PROCEDURE

1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2020.

2.  The applicant was represented by Mr A.V. Pustyntsev, a lawyer practising in the city of Dnipro, Ukraine.

3.  The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under the provisions of the Convention.

THE LAW

ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

6.  The applicant complained principally of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”

7.  The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 14959, 10 January 2012).

8.  In the leading cases of Melnik v. Ukraine (no. 72286/01, 28 March 2006) and Sukachov v. Ukraine (no. 14057/17, 30 January 2020) the Court already found a violation in respect of issues similar to those in the present case.

9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.

10.  The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.

11.  These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.

OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

12.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, §§ 72-76, 30 March 2004), Kharchenko v. Ukraine (no. 40107/02, §§ 79-81, 10 February 2011), Tymoshenko v. Ukraine (no. 49872/11, §§ 286-87, 30 April 2013), Ignatov v. Ukraine (no. 40583/15, §§ 40-42, 15 December 2016) and Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  Article 41 of the Convention provides:

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

14.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application admissible;

Holds that this application discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and the lack of any effective remedy in domestic law;

Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

Holds

that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 18 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 25381/12) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Nenad Grujović (“the applicant”), on 18 April 2012.

2.  The applicant was represented by Ms Z. Dobričanin-Nikodinović, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.

3.  The applicant alleged, in particular, that his pre-trial detention and the criminal proceedings against him had been excessively long. He also maintained that the Serbian authorities had hindered his right to individual petition to the Court.

4.  The application was initially allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).

5.  On 5 June 2013 the complaints concerning the length of pre-trial detention and the length of the criminal proceedings were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

6.  On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1). This case was thus assigned to the newly composed Third Section (Rule 52 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

I.  THE CIRCUMSTANCES OF THE CASE

7.  The applicant was born in 1977. He is currently being detained in the Belgrade Central Prison.

It would appear that the applicant’s criminal record predates the events complained of, and that he was arrested pursuant to an international arrest warrant in the Netherlands in 2003 for crimes other than those at issue in the present case.

A.  The criminal proceedings

.  On 5 December 2006 the applicant was arrested and placed in custody in Austria, pursuant to an international arrest warrant.

.  On 5 December 2006 the applicant was arrested and placed in custody in Austria, pursuant to an international arrest warrant.

9.  On 20 December 2006 the Ministry of Justice of the Republic of Serbia (Министарство правде Републике Србије; “the Ministry of Justice”) requested the applicant’s extradition for the purpose of conducting several sets of criminal proceedings against him unrelated to the present case.

9.  On 20 December 2006 the Ministry of Justice of the Republic of Serbia (Министарство правде Републике Србије; “the Ministry of Justice”) requested the applicant’s extradition for the purpose of conducting several sets of criminal proceedings against him unrelated to the present case.

10.  On 11 January 2007 the investigating judge of the Belgrade District Court (“the District Court”) opened an investigation against the applicant, who was suspected of having participated in aggravated murder with unauthorised use of another person’s vehicle and forgery. The offences had allegedly been committed on 24 March 2006.

.  On 29 January 2007 the Ministry of Justice extended its extradition request to include the above-mentioned criminal proceedings (see paragraph 10 above), which are the subject of the present case.

.  On 29 January 2007 the Ministry of Justice extended its extradition request to include the above-mentioned criminal proceedings (see paragraph 10 above), which are the subject of the present case.

12.  In the meantime, on 16 April 2007 the competent court in Austria found the applicant guilty of possession of an unlicensed firearm, which had been found on him at the time of his arrest, and sentenced him to seven months’ imprisonment.

12.  In the meantime, on 16 April 2007 the competent court in Austria found the applicant guilty of possession of an unlicensed firearm, which had been found on him at the time of his arrest, and sentenced him to seven months’ imprisonment.

13.  On 6 July 2007 the applicant was extradited to Serbia.

13.  On 6 July 2007 the applicant was extradited to Serbia.

14.  On 31 December 2007 the public prosecutor issued an indictment against the applicant and two other persons, V.S. and B.A, who were at large.

14.  On 31 December 2007 the public prosecutor issued an indictment against the applicant and two other persons, V.S. and B.A, who were at large.

15.  On 7 May 2008 the first hearing was held before the District Court. It was decided that V.S. and B.A. would be tried in absentia.

15.  On 7 May 2008 the first hearing was held before the District Court. It was decided that V.S. and B.A. would be tried in absentia.

16.  Subsequently, forty-one hearings were scheduled, of which nineteen were adjourned: four at the request of the applicant’s defence counsel and fifteen for various procedural reasons, such as the absence of the co-accused’s defence counsel, the absence of duly summoned witnesses and/or experts, erroneous delivery of summons, and delays concerning experts’ opinions. Furthermore, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. From March 2010, following a reform of the domestic judicial system, the Belgrade High Court (“the High Court”) took over the case.

16.  Subsequently, forty-one hearings were scheduled, of which nineteen were adjourned: four at the request of the applicant’s defence counsel and fifteen for various procedural reasons, such as the absence of the co-accused’s defence counsel, the absence of duly summoned witnesses and/or experts, erroneous delivery of summons, and delays concerning experts’ opinions. Furthermore, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. From March 2010, following a reform of the domestic judicial system, the Belgrade High Court (“the High Court”) took over the case.

17.  On 1 April 2014 the High Court found the applicant guilty of complicity in aggravated murder, unauthorised use of another person’s vehicle and forgery. It sentenced him to twenty years’ imprisonment.

17.  On 1 April 2014 the High Court found the applicant guilty of complicity in aggravated murder, unauthorised use of another person’s vehicle and forgery. It sentenced him to twenty years’ imprisonment.

18.  On 4 and 17 July 2014, respectively, the applicant and the public prosecutor appealed against the High Court judgment.

18.  On 4 and 17 July 2014, respectively, the applicant and the public prosecutor appealed against the High Court judgment.

19.  On 31 October 2014 the Belgrade Court of Appeal (“the Court of Appeal”), quashed the High Court judgment of 1 April 2014 and remitted the case for a re-trial.

B.  The applicant’s detention

B.  The applicant’s detention

20.  On 11 January 2007 the investigating judge issued a detention order against the applicant in his absence, on the following grounds: (1) the risk of absconding; (2) the risk of obstructing the course of justice by exerting pressure on witnesses and his co-accused; (3) the risk of reoffending; and (4) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him. The one-month period of detention was to be calculated from the date of the applicant’s arrest. The relevant part of the decision reads as follows:

“After committing the alleged criminal offences [and when preliminary criminal proceedings were initiated] the accused was at large. He was not available to the law-enforcement authorities until recently ... which justifies the fear that if released he would abscond.

A number of witnesses are to be heard in the investigation, including the two co-accused ... this indicates that, if released, the accused would obstruct the course of justice by influencing the witnesses ...

The accused had previously been convicted ... and committed several criminal acts within a short period of time ... the court considers that these facts represent special circumstances which justify the fear that, if released, he would reoffend.

The accused has been charged with criminal offences punishable by imprisonment for more than ten years, and in view of the manner in which the offences were committed and the severity of their consequences, it is justified to order his detention also ... on the basis of the nature of the offences alleged and the severity of the penalty that could be imposed.”

.  After his extradition to Serbia on 6 July 2007, the applicant was detained pursuant to the above order.

.  On 6 August and 4 October 2007, respectively, the District Court and the Supreme Court of Serbia (“the Supreme Court”) further extended the applicant’s detention, relying on the same grounds as before. They noted in particular that he had already been in hiding and had been arrested pursuant to an international warrant.

.  Thereafter, the applicant’s detention was regularly examined and extended every two months by the District Court, the Supreme Court and, following a reform of the domestic judicial system, by the High Court and the Court of Appeal. In addition to those automatic reviews, the applicant repeatedly challenged his detention.

.  Thereafter, the applicant’s detention was regularly examined and extended every two months by the District Court, the Supreme Court and, following a reform of the domestic judicial system, by the High Court and the Court of Appeal. In addition to those automatic reviews, the applicant repeatedly challenged his detention.

24.  After issuing the indictment (see paragraph 14 above), the courts held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist. Thus, from 4 January 2008 onwards his detention was extended on the following three grounds: (1) the risk of absconding; (2) the risk of reoffending; and (3) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him.

24.  After issuing the indictment (see paragraph 14 above), the courts held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist. Thus, from 4 January 2008 onwards his detention was extended on the following three grounds: (1) the risk of absconding; (2) the risk of reoffending; and (3) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him.

25.  On 15 October 2013, although it rejected the applicant’s appeal, the Court of Appeal accepted his argument concerning the third ground for detention and decided that it had ceased to exist. Hence, the applicant’s detention was further extended only on the grounds that he might abscond and reoffend. The court held in particular:

“... for this legal ground [for detention to be satisfied] the cumulative existence of two conditions is necessary: that the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and [that there are] particularly aggravating circumstances. The conclusion of the first-instance court that the first condition exists is justified. However, this court considers that in the present case the second condition does not exist... [T]he reasons given in the contested order, which had previously justified the accused’s detention on this ground, have now, more than seven years after the alleged offences were committed, ceased to exist ... [I]n the absence of other relevant elements, they do not in themselves justify detention on this ground, because these facts are contained in the factual description of the criminal acts in question and represent the [constituent] elements of those criminal acts.

Therefore, the Court of Appeal holds that the reasons given in the contested order do not justify the extension of detention under Article 142 § 2 (5) of the Code of Criminal Procedure ...”

Therefore, the Court of Appeal holds that the reasons given in the contested order do not justify the extension of detention under Article 142 § 2 (5) of the Code of Criminal Procedure ...”

26.  On 31 October 2014, in a decision by which it quashed the High Court’s judgment of 1 April 2014 and remitted the case for a re-trial (see paragraph 19 above), the Court of Appeal ordered the applicant’s detention on the grounds that he might abscond and reoffend.

C.  Proceedings before the Constitutional Court

.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.

.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.

.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.

28.  On 26 September 2012 the Constitutional Court rejected the applicant’s appeal. As regards the lawfulness of his detention, the court held that the domestic courts had referred to the specific facts of the case and the applicant’s personal circumstances, and had not used general or abstract arguments to justify his continued detention. There was a reasonable suspicion, from the documents in the file, that the applicant had committed the criminal offences imputed to him. The court held in particular:

“The conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(1) [the risk of absconding] of the Code of Criminal Procedure still exists, is justified in view of the fact that ... the accused was arrested in Austria and extradited to Serbia on 6 July 2007... the above circumstances justify the fear that if released he would abscond ...

The conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(3) [the risk of reoffending] of the Code of Criminal Procedure still exists is justified in view of the fact that the accused had already been convicted for criminal offences involving physical force [robbery] ... and bearing in mind the nature and number of criminal offences imputed to him [in the present case] which were committed in a short period of time ... [the court considers that] these facts represent special circumstances which justify the fear that, if released, he would reoffend.

The conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(5) [the serious nature of the offences with which he had been charged and the severity of the penalty which could be imposed on him if found guilty] of the Code of Criminal Procedure still exists is justified in view of the fact that he had been charged with ... criminal offences punishable by more than ten years’ imprisonment, and in view of the manner in which the offences were committed ... in particular, according to the indictment, the accused had shown singular brutality and determination towards the victim.”

As regards the length of detention, the Constitutional Court concluded that it had been reasonable in view of the complexity of the case: it concerned three co-accused, several criminal offences and complex legal and factual issues.

As regards the complaint about the length of the criminal proceedings, the Constitutional Court noted that the case at issue was a complex one; the case file contained more than one thousand pages and extensive photographic documentation. Furthermore, the court proceedings had had to start anew several times because of changes of presiding judge. Many procedural steps had been taken, numerous witnesses had been heard and a few expert testimonies had been taken.

Lastly, the  rejected the applicant’s complaint concerning the presumption of innocence as unsubstantiated.

Lastly, the  rejected the applicant’s complaint concerning the presumption of innocence as unsubstantiated.

29.  The applicant’s subsequent constitutional appeals, containing the same complaints, were rejected on 26 and 27 September, and 10 October 2012 and 20 November 2013 for the same reasons as before.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)

30.  Article 27 of the Constitution provides, inter alia:

“[e]veryone has the right to personal freedom and security. Deprivation of liberty shall be allowed only on the grounds and in a procedure prescribed by law... Any person deprived of liberty shall have the right to initiate proceedings in which the court shall review the lawfulness of the arrest or detention and order the release if the arrest or detention was against the law.”

31.  Article 31 §§ 2 and 3 provide that “[t]he court shall reduce the duration of detention after the bringing of charges to the shortest possible period, in accordance with the law” and that “the [d]etainee shall be granted pre-trial release as soon as grounds for detention cease to exist”.

32.  Article 32 § 1 provides, inter alia, for the right to a hearing within a reasonable time.

B.  Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02; and OG RS nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10)

33.  Article 16 of the Code of Criminal Procedure 2001 provides that a suspect has the right to be brought promptly before a judge and to be tried without undue delay. The competent criminal court must conduct proceedings without undue delays and prevent any abuse of process by the parties.

.  Article 141 of the Code provides that detention must be ordered for the shortest time necessary and that all the authorities involved in the criminal proceedings must act with particular diligence if a suspect is in detention.

.  The grounds for detention are set out in Article 142 of the Code. Detention will be ordered if there is a reasonable suspicion that the accused has committed the criminal offence in question and if, inter alia, there is a risk that he or she might abscond (Article 142 § 2(1)), obstruct the course of justice (destroy evidence, influence witnesses or obstruct the course of justice in some other way) (Article 142 § 2(2)), reoffend (Article 142 § 2(3)), or if the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and the manner in which the offence was committed, or other aggravating circumstances, justify the accused’s detention (Article 142 § 2(5)).

C.  Code of Criminal Procedure 2011 (Zakonik o krivičnom postupku, OG RS nos. 72/11, 101/11, 121/12, 32/13, 45/13 and 55/14)

36.  The Code of Criminal Procedure 2011 entered into force on 6 October 2011, but its application was postponed until 1 October 2013. With effect from the latter date, the Code of Criminal Procedure 2001 was repealed.

37.  As regards the grounds for detention relevant to the present case, the new Code contains the same provisions as the old one (see Article 211 of the Code of Criminal Procedure 2011).

38.  Article 216 § 6 provides that pre-trial detention can last until the detainee begins to serve his prison sentence, but that it cannot in any case be longer than a prison sentence imposed by a first-instance judgment.

THE LAW

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

39.  The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

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

B.  Merits

1.  The parties’ submissions

41.  The applicant submitted that the length of his detention pending trial could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. He argued that the reasons given for his detention had been arbitrary and unsupported by the facts. He further argued that the proceedings had not been conducted diligently.

42.  The Government maintained that the applicant’s detention had been proportionate to the legitimate aim of ensuring his presence at trial and thus conducting the criminal proceedings. There had been no doubt that he might abscond, given that he had fled before and had twice been arrested pursuant to an international arrest warrant (in 2003 in the Netherlands and in 2006 in Austria). Furthermore, the applicant had twice attempted to cross the border illegally.

43.  The applicant’s detention was also duly re-examined at reasonable intervals and the courts’ decisions to extend it were reasonable and in accordance with the law, given that there were still relevant and sufficient reasons to restrict his freedom for the protection of the public interest, which prevailed over the presumption of innocence in favour of the applicant.

43.  The applicant’s detention was also duly re-examined at reasonable intervals and the courts’ decisions to extend it were reasonable and in accordance with the law, given that there were still relevant and sufficient reasons to restrict his freedom for the protection of the public interest, which prevailed over the presumption of innocence in favour of the applicant.

44.  Lastly, the Government argued that the domestic courts had been diligent in conducting the proceedings. The case was a complex one and the fact that the applicant was a member of an organised criminal group had further contributed to its complexity.

2.  The Court’s assessment

.  The Court reiterates that under its constant case-law the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among many other authorities Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references).

46.  The presumption is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Margaretić v. Croatia, no. 16115/13, § 88, 5 June 2014, with further references).

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

48.  The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

49.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, amongst many others, Toth v. Austria, 12 December 1991, § 67, Series A no. 224; B. v. Austria, 28 March 1990, § 42, Series A no. 175; Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions 1998-V; and I.A. v. France, 23 September 1998, § 102, Reports 1998-VII).

.  The period to be taken into consideration under Article 5 § 3 started with the applicant’s transfer to Serbia on 6 July 2007 (see Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and Chraidi v. Germany, no. 65655/01, § 33, ECHR 2006XII) and ended on 1 April 2014 with his conviction by the High Court (see paragraph 17 above). From that date until 31 October 2014, when the Court of Appeal quashed the first-instance judgment of the High Court (see paragraph 19 above), he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Kudła, cited above, §§ 104-105). From 31 October 2014 until the present day, the applicant is again in pre-trial detention for the purposes of Article 5 § 3 of the Convention (see Solmaz v. Turkey, no. 27561/02, § 34, 16 January 2007). The applicant’s remand in custody has thus so far lasted seven years and almost five months.

.  The Court observes that in their orders to remand the applicant in custody the judicial authorities initially relied on the following grounds: (1) the risk of absconding; (2) the risk of obstructing the course of justice by exerting pressure on witnesses and his co-accused; (3) the risk of reoffending; and (4) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him (see paragraph 20 above).

.  The subsequent decisions extending the detention evolved so as to reflect the developing situation and to verify whether those grounds remained valid at the later stages of the proceedings. Thus, on 4 January 2008 the domestic court held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist (see paragraph 24 above). Furthermore, on 15 October 2013 the Court of Appeal held that the fourth ground for detention, the gravity of the criminal offences of which the applicant was accused and the sentence that might be imposed on him, had also ceased to exist (see paragraph 25 above).

.  The Court considers that the reasons advanced by the domestic authorities were certainly relevant. However, in the specific circumstances of the case, it does not consider it necessary to examine whether they were also sufficient or whether the domestic authorities should have considered in addition alternative measures to secure the applicant’s presence at trial, as in any event the criminal proceedings in question were not conducted with the expedition required by Article 5 § 3 (see Herczegfalvy v. Austria, 24 September 1992, § 71, Series A no. 244). The domestic courts scheduled in total forty-two hearings, of which nineteen were adjourned, mainly for different procedural reasons that were not imputable to the applicant (see paragraph 16 above). Moreover, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. The Government did not offer any explanation for those changes.

54.  In view of the material in the case file, the Court is hesitant to accept the Government’s argument that the complexity of the case justified its excessive length (see also the findings of the Constitutional Court in paragraph 28 above). Moreover, the Government submitted that the present case concerned organised crime (see paragraph 44 above), which by definition presents more difficulties for the investigating authorities and, later, for the courts in determining the facts and the degree of responsibility of each member of the group. However, the Court notes that the applicant had not been charged with organising a criminal group or participating in organised crime which is further evident from the fact that the investigation in the present case had not been conducted by the Office of the Special Public Prosecutor for Organised Crime (compare Luković v. Serbia, no. 43808/07, §§ 46 and 55, 26 March 2013). Accordingly, as there were no exceptional circumstances in the present case that could justify such lengthy proceedings (compare and contrast to Chraidi v. Germany, cited above, §§ 43-45, and Luković, cited above, §§ 47 and 55), the Court considers that the applicant’s detention exceeding seven years was extended beyond a reasonable time (see I.A. v. France, cited above, §§ 98 and 112; Khudoyorov v. Russia, no. 6847/02, §§ 175 and 189, ECHR 2005X (extracts); and Korchuganova v. Russia, no. 75039/01, §§ 71 in limine and 77, 8 June 2006).

55.  There has accordingly been a violation of Article 5 § 3 of the Convention.

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

56.  The applicant also complained that the length of the criminal proceedings against him had exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

A.  Admissibility

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

B.  Merits

1.  The parties’ submissions

58.  The applicant argued that the proceedings, which had not involved complex legal or factual issues, had not been conducted diligently: they had had to start anew six times and nineteen hearings had been adjourned mainly for procedural reasons.

59.  The Government maintained that the competent courts had been diligent in conducting the proceedings. However, the complexity of the case as well as the applicant’s own behaviour, as well as the fact that he belonged to an organised criminal group, had contributed to the length of the proceedings. He had been at large when the investigation had been opened against him and had not been extradited until 6 July 2007 (see paragraph 13 above). Some delays had also been caused by the absence of lawyers, witnesses and experts.

2.  The Court’s assessment

.  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, Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006VII). Article 6 is, in criminal matters, designed to ensure that a person charged does not remain too long in a state of uncertainty about his fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006, and Veliyev v. Russia, no. 24202/05, § 173, 24 June 2010). The Court considers that much was at stake for the applicant in the present case, bearing in mind that he risked imprisonment, that he was detained throughout the trial proceedings and that he is still detained pending re-trial proceedings.

.  The Court observes that the period under consideration in the present case began on 6 July 2007 when the applicant was extradited to Serbia (see Nedyalkov, cited above, § 86, and Berhani v. Albania, no. 847/05, § 65, 27 May 2010). The trial proceedings began on 7 May 2008 and ended on 1 April 2014. They were followed by the appeal proceedings which ended on 31 October 2014 when the Court of Appeal remitted a case for a re-trial. From the information available it would appear that the proceedings are still pending before the trial court. It follows that the criminal proceedings against the applicant have so far lasted for almost eight years for two levels of jurisdiction.

62.  As the Court has already noted in the preceding paragraphs concerning Article 5 § 3, the present case did not involve complex legal or factual issues which would justify such an excessive length, nor did it concern organised crime.

.  As to the applicant’s conduct, the Court reiterates that an applicant cannot be required to co-operate actively with the judicial authorities, nor can he be criticised for having made full use of the remedies available under the domestic law in the defence of his interests (see, among other authorities, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005).

.  As to the conduct of the relevant authorities, the Court has already noted that the trial court scheduled in total forty-two hearings, of which nineteen were adjourned, mainly for different procedural reasons that were not imputable to the applicant (see paragraph 16 above). Moreover, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. The Government did not offer any explanation for those changes.

65.  The applicant remained in custody throughout the proceedings and is still detained. In this connection, the Court recalls that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities. Consequently, in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see, for example, Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248A; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000; Mõtsnik v. Estonia, no. 50533/99, § 40, 29 April 2003; and Bąk v. Poland, no. 7870/04, § 81, 16 January 2007).

.  The domestic authorities were required to organise the trial efficiently and ensure that the Convention guarantees were fully respected in the proceedings. However, in the circumstances of the case, the Court is not satisfied that the conduct of the authorities was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement.

.  Having regard to all the circumstances of the case and the overall length of the proceedings, the Court considers that the “reasonable time” requirement of Article 6 § 1 of the Convention has not been respected. Consequently, there has been a violation of this provision.

III.  ALLEGED INTERFERENCE WITH THE RIGHT TO INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION

68.  In his observations, the applicant complained, relying on Article 34 of the Convention, that he had received correspondence from the Court with delay and, further, that the envelope itself had already been opened by others.

69.  The Government submitted that there had been no hindrance to the applicant’s right of individual petition, as he had not been pressured, directly or indirectly, by the State in order to be dissuaded from pursuing his application before the Court. The correspondence between the applicant and the Court had never been obstructed by the authorities.

.  Article 34 of the Convention provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

71.  The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI).

.  The voluminous correspondence which the applicant sent in the present case confirms that he was able to submit all his complaints to the Court by ordinary mail, and there is no indication that the correspondence between the Court and the applicant was unduly delayed or tampered with. In these circumstances, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant’s exercise of his right of individual petition (see Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011).

.  In view of the foregoing, the Court finds that the respondent Sate has not failed to comply with its obligations under Article 34 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

74.  Article 41 of the Convention provides:

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

A.  Damage

75.  In respect of non-pecuniary damage the applicant claimed 10,000 euros (EUR) and EUR 1,000 per month spent in detention.

76.  The Government considered the amounts claimed to be excessive.

77.  The Court considers that the applicant has certainly suffered some non-pecuniary damage - such as distress and frustration resulting from the protracted length of his detention and trial. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage.

B.  Costs and expenses

78.  The applicant also claimed approximately EUR 100,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

79.  The Government considered the amount claimed to be excessive.

80.  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 (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000XI). In the present case, regard being had to the documents in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, plus any tax that may be chargeable on that amount to the applicant.

C.  Default interest

81.  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 5 § 3 of the Convention;

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

4.  Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention;

5.  Holds

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

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

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

Done in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 33014/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the editorial board of the newspaper Pravoye Delo (“the first applicant”) and a Ukrainian national Mr Leonid Isaakovich Shtekel (“the second applicant”) on 22 August 2005.

2.  The applicants were represented before the Court by Ms L. V. Opryshko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.

3.  On 13 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The first applicant is the editorial board of Pravoye Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor-in-chief of Pravoye Delo. He lives in .

5.  At the material time Pravoye Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in  and, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet.

6.  On 19 September 2003 Pravoye Delo published an anonymous letter, allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. One of the paragraphs of the letter read as follows:

“... The Deputy Head of [the Odessa Regional Department of the Security Service] [I. T.], a close friend and assistant of the Head of the Department P., established ‘business’ contacts with [the organised criminal group] of [A. A.] ... A member of [the organised criminal group] G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region ...”

7.  The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board:

“When publishing this letter without the knowledge and consent of the editor-inchief, I understand that I may not only face trouble ... but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the  website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on Democratic Civil Control over the Military Organisation and Law-Enforcement Organs of the State, we are carrying out civil control and, under section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department [of the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] ... I remind [you] that the [Pravoye Delo] newspaper ... is wide open for letters in reply and comments from all interested agencies.”

8.  In October 2003 G. T., who lived in  at the time and was the President of the Ukraine National Thai Boxing Federation, brought defamation proceedings in the Prymorskiy District Court of Odessa against the applicants. G. T. alleged that the information in the 19 September 2003 issue of Pravoye Delo concerned him, and that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).

9.  The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without making any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned. The applicants also submitted that if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close.

10.  Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “G. T.” who was being referred to.

11.  On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented  at sports events abroad in his capacity as President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was true. It found no grounds on which to exempt the applicants from civil liability under section 42 of the Press Act, as the Internet site to which they had referred was not printed media registered pursuant to section 32 of the Press Act.

12.  The court ordered the first applicant to publish a retraction of the following content of the publication:

“... A member of [the organised criminal group], G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department [of the Security Service] in the Odessa Region ...”

13.  The court further ordered the second applicant to publish an official apology in the newspaper.

14.  In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,000 and found it reasonable to order the applicants jointly to pay G. T. UAH 15,000 for nonpecuniary damage. The applicants were also ordered to pay to the State Budget UAH 750 in court fees.

15.  The applicants appealed. They maintained the submissions they had made before the first-instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor-in-chief in accordance with the law. Thus, in their view, they could not take part in the proceedings.

16.  The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on State Support of Mass Media and Social Protection of Journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of significant public interest. According to them, it was their duty to disseminate the material and the public had a right to receive it.

17.  The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation.

18.  On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants’ appeals and upheld the judgment of the first-instance court.

19.  On 3 July 2006 the applicants and G. T. concluded a friendly-settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of 7 May 2004. The applicants, for their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoye Delo promotional and informational materials at G. T.’s request, the volume of which was limited to the amount of compensation under the judgment.

20.  In 2008 the applicants discontinued publishing Pravoye Delo.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Constitution of  of 28 June 1996

21.  Relevant extracts from the Constitution read as follows:

Article 32

“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”

Article 34

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”

B.  Civil Code of 1963 (repealed with effect from 1 January 2004)

22.  Relevant extracts from the Civil Code read as follows:

Article 7. Protection of honour, dignity and reputation

“A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is true ...

A citizen or an organisation concerning whom material has been disseminated that is untrue and damages their interests, honour, dignity or reputation shall be entitled to request compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...”

C.  Civil Code of 2003 (in force from 1 January 2004)

23.  The provisions of the Civil Code of 2003 pertinent to the case read as follows:

Article 16
Judicial protection of civil rights and interests

1.  Everyone has the right to apply to a court of law for the protection of his or her ... rights and interests.

2.  The means of protection of civil rights and interests may include:

1)  recognition of the right;

2)  declaration of nullity of an act;

3)  cessation of actions violating the right;

4)  restoration of the situation which existed prior to the violation;

5)  specific performance of an obligation;

6)  modification of legal relations;

7)  discontinuance of legal relations;

8)  compensation for [pecuniary] damage ...;

9)  compensation for [non-pecuniary] damage;

10)  declaration of unlawfulness of a decision or action or of inactivity of a State body;

...

The court may give protection to the civil right or interest by other means envisaged by a contract or law.

...”

Article 277
Retraction of untrue information

“1.  A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and/or members of his or her family shall have the right to reply and [the right to] the retraction of that information.

...

3.  Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.

4.  Untrue information shall be retracted by the person who disseminated it ...

5.  If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.

6.  A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...

Untrue information shall be retracted irrespective of whether or not the person who disseminated it is guilty.

7.  Untrue information shall be retracted in the same manner as it was disseminated.”

D.  Information Act of 2 October 1992

Section 20. Mass media

“Printed mass media are periodical prints (press) – newspapers, magazines, bulletins – and occasional prints with a set circulation.

Audiovisual mass media are radio, television, cinema, audio, video recordings and so on.

The procedure of establishing ... of particular media shall be determined by the laws concerning such media.”

Section 47. Liability for infringement of the legislation on information

“...

Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements:

...

dissemination of untrue information that defames the honour and dignity of a person ...”

Section 49. Compensation for pecuniary and non-pecuniary damage

“If physical or legal persons have suffered pecuniary or non-pecuniary damage caused by an offence committed by an entity engaged in informational activities, those responsible [for the offence] shall compensate [for the damage] voluntarily or pursuant to a court decision ...”

E.  Printed Mass Media (Press) Act of 16 November 1992

Section 1. Printed mass media (press) in

“Printed mass media (press) in Ukraine, as referred to in this Act, are [defined as] periodical and continuing publications issued under a permanent name [at least] once a year pursuant to a certificate of State registration ...”

Section 7. Entities engaged in printed mass media activities

“Entities engaged in printed mass media activities shall include [their] founders (or co-founders), editors (or editors-in-chief), editorial boards ...”

Section 21. Editorial board of the printed mass media

“The editorial board ... shall prepare and issue printed mass media under the instructions of its founder (or co-founders).

The editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder (or cofounders).

The editorial board ... shall acquire the status of a legal entity from the day of State registration, which shall be carried out in accordance with the legislation of .”

Section 21. Editor (editor-in-chief) of the printed mass media

“The editor (or editor-in-chief) ... shall be the head of the editorial board, authorised by the founder (or co-founders).

The editor (or editor-in-chief) ... shall manage the editorial board’s activities within his competence, as envisaged by its organisational charter, shall represent the editorial board in its relations with the founder (or co-founders), the publisher, authors, State organs, associations of citizens, and individual citizens, as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [legislative] requirements as to the activities of the printed media, its editorial board ...”

Section 26. State registration of the printed mass media

“... All printed mass media in  shall be subject to State registration, irrespective of the area of its dissemination, circulation and the manner of its creation ...”

Section 32. Publishing data

“Every issue of printed mass media shall contain the following publishing data:

(1) name of publication ...

Distribution of [publications] without publishing data shall be prohibited.”

Section 37. Retraction of information

“Citizens, legal entities and State organs, and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which is untrue or defames their honour and dignity.

If the editorial board does not have any evidence that the content published by it is true, it must, if requested by the claimant, publish a retraction of such information in the next issue of the printed mass media in question or publish the retraction on its own initiative ...”

Section 41. Grounds for liability

“Editorial boards, founders, publishers, distributors, State organs, organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media.

Infringements of Ukrainian legislation on the printed mass media are:

1)  violations envisaged by section 47 of the Information Act ...

For such an infringement the guilty party shall incur disciplinary, civil, administrative or criminal liability in accordance with the current legislation of .

The journalist ... editor (or editor-in-chief) or other persons with whose permission the material which violates this Act has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material.”

Section 42. Exemption from liability

“The editorial board and journalists are not liable for the publication of material that is untrue, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if

1)  the information has been received from news agencies or from the founder (cofounders) [of the media source];

2)  the information is contained in a reply given in accordance with the Information Act to a request for access to official documents and to a request for written or oral information;

3)  the information is a verbatim reproduction of official speeches of the officials of State organs, organisations and associations of citizens;

4)  the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [the latter];

5)  the information contains secrets that are specifically protected by law, where the journalist has not obtained this information unlawfully.”

F.  State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997

26.  Relevant extracts from the Act provide:

Section 17. Liability for trespass or other actions against the life and health of a journalist and a journalist’s liability for non-pecuniary damage caused by him

“... In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or mass media, as a defendant party, and a political party, electoral bloc, [or] an office holder (or office holders), as a claimant, the court may award compensation in respect of non-pecuniary damage only if the journalist or officials of the media [acted] intentionally. The court shall take into account the outcome of the use by the claimant of extrajudicial, in particular pre-trial, opportunities for retraction of untrue material, defending his honour and dignity and reputation, and settlement of the entire dispute. Having regard to the circumstances, the court may refuse compensation in respect of non-pecuniary damage.

The intention of the journalist and/or official of the media means his or their stance with regard to dissemination of information where the journalist and/or official of the media are aware that the information is untrue and have anticipated its socially injurious consequences.

The journalist and/or the mass media shall not incur liability for dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information.”

G.  Resolution of the Plenary Supreme Court of Ukraine of 27 February 2009 on judicial practice in cases concerning the protection of the honour and dignity of a physical person, and of the reputation of a physical person and legal entity

27.  The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:

“26. Under Article 19 of the Constitution of Ukraine, the legal order in Ukraine is based on [the principle] according to which no one shall be forced to do what is not envisaged by the legislation. In turn, Article 34, paragraph 1, of the Constitution of Ukraine guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

A court has no power to oblige a respondent to apologise to a claimant ... as a forced apology is not envisaged by Articles 16 [and] 277 [of the Civil Code of 2003] as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information.”

H.  Judicial practice of the Supreme Court in cases concerning the application of Articles 16 and 277 of the Civil Code of 2003

28.  The Supreme Court confirmed the Plenary’s approach in a defamation case, having quashed the lower courts’ decisions by which a respondent was ordered, inter alia, to apologise as legally unfounded. In particular, the relevant extract of the Supreme Court’s judgment (dated 17 June 2009) reads as follows:

“...

The court[s] are not entitled to oblige a respondent to apologise to a claimant in one form or another, as Articles 16 [and] 277 [of the Civil Code of 2003] do not provide for a forced apology as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information; compulsion of a person to change his/her beliefs is an interference with the freedom of speech and expression guaranteed by the Constitution of Ukraine and Article 10 of the Convention ...”

II.  Relevant COUNCIL OF EUROPE AND international material

A.  Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet

29.  At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication.

30.  It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings.

31.  The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.

B.  Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005

32.  The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti and Mr E. Bertoni. They stressed the need for strict application of international guarantees of freedom of expression to the Internet. In that context, it was stated that no one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

33.  The applicants complained that their right to freedom of expression had been violated in that the courts had allowed G. T.’s claim concerning content published in Pravoye Delo on 19 September 2003. They stated that the interference had neither been in accordance with the law nor necessary in a democratic society. The applicants relied on Article 10 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.  Admissibility

34.  The Government submitted that the applicants could not claim to be victims of a violation of Article 10 of the Convention, as the interference with their right to freedom of expression had been based on the decisions of the domestic courts. The applicants did not complain under Article 6 § 1 of the Convention that the impugned court proceedings had been unfair, and there had been no irregularities in those proceedings and the Court had limited jurisdiction regarding the assessment of facts and the application of law by domestic courts. On these grounds, they invited the Court to declare the application incompatible ratione personae with the provisions of the Convention.

35.  The applicants disagreed.

36.  The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaints under Article 10 of the Convention and that it must therefore be joined to the merits.

37.  The Court further notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Submissions of the parties

38.  The applicants argued that the domestic legislation concerning the liability of the press for defamation lacked clarity and foreseeability and that the domestic courts had disregarded the relevant legislative guarantees against punishment for unverified statements made by journalists. They submitted that the courts had not taken into account the fact that they had not disseminated information about G. T., that the second applicant had not given his permission for the publication of the material, that they had sufficiently distanced themselves from the publication, and that G. T. had not used the opportunity of asking the editorial board for a retraction before bringing defamation proceedings in the courts.

39.  The second applicant also contended that Ukrainian law did not provide for an obligation to apologise as a sanction for defamation.

40.  The applicants further submitted that they had disseminated the material, which had already been published on the Internet, with a view to promoting further discussion of the important political issues raised in the material. They stated that the amount of compensation which they had been required to pay had been too high given the annual income of the newspaper, and had placed a disproportionate burden on them. In this context, they stated that they had had to discontinue publishing Pravoye Delo.

41.  The Government submitted that the interference with the applicants’ right to freedom of expression had been lawful in that it had been based on the clear, accessible and foreseeable provisions of the domestic law, namely, on Article 7 of the Civil Code of 1963, section 47 of the Information Act of 2 October 1992, and sections 1, 32 and 42 of the Printed Mass Media (Press) Act of 16 November 1992, as applied by the national courts in the applicants’ case.

42.  The Government further submitted that the interference had been aimed at protecting the honour, dignity and business reputation of a private person whose rights had been prejudiced by the publication at issue. According to them, this had been a legitimate aim within the meaning of Article 10 § 2 of the Convention, which the applicants did not deny.

43.  The Government argued that the publication had contained serious factual allegations directed against a prominent public figure who had contributed to the development of sports in . The applicants had failed to prove those allegations. The fact that they had reproduced the material obtained from a website had not been sufficient to relieve them of that obligation, as the legal status of information derived from the Internet had not been determined under the domestic law. Therefore, the Government stated that the interference had been necessary in the present case.

44.  They also submitted that the applicants had not actually been required to pay the compensation awarded by the courts to the claimant, as they had settled the matter at the stage of enforcement of the judgment of 7 May 2004. According to the Government, it had not been proved by the applicants that they had discontinued publishing their newspaper because of the interference at issue.

45.  Relying on the Court’s decision on admissibility in the case of Vitrenko and Others v. Ukraine ((dec.), no. 23510/02, 16 December 2008), the Government contended that the court’s order to apologise had not been contrary to the principles embodied in Article 10 of the Convention.

46.  On the above grounds, the Government stated that the impugned interference had not been disproportionate.

2.  The Court’s assessment

(a)  Whether there was an interference with the right to freedom of expression

47.  The Court observes that the publication at issue involved defamatory statements of fact. According to the findings of the civil courts, it was stated that a public figure, the President of the Ukraine National Thai Boxing Federation, was a member of an organised criminal group and “a coordinator and sponsor of murders”. The applicants had failed to show that those statements were true and the courts ordered them to publish a retraction and apology and to compensate the person concerned for the nonpecuniary damage caused by the publication.

48.  The Court considers that the courts’ decisions constituted an interference with the applicants’ right to freedom of expression.

49.  The Court reiterates that its task in exercising its supervisory function under Article 10 of the Convention is to look at the interference complained of in the light of the case as a whole and, in particular, to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This inevitably entails a review of the decisions taken by the courts at the domestic level, irrespective of whether any complaints have been raised concerning the courts’ compliance with the procedural guarantees under Article 6 of the Convention. Therefore, the Court dismisses the Government’s objection as to the applicants’ victim status.

50.  The Court will now examine whether the interference was justified under Article 10 § 2 of the Convention.

(b)  Whether the interference was prescribed by law

51.  The Court notes that the first and most important requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful: the first sentence of the second paragraph essentially envisages that any restriction on expression must be “prescribed by law”. In order to comply with this requirement, interference does not merely have to have a basis in domestic law. The law itself must correspond to certain requirements of “quality”. In particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007XI).

52.  The degree of precision depends to a considerable extent on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173). The notion of foreseeability applies not only to a course of conduct, of which an applicant should be reasonably able to foresee the consequences, but also to “formalities, conditions, restrictions or penalties”, which may be attached to such conduct, if found to be in breach of the national laws (see, mutatis mutandis, Kafkaris v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008...).

53.  Turning to the circumstances of the present case, the Court observes that the applicants’ submissions regarding the question of the lawfulness of the interference essentially concern two specific issues, namely, the alleged lack of clarity and foreseeability of the relevant legislative provisions concerning journalists’ specific safeguards and the alleged absence of legal grounds for an obligation to apologise in cases of defamation.

54.  As regards the latter issue, the Court observes that Ukrainian law provides that, in cases of defamation, injured parties are entitled to demand a retraction of untrue and defamatory statements and compensation for damage. Both measures were applied in the applicants’ case. However, in addition to those measures, the courts ordered the second applicant to publish an official apology in the newspaper. The Court observes that such a measure was not specifically provided for in the domestic law.

55.  The Court has already dealt with a similar situation in a case against . In that case it was prepared to accept that the interpretation by the domestic courts of the notions of retraction or rectification under the relevant legislation as possibly including an apology was not such as to render the impugned interference unlawful within the meaning of the Convention (see Kazakov v. Russia, no. 1758/02, § 24, 18 December 2008).

56.  However, in contrast to the aforementioned case, the present case contains no evidence or, at the least, a persuasive argument that Ukrainian courts were inclined to give such a broad interpretation to the legal provisions concerning the measures applicable in cases of defamation or that that was their general approach in such cases.

57.  The Court further observes that, despite the second applicant’s specific and pertinent complaints in that connection, the domestic courts failed to give any explanation for the obvious departure from the relevant domestic rules (see paragraph 17 above). The Government’s submissions in that regard did not clarify the issue either.

58.  As can be seen from the relevant domestic judicial practice, though subsequent to the events at issue, imposition of an obligation to apologise in defamation cases may run counter to the constitutional guarantee of freedom of expression (see paragraphs 27-28 above).

59.  In these circumstances, the Court finds that the court’s order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that regard.

60.  The Court observes that the publication at issue was a verbatim reproduction of material downloaded from a publicly accessible internet newspaper. It contained a reference to the source of the material and comments by the editorial board, in which they formally distanced themselves from the content of the material.

61.  Ukrainian law – specifically the Press Act – exempts journalists from civil liability for verbatim reproduction of material published in the press (see paragraph 25 above). The Court notes that this provision generally conforms to its approach to journalists’ freedom to disseminate statements made by others (see, for instance, Jersild v. , 23 September 1994, § 35, Series A no. 298, and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001III).

62.  However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection, the Court observes that there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in  did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet.

63.  It is true that the Internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.

64.  Nevertheless, having regard to the role the Internet plays in the context of professional media activities (see paragraphs 29-32 above) and its importance for the exercise of the right to freedom of expression generally (see Times Newspapers Ltd v.  (nos. 1 and 2), no. 3002/03 and 23676/03, § 27, 10 March 2009), the Court considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees of journalists’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention.

65.  The Court further observes that under Ukrainian law journalists cannot be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and verified the information, or if the injured party failed to use the available possibilities to settle the dispute before going to court (see paragraph 26 above). In the domestic proceedings, the applicants explicitly raised the defence of qualified privilege under the relevant legal provision. In particular, they argued that they had not acted with malicious intent to defame the claimant by publishing the material in question and that the public had an interest in receiving the information. Furthermore, they argued that by reproducing the material previously published on the Internet, their intention had been to promote debate and discussion on political matters of significant public interest. They also argued that the claimant had not taken any steps to settle the dispute with them despite the fact that in the same publication they had invited any person concerned to comment. Their plea was entirely ignored by the courts, however.

66.  The Court therefore finds that, given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail. This enables the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention was not met.

67.  In these circumstances, the Court does not consider it necessary to deal with the parties’ remaining submissions concerning this provision or to examine the proportionality of the interference at issue.

68.  Accordingly, there has been a violation of Article 10 of the Convention as regards this aspect of the case.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  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.  Submissions of the first applicant

70.  The first applicant submitted that the appropriate just satisfaction in this case would be a finding of a violation of Article 10 of the Convention and an indication of general measures to be adopted by Ukraine to bring its legislation and judicial practice into compliance with “European standards of freedom of expression” as regards the use of “socially important information, available on the Internet, the credibility of which is open to question.”

71.  The Government did not comment on this aspect of the case.

72.  Having regard to the circumstances of the present case and the conclusions the Court has reached under Article 10 of the Convention (see paragraphs 64-68 above), it does not consider it necessary to examine this case under Article 46 of the Convention with a view to indicating specific measures that might be taken in order to put an end to a violation found in the case (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court also notes that there is no call to award the first applicant any sum for just satisfaction.

B.  Submissions of the second applicant

1.  Damage

73.  The second applicant claimed 7,000 euros (EUR) for non-pecuniary damage.

74.  The Government contested the second applicant’s claim.

75.  The Court considers that the second applicant suffered some distress and anxiety on account of the violations of his right to freedom of expression. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards him EUR 6,000 in this connection.

2.  Costs and expenses

76.  The second applicant made no claim in respect of costs and expenses. Therefore, the Court makes no award under this head.

3.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to join to the merits the Government’s objection concerning the applicants’ victim status and rejects it;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 10 of the Convention on account of the domestic courts’ order to the second applicant to publish an official apology;

4.  Holds that there has been a violation of Article 10 of the Convention on account of the applicants’ punishment for the impugned publication;

5.  Holds

(a)  that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 5 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.