PROCEDURE

1.  The case originated in an application (no. 65417/01) 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 Bulgarian national, Mr Rosen Yordanov Petkov (“the applicant”), on 2 October 2000.

2.  The applicant was represented by Mr M. Neikov, a lawyer practising in . The Bulgarian Government (“the Government”) were represented by their Agent, Mrs S. Atanasova, of the Ministry of Justice.

3.  On 2 September 2008 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 of the Convention).

4.  Judge Kalaydjieva, the judge elected in respect of , withdrew from sitting in the case. On 30 January 2009 the Government appointed in her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court as in force at the time).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

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

6.  On 30 November 1992 the heirs of the pre-nationalisation owners of a dwelling, purchased by the applicant's father form a subsidiary of the Ministry of Defence in 1967, brought an action for restitution against the applicant and Ms P.P., as heirs of the applicant's father, seeking restitution and a declaration that the 1967 transaction was null and void.

7.  Between February 1993 and January 1997 at least sixteen hearings were held. At least four of them were adjourned due to improper summoning and one upon the applicant's request.

8.  In a judgment of 15 May 1997 the Plovdiv District Court dismissed the claim.

9.  On appeal, at least six hearings were held before the . One hearing was adjourned because the expert opinion had not been obtained in time, one was adjourned due to improper summoning, and one upon the applicant's request.

10.  In a judgment of 28 December 1999 the  upheld the previous court's judgement.

11.  On further appeal, on 10 January 2001 the Supreme Court of Cassation quashed the 's judgment and remitted the case for fresh examination due to unspecified procedural breaches.

12.  By a judgment of 30 November 2001 the  set aside the judgment of 1997 and declared the plaintiffs owners of the disputed real estate.

13.  On 23 April 2003 the Supreme Court of Cassation upheld the lower court's judgment.

14.  On an unspecified date the Executive Agency “Management of the Private State Property of the Ministry of Defence” filed a request for reopening, claiming that under the relevant legislation it should have been a party to the proceedings as a successor of the relevant subsidiary of the Ministry of Defence.

15.  On 14 May 2004 the Supreme Court of Cassation granted reopening, set aside the judgment of 23 April 2003 and remitted the case to the  for new examination. The court held that in February 2000 the Executive Agency “Management of the Private State Property of the Ministry of Defence” had succeeded the subsidiary of the Ministry of Defence, which had been constituted as a party in the proceedings in 1993, and therefore should have been summoned in its stead.

16.  By a judgment of 16 December 2005 the  again declared the plaintiffs owners of the real estate. On 17 April 2006 the applicant appealed.

17.  By a final judgment of 13 April 2007 the Supreme Court of Cassation quashed the lower court's judgment and rejected the plaintiffs' claims, thus deciding the case in favour of the applicant.

18.  The number of hearings held between December 1999 and April 2003 and between May 2004 and April 2007 is not clear.

19.  On 6 June 2007 the plaintiffs filed a request for reopening.

20.  By a judgment of 6 November 2007 the Supreme Court of Cassation rejected the request.

II.  RELEVANT DOMESTIC LAW

21.  Until July 1999 Bulgarian law did not provide for any remedies in respect of length of civil proceedings.

22.  A new procedure, “complaint about delays”, was introduced in July 1999, by virtue of Article 217a of the Code of Civil Procedure 1952, in force until 2007. Pursuant to this procedure, a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court. The latter had the power to issue mandatory instructions for faster processing of the case.

THE LAW

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

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

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

24.  The Government did not express an opinion on the matter.

25.  The period to be taken into consideration began on 30 November 1992 when the civil claim was brought against the applicant (see paragraph 6 above). It ended on 13 April 2007, when the Supreme Court of Cassation gave a final judgment in the case (see paragraph 17 above). However, in determining the duration of the period to be taken into consideration the Court must discount the period when no proceedings were pending, i.e. in the instant case, the time between 23 April 2003, when the Supreme Court of Cassation gave its first judgment on the merits of the case, and 14 May 2004 when the latter court decided to set this judgment aside and reopen the proceedings (see paragraphs 13 and 15 above). The period to be taken into account is therefore about thirteen years and four months for three levels of jurisdiction.

A.  Admissibility

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

B.  Merits

27.  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).

28.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above and Rachevi v. Bulgaria, no. 47877/99, 23 September 2004). Having examined all the material submitted to it, the Court sees no reason to reach a different conclusion in the present case. In particular, it observes that the proceedings lasted more than thirteen years, which is excessive in itself. The applicant contended that the delay in the proceedings was attributable to the authorities. The Government have not put forward any fact or argument capable of persuading the Court in the opposite.

29.   In view of the above and having regard to its case-law on the subject and the global length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

30.  The applicant complained under Article 13 of the Convention that he did not have an effective domestic remedy for the length of the proceedings. Article 13 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.”

31.  The Government did not express an opinion on the matter.

32.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

33. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). A remedy is effective if it prevents the alleged violation or its continuation or provides adequate redress for any breach that has already occurred (ibid., § 158, and Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002VIII).

34.  The Court notes its case-law that a “complaint about delays” (see paragraphs 21 and 22 above), can in principal be regarded as an effective remedy for the speeding up of the proceedings, but that regard must be had to the specific circumstances of each case (see Stefanova v. Bulgaria, no. 58828/00, § 69, 11 January 2007 and Tzvyatkov v. Bulgaria, no. 2380/03, §§ 30 and 31, 22 October 2009) and to the impact that its use may have on the overall duration of the proceedings (see Kuncheva v. Bulgaria, no. 9161/02, § 40, 3 July 2008).

35.  In the present case, the Court observes that before the introduction of the “complaint about delays” in July 1999 the case had already been pending for about seven years, during which time it had been examined only by two levels of jurisdiction (see paragraphs 6-10 above). Therefore, the use of the “complaint about delays” procedure might have speeded up the examination of the case but could not have made up for the delays which had occurred prior to its introduction and had already had a significant impact on the overall duration of the proceedings (see, among others, Djangozov v. , no. 45950/99, § 52, 8 July 2004 and Rachevi v. Bulgaria, cited above, § 67). Furthermore, after the delivery of the Plovdiv Regional Court's judgment in December 1999 the main delay in the proceedings was due to the remittal of the case in 2001 and the reopening (see paragraphs 11 and 14-17 above), in respect of which the “complaint about delays” cannot be considered an effective remedy (see mutatis mutandis, Givezov v. Bulgaria, no. 15154/02, § 38, 22 May 2008).

36.  In view of the above “the complaint about delays” cannot be considered as an effective remedy in the circumstances of the present case. In addition, the Government has not shown that Bulgarian law provides for other means of redress whereby a litigant could obtain the speeding up of civil proceedings. Finally, as regards compensatory remedies, the Court has also not found it established that in Bulgarian law there exists the possibility to obtain compensation or other redress for excessively lengthy proceedings (see, for example, Rachevi v. Bulgaria, cited above, §§ 96-104). The Court sees no reason to reach a different conclusion in the present case.

37.  Accordingly, there has been a violation of Article 13 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  Article 41 of the Convention provides:

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

A.  Damage

39.  The applicant claimed pecuniary and non-pecuniary damage, submitting that as a result of the lengthy proceedings he suffered distress, anxiety and fear of losing his home. However, he did not specify the exact amount of the claimed damage. In a correspondence submitted outside the relevant time-limits he stated that the claimed amount was 6,500 euros (EUR).

40.  The Government submitted that in case a violation is found, this would constitute a sufficient just satisfaction within the meaning of Article 41 of the Convention.

41.  The Court observes that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards him EUR 6,000 under this head.

B.  Costs and expenses

42.  The applicant also claimed EUR 3,000 in lawyers' fees for the proceedings before the Court. He further claimed 20.68 Bulgarian levs (BGN), the equivalent of EUR 10.42, in copy services and postage. In support of his claim he presented a fees' agreement with his legal representative and copy services and postage receipts for the amount of BGN 42.58, the equivalent of EUR 21.70. The applicant requested that the amount awarded for costs and expenses under this head be paid directly to his legal representative, Mr M. Neikov.

43.  The Government contested the claim for lawyer's fees as excessive.

44.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000, covering costs under all heads, payable directly into the bank account of the applicant's legal representative.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings;

3.  Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the proceedings;

4.  Holds

a)  that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(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 2 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 55939/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Kristjan Sulaoja (“the applicant”), on 20 October 1999.

2.  The applicant was represented before the Court by Mr T. Sild, a lawyer practicing in . The Estonian Government (“the Government”) were represented by their Agents, Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs, and Mr E. Harremoes, Special Advisor to the Mission of the Republic of Estonia to the Council of Europe.

3.  The applicant alleged that the reasons for his protracted detention on remand had been inadequate and that his applications for release had not been examined speedily.

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

5.  By a decision of 13 January 2004 the Court declared the application partly admissible.

6.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The first set of proceedings

7.  The applicant was born in 1964 and lives in the Hüüru village, .

8.  On 14 February 1998 the Pärnu police took the applicant into custody on suspicion of having committed burglary. On 16 February 1998 the applicant was released from custody, but was subjected to another preventive measure in the form of a ban on leaving his place of residence.

9.  On 19 February 1998 the applicant was re-arrested on suspicion of two further acts of burglary, one of which had been committed the same day.

10.  On 20 February 1998 the applicant was charged with three counts of burglary and the police investigator requested the Pärnu City Court (Pärnu Linnakohus) to apply the preventive custody measure until 20 April 1998. The investigator noted that the applicant had no fixed residence and considered that he could, if released, continue to commit offences, evade investigation and abscond.

The applicant stated in writing that he did not wish to participate in the hearing before the City Court concerning the investigator's request and that he did not consider the presence of his lawyer there necessary either.

On the same day, i.e., 20 February 1998, the City Court authorised the applicant's detention until 20 March 1998.

11.  In March 1998 the applicant was charged with additional counts of burglary, committed together with two minors.

12.  On 20 March 1998 the investigator applied for an extension of the applicant's detention. Having noted that the applicant had been charged with additional crimes, that he had no fixed residence or place of work and that he had two prior criminal convictions, the investigator found that the applicant could, while at liberty, re-offend, evade investigation and flee. The investigator also noted that the applicant had confessed to the charges.

The applicant did not wish to participate in the hearing before the City Court, which allowed the investigator's request and prolonged the applicant's detention until 20 April 1998.

On 17 April 1998 the City Court granted the investigator's request to prolong the applicant's detention further until 20 June 1998. The request was based on reasons which were similar to those contained in the previous request. The applicant again had stated that he did not wish to attend the hearing on the extension of his custody.

On 18 June 1998 the applicant's detention was prolonged by the City Court for the third time at the request of the investigator who relied on his earlier arguments. The extension was valid until 20 August 1998.

13.  On 19 August 1998 the City Court held a hearing on the further prolongation of the applicant's detention. It heard the applicant and his lawyer as well as the investigator. It rejected the applicant's request to be released and extended his detention until 20 September 1998. The court found that the applicant had no place of residence, family or work. If released, he could continue committing offences in order to support himself, and also evade investigation.

14.  On 1 September 1998 the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime.

15.  On 18 September 1998 the City Court held a hearing to decide on the investigator's request to extend the applicant's detention until 20 November 1998 having regard to the large volume of the criminal case. The applicant and his lawyer, who both took part in the hearing, objected to the request. The City Court decided to allow the request and to extend the applicant's detention. It noted that the applicant had prior criminal convictions and that he had no place of residence or work. He had been charged with several offences for which he could be sentenced to imprisonment. There was thus reason to believe that he could abscond or commit new offences, if released.

16.  On 20 November 1998 the City Court heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant's detention. Noting again that the applicant had no place of residence, work or family to support him, it decided to prolong his detention until 20 January 1999.

17.  On 18 January 1999 the investigator filed another request to extend the applicant's custody term until 20 February 1999, i.e. 12 months in total. The applicant did not wish to be present at the examination of this request before the City Court, which found the request substantiated and allowed it for reasons similar to those in its previous decisions.

18.  On 12 February 1999 the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case. Three days later the public prosecutor approved the bill of indictment and the case was sent to the City Court for trial.

19.  By a decision of 18 February 1999 the City Court, having reviewed the case-file from the prosecution, committed the applicant for trial. In respect of detention it was ordered in the decision: “To leave unchanged the preventive custody measure chosen with respect to the accused at trial.” The decision did not specify until when the applicant had to be kept in detention. The court relied on the relevant provisions, including Article 189, of the Code of Criminal Procedure. The applicant did not receive a copy of the court decision, but was notified by the public prosecutor of the renewal of his detention on 22 February 1999.

20.  On 22 February 1999 the applicant complained to the City Court that he was dissatisfied with the investigator who had refused to arrange his confrontation with witnesses. He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority.

21.  On 15 March 1999 the applicant filed another complaint with the City Court, arguing that his detention after 20 February 1999 was unlawful and requesting his release from custody. He submitted that under the Code of Criminal Procedure (Article 73 § 6) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order. He, however, received the notification only on 22 February 1999.

22.  At the hearing before the City Court on 31 March 1999 the applicant pleaded guilty to the charges of burglary, but denied that he had induced two minors, M.T. and R.P., to participate in his criminal activity. The court heard five witnesses, including M.T. and R.P. By a judgment given on the same day it convicted the applicant on five counts of burglary under Article 139 § 2 of the Criminal Code as well as on the charge of inducing minors to participate in his crime, under Article 202 of the Code, and sentenced him to 2 years' imprisonment. The judgment did not mention the applicant's request for release or the continuation of the preventive custody measure.

23.  On 15 April 1999 the applicant filed an appeal against the judgment with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he disputed his conviction under Article 202 of the Criminal Code. He also complained that the investigator had refused his request to conduct a confrontation with his accomplices M.T and R.P., and asked the appeal court to hear witness R.J., without indicating any reasons for his request.

The applicant further applied for release from custody and submitted that his continued detention after 20 February 1999 was unlawful.

24.  On 23 April 1999 the Court of Appeal informed the applicant of the date of its preliminary hearing, noting that his presence was mandatory.

25.  On 28 April 1999, after a preliminary hearing which the applicant did not attend, the Court of Appeal quashed the judgment of the City Court on procedural grounds and remitted the case to it for a new consideration with a different composition. It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible. Moreover, as the applicant suffered from a mental handicap, it was necessary to have a psychiatric expert opinion on his mental state. Neither the decision nor the minutes of the hearing made reference to the applicant's request for release or dealt with the issue of detention pending final conviction and sentence.

B.  Appeal against the detention to the Supreme Court

26.  On 6 May 1999 the applicant wrote to the City Court asking it, without specifying the reasons, to call his witness R.J. He also informed the City Court that in his view he had the right to be released.

The following day the applicant filed an appeal against the Court of Appeal's decision of 28 April 1999 with the Supreme Court, submitting that neither the City Court nor the Court of Appeal had indicated on what ground he was being detained. He argued that the maximum time-limit of one year for pre-trial detention, stipulated in Article 74 of the Code of Criminal Procedure, expired on 19 or 20 February 1999 and that his continued detention was unlawful. He also requested his release from custody.

27.  At the hearing before the Supreme Court on 8 June 1999, where the applicant was not present, the defence lawyer maintained the applicant's appeal and submitted, in addition, that the applicant had not been aware of the prolongation of his detention by a decision of the City Court of 18 February 1999 as a copy of the decision had not been sent to him.

28.  By a decision of 8 June 1999 the Supreme Court dismissed the appeal. It considered that the time-limit of one year for pre-trial detention under Article 74 of the Code of Criminal Procedure had not been exceeded. The applicant had been taken into custody on 19 February 1998 and on 18 February 1999 he was committed for trial and ordered to remain in custody. In response to the defence lawyer's argument, the Supreme Court stated that, according to Article 202 § 1 of the Code of Criminal Procedure, a copy of the court decision committing the accused for trial was to be sent to the person only if the court changed a preventive measure – which was not the applicant's case. The applicant, however, had the opportunity to consult the decision in his criminal case-file.

The Supreme Court noted that, in remitting the case back to the first instance court, the Court of Appeal should have indicated, for the sake of clarity, that the preventive custody measure in respect of the applicant remained in force. Nonetheless, the absence of that indication did not render the applicant's detention unlawful. In sending the case back for a new consideration, the Court of Appeal restored the procedural stage which came about following the applicant's committal for trial on 18 February 1999. This situation also involved the preventive custody measure applied in respect of the applicant on the same day.

C.  The second set of proceedings

29.  On 31 August 1999 the medical experts established that the applicant was not of unsound mind or suffering from a mental disease, and was capable of understanding and controlling his actions.

30.  On 5 October 1999 the City Court held a new hearing on the applicant's case. It heard 4 witnesses, including M.T and R.P. The applicant requested that an additional witness, L.M., be called to testify. The witness could provide information on the applicant's place of residence after 16 February 1998. The court rejected the request on the ground that the testimony of the proposed witness was irrelevant. The applicant had already submitted that at that time he was living at L.M.'s place and the court had sufficient evidence to decide on the case.

31.  By a judgment of 5 October 1999 the City Court, having analysed the evidence in the case, including the testimonies of witnesses, found the applicant guilty as charged and sentenced him to 2 years and 6 months' imprisonment. It left unchanged the preventive custody measure applied to him, without putting forward any specific reasons for that.

32.  In his appeal to the Court of Appeal, filed on 13 October 1999, the applicant submitted that his conviction under Article 202 of the Criminal Code of inducing minors to participate in burglary was based on insufficient evidence. He referred to the inability to confront the two minors during the preliminary investigation and asked the appeal court to hear his witness L.M. The applicant further disputed the lawfulness of his detention after 19 February 1999 and claimed that he had not received adequate replies to this question. He also demanded his release.

33.  On 29 November 1999 the  Court of Appeal, having held a hearing, upheld the applicant's conviction, but reduced his sentence to 2 years' imprisonment. It did not hear the requested witness. The judgment of the Court of Appeal took effect on the day of its pronouncement, but was open to appeal to the Supreme Court within one month. Neither the judgment nor the hearing records mention the applicant's request for release.

34.  On 21 December 1999 the applicant lodged an appeal with the Supreme Court contending, inter alia, that the investigator had acted unlawfully and pointing to the failure to hear the witness L.M. He requested to be released from custody.

On 12 January 2000 the Supreme Court refused, by a final decision, the applicant leave to appeal.

II.  RELEVANT DOMESTIC LAW

35.  Under Article 35-1 §§ 1 and 2 and Article 37 § 2 of the Code of Criminal Procedure, as in force at the material time, the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings.

36.  Article 69 of the Code provides that a prohibition to leave a place of residence may be imposed on a suspect, accused or accused at trial, i.e. he or she may be obliged to undertake a written commitment not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court. If the suspect, accused or accused at trial violates such commitment, a more severe preventive measure may be applied with regard to him or her, against which the suspect, accused or accused at trial shall be cautioned upon the obtaining of his or her signature.

37.  Article 71-1 of the Code stipulates that a judge may, at the request of an accused, replace the preventive custody measure with bail.

38.  According to Article 73 of the Code, preventive custody measure may be applied in respect of a suspect, accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment (§ 1).

The permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator (§ 2).

39.  An investigator must notify the defence counsel and prosecutor of a custody application beforehand; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge (§ 3).

A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel (§ 4).

40.  A county or city court judge must give a reasoned ruling on the grant or refusal of the preventive custody measure. The judge must sign the ruling and certify it with the court seal (§ 5).

41.  An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody (§ 5-1).

A court must inform the administration of the detainee's place of detention of its decision to prolong his detention or to annul it. The notification must reach the place of detention before the expiry of the term of detention (§ 6).

42.  Article 74 of the Code provides that a period of detention during the investigation of criminal offences may not last longer than 6 months. In particularly complex and voluminous cases, the State Public Prosecutor or his Deputy may exceptionally request an extension of the time-limit for such detention up to one year.

43.  According to Article 77-1 of the Code, a person in respect of whom a preventive custody measure is applied or extended, or his representative, may file an appeal against that ruling within five days pursuant to the procedure prescribed in the Code of Criminal Court Appeal and Cassation Procedure.

44.  Article 78 of the Code stipulates that an investigator, prosecutor or court will annul a preventive measure if there is no further need for its application, or alter the preventive measure and choose a new preventive measure (§ 1).

A preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court (§ 3).

45.  Under Article 189 of the Code, when committing the accused for trial, a court must examine whether a preventive measure has been correctly applied.

46.  Article 202 § 1 of the Code requires a court to forward to the accused a copy of its decision on the committal for trial, if by that decision the court changed a preventive measure.

47.  Article 222 of the Code empowers a court to amend and annul, in the course of the court proceedings, the preventive measures previously chosen with regard to the accused at trial.

48.  According to Article 325 § 1 of the Code a court judgment becomes legally enforceable upon expiry of the term for filing of appeals or protests, if appeals or protests are not filed. If an appeal or protest is filed, a court judgment enters into force after the criminal matter has been heard by a higher court, unless the judgment is annulled.

49.  Article 263 § 1 (10) and Article 275 § 1 (6) provide that, upon making a judgment, a court has to decide what preventive measure shall be applied with regard to the accused at trial or whether the preventive measure previously applied shall be annulled.

50.  According to Article 35 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a judgment of a court of appeal enters into force after it is pronounced or communicated through the court office in its full extent.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

51.  The applicant complained that his protracted detention was unfounded and in breach of Article 5 § 3 of the Convention, which provides:

“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Period to be taken into consideration

52.  The Court notes that the total period of the applicant's deprivation of liberty lasted from his first arrest to the Supreme Court's final refusal to grant him leave to appeal, less the 3 days he was at liberty in the meantime, 1 year, 10 months, 23 days.

However, the period to be considered under Article 5 § 3 consisted of three separate terms, the first lasting from 14 February to 16 February 1998 (initial detention on suspicion of burglary), the second from 19 February 1998 to 31 March 1999 (the period of detention from the time the applicant was re-arrested to the original conviction by the first instance court), and the third from 28 April 1999 to 5 October 1999 (the period from the Court of Appeal's decision to quash the original judgment to the new conviction by the first instance court). The applicant's detention from 31 March 1999, the date of his original first-instance conviction, to 28 April 1999, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5 § 3, as during that period the applicant was detained “after conviction by a competent court” under Article 5 § 1 (a) (see, for example, Kudła v. Poland [GC], no. 30210/96, §§ 104-105, ECHR 2000-XI). The total period of the applicant's detention on remand thus amounted to 1 year, 6 months and 22 days.

B.  Reasonableness of the length of detention

1.  The parties' arguments

53.  The applicant maintained that the period of more than one and a half years during which he had been held in detention was excessive.

54.  The applicant was of the opinion that the reasons for his continued detention had been inadequate. Most of the court orders by which his detention had been authorised had stated that he had been previously convicted, did not have a residence, a job or a family and could thus commit new offences.

55.  The applicant noted that, under Article 74 of the Code of Criminal Procedure, reasons as to the particular complexity or extent of the case should have been advanced in order to request his pre-trial detention for a period exceeding six months. This had not been done. All the detention orders had employed the same laconic formula.

56.  The applicant also maintained that the charges brought against him and the circumstances of the offence had not been complicated. He had admitted the charges from the very beginning and had assisted the investigation in a reasonable way. He submitted that it had appeared from the criminal case-file that by the end of March 1998 all or most of the factual circumstances supporting the charges had been established by the police investigators. He considered that, after having established the facts, the legal issues – for example the question whether he had induced minors to burglary or whether they had acted of their own will – could have been determined during the trial, without any excessive delay of the investigation.

57.  The Government were of the opinion that the applicant's detention of about one and a half years could not be considered excessive, taking into account the complexity of the criminal case and the fact that the first instance court had heard the case twice, since the first judgment had been quashed by the Court of Appeal.

58.  The Government maintained that a substantial risk that the applicant would reoffend and abscond had persisted throughout the entire period of detention. The applicant had, indeed, committed a further offence at the time when he had been at liberty (from 16 February to 19 February 1998). The applicant had no place of residence or job and he lacked ties with his family members. Moreover, he had been convicted of criminal offences twice before. The Government concluded that the grounds for detention and the reasons given by the authorities had been “relevant” and “sufficient” so as to justify the applicant's detention under Article 5 § 3.

59.  The Government noted that from July 1997 until the beginning of 1998 there had been a considerable increase in burglaries and thefts in the city of  committed by different groups of persons. Altogether the police had initiated 11 criminal cases and on 7 occasions the investigator had joined different criminal cases. This was because the burglaries and thefts had been committed by the same persons or the joinder of the cases had been considered necessary for the better conduct of the preliminary investigation and for speeding up the investigation. The charges against the applicant had been investigated within a criminal case which had included 39 counts of burglary and theft from different kiosks and numerous other episodes of burglaries and thefts. During the preliminary investigation 18 minors and 7 adults, including the applicant, had been charged with criminal offences.

60.  The Government concluded that the criminal case as a whole had been a complex and voluminous one. They noted that the applicant had not objected to the joinder of the different criminal cases. When the investigator had come to the conclusion that it had been possible to deal with the charges against the applicant separately, his case had been separated on 12 February 1999. Even if the applicant's case on its own had not been particularly complex, it had to be assessed in the context of the complex criminal case of which it was a part in the beginning of the investigation. The complexity of the whole criminal case and the different steps taken by the investigator, especially the separation of the applicant's case from the voluminous one, demonstrated that the authorities had taken all necessary steps in order to speed up the proceedings. The Government also pointed out that, even assuming that certain delays in the preliminary investigation could have occurred for the above reasons, the proceedings after the separation of the cases had been conducted with exceptional speed. On the whole, the Government were of the opinion that the authorities had displayed special diligence as required in the handling of criminal proceedings against remand persons and, therefore, Article 5 § 3 had not been violated.

2.  The Court's assessment

61.  The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. The reasonableness of the detention of an accused has to be assessed in each individual case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention.

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions, and any well-documented facts stated by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110).

62.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102).

63.  The Court accepts that the suspicion against the applicant of having committed the offences with which he was charged may initially have warranted his detention. The detention in the initial phase of the investigation was further justified by the fact that the applicant committed a new offence during the short period while he was at liberty (see paragraph 9 above).

64.  However, the Court observes that the judicial orders authorising the applicant's detention on remand were based on a brief standard formula that the detention was justified, namely that the applicant had been previously convicted, did not have a place of residence, a job nor a family and that he could commit new offences, and abscond. No more elaborate reasons were put forward to justify the need for the protracted detention of the applicant.

The Court finds that the mere absence of a fixed residence does not give rise to a danger of flight. Nor can it be concluded from the lack of a job or a family that a person is inclined to commit new offences. The Court has doubts as to whether the grounds for the applicant's detention, as reflected in the perfunctorily reasoned court orders, retained their sufficiency for the whole period of the pre-trial detention.

In that context, the Court would emphasise that under Article 5 § 3 the authorities, when deciding on the continuing detention of a person, are obliged to consider alternative measures of ensuring his appearance at trial. It should be recalled that this provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see, for example, Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 3, § 3, and Iłowiecki v. Poland, no. 27504/95, § 63, 4 October 2001). In the present case the authorities did not envisage any other guarantees that the applicant would appear for trial, although he repeatedly objected to his continued detention, requesting that it be replaced by another preventive measure – a prohibition on leaving a place of residence where he asserted that he could live with his brother.

65.  Furthermore, the Court finds, in any case, that the authorities cannot be said to have displayed “special diligence” in the conduct of the proceedings. The charges against the applicant were not so complex and voluminous as to justify the length of the pre-trial investigation. Indeed, the Government conceded that the applicant's case was not necessarily particularly complex and that certain delays could have occurred during the preliminary investigation (see paragraph 60 above). The Court recalls that the applicant was charged with five counts of burglary and inducement of minors to commit criminal offences. The judgment of 31 March 1999 of the Pärnu City Court by which the applicant was initially convicted, extended to two pages. Five witnesses were heard during the preliminary investigation and at the hearing.

66.  The applicant has claimed that by the end of March 1998 the factual circumstances concerning the offences committed by him had largely been established by the investigation. The Court has not been provided with any information to the contrary and finds no reason to hold otherwise. It should also be noted that as regards two of the counts of burglary the applicant was caught in the act by witnesses who then took him to the police. Moreover, during the investigation the applicant admitted having committed the offences, except for the additional count of inducing minors. That being so, the authorities could hardly be regarded as having exercised special diligence in the conduct of the proceedings.

67.  Article 5 § 3 of the Convention has therefore been violated.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

68.  The applicant complained of the failure to examine speedily his applications for release, relying on Article 5 § 4 of the Convention, which provides:

“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.  The first set of proceedings

69.  The Court notes that on 15 March 1999 the applicant lodged a complaint with the Pärnu City Court(see paragraph 21 above), arguing that his continuing detention after 20 February 1999 had been unlawful and requesting his release from custody. The judgment of the City Court of 31 March 1999 gave no response to the complaint and, in fact, contained no decision with respect to the preventive measure.

In a request of 15 April 1999, lodged with the Tallinn Court of Appeal together with an appeal, the applicant again asked to be released. On 28 April 1999 the Court of Appeal quashed the City Court's decision, leaving the question of the preventive measure undecided and unreasoned.

In the appeal to the Supreme Court, lodged on 7 May 1999, the applicant also requested his release. The issue of the lawfulness of the detention was decided by the Supreme Court on 8 June 1999(see paragraphs 26 to 28 above).

70.  The Government submitted that the applicant had not requested his release at the hearing in the City Court.

71.  The Court recalls that according to its case-law the supervision required by Article 5 § 4 of the Convention is incorporated in the decision when the decision is made by a court at the close of judicial proceedings (De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, pp. 40-41, § 76). It is particularly so when the court imposes a fixed sentence of imprisonment after convicting the person of a criminal offence (Waite v. the United Kingdom, no. 53236/99, § 56, 10 December 2002).

72.  It should be noted, however, that the national legislation may require that the question of the lawfulness of detention be addressed separately in a judgment by which a person is convicted or that a separate decision to that effect be made. In the König v. Slovakia judgment (no. 39753/98, §§ 10 and 20, 20 January 2004), for example, the Court found that, in the absence of any decision on the request for release made by the applicant in his final speech at the court hearing, the applicant continued to be held in detention on remand, technically, by virtue of a decision which had been taken on a different occasion prior to the delivery of the convicting judgment.

73.  The Court notes that, under Article 325 § 1 of the Estonian Code of Criminal Procedure, the first instance court judgment became legally enforceable after the expiry of the time-limit for appeal. According to Articles 263 § 1 (10) and 275 § 1 (6) the court had to decide whether to continue or lift the preventive measure in the convicting judgment. It has also been the judicial practice of first instance courts to include in the judgment a decision concerning the preventive measure applied. This was not done by the Pärnu City Court in the present case.

74.  According to the interpretation of the Supreme Court, the applicant's detention had been lawful, despite the lack of a decision concerning the detention in the Court of Appeal's decision. The Supreme Court pointed only to some lack of clarity in the decision (see paragraph 28 above).

The Court notes that, apart from the legality of the detention itself, the issue of whether the lawfulness of the applicant's detention was decided speedily has to be resolved under Article 5 § 4. In the light of the national legislation and judicial practice, it cannot be held that the review of the lawfulness of the applicant's detention was incorporated in the City Court's judgment or in the Court of Appeal's decision.

Accordingly, the Court finds that 15 March 1999, when the applicant challenged the legality of his detention with the City Court, is to be considered the date of the applicant's request for the review of the lawfulness of his detention. The matter was decided by the Supreme Court on 8 June 1999, i.e. in 2 months and 24 days. The Court holds, in the light of its case-law, that the length of this period cannot be reconciled with the requirement of Article 5 § 4 of the Convention that the lawfulness of one's detention shall be decided speedily (see, for instance, Rehbock v. Slovenia, no. 29462/95, §§ 84-88, ECHR 2000XII).

75.  There has, therefore, been a violation of Article 5 § 4 of the Convention.

B.  The second set of proceedings

76.  The Court notes that in the second set of the court proceedings the applicant was convicted by the Pärnu City Court on 5 October 1999. The judgment contained a decision that the applicant had to remain in detention. In his appeal of 13 October 1999 he argued that the question of the lawfulness of his detention had not been resolved in a satisfactory manner and requested to be released.

On 29 November 1999 the Tallinn Court of Appeal confirmed the City Court's judgment as to its substance, without addressing the question of the lawfulness of the detention.

77.  The Government were of the opinion that the lodging of the request to be released on 13 October 1999 with the Court of Appeal had made it impossible for it to resolve the issue of applying preventive measure, because with the pronouncement of the judgment of the Court of Appeal the conviction of the applicant became legally enforceable and he was subject to a sentence of imprisonment.

78.  The Court finds that the review of the lawfulness of the applicant's detention was incorporated in the City Court's judgment of 5 October 1999. Subsequently, the applicant was entitled, under Article 5 § 4, after a “reasonable interval” to take proceedings by which the lawfulness of his continued detention was decided “speedily” by a court (see, among others, Bezicheri v. Italy, judgment of 25 October 1989, Series A no. 164, p. 10, § 20).

79.  It should be noted that a new request to be released was made by the applicant in his appeal of 13 October 1999, i.e. 8 days after the City Court had made a decision concerning his detention.

The Court doubts whether this period of 8 days constituted a “reasonable interval” for the purposes of Article 5 § 4. In any case, after the judgment of the Court of Appeal, which became legally effective from its delivery, the applicant was deprived of his liberty following – and because of – conviction by a competent court. Such a deprivation of liberty falls under Article 5 § 1 (a) of the Convention. The Court is therefore satisfied that the review of the legality of the detention, although not addressed by the Court of Appeal, can be deemed to have been incorporated also in that judgment(see paragraph 71 above).

80.  Having regard to the specific circumstances of the case and taking into account, in particular, the short interval between the review of the lawfulness of the detention by the City Court and the applicants new request to be released, the Court is satisfied that the requirements of Article 5 § 4 were met in this set of proceedings.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

81.  Article 41 of the Convention provides:

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

A.  Damage

82.  The applicant did not make any claim for costs and expenses but claimed the sum of 150,000 Estonian kroons (9,585 euros (EUR)) in compensation for distress and suffering caused by the illegal detention on remand and the fact that his requests for release were ignored by the judicial authorities.

83.  The Government did not comment on the claim.

84.  The Court finds that the applicant has suffered non-pecuniary damage, which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 3,000.

B.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

2.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the review of Mr Sulaoja's complaint of 15 March 1999 concerning the lawfulness of his detention;

3.  Holds that there has been no violation of Article 5 § 4 of the Convention in respect of the review of Mr Sulaoja's complaints concerning the lawfulness of his detention after his conviction on 5 October 1999;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Estonian kroons at the date of settlement, plus any tax that may be chargeable;

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

5.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 15 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 35443/13) 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 Voskehat Ghulyan (“the applicant”), on 28 May 2013.

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 Government of Armenia to the European Court of Human Rights.

3.  On 16 November 2016 the complaint concerning the alleged lack of impartiality of the District Court judge was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1973 and lives in Glendale, California, the United States of America.

5.  The applicant worked in the British Council’s Armenia office (hereinafter “the British Council”) as a project manager on a full-time, permanent contract starting from 25 November 2002.

6.  In the course of her employment the applicant had two children, born on 27 March 2008 and 7 May 2010. The applicant spent her maternity leave in the United States and regularly sent requests to extend that leave every six months for the duration of her absence. In particular, she sent such requests in March and September 2009 as regards her first child and then in April and September 2010 as regards her second child. It appears that the applicant’s maternity leave was extended, based on those requests. In March 2011 her leave was further extended until 1 September 2011.

7.  According to the applicant, on 19 August 2011 she requested another extension of her maternity leave. She handed an envelope with her written request to that effect to her friend H.K., who was to return to Armenia on 17 August 2011 after a visit to the United States. Upon arrival, H.K. gave the envelope to R.O., a driver, who then handed it to A.K., a security guard at the British Council.

8.  On 30 September 2011 the applicant received notice of termination of her employment contract prior to its term. The notice referred to the change in volume and conditions of work at the British Council, as well as the need to reduce the number of staff. In addition, the notice stated the following:

“... [your] employment contract shall be terminated based on [the relevant provisions] of the Labour Code of the Republic of Armenia.

We also inform you that your employment contract shall be terminated ... considering the fact that you did not return to work after the completion of your unpaid maternity leave, which was to end on 1 September 2011, as indicated in your letter sent to us by fax on 17 March 2011.

The employment contract shall be considered terminated as of 1 December 2011.”

9.  It appears that the applicant sent emails to the management of the British Council in relation to the early termination of her employment.

10.  On 30 November 2011 Ar.M., a lawyer and a representative of Prudence, a law firm which provided legal services to the British Council, replied to the applicant on behalf of that body. In particular, the email stated that the termination of the applicant’s employment had been in full compliance with domestic law and the terms and conditions of the British Council.

11.  By an order of 1 December 2011, issued by the director of the British Council, the applicant’s employment contract was terminated.

12.  On 30 December 2011 the applicant brought a claim against the British Council before the Kentron and Nork-Marash District Court of Yerevan, contesting the order of 1 December 2011 and seeking reinstatement.

13.  By a decision of 11 January 2012, Judge A.M. of the District Court took over the examination of the applicant’s case and scheduled the preparatory hearing.

14.  According to a power of attorney executed by a notary public in London on 12 January 2012, the British Council authorised, inter alia, Ar.M. and K.B., another lawyer with Prudence, to represent jointly or separately its interests before courts of all instances in Armenia.

15.  On 16 January 2012 the British Council was notified by the District Court of its taking over of the examination of the case and the judge appointed.

16.  On 31 January 2012 K.B. applied to the District Court to represent the British Council before the said court, also asking the court to postpone the hearings. On 1 February 2012 Ar.M. informed the District Court that he would not be representing the interests of the British Council in the instant case. It appears that during the whole trial before the District Court, K.B. alone represented the British Council.

17.  On 14 February 2012, in its reply to the applicant’s claim signed by K.B., the British Council denied that the applicant had submitted a request to extend her maternity leave for another six months as of 1 September 2011.

18.  On 9 July 2012 Judge A.M. rejected the applicant’s claim, finding that her dismissal had been lawful.

19.  After the proceedings before the District Court, it was discovered that Judge A.M. and the lawyer Ar.M. were twin brothers. Furthermore, the law firm Prudence, of which Ar.M. and K.P. were senior associates, had been founded by D.M., A.M.’s and Ar.M.’s elder sister, and was managed by her husband, E.M.

20.  On 6 August 2012 the applicant lodged an appeal arguing, inter alia, that Judge A.M. had lacked impartiality when deciding her case owing to his close family ties to the legal representatives of her opponent in the proceedings. The Government claimed that no such issue had been raised, nor had any evidence to support such a claim been provided.

21.  On 28 September 2012 the Civil Court of Appeal upheld the District Court’s judgment. In doing so, the Court of Appeal did not address the applicant’s arguments regarding the alleged lack of impartiality of Judge A.M. in the proceedings before the District Court.

22.  The applicant lodged an appeal on points of law, raising similar arguments to those submitted in her previous appeal.

23.  On 28 November 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.

II.  RELEVANT DOMESTIC LAW

A.  Code of Civil Procedure

24.  Article 21 §§ 1 and 2 provide that the grounds for a judge’s disqualification are laid down in Article 91 of the Judicial Code. A judge must recuse him or herself of his or her own motion or upon the application of a party to the proceedings.

25.  Pursuant to Article 22 § 1, a judge should recuse him or herself if the grounds provided in Article 21 pertain.

26.  In accordance with Article 219, the Court of Appeal reviews a judicial decision within the frame of the grounds and substantiations of the appeal. The Court of Appeal must not accept new evidence and must base its decision solely on the evidence which was presented to the first-instance court.

B.  Judicial Code

27.  Article 91, in so far as relevant, provides:

“1.  A judge should recuse him or herself if he or she is aware of any fact or circumstances which may cast reasonable doubt on his or her impartiality in the given case. Grounds for recusal include, inter alia, cases where:

...

4)  a judge is aware that he or she, or his or her spouse or their relatives up to the third degree, have pecuniary interest in relation to the dispute or one of the parties thereof.”

THE LAW

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

28.  The applicant complained that that she had not received a hearing by an impartial tribunal within the meaning of Article 6 § 1 of the Convention, given that Judge A.M. of the District Court had had close family ties to the representatives of her opponent in the proceedings.

29.  Article 6 § 1 of the Convention reads as follows:

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

A.  Admissibility

30.  The Government argued that the applicant had failed to exhaust all the domestic remedies available to her. She had never requested the withdrawal of Judge A.M. from the trial during the District Court proceedings, although the domestic legislation had provided for such a possibility. It was true that the applicant had claimed that she had not had any knowledge of the alleged grounds of partiality during the District Court proceedings but that she had learned about it only after those proceedings had been concluded. However, she had not mentioned when, how and in what circumstances she had discovered this information and why she could not have known about it beforehand. Although the applicant had noticed that Judge A.M. and Ar.M., the British Council’s counsel, had had the same last name, this had not necessarily indicated anything regarding family ties as their last name had been particularly common in Armenia.

31.  The Government further argued that the applicant had never explicitly challenged the impartiality of Judge A.M. before the Civil Court of Appeal either. In her appeal to the Civil Court of Appeal, the applicant had raised numerous allegations of substantive and procedural violations of several legal provisions but had not specifically addressed the impartiality of Judge A.M. Pursuant to Article 219 of the Code of Civil Procedure, the Court of Appeal did not have the authority to go beyond the appeal and was obliged to review the judicial decision within the framework of the grounds and substantiations of the appeal, which had been exactly how the Court of Appeal had acted in the instant case. The applicant could thus not have reasonably expected the Court of Appeal to have made any assessment of the said allegation since such an allegation had simply not been appropriately raised before it.

32.  Moreover, the Government argued that the applicant had lost her victim status since the Civil Court of Appeal had examined the case and had found no violation. Therefore, the Government claimed that the application should be declared inadmissible.

33.  The applicant noted that she had learned about the family connection between Judge A.M. and Ar.M., the representative of the British Council, only when she had received the District Court’s judgment. Since the applicant had been living in the United States, she had not received all the court documents received by her representative in Armenia. Only when receiving the judgment had she noticed that the judge’s last name had been the same as that of the British Council’s representative with whom she had been communicating. Therefore she could not have raised the issue before the District Court.

34.  The applicant argued that she had raised the issue of partiality in the Civil Court of Appeal in the context of the admission of evidence, claiming that Judge A.M. had not passed either the subjective or the objective test and that such a judgment would deprive her of her fair-trial rights. She argued that she had exhausted all domestic remedies and that she was still a victim.

35.  The Court notes that, while in the context of the legal machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been raised before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. , § 37, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004III).

36.  The Court accepts that, in the present case, the applicant did not learn about the possible partiality of the deciding judge A.M. during the District Court proceedings but only when she received the District Court judgment. She could not therefore have raised the issue of possible lack of impartiality during the District Court proceedings. As concerns the proceedings before the Civil Court of Appeal, the Court considers that the applicant raised the issue of alleged lack of impartiality in a sufficient manner in order to satisfy the requirements of Article 35 of the Convention. It follows that the Government’s objections must be rejected.

37.  As regards the question of whether the Civil Court of Appeal proceedings were capable of lifting the applicant’s victim status, the Court considers that it should be joined to the merits of the case and be examined at a later stage.

38.  Therefore, 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

39.  The applicant argued that the Government had not denied the family ties between Judge A.M. and the lawyer Ar.M. Nor had the Government denied that K.B., who had represented the British Council at the trial, had been employed by the law firm Prudence, or that E.M. – the managing partner of Prudence – had been the husband of D.M. and brother-in-law of Judge A.M. and Ar.M. It was obvious that Prudence, which had been chosen by the British Council for pre-trial representation, had continued to provide services throughout the court proceedings. Pursuant to domestic law, only physical persons could be representatives in court. That was why the power of attorney issued by the British Council had not mentioned Prudence but instead had mentioned other counsel. Although Ar.M. had told the District Court that he had no longer been the representative of the British Council in the present case, he had still been authorised by that organisation to represent it since the power of attorney of 12 January 2012 had never been withdrawn. As Judge A.M. had had connections to Prudence, which had provided services to the British Council, he could not be considered as having been impartial.

40.  The Government argued that the applicant had had a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention. Even if Ar.M. had provided legal services to the British Council, it had been prior to the proceedings at the District Court and those legal services had not had any connection with the trial. The British Council had not signed a contract with the law firm Prudence. Instead it had authorised only four lawyers, including Ar.M. and K.B., to jointly or separately represent its interests in relations with the applicant and before the domestic courts. Moreover, the power of attorney authorising Ar.M. to represent the British Council had been issued on 12 January 2012, specifically before the British Council had been notified by the District Court of the appointment of Judge A.M. After the receipt of this information, the British Council had been represented in the proceedings before the District Court solely by K.B. The Government averred that it had also been crucial that Ar.M. had informed the District Court that he would not be representing the British Council in the instant case. These facts showed that there had been no lack of impartiality on the part of Judge A.M. due to family ties to the representatives of the respondent.

41.  The Government claimed that, under the subjective test, there was no proof that Judge A.M. had displayed any type of hostility or ill will at all, let alone for personal reasons. As for the objective test, the applicant had failed to demonstrate that the fear that the judge had lacked impartiality had been objectively justified. On the contrary, the applicant had, without raising her concerns before the domestic courts, made inappropriate and unsubstantiated assumptions as to the impartiality of Judge A.M. The British Council had been represented only by K.B. for the duration of the trial. Ar.M., whom the applicant alleged had had family ties to Judge A.M., had refrained from representing the respondent in the proceedings before the District Court, thus eliminating any possible doubts regarding the impartiality of the presiding judge.

2.  The Court’s assessment

42.  The Court reiterates that impartiality normally denotes the absence of prejudice or bias, and that its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is to say whether the judge held any personal prejudice or bias in a given case, and (ii) according to an objective test – that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Morice v. France [GC], no. , § 73, ECHR 2015, with further references).

43.  As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the Court’s case-law. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (ibid., § 74).

44.  As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there was a legitimate reason to fear that a particular judge or bench lacked impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (ibid., § 76).

45.  The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings or the exercise of different functions within the judicial process by the same person (see Kyprianou v. Cyprus [GC], no. , § 121, ECHR 2005XIII). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Morice, cited above, § 77).

46.  In this connection, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009).

47.  Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public. The Court will take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether an applicant’s fears can be held to be objectively justified (ibid., § 99).

48.  At the outset, the Court notes that the applicant did not question Judge A.M.’s subjective impartiality. The case will therefore be examined only from the standpoint of the objective impartiality test.

49.  In the present case, the first-instance proceedings were adjudicated by Judge A.M., who was the twin brother of Ar.M., one of the opposing party’s legal team, and the brother of the founder of the law firm Prudence, for which the lawyers worked. The Court finds it established that Ar.M. did not directly participate in the court proceedings, but the British Council was represented by K.B., another Prudence lawyer. Although Ar.M. was absent from the trial, he had nevertheless been in contact with the applicant prior to the court proceedings.

50.  To the extent that the applicant’s fear of impartiality on the part of Judge A.M. stemmed from the family tie between that judge and Ar.M., the Court notes that they have a very close family relationship as they are twin brothers. Although Ar.M. withdrew from the case once the judge’s identity became known and K.B. represented the British Council throughout the proceedings, the fact still remains that Ar.M. worked for the law firm Prudence, which represented the British Council. Moreover, the law firm was founded by the sister of Judge A.M. and managed by his brother-in-law.

51.  The Court finds that when a judge has blood ties to an employee of a law firm representing a party in any given proceedings, this does not in and of itself disqualify the judge (see Ramljak v. Croatia, no. , § 29, 27 June 2017). An automatic disqualification on the basis of such ties is not necessarily required. It is, however, a situation or affiliation that could give rise to misgivings as to the judge’s impartiality. Whether such misgivings are objectively justified would very much depend on the circumstances of the specific case, and a number of factors should be taken into account in this regard. These should include, inter alia, whether the judge’s relative has been involved in the case in question, the position of the judge’s relative in the firm, the size of the firm, its internal organisational structure, the financial importance of the case for the law firm, and any possible financial interest or potential benefit (and the extent thereof) on the part of the relative (see Nicholas v. Cyprus, no. 63246/10, § 62, 9 January 2018). Given the importance of appearances, however, when such a situation (which can give rise to a suggestion or appearance of bias) arises, that situation should be disclosed at the outset of the proceedings and an assessment should be made, taking into account the various factors involved in order to determine whether disqualification is actually necessitated in the case. This is an important procedural safeguard which is necessary in order to provide adequate guarantees in respect of both objective and subjective impartiality (ibid., § 64).

52.  In the present case, no such disclosure took place and the applicant discovered the connection between the opposition counsel and the judge only after the first-instance judgment had been given. She was thus faced with a situation in which the law firm which had represented the British Council had been founded and managed by the sister and brother-in-law of Judge A.M., and had his twin brother, Ar.M., working there as a senior associate. It is not known whether the sister and brother-in-law were actively involved in the case (compare Huseyn and Others v. Azerbaijan, nos.  and 3 others, § 168, 26 July 2011, and Bellizzi v. Malta (dec.), no. , § 61, 21 June 2011) and whether they had a financial interest connected to its outcome, but it was clear that Ar.M. was actively involved in preparing the case. An appearance of partiality was thus created.

53.  It needs to be examined next whether the Civil Court of Appeal was capable of remedying any lack of impartiality of the first-instance court. It is well established in the Court’s case-law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. Where a complaint is made of a lack of impartiality on the part of the decision-making body, the concept of “full jurisdiction” means that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body (see De Haan v. the Netherlands, 26 August 1997, §§ 53-54, Reports of Judgments and Decisions 1997IV, and Ranson v. the United Kingdom (dec.), no. 14180/03, 2 September 2003).

54.  The Court notes that, in the present case, the Civil Court of Appeal did not address at all the applicant’s arguments regarding the alleged lack of impartiality of Judge A.M. during the proceedings before the District Court (see paragraph 21 above). Since no consideration of the complaint was made, the appearance of partiality at first instance was not remedied on appeal.

55.  The foregoing considerations are sufficient to enable the Court to conclude that the participation of Judge A.M. in the case rendered the first-instance court proceedings partial and this defect was not remedied on appeal. It accordingly rejects the Government’s preliminary objection as to the applicant’s victim status (see paragraph 32 above).

56.  There has therefore been a violation of Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  Article 41 of the Convention provides:

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

A.  Damage

58.  The applicant claimed 62,700 euros (EUR) in respect of pecuniary damage and EUR 19,000 in respect of non-pecuniary damage.

59.  The Government considered that the claim for pecuniary damage was based on a mere speculation on the connection between the wages lost and the alleged violation of Article 6 § 1. As to the non-pecuniary damage, the Government considered that the amount claimed was excessive and argued that a mere finding of a violation was sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

60.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,600 in respect of nonpecuniary damage.

B.  Costs and expenses

61.  The applicant also claimed EUR 1,400 for the costs and expenses incurred before the domestic courts and EUR 4,880 for those incurred before the Court, consisting of a lawyer’s fee of EUR 4,630, translation costs of EUR 150 and postal costs to the Court of EUR 100.

62.  The Government considered that the claim concerning costs and expenses before the domestic courts should be rejected as there was no proof that those costs and expenses had actually incurred or that the applicant was bound to pay them. As to the costs and expenses before the Court, the Government noted that the lawyer’s fee and the translation costs had not been documented adequately and that they should therefore be rejected.

63.  Regard being had to the documents in its possession and to its caselaw, the Court rejects the claim for costs and expenses for lack of adequate supporting documentation.

C.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

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

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), 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, in respect of non-pecuniary damage;

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

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

Done in English, and notified in writing on 24 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.