is deprived of his liberty, or, more generally, is confronted with law  enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (ibid., § 88).

34.  Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., § 82).

34.  Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., § 82).

35.  On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the applicant. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them. In Bouyid the Court found that the same principle held true in the context of an identity check in a police station or a mere interview on such premises (ibid., § 84).

36.  The Court also pointed out in El-Masri v. the former Yugoslav Republic of Macedonia [GC] (no. 39630/09, § 155, ECHR 2012) that although it recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this was not made unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000), it had to apply a “particularly thorough scrutiny” where allegations were made under Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010), even if certain domestic proceedings and investigations had already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007).

37.  In cases involving the investigation of allegations of ill-treatment, the general principles which apply in determining whether such an investigation was effective for the purposes of Article 3 were restated by the Grand Chamber, inter alia¸ in Mocanu and Others v. Romania ([GC], nos. 10865/09, 45886/07 and 32431/08, § 316-326 ECHR 2014 (extracts)).

38.  In particular, any investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103, Reports of Judgments and Decisions 1998VIII, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004IV). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Boicenco v. Moldova, no. 41088/05, § 123, 11 July 2006).

2.  Application to the present case

2.  Application to the present case

39.  The Court notes at the outset that the parties agree that the police used force against the applicant and that she sustained certain injuries as a result, namely contusions and a fractured finger. The Court also notes that the presence of certain injuries is supported by medical evidence (see paragraphs 26 - 28 above). The applicant contended that the finger had been fractured while she was at the municipal police station.

40.  The Court notes that the essence of the disagreement between the parties concerns the exact circumstances in which the applicant sustained her injuries and whether recourse to physical force had been strictly necessary.

41.  The Court considers that during the period the applicant spent at the police station the applicant can be viewed as having been under the control of the authorities. Thus, in contrast to cases in which it could not be established that the applicant had been under the control of the authorities, in the present case the Court concludes that the burden rests on the Government to provide a satisfactory and convincing explanation as to the circumstances in which the injuries were sustained and whether the force was made strictly necessary by the applicant’s own conduct (see Bouyid, cited above, §§ 83-84).

42.  In their observations the Government argued that all the injuries, including the fractured finger, could plausibly and convincingly be explained by the applicant’s resistance to actions the police had taken to contain her incrementally agitated – and at times aggressive – behaviour. In their view therefore the force used against the applicant by the police officers had been made strictly necessary by her own conduct.

43.  In support of their position they cited several elements attesting to the applicant’s agitated and altered state. First, they observed that witness statements about the applicant’s being sober prior to being stopped in the street did not exclude the possibility that she was intoxicated at the time she got behind the wheel of her vehicle. Second, they relied on the psychological report by the expert appointed by the applicant in the context of the criminal proceedings against her and highlighted the part stating that she had been taking medication which could have the same effect as excessive alcohol consumption when combined with even a very small amount of alcohol (see paragraph 29 above). They added that the report had been added to the investigation file and had been examined closely by the prosecutor and investigating judge. They also cited the report drawn up by the officer on duty at the Benevento police station where the applicant had attempted to file her criminal complaint, which described her as being extremely agitated (see paragraph 16 above). The Government further pointed out that the applicant’s aggressiveness was corroborated by the fact that one of the agents at the municipal police station had been pushed by the applicant and injured as a result. Moreover, the Government reiterated that criminal proceedings had been initiated against the applicant for offences against the police officers, including insulting a public official, and that the proceedings had ended with a plea agreement.

43.  In support of their position they cited several elements attesting to the applicant’s agitated and altered state. First, they observed that witness statements about the applicant’s being sober prior to being stopped in the street did not exclude the possibility that she was intoxicated at the time she got behind the wheel of her vehicle. Second, they relied on the psychological report by the expert appointed by the applicant in the context of the criminal proceedings against her and highlighted the part stating that she had been taking medication which could have the same effect as excessive alcohol consumption when combined with even a very small amount of alcohol (see paragraph 29 above). They added that the report had been added to the investigation file and had been examined closely by the prosecutor and investigating judge. They also cited the report drawn up by the officer on duty at the Benevento police station where the applicant had attempted to file her criminal complaint, which described her as being extremely agitated (see paragraph 16 above). The Government further pointed out that the applicant’s aggressiveness was corroborated by the fact that one of the agents at the municipal police station had been pushed by the applicant and injured as a result. Moreover, the Government reiterated that criminal proceedings had been initiated against the applicant for offences against the police officers, including insulting a public official, and that the proceedings had ended with a plea agreement.

44.  The Government stressed that the domestic investigation, which had been carried out in an effective and thorough manner, had not established that the events had occurred in the way described by the applicant, thus casting doubt on her account of what had happened. According to the Government, the information gathered from interviews with the individuals identified by the applicant during the course of the investigation had been insufficient to confirm her accusations against the municipal police officers, as confirmed by the investigating judge’s decision to discontinue the proceedings. Even if the witnesses had confirmed certain facts described by the applicant, her account had not been corroborated overall, as the witness statements had referred to ancillary matters. The Government also highlighted the coherence of the police officers’ account as opposed to the inconsistencies characterising the applicant’s account. In that regard, they pointed out that the police reports had provided a plausible explanation for the injuries sustained by the applicant, whereas the applicant’s account had not explained the police officer’s injuries and was, in their view, riddled with lacunae and contradictions.

45.  In the circumstances of the present case, before examining the Government’s submissions, the Court wishes to reiterate that persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning, and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability and the authorities are consequently under a duty to protect them (see Bouyid, cited above, § 107). In that regard, the Court recalls that Article 3 of the Convention establishes, as does Article 2, a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure a high level of competence in their professional conduct so that no one is subjected to treatment that runs contrary to that provision (see Bouyid, cited above, § 108).

46.  Turning to the arguments put forward by the Government, the Court notes that they hinge on a general reliance on the applicant’s agitated state and general statements about the need to use force as a reaction to such conduct. The Government have not provided specific details about how the events at the municipal police station unfolded, but referred in general terms to the account provided by the police officers, which they accepted as being plausible and coherent. No concrete attempt was made to explain, let alone substantiate, what may have led to the fracture of the applicant’s finger, despite the Government’s acknowledgement that the injury had occurred as a consequence of the use of force by the officers on the applicant.

46.  Turning to the arguments put forward by the Government, the Court notes that they hinge on a general reliance on the applicant’s agitated state and general statements about the need to use force as a reaction to such conduct. The Government have not provided specific details about how the events at the municipal police station unfolded, but referred in general terms to the account provided by the police officers, which they accepted as being plausible and coherent. No concrete attempt was made to explain, let alone substantiate, what may have led to the fracture of the applicant’s finger, despite the Government’s acknowledgement that the injury had occurred as a consequence of the use of force by the officers on the applicant.

47.  Against this backdrop, the Court will next examine whether some substantiation of the Government’s submissions emerges from the domestic investigation. In that connection, on the facts of the present case the Court considers that the provision of a satisfactory and convincing explanation as to the necessity of the use of force is closely related to the question of whether the national authorities have conducted an effective investigation capable of establishing the circumstances and the nature of the force used (see, mutatis mutandis, Mihhailov v. Estonia, no. 64418/10, § 112, 30 August 2016; Hilal Mammadov v. Azerbaijan, no. 81553/12, § 83, 4 February 2016; Balajevs v. Latvia, no. 8347/07, § 95, 28 April 2016; and Cemal Yılmaz v. Turkey, no. 31298/05, § 32, 7 February 2012).

48.  The applicant contended that the investigation authorities had not made a serious attempt to find out what had happened in order to identify the origin of her injuries and the persons responsible for them. The Government submitted that the investigation had been conducted diligently, independently, and in a thorough manner.

49.  For the reasons set out below, the Court is not persuaded that the investigation complied with the requirement of thoroughness as dictated by Article 3, in the sense that the authorities used their best endeavours to find out what happened or did not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see, amongst other authorities, Alberti v. Italy, no. 15397/11, § 62, 24 June 2014).

50.  The Court notes at the outset that the investigation file shows no evidence of any investigative efforts directed towards the events that occurred in the municipal police station, although that is where the applicant alleged that the most important injuries had been inflicted. The Court further notes that the applicant explicitly complained about the lack of investigative measures concerning the events that had taken place at the station to the domestic authorities (see paragraph 20 above). The only documents which relate to the events at the municipal police station are reports by the municipal police officers (see paragraph 14 above). All the other documents contained in the investigation concern the events that took place in the street after the applicant had been stopped on suspicion of driving under the influence of alcohol.

51.  The focus of the investigation on the latter events, as opposed to the events at the station, is also reflected in the fact that the interviews with witnesses were limited to the individuals identified by the applicant in her criminal complaint, as is also conceded by the Government in their observations. With the exception of the person who lent his telephone to the applicant after she had left the hospital, the individuals identified by the applicant were connected either to the events in the street or attested to the applicant’s being sober and her personal circumstances (see para 18 above). In addition, the Court notes that neither the police officers involved in the impugned events, nor the applicant, were interviewed.

52.  Another aspect which the Court finds to be problematic in so far as the thoroughness of the investigation is concerned is the extremely succinct reasoning in the prosecutor’s request to discontinue the proceedings and the investigating judge’s decision to that effect (see paragraphs 19 and 22 above). The Court underlines in this respect that the prosecutor’s request appears to be drafted in a standardised manner. The investigating judge’s decision is similarly laconic. It contains generic formulations to the effect that the evidence gathered during the preliminary investigation was not sufficient to warrant indicting the officers and that the victim’s allegations have not been corroborated. No information can be gleaned from the request and the decision regarding the reconstruction of the facts, the possible causes of the applicant’s injuries, the nature of the force used, or the elements relied on by the prosecutor and investigating judge to request and order the discontinuance of the proceedings.

53.  The Court notes further that the investigating judge gave no reasons for denying the applicant’s request for additional acts of investigation. The decision contains a generic dismissal to the effect that the further measures would have “no influence whatsoever”.

54.  Those considerations are sufficient for the Court to conclude that the investigating authorities failed to devote the requisite attention to the applicants’ allegations concerning the events that occurred at the municipal police station despite the nature of the alleged acts, involving law-enforcement officers using force and causing injuries to a person under their control. The effect of the shortcomings identified above entailed, in practice, a failure to shed light on important aspects of the impugned events, the circumstances surrounding the use of force by the police against the applicant and, consequently, on the necessity of the use of such force.

55.  Concerning the substantive limb of Article 3, the Court is not persuaded that the Government have provided a satisfactory and convincing explanation as to how the applicant’s injuries, namely the fractured finger, could have been caused. In conclusion, it cannot consider that the Government have discharged their burden of proof by demonstrating that the use of force was strictly necessary.

56.  It follows that there has been a violation of Article 3 under both its substantive and procedural head.

56.  It follows that there has been a violation of Article 3 under both its substantive and procedural head.

57.  Having regard to the latter findings, the Court does not consider it necessary to carry out a separate assessment of the events preceding the period the applicant spent at the police station, or to address the applicant’s other complaints relating to the effectiveness of the investigation.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

58.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

59.  The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage for loss of earnings and EUR 30,000 in respect of non-pecuniary damage.

60.  The Government argued that the pecuniary damage claim was based on a highly speculative contention that there was a causal link between the violation and the loss of earnings.

61.  As to the applicant’s claim for loss of earnings, the Court agrees with the Government that no direct causal link has been sufficiently established between the alleged loss and the violation it has found of Article 3 of the Convention; it therefore rejects this claim.

62.  On the other hand, ruling on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage.

B.  Costs and expenses

63.  The applicant also claimed EUR 2,660 for the costs and expenses incurred before the domestic courts and EUR 11,400 for those incurred before the Court.

64.  The Government described the applicant’s claim as excessive.

65.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 covering costs under all heads.

C.  Default interest

66.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention in both its procedural and substantive aspects;

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:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 76512/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Muhamed Balatić (“the applicant”), on 25 July 2002.

2.  The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.

3.  The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

4.  On 8 September 2003 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

5.  The applicant was born in 1963 and lives in Velenje.

6.  On 6 May 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.

On 5 April 1994 the applicant instituted civil proceedings against ZT in the Celje Basic Court, Celje Unit (Temeljno sodišče v Celju, Enota v Celju) seeking damages in the amount of 1,600,000 SIT (approximately 6,670 euros) for the injuries sustained.

Between 24 November 1994 and 19 January 1996 the applicant lodged three preliminary written submissions.

Of the five hearings held between 1 December 1994 and 12 April 1996 none was adjourned at the request of the applicant.

At the last hearing the court decided to deliver a written judgment. The judgment, rejecting the applicant’s claim in part, was served on the applicant on 8 July 1996.

7.  On 12 July 1996 the applicant appealed to the  (Višje sodišče v Celju).

On 23 January 1997 the court allowed the appeal, quashed the first-instance court judgment and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 4 March 1997.

8.  Between 3 December 1998 and 8 January 1999 the applicant filed three preliminary written submissions in the proceedings in the re-examination proceedings before a new first-instance court judge.

Of the four hearings held between 13 January 1999 and 2 June 1999 none was adjourned at the request of the applicant.

At the last hearing the court decided to deliver a written interim judgment. The judgment, holding the applicant’s adversary absolutely liable for damages sustained by the accident, was served on the applicant on 15 July 1999. The court did not rule on the amount of damages and the costs of the case.

9.  On 13 August 1999 ZT appealed to the  (Višje sodišče v Celju).

The appeal was dismissed on 17 February 2000.

10.  On 28 April 2000 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).

On 24 January 2001 the court rejected the appeal.

The judgment was served on the applicant on 26 February 2001.

11.  Between 17 April 2000 and 8 September 2000, in the continued proceedings before the first instance court, the applicant made three requests that a date be set for a hearing.

On 5 May 2000 and 27 February 2001 he filed preliminary written submissions.

A hearing scheduled for 28 March 2001 was cancelled at the applicant’s request in anticipation of out of court settlement.

At the hearing held on 4 July 2001 the applicant withdrew his claim since the case was settled out of court on that same day.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

12.  The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

13.  In substance, the applicant further complained that the remedies available for excessive legal proceedings in  were ineffective. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility

14.  The Government pleaded non-exhaustion of domestic remedies.

15.  The applicant contested that argument, claiming that the remedies available were not effective.

16.  The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective.

17.  As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.

18.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Article 6 § 1

19.  The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to , and ended on 4 July 2001, the day the applicant withdrew his claim. It therefore lasted just over seven years for five levels of jurisdiction.

20.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

21.  Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was not excessive.

There has accordingly been no breach of Article 6 § 1.

2.  Article 13

22.  Having regard to its decision on Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by those of Article 6 § 1 (see G.C. v. The , no. 43373/98, § 53, 19 December 2001).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 § 1 of the Convention;

3.  Holds that it is not necessary to examine the merits of the applicant’s complaints under Article 13 of the Convention.

Done in English, and notified in writing on 9 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 35132/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Ivanovych Berestovyy (“the applicant”), on 27 June 2001.

2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.

3.  On 9 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1942 and lives in the town of Chervonograd, Lviv region, Ukraine.

5.  On 8 February 2001 the Chervonogradskyy Town Court of the Lviv Region awarded the applicant UAH 23,351, UAH 4,553.56 and UAH 50 in compensation for pecuniary and non-pecuniary damage, and for legal aid respectively, against the State Mining Enterprise No. 7 “Velykomostivska”.

6.  In 2001 – 2003 the judgment was enforced by instalments, the final amount being paid on 14 February 2003.

II.  RELEVANT DOMESTIC LAW

7.  The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).

THE LAW

8.  The applicant complained about the State authorities’ failure to enforce the judgment of the Chervonogradskyy Town Court of 8 February 2001 in due time. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....”

I.  ADMISSIBILITY

9.  The Government raised objections regarding the applicant’s victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (see the Romashov judgment, cited above, §§ 23-33). The Court considers that the present objections must be rejected for the same reasons.

10.  The Court concludes that the applicant’s complaints under Articles 6 § 1 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring them inadmissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.

II.  MERITS

A.  The applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1

12.  The applicant disagreed.

13.  The Court notes that the judgment of the Chervonogradskyy Town Court of 8 February 2001 remained unenforced for two years.

14.  The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see, for instance, Voytenko v. Ukraine, cited above, §§ 39-43 and 53-55).

15.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

B.  The applicant’s complaint under Article 13 of the Convention

16.  The Government contended that the applicant had had effective channels of complaint on the same basis that they had argued that the applicant had not exhausted domestic remedies. Having rejected the latter argument above (at paragraph 9), the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings (see Voytenko cited above, §§ 46-48). Accordingly, there has been a breach of this provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

18.  The applicant submitted a claim for just satisfaction out of time.

19.  The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court. In these circumstances, it makes no award under this head (Rule 60 § 3).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds that there has been a violation of Article 1 of Protocol No.1;

5.  Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.